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2022 DIGILAW 1561 (KAR)

H M Shivappa v. Chandrappa

2022-12-06

M.G.UMA

body2022
JUDGMENT/ORDER 1. The plaintiffs are before this Court impugning the judgment and decree dtd. 15/7/2014 passed in RA No.53 of 2012 on the file of the learned Additional Senior Civil Judge and JMFC, Hunsur, sitting at Periyapatna (hereinafter referred to as 'the First Appellate Court' for brevity), whereunder, the judgment and decree dtd. 23/6/2012 passed in OS No.93 of 2007 on the file of the learned Civil Judge and JMFC at Periyapatna (hereinafter referred to as 'the Trial Court' for brevity) was set aside and the suit of the plaintiffs came to be dismissed by allowing the appeal. 2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court. 3. Brief facts of the case are that, the plaintiffs filed the suit OS No.93 of 2007 against the defendants for declaration that they are the absolute owners of the schedule property and for permanent injunction restraining the defendants and their men from interfering with their peaceful possession and enjoyment of the suit schedule property. The schedule property is described as 20 guntas of land in Sy.No.1/1A (Old No.1). 4. It is contended that plaintiff No.1 - Shivappa purchased the schedule property from defendant No.1 and his mother Akkamma under the registered sale deed dtd. 20/1/1969, which was sold to meet the family necessities and to repay the loan amount incurred by them. Since from the date of sale deed, the plaintiffs are in peaceful possession and enjoyment of the schedule property. Akkamma, the mother of defendant No.1 died and the other defendants are her legal representatives. The plaintiffs partitioned the properties belonging to their family and the schedule property had fallen to the share of plaintiff No.2. Defendant No.1 also signed the said partition deed. Since about 1 1/2 years earlier to filing of the suit, the defendants started interfering with the peaceful possession and enjoyment of the schedule property. On verifying the record of rights, the plaintiffs came to know that the defendants managed to enter the joint khata in their names along with the plaintiffs. Plaintiff No.1 filed an application to the Tahsildar concerned to enter his name in the khata. In the meantime, defendant Nos.2 to 4 filed the suit for partition before the Civil Court and therefore, the Tahsildar rejected the application filed by plaintiff No.1. Plaintiff No.1 filed an application to the Tahsildar concerned to enter his name in the khata. In the meantime, defendant Nos.2 to 4 filed the suit for partition before the Civil Court and therefore, the Tahsildar rejected the application filed by plaintiff No.1. It is stated that defendant No.1 with an intention to grab the valuable property belonging to the plaintiffs are trying to interfere with the possession and enjoyment. Therefore, the plaintiffs filed the suit for declaration and injunction in respect of the schedule property. 5. Defendant No.2 has filed his written statement denying the contention taken by the plaintiffs. It is denied that the plaintiffs purchased the suit schedule property under the registered sale deed dtd. 20/1/1969. It is contended that there is no cause of action for the suit and the plaintiffs are not entitled for the relief. It is stated that the schedule property bearing Sy.No.1/1A totally measures 5 acres 24 guntas and originally belonged to the grand father of the defendants. Since for last 40 years, it is standing in the names of the defendants. The mother of the defendants was not having any right title, or interest to sell the same. It is also stated that OS No.155 of 2005 was filed by defendant No.2 in respect of the schedule property and the same is still pending for consideration. Therefore, defendant No.2 prayed for dismissal of the suit. 6. On the basis of these pleadings, the Trial Court framed the following issues and additional issues for consideration: "1. Whether the plaintiffs prove that as on the date of suit, they were in lawful possession and enjoyment of the suit schedule properties? 2. Whether the plaintiffs prove the alleged interference of defendants over the suit schedule properties? 3. What order or decree? Additional issue framed on 12/8/2008: 1. Whether plaintiffs prove that they are the absolute owners of the suit schedule properties? Additional issue framed on 1/7/2009: 1. Whether the 2nd defendant proves that there are other legal heirs of deceased Akkamma to be impleaded as necessary and proper parties? Additional issue framed on 22/3/2012: 1. Whether the defendants prove that the suit is barred by limitation?" 