Smt Bhagya Vs P Vijaya Kumar

ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.01.2019 PASSED IN OS No.1132/2011 ON THE FILE OF THE IV ADDITIONAL I CIVIL JUDGE AND JMFC, MYSORE.

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IN RSA NO. 474/2023

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BETWEEN:

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SMT BHAGYA W/O LATE B T THAMMANNA, AGED ABOUT 59 YEARS,

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YADUKUMAR S/O LATE B.T THAMMANNA, AGED ABOUT 38 YEARS,

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SMT. T. SHOBHA D/O LATE B.T. THAMMANNA, AGED ABOUT 35 YEARS,

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MADHU KUMAR S/O LATE B T THAMMANNA, AGED ABOUT 35 YEARS,

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ALL ARE R/AT NO.2465, 4^TH MAIN, 4^TH CROSS, VINAYAKANAGAR, DEVARAJ MOHALLA, MYSURU.

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...APPELLANTS

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(BY SRI. SANGAMESH R.B., ADVOCATE)

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HC-KAR

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AND:

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P VIJAYA KUMAR

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S/O LATE H V PAPANNA, AGED ABOUT 54 YEARS, R/AT NO.166, 3^RD MAIN, 8^TH CROSS, 2^ND STAGE, BOGADI NORTH, MYSURU.

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JAGADEESHA

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S/O NARASEGOWDA, AGED ABOUT 63 YEARS, R/AT NO.2233, NEAR MARUTHI TENT HOUSE, JANATHA NAGAR, BOGADI II STAGE, MYSURU.

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SHIVANNA S/O MARISINGAIAH, AGED ABOUT 66 YEARS, R/AT 2472, 4^TH CROSS, PADUVARAHALLY, VINAYAKANAGAR, MYSURU.

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...RESPONDENTS

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(BY SRI. P. MAHESHA, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 05.09.2022 PASSED IN RA.No.487/2019 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 31.01.2015 PASSED IN OS No.1132/2011 ON THE FILE OF THE IV ADDITIONAL I CIVIL JUDGE AND JMFC, MYSORE.

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NC: 2025:KHC:35948 RSA No. 430 of 2023 C/W RSA No. 474 of 2023

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri. Sangamesh R.B., learned counsel for the appellants and Sri. P. Mahesha, learned counsel for the respondents.

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Unsuccessful plaintiffs are the appellants in both these appeals challenging the dismissal of their suit and decreeing the counterclaim made by the defendants granting in order of permanent injunction.

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Facts in the nutshell which are utmost necessary for disposal of the present appeals are as under:

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Plaintiffs filed a suit in O.S. No.1132/2011 in respect of the following immovable property (hereinafter referred to as 'suit schedule property'.)

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HC-KAR

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SCHEDULE

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The property bearing No.1510, measuring East to West : 30 Feet and North to South : 40 feet, total 1200 sq.ft., situated at Bhogadi Village, Kasaba Hobli, Mysuru Taluk, carved out of Sy.No.199, measuring 33.08 guntas, bounded on :

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East by	:	Site bearing No.1511,
West by	:	Site bearing No.1509,
North by	:	Site bearing No.1516,
South by	:	Road.

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Plaintiffs claim that there was a registered partition deed registered on 07.11.2001 whereby the original plaintiff acquired the right, title and interest in respect of the suit property bearing Sy.No.199 to an extent of 33.08 guntas situated Bhogadi Village, Kasaba Hobli, Mysuru Taluk.

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It is the further contention of the plaintiff that he formed the sites in the said land and one site bearing No.1510 is the subject matter of the present suit.

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HC-KAR

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Plaintiff contended that he is in physical

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possession and enjoyment of the suit property from the date of partition effecting change of the khata and other revenue documents into his name and has paid up to date taxes to the Government.

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Plaintiff also contended that in the year 2002, plaintiff had filed a suit against one Akkamma and Saroja in O.S. No.987/2002 for relief of permanent injunction which on contest, came to be decreed on 05.10.2007.

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In respect of the other persons namely Shanthalakshmi, Savithri, Saroja, the plaintiff filed one more suit in O.S. No.184/2006 which also got decreed on contest.

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It is further contended that the defendants in the suit have no right, title or interest in respect of suit property and started interfering with the peaceful possession of the suit property whereby the suit came to be filed.

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HC-KAR

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Pursuant to the suit summons, first defendant appeared before the Court and filed detailed written statement contending that father of the plaintiffs namely Late Bandi Gowda and his brothers namely D. Lingappa, Chikkanna and Giddanna's son by name Narasimha and Narayana have sold the suit property to third defendant for a valuable consideration of Rs.3,100/- through an unregistered sale deed dated 19.02.1982 and put the third defendant in possession of the suit property.

