Chandrashekara Vs Jagadeesha

CHANDRASHEKARA, S/O EREGOWDA, HINDU, NOW AGED ABOUT 69 YEARS, R/OF DARIKONGALALE VILLAGE, MALLIPATTANA HOBLI, ARAKALAGUD TALUK, HASSAN DISTRICT-573102.

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…APPELLANT

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(BY SRI. T.C. SATHISH KUMAR, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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JAGADEESHA, S/O LATE MARIDYAVEGOWDA,

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HINDU, AGED ABOUT 52 YEARS, R/OF DARIKONGALALE VILLAGE, MALLIPATTANA HBOLI, ARAKALAGUD TALUK, HASSAN DISTRICT-573102.

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APPASWAMY,

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S/O LATE EREGOWDA,

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HINDU, AGED ABOUT 71 YEARS, R/OF DARIKONGALALE VILLAGE, MALLIPATTANA HOBLI, ARAKALAGUD TALUK, HASSAN DISTRICT.

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HC-KAR

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RAVIKUMARA,

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S/O LATE EREGOWDA, HINDU, AGED ABOUT 61 YEARS, R/OF DARIKONGALALE VILLAGE, MNALLIPATTANA HOBLI, ARAKALAGUD TALUK, HASSAN DISTRICT.

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…RESPONDENTS

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(BY SRI. PRASANNA V.R., ADVOCATE FOR R1; R2 AND R3 - SERVED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.08.2021 PASSED IN R.A.NO.17/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARAKALAGUD, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.01.2019 PASSED IN O.S.NO.268/2011 ON THE FILE OF THE II ADDITIONAL 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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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 earlier this Court had heard the matter in part. The learned counsel for the appellant in the previous occasion had sought time to place on record the judgments. The learned counsel in support of his contention relied upon the earlier judgment passed in O.S.No.50/2005, the order passed in R.A.No.418/2008 and also the order passed by this Court in R.S.A.No.2482/2011.

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This second appeal is filed against the concurrent

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finding.

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The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration, it is contented that earlier liberty was given by the High Court to file a suit for declaration of title and possession. It is contended that the suit schedule property originally belongs to the defendants father Eregowda. The grandfather of the plaintiff Siddegowda had purchased the suit schedule property by way of sale deed dated 29.03.1949 and he was in possession from the said date. The grandfather of the plaintiff was having three sons by name Siddegowda, Puttegowda and father of the plaintiff Maridyavegowda. The grandfather of the plaintiff died before 40 years. After the death of the grandfather of the plaintiff, the plaintiff’s father and his brothers partitioned the joint family properties about 30 years back and in the said partition, the suit schedule property fell to the share of the plaintiff’s father and he got right and possession over the suit schedule property. The other two sons of the plaintiff’s grandfather by name Siddegowda and Puttegowda have been

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died and they have no male children. The father of the plaintiff Maridyavegowda died 15 years back. After his death, the plaintiff, his two brothers namely Rajappa, Ganesha and his mother Nanjamma got divided the joint family properties at about 12 years back. In the said partition, the plaint schedule property was fallen to the share of the plaintiff and he got the right, title and possession. The khatha of the plaint schedule property still stands in the name of his grandfather Siddegowda. The defendants are in no way concerned with the rights and possession of the plaint schedule property. The defendant No.1 had filed the original suit before this Court in O.S.No.50/2005 for the relief of permanent injunction against the plaintiff and his brother by including the plaint schedule properties survey number and had given false boundaries. The said suit was decreed in favour of the defendants. The plaintiff herein had preferred an appeal in R.A.No.418/2018 and the same came to be dismissed and as against that order, second appeal was also filed. It is contented that when an attempt was made to interfere with possession of the property, the same was resisted.

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In pursuance of the suit summons, the defendants appeared and filed the written statement and pleaded their defence specifically denying the case of the plaintiff. It is contented that the suit itself is not maintainable. The father of the plaintiff Eregowda has sold 6 acres 26 guntas of land in 4 survey numbers in favour of the plaintiff’s grandfather Siddegowda by way of registered sale deed dated 29.03.1949 and the said Siddegowda was in possession of those properties till his death. After his death, the plaintiff’s father and his uncles succeeded to the said properties. The said three sons of Siddegowda by name Puttegowda, Siddegowda and Maridyavegowda in the year 1983 entered into an oral agreement of sale with the defendants and their father Eregowda with regard to the suit schedule property by fixing the consideration amount of Rs.2,000/- and received advance amount of Rs.1,500/- and agreed to receive remaining amount of Rs.500/- at the time of execution of sale deed and on 01.06.1983, delivered possession of the suit schedule property in favour of the defendants and his father Eregowda. It is contended that the defendants have been requesting the plaintiff’s father Maridyavegowda and his uncles Siddegowda