7. The plaintiffs examined PWs.1 and 2 and got marked Exs.P1 to P12 in support of their contention. Defendant No.2 examined himself as DW1 and got marked Exs.D1 to D10 in support of his defence. Additional issue framed on 22/3/2012: 1. Whether the defendants prove that the suit is barred by limitation?" 7. The plaintiffs examined PWs.1 and 2 and got marked Exs.P1 to P12 in support of their contention. Defendant No.2 examined himself as DW1 and got marked Exs.D1 to D10 in support of his defence. The Trial Court after taking into consideration all these material on record, answered issue Nos.1 and 2 and additional issue No.1 framed on 12/8/2018 in the Affirmative. It is held that additional issue No.1 framed on 1/7/2009 does not arise for consideration and answered additional issue No.1 framed on 22/3/2012 in the Negative. Accordingly, the suit of the plaintiffs for declaration and permanent injunction was decreed with costs, declaring that the plaintiffs are the absolute owners in possession and enjoyment of the schedule property and restraining the defendants from interfering with their possession and enjoyment of the schedule property. 8. Being aggrieved by the same, the defendants preferred RA No.53 of 2012. The First Appellate Court on reappreciation of the materials on record, came to the conclusion that the plaintiffs are not entitled for the decree and therefore, allowed the appeal and set aside the impugned judgment and decree passed by the Trial Court and consequently, suit of the plaintiffs was dismissed. Being aggrieved by the same, the plaintiffs are before this Court. 9. Heard Sri K M Basavanna, learned counsel for the appellants and Sri Abubacker Shafi, learned counsel for respondent No.2. Perused the materials including the Trial Court records. 10. Learned counsel for the appellants contended that the Trial Court on proper appreciation of the materials on record came to the conclusion that the plaintiffs are the owners in possession and enjoyment of the schedule property and rightly decreed the suit as prayed for. But the First Appellate Court committed an error in ignoring the fact that defendant No.1 who is the executant of sale deed never filed the written statement. It is only defendant No.2 who is contesting the matter. The finding of the First Appellate Court is that the plaintiffs purchased the joint family property which was not divided by metes and bounds. Even though the sale deed refers to handing over the possession of 20 guntas of land, the First Appellate Court gone to the extent of saying that the possession of the plaintiffs is not proved since there are no revenue records. Even though the sale deed refers to handing over the possession of 20 guntas of land, the First Appellate Court gone to the extent of saying that the possession of the plaintiffs is not proved since there are no revenue records. The findings of the First Appellate Court that the defendants have obtained loan in respect of the schedule property and therefore, the plaintiffs are not entitled for any relief is erroneous. The conclusion arrived at by the First Appellate Court that the plaintiffs have not proved the possession of the schedule property is not supported by any material. The finding recorded by the First Appellate Court is against the oral and documentary evidence placed before the Court. Therefore, he prays for setting aside the judgment and decree passed by the First Appellate Court and to restore the judgment and decree passed by the Trial Court. 11. Per contra, learned counsel for respondent No.2 submitted that Ex.P11 is an admitted document. The boundaries mentioned in Ex.P11 does not tally with the boundaries mentioned in the plaint. Ex.P12 is an unregistered document. Therefore, the same cannot be considered. The Trial Court committed an error in decreeing the suit of the plaintiffs, but the First Appellate Court on proper appreciation of the materials on record assigned valid reasons for dismissing the suit of the plaintiffs. Learned counsel further submitted that Ex.P1 relates to larger extent of land measuring 11.20 acres, but the schedule property is only 20 guntas of land. Therefore, the plaintiffs cannot base their claim on Ex.P1. The plaintiffs have not produced any sketch to identify the schedule property. Since the First Appellate Court considered all the materials on record and arrived at a right conclusion, the impugned judgment and decree does not call for any interference. Therefore, he prays for dismissal of the suit with cost. 12. On considering the materials on record, this Court formulated the following substantial questions of law for consideration: "1. Whether the First Appellate Court committed an error in ignoring Ex.P11 - the registered sale deed and second proviso to Sec. 128 of the Karnataka Land Revenue Act, to form an opinion that the plaintiffs are not the owners of the schedule property? 