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Plaintiff was an attesting witness to the said sale deed and MUDA has issued notice to third defendant for payment of the penalty in respect of the suit property, but third defendant failed to make the penalty amount to the MUDA due to financial constraints. Third defendant continued in possession and enjoyment of the suit property till 01.08.1994 and third defendant sold the suit property to second defendant through another unregistered sale deed dated 01.08.1994 and put the second defendant into possession of the suit property.

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HC-KAR

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Second defendant constructed an AC sheet

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house in suit property, but he could not pay the penalty to MUDA. As such, second defendant again sold the suit property to the first defendant by way of yet another unregistered Sale Deed dated 05.03.2004 and from that date, he is in possession of the suit property and he has put up the compound wall on the front side of suit property and fixed a gate.

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First defendant demolished the old sheet AC sheet house and commenced the earth work for construction of a bigger house. On 26.07.2011, when the earth work was in progress, plaintiff tried to interfere with the construction work and which was resisted by the first defendant.

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Defendant filed a complaint to the police and police after receipt of the complaint, advised the parties to approach the Civil Court and therefore the suit of the plaintiff needs to be dismissed.

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HC-KAR

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Learned Trial Judge raised necessary issues.

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Written statement got amended wherein the defendant made a counterclaim of injunction and issues were recasted and additional issues were raised.

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Learned Trial Judge after recording the evidence of the parties and dismissed the suit of the plaintiff and dismissed the suit as well as the counterclaim.

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Being aggrieved by the same, plaintiff filed an appeal in R.A.No.548/2019 and defendant filed Cross appeal denying the counter claim in R.A.No.487/2019.

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Learned Judge in the First Appellate Court after securing the records heard the arguments of the parties and re-appreciating the oral and documentary evidence placed on record and the legal aspects, confirmed the dismissal of the suit filed by the plaintiff but granted the decree of permanent injunction and allowed the appeal of the defendant in R.A.No.487/2019.

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HC-KAR

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Being aggrieved by the same, these two appeals are filed by the plaintiff on the following grounds and substantial questions of law:

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GROUNDS IN RSA NO.430/2023

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The trial court has failed to appreciate that plaintiffs have proved their title and possession in respect of their suit schedule site on the basis of oral documentary evidence, and trial court has therefore erred in dismissing the suit. The appellate court having confirmed the same has also committed an error.

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The appellants submit that trial court and appellate court have failed to appreciate that plaintiff has produced several documents to show his possession over the suit schedule property. On the other hand, the defendants are claiming their rights and possession on the basis of unregistered document which cannot be accepted in evidence. Hence, dismissal of the suit and dismissal of appeal filed by the appellant is erroneous and liable to be set aside.

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Plaintiffs/appellants beg to seek leave of this Hon'ble court to urge additional grounds at the time of hearing the arguments.

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HC-KAR

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SUBSTANTIAL QUESTION OF LAW IN RSA NO.430/2023:

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1. Whether the trial court and appellate court have failed to consider the documents produced by the plaintiffs with regard to their possession, such as registered partition deed, tax paid receipt, mutation register extract etc.?

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2. Whether the courts below have failed to consider

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earlier judgment passed in OS 987/2007 in OS 184/2006 filed by the plaintiffs which were decreed in favour of the plaintiff?

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3. Whether the trial court and appellate court have erred in considering the unregistered documents sale deed produced by the defendant?

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GROUNDS IN RSA NO.474/2023

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The trial court has failed to appreciate that plaintiff has proved the title which is even otherwise admitted by the defendant. Therefore, the trial court ought to have decreed the suit filed by the plaintiff for injunction.

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The appellant further states that the appellate court has again failed to appreciate that the defendant is claiming on the basis of three unregistered sale deeds. Infact, the perusal of the 1" document claimed by the defendant dated 19.2.82 is not even a unregistered

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HC-KAR

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sale deed, it is only a sale agreement. Hence, the defendant has not made out a case. The appellate court without properly appreciating the same has allowed the appeal.

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Appellant submit that he begs to seek relief of this Hon'ble court to urge additional grounds at the time of hearing the matter.

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SUBSTANTIAL QUESTION OF LAW IN RSA NO.474/2023

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(1) Whether the trial court and appellate court have erred in considering the documents produced by the plaintiff to show his possession such as registered partition deed, MR extract and tax paid receipts?

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(2) Whether the appellate court has failed to appreciate that the defendants relying upon unregistered document is entitled for any relief claiming to be the owner of the property under defective documents?

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Sri. Sangamesh R.B. learned counsel for the

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appellant reiterating the grounds urged in the Appeal memorandum contended that dismissal of the suit of the plaintiff believing the probative value of the unregistered sale deed has resulted in miscarriage of justice and sought for admitting the appeal.

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HC-KAR

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In RSA No.474/2023, learned counsel would retreating the grounds urged in the appeal memorandum contended that in a suit filed by the plaintiff, learned Trial Judge rightly dismissed the counterclaim; but learned Judge in the First Appellate Court while allowing the R.A. No.487/2019, has wrongly decreed the counterclaim solely on the probative value of the unregistered sale deeds marked at Exs.D2, D3 and D4 has resulted in grave miscarriage of justice and sought for admitting the appeal.