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and Puttegowda to execute the sale deed with regard to the suit schedule property as per oral agreement of sale by receiving remaining consideration amount of Rs.500/-. But the plaintiff’s father and his brothers adopted delaying tactics and died without executing sale deed as per the oral agreement of sale dated 01.06.1983. The defendants and their father have been in possession and the plaintiff's father Maridyavegowda and his brothers never asked for the possession of the suit schedule property at any time. The defendants since from 01.06.1983 have been in possession over the suit schedule property till 2011 and perfected their title against the plaintiff by way of adverse possession. The said fact is within the knowledge of the plaintiff and since from 01.06.1983, the plaintiff and his family members have lost the right, title and interest over the suit schedule property and hence the plaintiff is not entitled for any relief.

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The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence and additional issue was framed in view of the defence taken by the defendants that they have perfected their

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title over the suit schedule property by way of adverse possession. The Trial Court having considered both oral and documentary evidence available on record, answered issue Nos.1 to 4 in the affirmative and answered additional issue No.1 in the negative and did not accept the case of the defendants with regard to adverse possession is concerned. The Trial Court also taken note of the admission on the part of P.W.1, who categorically admitted that after the sale of the property, the grandfather of the plaintiff was in possession of the property till his death. The main contention of the defendants is that there was an oral sale agreement of the year 1983 and possession was delivered. But in order to substantiate the same, nothing is placed on record except selfstyled contention that there was a sale agreement and possession was delivered. For having paid the sale consideration as well as the delivery of possession, nothing is placed on record and hence additional issue was answered in the negative and granted the relief of declaration declaring that the plaintiff is the absolute owner of the property and also granted the relief of permanent injunction.

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Being aggrieved by the said judgment and decree, an appeal is filed in R.A.No.17/2019. The First Appellate Court having re-assessed both oral and documentary evidence available on record and also the grounds urged in the first appeal, formulated the points whether the Trial Court erred in holding that the plaintiff is the owner in possession of the suit schedule property, whether the Trial Court further erred in holding that the defendants are not in possession of the suit schedule property, whether the Trial Court further erred in holding that the defendants have not acquired title over the suit schedule property by adverse possession and whether it requires interference of the Court. The First Appellate Court having re-assessed both oral and documentary evidence available on record, answered all the point Nos.1 to 6 in the negative and confirmed the judgment of the Trial Court even though discussed with regard to the earlier judgment and confirmation and also the permission given to file a comprehensive suit for declaration. The First Appellate Court also taken note of admission on the part of P.W.1 and also considered that nothing is placed on record to show that possession was delivered on the date of oral agreement of sale

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and also taken note of the earlier pleading as well as finding in paragraph Nos.34 and 35 and categorically held that defendant No.2 had fraudulently concealed the fact of sale of the suit property and as such, the judgment and decree has been obtained by him in the said suit by playing fraud upon the Court and as such, the judgment and decree which is obtained by fraud is non-est and therefore, the defendants cannot seek any equity in this suit that the Trial Court ought to have given importance to the said judgment and decree and accepted the same and confirmed the judgment of the Trial Court dismissing the appeal.

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Being aggrieved by concurrent finding, the present

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second appeal is filed before this Court.

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The main contention of the learned counsel for the appellant is that the earlier judgment in O.S.No.50/2005 was in favour of the appellant against respondent No.1 herein granting the relief of permanent injunction and the same was affirmed in appeal and the Trial Court went out of the sight of both the orders passed earlier by the Courts below. The learned counsel would contend that in R.S.A.No., wherein so advised to seek

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declaration of title and possession, has not been warranted for transfer of possession without a specific decree for the same, even though the possession of the appellant herein has been affirmed in the earlier suit and appeal and hence this Court has to frame the substantial question of law that both the Courts failed to consider the earlier judgment and confirmation.

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Per contra, the learned counsel for respondent No.1 would vehemently contend that earlier suit was filed for the relief of permanent injunction, wherein it was not pleaded with regard to the sale deed executed by the appellant’s father and in the earlier suit pleaded with regard to having the possession as an ancestral property. Now in the present suit, it is pleaded that there is an oral agreement of the year 1983 and possession was delivered and the same was not pleaded in the earlier suit. For the first time, it is pleaded with regard to the agreement and the same is not produced and no document of proof regarding agreement is placed on record. The learned counsel also brought to the notice of this Court that admission was given by D.W.1 that immediately after the sale of the property in the year 1949, possession was delivered in favour

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of the grandfather of the plaintiff and till his death, possession was with him. When such admission is given by D.W.1 himself and when the witness, who has been examined before the Trial Court as P.W.3, who is none other than the brother of the defendant/appellant supports the case of the plaintiff, all these factors were taken note of by the Trial Court and the First Appellate Court and hence it does not require any interference.