2. Whether the First Appellate Court committed an error in ignoring Ex.P11 - the registered sale deed and second proviso to Sec. 128 of the Karnataka Land Revenue Act, to form an opinion that the plaintiffs are not the owners of the schedule property? 2. Whether the First Appellate Court committed an error in forming an opinion that the interference by the defendants are not proved, when defendant No.2 has denied the title and possession of the plaintiffs and claim right over the schedule property?" 13. The suit of the plaintiffs is for declaration of their right and for permanent injunction against the defendants. The plaintiffs relied on Ex.P11 - the sale deed dtd. 20/1/1969, whereunder, plaintiff No.1 purchased the schedule property i.e., 20 guntas of land in Sy.No.1/1A from defendant No.1 and his mother. There is no dispute with regard to execution of this sale deed. Defendant No.1 who is one of the executor of the sale deed has not contested the matter. Defendant No.1 or his mother have admittedly not challenged the sale deed - Ex.P11 till date. It is only defendant No.2 who is the brother of defendant No.1 who is contesting the suit. The only defence raised by defendant No.2 in the written statement is with regard to the authority of defendant No.1 and his mother to execute the sale deed. 14. It is also stated that he had filed the suit OS No.155 of 2005 against defendant No.1 and others including the plaintiff, seeking partition and separate possession of the properties owned by their family, including the schedule property. At the time of filing the written statement, it is stated that the said suit is still pending for consideration. Admittedly, the said suit came to be withdrawn vide order dtd. 22/8/2009 after decreeing the present suit by the Trial Court. There is no dispute with regard to these facts and circumstances. 15. Now the question arises as to 'whether the plaintiffs are entitled for declaration and injunction in respect of the schedule property?'. Plaintiff No.2 examined himself as PW1 and examined PW2 to prove their contention with regard to the ownership and possession of the schedule property. The original sale deed is produced as per Ex.P11 and the certified copy of the same is marked as per Ex.P1. Ex.P8 is the order dtd. Plaintiff No.2 examined himself as PW1 and examined PW2 to prove their contention with regard to the ownership and possession of the schedule property. The original sale deed is produced as per Ex.P11 and the certified copy of the same is marked as per Ex.P1. Ex.P8 is the order dtd. 30/3/2007 passed in RRT 1785 of 2005-06 by the Tahsildar, Periyapatna on the application filed by plaintiff Nos.1 and 2 seeking change of khata in respect of the schedule property, which was disputed by defendant Nos.1 to 4. The order discloses that the application filed by the plaintiff was rejected by the Tahsildar on the ground that the suit OS No.155 of 2005 filed by defendant No.2 is pending consideration. 16. Learned counsel for the respondents contended that revenue records are not standing in the name of the plaintiffs and therefore, declaration as sought for cannot be granted. It is pertinent to note that Ex.P10 is the RTC for the years 1972-73 and 1973-74. In Col No.12 of the RTC, the names of plaintiff No.2 and defendant No.1 are mentioned as cultivators. It is to be noted that as per second proviso to Sec. 128 of the Karnataka Land Revenue Act, any person acquiring the right by virtue of registered document is exempted from the obligation to report such acquisition of the property to the prescribed officer of the village. When admittedly, plaintiff No.1 purchased the property under the registered sale deed from defendant No.1 and his mother way back in the year 1969 and when the vendors have not raised their little finger about the sale deed and moreover, when defendant No.2 who is the contesting defendant has not taken any steps to seek either cancellation of the sale deed or declaration that the sale deed is not binding on him, he cannot dispute the ownership of the plaintiff. 