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Per contra, Sri. P. Mahesha, learned counsel for the respondents in both the cases, contended that father of Thimmana namely Bandi Gowda had executed a sale deed in favour of third defendant and put the third defendant in possession of the property.

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He also emphasised that Thimmanna was a witness to the said sale deed and therefore Thimmanna ought to have sought for cancellation of the unregistered

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HC-KAR

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sale deed within three years from the date of the

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execution of the sale deed.

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Further, third defendant sold the property in the year 1994 in favour of second defendant again by an unregistered sale deed. Second defendant in turn sold the property to the first defendant on 05.03.2004 again by an unregistered sale deed.

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Therefore, the possession delivered by Bandi Gowda in favour of third defendant and third defendant putting the second defendant in possession of the suit property, in turn second defendant putting the first defendant into the possession of the property has been rightly appreciated by the learned Judge in the First Appellate Court while dismissing the suit of the plaintiff and decreeing in the counterclaim of the first defendant and thus sought for dismissal of the appeal.

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Having heard the arguments of both sides in the light of grounds and the substantial questions of law

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HC-KAR

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raised in both the appeal, this Court perused the material

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on record meticulously.

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On such perusal, suit in O.S.No.1132/2011 was initially filed by Thammanna. During the pendancy of the suit, he died and his legal representatives were brought on record.

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It is pertinent to note that as per Ex.D1, which is registered partition deed executed by Thammanna, his wife and children, suit property has fallen to the share of Sri. Madhu Kumar, who is one of the sons of Thammanna. Admittedly, when the registered partition deed has taken place on 27.05.2009 suit filed by the Thammanna against the defendants itself was not maintainable inasmuch as it was Madhu Kumar who was supposed to file the suit. Thammanna suppressing the Ex.D1, which is a registered partition deed executed by him along with his wife and children dated 27.05.2009 itself exposes the hollowness in the claim of the plaint. After death of Thammanna, no

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HC-KAR

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doubt his wife and children have been impleaded as legal representatives of the suit property. Admittedly, in respect of the suit property, neither Bhagya, Yadhu Kumar and Shoba did not possess any right in view of Ex.D1. As such,

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very filing of the suit by Thammanna itself was not maintainable in view of Ex.D1. What made Thammanna to suppress the registered partition deed dated 27.05.2009 marked at Ex.D1 is a question that remains unanswered.

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Further, when there is a sale made by Bandi Gowda in favour of third defendant way back in the year 1982, it binds Thammanna being the son of Bandi Gowda.

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No doubt, the sale in favour of third defendant by Bandi Gowda in the year 1982 is an unregistered sale deed. Therefore the Courts are precluded from considering the probative value of the unregistered sale deed which of the year 1982.

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But fact remains that Bandi Gowda had put third defendant in possession of the suit property who in

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HC-KAR

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turn put the second defendant in suit property by an unregistered sale deed and second defendant in turn put the first defendant in possession of the suit property again by an unregistered sale deed. But all these sale deeds are unregistered sale deeds.

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However, fact remains that the possession of the properties are based on unregistered sale deeds, but it refers to a situation where Bandi Gowda himself at lost the possession over the suit property way back in the year 1982 and from that day onwards, neither Thammanna nor any of the other plaintiffs were in possession of the suit property.

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There is a specific contention in the written statement that when earth work was commenced by the first defendant on 26.07.2011 there was a resistance for the first time from Thammanna and first defendant approached the jurisdictional police who in turn driven the parties to the Civil Court.

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HC-KAR

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At that juncture in view of Ex.D1, if at all if

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anybody had the right to stop the construction by the first defendant, it was Madhu Kumar who is the son of Thammanna in view of Ex.D1. Madhu Kumar did not file any suit and it is the Tammanna who filed the suit and after his death, Madhu Kumar is brought on record as a legal representative of Thammanna and not in his individual capacity.

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In other words, Madhu Kumar being the owner of the suit property under Ex.D1, which is a registered document did not exercise his independent right in respect of the suit property in the year 2011.

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Anyway it is for the parties to work out their remedy in accordance with law insofar as the possession of defendants under unregistered sale deed of the first defendant executed by second defendant is concerned.

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Fact remains that first defendant is in possession of the suit property and there was an

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HC-KAR

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interference as could be seen from first defendant approaching the police and police relegating the parties to the Civil Court.

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Therefore, grant of injunction by the First Appellate Court by allowing the appeal filed by the first defendant in respect of the rejection of the counterclaim seeking grant of injunction is thus justified.

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Insofar as the dismissal of the plaintiff suit is concerned, in view of the foregoing discussion, this Court does not find any good grounds to admit the appeal further in respect of the substantial questions of law raised in RSA No.430/2023 or RSA No.474/2023.

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