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Having heard the learned counsel for the appellant and the learned counsel for respondent No.1, it is not in dispute that earlier a suit was filed in O.S.No.50/2025 by the appellant. It has to be noted that the pleading made in the earlier suit is that he is in peaceful possession and enjoyment of the suit schedule property and it is the very specific pleading in the written statement that the suit schedule property is the ancestral property of the appellant, which belongs to his grandfather Channabasavegowda, who was enjoying it during his lifetime. After his death, the property came to the ownership of the father of the plaintiff by name Eregowda @ Annajappa and as the said Eregowda was minor, this property was being enjoyed by his grandmother Puttamma and it was in

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her possession. After the plaintiff's father attained majority, khatha was changed in the name of the plaintiff's father Eregowda @ Annajappa and he has been in possession of the same and paying tax and all records are standing in the name of the plaintiff.

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Having taken note of these pleadings in the earlier suit, it is claimed that the property is an ancestral property and nothing is pleaded in the earlier suit with regard to the very execution of the sale deed by the grandfather of the appellant herein. Apart from that, in the earlier suit also, nothing is pleaded with regard to the possession based on the oral agreement. The earlier suit was filed in 2005 and according to the appellant, in the present suit, there was an oral agreement in the year 1983 and what prevented him from pleading the same in the earlier suit, there is no explanation. If really he was in possession based on the oral agreement, he could have pleaded the same, but afterthought a defence was taken that possession was delivered based on the oral agreement. In order to substantiate the oral agreement and having made the payment of Rs.1,500/as against Rs.2,000/sale

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consideration, nothing is placed on record. All these factors were taken note of by the Trial Court as well as the First Appellate Court while granting the relief.

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It is important to note that D.W.1 categorically admitted in the cross-examination that after the property was sold in favour of the grandfather of the plaintiff, possession was delivered and also categorical admission was given that possession was with the grandfather. In order to substantiate that possession was delivered based on oral agreement dated 01.06.1983, the appellant has not placed on record any material and these aspects were taken note of by the Trial Court in paragraph Nos.30, 31, 32 and 33 and comes to the conclusion that the earlier judgment and decree was obtained based on the pleading that it is an ancestral property and the same is in his possession. But now the learned counsel for the appellant would contend during the course of argument that though in the sale deed this particular survey number was mentioned, but there was no any sale and this argument is against the argument of defence which was taken before the Trial Court, wherein it is categorically contended that there is

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an oral agreement of sale dated 01.06.1983 and the same is not pleaded.

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The First Appellate Court, having re-assessed both oral and documentary evidence available on record, particularly in paragraph Nos.33, 34 and 35 comes to the conclusion that defendant No.2 had fraudulently concealed the fact of sale of the suit property and as such, the judgment and decree has been obtained by him in the said suit by playing fraud upon the Court and as such, the judgment and decree, which is obtained by fraud is non-est and therefore, the defendants cannot seek any equity in this suit that the Trial Court ought to have given importance to the said judgment and decree and accepted the same. Moreover, defendant No.2 had pleaded a false thing in the previous suit about the acquisition of suit property by him by way of succession and has now pleaded in this suit that he has obtained the property under sale agreement and as such, his claim cannot be believed in view of a latin maxim ‘falsus in uno, falsus in omnibus’ which means ‘false in one thing is false in everything’. These aspects were taken note of by the First Appellate Court and particularly in paragraph No.36 detailed

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discussion was made and with regard to possession also, once admitted that possession was given in the earlier sale deed. For having taken the possession based on the oral agreement, nothing is placed on record and hence the Trial Court and the First Appellate Court not committed any error in appreciating both oral and documentary evidence. Both the Courts having taken note of earlier pleading while obtaining the earlier judgment and decree and subsequent pleading, which is taken in the present suit, which is contrary to the case of the appellant, appreciated the same in a proper perspective. When factual aspect is taken note of as well as the question of law is also very clear that, earlier the grandfather of the appellant had executed the sale deed in respect of this property and there is a clear admission that possession was also delivered and in order to substantiate that subsequent sale agreement is the criteria for possession is concerned, not placed any cogent material and hence I do not find any ground to admit the appeal and frame any substantial question of law and hence not a case to invoke Section 100 of CPC.

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