17. It is the contention of the plaintiffs that there was a partition amongst the brothers as per Ex.P12 and the schedule property is allotted to the share of plaintiff No.2. This fact is supported by Ex.P10 and the entry found in Col.No.12. Therefore, I do not find any reason to reject the claim of plaintiff No.2 that he is the owner in possession of the schedule property. 18. This fact is supported by Ex.P10 and the entry found in Col.No.12. Therefore, I do not find any reason to reject the claim of plaintiff No.2 that he is the owner in possession of the schedule property. 18. It is the contention of the plaintiffs that the defendants are trying to interfere with their peaceful possession and enjoyment of the property. Defendant No.2 is denying the ownership of the plaintiffs over the schedule property and even the suit OS No.155 of 2005 was filed by defendant No.2 seeking partition of the schedule property. The evidence of PWs.1 and 2 with regard to the interference by the defendants remain unchallenged. Under such circumstances, the plaintiffs are entitled for the relief claimed by them. 19. The Trial Court on proper appreciation of the materials on record answered issue Nos.1 and 2 and additional issue No.1 dtd. 12/8/2008 in the Affirmative and the additional issue No.1 dtd. 22/3/2012 in the Negative. But the First Appellate Court on re-appreciation of the materials on record, recorded a finding that the plaintiffs have not proved the ownership and possession over the schedule property and accordingly, the appeal was allowed. The First Appellate Court took pains in comparing the boundaries mentioned in Ex.P1 with the boundaries mentioned in the schedule to form an opinion that the plaintiffs have not shown the exact boundaries. 20. It is pertinent to note that no such defence was raised by the defendants with regard to identification of the schedule property. When defendant No.2 categorically admits execution of the registered sale deed by the mother and brother and has not chosen to challenge the said sale deed, the findings of the First Appellate Court that the khata was not transferred in the name of the plaintiffs on the basis of registered sale deed, is perverse. The First Appellate Court misdirected itself to form an opinion that since there is no revenue entries nor no revenue records in the name of the plaintiffs, they are not entitled for declaration and injunction as sought for. The First Appellate Court completely ignored the registered sale deed - Ex.P11 and second proviso to Sec. 128 of the Karnataka Land Revenue Act in forming such an opinion. The First Appellate Court completely ignored the registered sale deed - Ex.P11 and second proviso to Sec. 128 of the Karnataka Land Revenue Act in forming such an opinion. If at all, defendant No.2 was serious in disputing the rights of the plaintiffs, he should have sought for a declaration that the sale deed - Ex.P11 is not binding on him. He has not chosen to do so for the reasons best known to him. Moreover, even though he filed the suit OS No.155 of 2005 seeking partition and separate possession of the schedule property, he has not chosen to pursue the same. But it came to be dismissed as not pressed. Under such circumstances, there is absolutely no legal defence taken by defendant No.2 to deny the right of the plaintiffs. 21. Therefore, I am of the opinion that the First Appellate Court committed an error in allowing the appeal and dismissing the suit of the plaintiffs. The finding recorded by the First Appellate Court is perverse and illegal. Hence, I answer the substantial questions of law in favour of the appellants and against the respondents. 22. In the result, I proceed to pass the following: ORDER (i) The appeal is allowed with costs. (ii) The judgment and decree dtd. 15/7/2014 passed in RA No.53 of 2012 on the file of the learned Additional Senior Civil Judge and JMFC, Hunsur, sitting at Periyapatna, is hereby set aside. (iii) The judgment and decree dtd. 23/6/2012 passed in OS No.93 of 2007 on the file of the learned Civil Judge and JMFC at Periyapatna, is hereby restored. Consequently, the suit of the plaintiffs is decreed. Registry to send back the Trial Court records along with copy of this judgment.