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2013 DIGILAW 852 (KAR)

H. Nagarajappa v. Purandarappa

2013-07-29

S.N.SATYANARAYANA

body2013
JUDGMENT 1. The unsuccessful plaintiffs in O.S.401/2004 on the file of Prl. Civil Judge (Jr.Dn.), Shimoga have come up in this second appeal impugning the concurrent finding of both the Courts below in rejecting their prayer for declaration and permanent injunction. 2. In these proceedings, parties are referred to by their rank in the original suit for their convenience. 3. The brief facts leading to this second appeal are as under:- Plaintiffs 1 and 2 are the sons of late Huchurayappa. According to them, their father Huchurayappa sold an extent of 1 acre of land in Sy.No.96/2 in favour of defendant in original suit under a registered sale deed dated 19.8.1968, wherein the total extent of land in Sy.No.96/2 is 2 acres 16 guntas. It is also stated that though 1 acre was sold in favour of defendant he never took possession of the same. Sale deed was not acted upon and plaintiff's' father continued to be in possession of suit schedule property until his death in the year 1990. Thereafter, there was a partition in the family of plaintiffs, wherein each of the plaintiffs have taken 1 acre 8 guntas in total extent of 2 acres 16 guntas available in the land bearing Sy.No.96/2. According to them, revenue entries are also effected pursuant to the partition, which has taken place in the year 1995. 4. It is further stated that subsequently in the year 2004, based on the sale deed dated 19.8.1968, an extent of 1 acre purchased by defendant is mutated to his name. Hence, suit in O.S.401/2004 is filed by the plaintiffs contending that the sale deed dated 19.8.1968 in favour of defendant was not acted upon. Though the said sale deed was executed by their father, possession continued with them right from the date of sale deed till filing of the suit and still continues with them, as such, they should be declared as owners and decree of permanent injunction be granted against defendant. In the said suit, defendant entered appearance, denied possession of plaintiffs over the suit schedule property and contended that though the sale deed is executed in his favour, the mutation was not effected to thereby barring all his rights over the suit schedule property. 5. In the original suit, based on the pleadings in all 7 issues were framed. In the said suit, defendant entered appearance, denied possession of plaintiffs over the suit schedule property and contended that though the sale deed is executed in his favour, the mutation was not effected to thereby barring all his rights over the suit schedule property. 5. In the original suit, based on the pleadings in all 7 issues were framed. Four of them regarding the plea raised in the original suit that the sale deed dated 19.8.1968 was not acted upon, plaintiffs being in possession of 1 acre of land in Sy.No.96/2 openly, continuously and notoriously to the knowledge of the defendant and thereby perfecting their right and title against the defendant adverse to his rights and that his alleged interference to their enjoyment by the defendant, are all answered in the negative. So far as the issues based on the defense regarding suit being barred by limitation, whether nature of the suit being proper and also the issue regarding valuation are all answered in favour of defendant and against plaintiffs. The trial Court refused to accept the continuous possession of plaintiffs and their father in respect of 1 acre of land in Sy.No.96/2 which was subject matter of sale deed dated 19.8.1968. 6. The plaintiffs having lost in the original suit, preferred an appeal in R.A.No.156/2009 on the file of District Judge, Fast Track Court, Shimoga, wherein on appreciation of pleadings, oral and documentary evidence, without reference to the finding of the trial Court, the lower appellate Court answered the points framed for consideration in favour of defendant in the original suit and against the plaintiffs, who are appellants in the said proceedings. 7. In effect, both the Courts refused to accept that plaintiffs are in possession and enjoyment of the suit property right from 1968 till the date of filing of suit and that they have perfected their title to the suit schedule property as against the defendant who is admittedly purchaser of suit schedule land for valuable consideration under sale deed dated 19.8.1968. Being aggrieved by the concurrent finding of both the Courts below, this second appeal is filed. 8. Heard the learned counsel for the appellants regarding admission. Perused the judgment of both the Courts below. Being aggrieved by the concurrent finding of both the Courts below, this second appeal is filed. 8. Heard the learned counsel for the appellants regarding admission. Perused the judgment of both the Courts below. On going through the evidence, issues and points for consideration on facts, it is seen that plaintiffs have miserably failed to establish either possession or continuous enjoyment of the suit property adverse to the title and interest of the plaintiffs right from 1968 till the date of filing of the suit. When there is a clear-cut finding on facts by both the Courts below, this Court find no grounds are available to frame any substantial question of law to assail the same. 9. In that view of the matter, second appeal filed by the plaintiffs in O.S.401/2004 on the file of Prl. Civil Judge (Jr.Dn.), Shimoga is hereby dismissed. Consequently, the judgment of both the Courts below is hereby confirmed.