Kusuma Vs Jayashankara

AGAINST THE JUDGMENT AND DECREE DATED 07.09.2023 PASSED IN R.A.NO.15/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARAKALGUD, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.06.2018 PASSED IN O.S.NO.248/2006 ON THE FILE OF THE CIVIL JUDGE AND JMFC, ARAKALGUD.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission and I have heard learned counsel appearing for the appellants and learned counsel appearing for the respondents.

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This appeal is filed against the concurrent finding of

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the Trial Court and the First Appellate Court. It is the case of the plaintiffs before the Trial Court that suit schedule properties originally belongs to Basamma and she has purchased the same through registered sale deed on 04.05.1944 from its earlier owner Srikantaiah. Then, she has become the absolute owner and in possession over the suit schedule properties in Re.No.129/10 to the extent of 1 acre, 2 guntas and re-survey No.129/4(a) to the extent of 1 acre, 11 guntas. Thereafter, the sons of deceased Basamma by name Puttaswamy and Virabadrappa have been in possession and enjoyment of the said properties. They have executed a registered mortgage in favour of Shanavinakuppe Channappa @ Kariyappa on 26.12.1964 in Re.Sy.No.129/10 to the extent of 1 acre, 2 guntas. Then after, sons of Basamma have entered into oral

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partition and schedule properties fallen to the share of Virabadrappa and the said Virabadrappa executed registered sale deed on 23.04.1970 in favour of Channappa @ Kariyappa and then, he has become owner of the schedule properties in respect of re-survey No.129/10 was made a durasth and new numbers as re-survey No.129/10(a) to the extent of 0-21 guntas and 129/10(b) to the extent of 0-21 guntas. The said Virabadrappa got a share of 0-29 guntas in Re. Sy.No.129/4(a) out of 1 acre, 11 guntas. The Channappa @ Kariyappa is absolute owner and in possession of the suit schedule properties. After his death, his son by name Channappa, S/o. Channappa @ Kariyappa had been in possession and enjoyment of the suit schedule properties. The Channabasappa @ Kariyappa executed a registered sale deed dated 13.07.2006 in favour of the plaintiffs over the suit schedule properties and then after these, plaintiffs are in possession and enjoyment of the same. These defendants have no right over the suit schedule properties, but they are interfering with possession. Hence, sought for the relief of declaration and injunction.

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In response to the suit summons, defendants

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appeared and filed written statement denying the plaint averments. But, defendants contend that sale deed dated 04.05.1944 was in favour of Basamma is correct, the said Basamma, W/o. Eregowda has acquired title over the properties on the strength of the registered sale deed, who is the mother of these defendants, the name of father of the defendants is not Sanna Erappa. The plaintiffs have given a false/incorrect name and correct name of the defendants is Erappa. The original sale deed was also lost long back when the father had taken loan in P.L.D bank and also while reconstructing the house, these plaintiffs are not related to those defendants. The revenue records are not binding on these defendants and the plaintiffs have no title or possession over the properties and further took a contention that vendor of the plaintiffs by name Channappa @ Kariyappa has no right, title or interest to sell the properties. But khatha stands in the name of the grand-mother of these defendants. It is contented that in view of father of these defendants-Shanthaveerappa had filed a regular appeal before the Assistant Commissioner at Sakaleshpura sub-division in R.A.No.62/2006-07, the said

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appeal was allowed on 15.03.2007 and khatha has been cancelled and the said Channappa has not preferred any appeal against the said order. Hence, Channappa had no valid right, title or interest over the suit schedule properties. Therefore, prayed the Court to dismiss the same.

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The plaintiffs, in order to prove their case, examined plaintiff No.2 as P.W.1 and also examined one witness as P.W.2 and got marked the documents as Exs.P1 to P30. On the other hand, defendant No.1 examined himself as D.W.1 and got marked the documents as Exs.D1 to D8.

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The Trial Court having considered both oral and documentary evidence available on record, particularly the sale deeds, comes to the conclusion that plaintiffs have proved that they are the owners in possession of the suit schedule properties. The Trial Court also considering the defence which was taken and also the answer elicited from the mouth of the witnesses, comes to the conclusion that an attempt is made to interfere with possession of the properties of the plaintiffs and plaintiffs also proved title as well as possession and taken note of the conduct that an appeal was filed before the Assistant

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Commissioner and in order to protect the possession and enjoyment over the suit schedule properties, the vendor of the plaintiffs has also deposed before the Court that plaintiffs are in possession over the suit schedule properties. Hence, considering the same, the Trial Court answered issue Nos.1 and 2 as ‘affirmative’. The very contention that suit is barred by limitation is answered as ‘negative’ and granted the relief of declaration and permanent injunction.

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Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.15/2018. The First Appellate Court also having considered the material available on record formulated the point whether the Trial Court committed an error and it requires interference. The First Appellate Court also having reassessed the material available on record, particularly taking note of the documentary evidence i.e., sale deeds and also the admission on the part of D.W.1 during the course of crossexamination that Channappa @ Kariyappa is no more and the property owned by him is devolved upon his son Channappa and the said Channappa on 13.02.2006 sold the property in

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favour of the plaintiffs and as per the said sale deed, the plaintiffs have acquired the right over the suit schedule properties and considering the admission along with the documentary evidence, comes to the conclusion that Trial Court has not committed any error and dismissed the appeal. Being aggrieved by the concurrent finding of both the Trial Court and the First Appellate Court, the present second appeal is filed before this Court.

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The main contention of learned counsel appearing for the appellants before this Court is that both the Courts have committed an error in decreeing the suit of the plaintiffs though the vendor’s title is not proved. The counsel also would vehemently contend that granting of relief of permanent injunction without proving possession of plaintiffs over the suit schedule properties is erroneous and the counsel would further contend that appellants are in possession of the suit schedule properties. The counsel would further contend that before the First Appellate Court also, the appellants were given permission to adduce additional evidence by allowing I.A.No.3 and an opportunity was given to the learned counsel for the

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defendants to examine the witness and accordingly, D.W.3 was examined before the Court. Further, the counsel would contend that, in order to prove the factum that appellants are in possession of the property, nothing is placed before the Trial Court.

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During the course of argument also, the counsel would submit that no document is produced to evidence the fact of possession is concerned and both the Trial Court as well as the First Appellate Court considered the sale deed, particularly Ex.P27 and also RTCs-Exs.P13 to P26 and mutation register extracts as Exs.P11 and P12 and comes to the conclusion that possession of the plaintiffs is also established, apart from title. When such reasoning is given by the Trial Court as well as the First Appellate Court considering both oral and documentary evidence and unless perversity is found in considering the material available on record, question of admitting the second appeal and framing any substantial question of law does not arise and both the Courts have taken note of question of fact and question of law. Hence, I do not

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