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2023 DIGILAW 291 (KAR)

Huchhamma v. Ramachandrappa Son of Late Bheemappa

2023-02-17

M G UMA

body2023
JUDGMENT/ORDER M G Uma, J. - Defendant Nos.2 to 4 are before this Court being aggrieved by the judgment and decree dated 15.07.2022 passed in RA No.6 of 2021 on the file of the learned Senior Civil Judge and JMFC, Channagiri (hereinafter referred to as 'First Appellate Court' for brevity), allowing the appeal with cost and setting aside the judgment and decree dated 08.01.2021 passed in OS No.40 of 2016 on the file of the learned II Additional Civil Judge and JMFC, Channagiri (hereinafter referred to as 'the Trial Court' for brevity), and decreeing the suit of the plaintiff by directing the defendants to hand over the vacant possession of the suit schedule property within one month and restraining them from interfering with the peaceful possession and enjoyment of remaining 30 guntas of land in the schedule property. 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 plaintiff filed the suit OS No.40 of 2016 against the defendants seeking direction against them to vacate and hand over the farmhouse situated on the northern side of the suit schedule property and for grant of permanent injunction restraining them from interfering with the possession and enjoyment of the entire suit schedule property. The schedule appended to the plaint describes the land bearing Sy.No.189/4 measuring 1 acre 7 guntas, Kattalagere Village, Channagiri Taluk, Davangere District, with a small farmhouse measuring 15x13 feet with red tiled roofing, situated on the northern side of the agricultural land, with the boundaries mentioned therein. 4. It is contended by the plaintiff that he is the absolute owner in possession of 1 acre 7 guntas of land fully described in the schedule and he had constructed the farmhouse which is referred to in the schedule. The defendants who are the relatives of the plaintiff requested him to permit them to reside in the farmhouse for a period of two years and they promised to vacate and handover the possession of the farmhouse within the said period. Therefore, the plaintiff permitted the defendants to reside in the farmhouse on humanitarian grounds. 5. It is contended that the defendants started showing hostile attitude towards the plaintiff after expiry of two years. They failed to vacate the premises as promised. Therefore, the plaintiff permitted the defendants to reside in the farmhouse on humanitarian grounds. 5. It is contended that the defendants started showing hostile attitude towards the plaintiff after expiry of two years. They failed to vacate the premises as promised. They started interfering with the agricultural activities in respect of rest of the schedule property, where the plaintiff used to grow paddy crop. During last week of January 2016, the defendants made an attempt to prevent the plaintiff from carrying on the agricultural work. Therefore, the plaintiff filed the suit against the defendants seeking the relief as stated above. 6. Defendant No.3 filed the written statement denying the contentions taken by the plaintiff. It is admitted that the plaintiff and defendants are the relatives but disputed the ownership of the plaintiff. It is submitted that late Ramappa had four sons. The first son is late Krishnappa, the husband of defendant No.1. The other children are late Huliyappa, late Thimmappa and Bhimappa who is the father of the plaintiff. During the life time of Ramappa, he was owning the schedule property and after his death, the revenue records changed in the name of Bhimappa and he was managing the family as Kartha. 7. It is contended that on 02.08.1991, the father of the plaintiff executed saguvali kararu patra in respect of northern 10 guntas, out of 1.5 acres in Sy.No.189/4 in favour of Krishnappa, the husband of defendant No.1. As per the recitals found in the saguvali kararu patra, Krishnappa and his wife Gangamma were declared to have right to enjoy the property during their life time. Accordingly, Krishnappa was in peaceful possession and enjoyment of the said 10 guntas of land and he constructed the residential house, where the defendants are residing. After the death of Krishnappa, defendant Nos.1 to 4 continued to be in possession and enjoyment of the schedule property. It is further contended that after death of Bhimappa, the plaintiff got mutated his name in the revenue records by suppressing the grant of 10 guntas of land with house property. The defendants have paid the land revenue from 1990 onwards. They have planted trees and growing vegetables. It is also contended that plaintiff and his father were never in possession of the said 10 guntas of land from 02.08.1991. The suit is barred by limitation as the defendants are in possession since that date. The defendants have paid the land revenue from 1990 onwards. They have planted trees and growing vegetables. It is also contended that plaintiff and his father were never in possession of the said 10 guntas of land from 02.08.1991. The suit is barred by limitation as the defendants are in possession since that date. Therefore, defendant No.3 prayed for dismissal of the suit with cost. 8. Defendant No.1 filed a memo adopting the written statement filed by defendant No.3. 9. On the basis of these pleadings, the Trial Court framed the following issues as under: 1. Whether the plaintiff proves that he has given the suit farm house to an extent of 15x13 to the defendants in the year 2012 to reside on humanitarian grounds? 2. Whether the defendants prove that out of the suit schedule property to an extent of 10 guntas has been given to them by way of sagivali kararu patra by father of plaintiff? 3. Whether the plaintiff is entitled for the recovery of possession and permanent injunction with respect to suit schedule farm house? 4. What order or decree?" 5. Whether the plaintiff is entitled for the reliefs as sought for? 6. What order or decree?" 10. The plaintiff examined himself as PW1 and got marked Exs.P1 to P4 in support of his contention. Defendant No.3 examined herself as DW1 and got marked Exs.D1 and D2 in support of her defence. The Trial Court after taking into consideration all these materials on record, answered issue Nos.1 to 3 in the Negative and dismissed the suit of the plaintiff with cost. 11. Being aggrieved by the same, the plaintiff has preferred RA No.6 of 2021. The First Appellate Court on re-appreciation of the materials on record, allowed the appeal with cost, set aside the impugned judgment and decree passed by the Trial Court and directed the defendants to hand-over vacant possession of the suit schedule property within one month from the date of judgment. They were also restrained by an order of permanent injunction from interfering with the possession and enjoyment of remaining 30 guntas of land in the schedule property. Being aggrieved by the same, defendant Nos.2 to 4 have preferred this second appeal. 12. Heard Sri P M Siddamallappa, learned counsel for the appellants and Sri B B Sagar, learned counsel for the respondent. Perused the materials on record including the Trial Court records. Being aggrieved by the same, defendant Nos.2 to 4 have preferred this second appeal. 12. Heard Sri P M Siddamallappa, learned counsel for the appellants and Sri B B Sagar, learned counsel for the respondent. Perused the materials on record including the Trial Court records. 13. Learned counsel for the appellants contended that the Trial Court after appreciating the materials on record answered issue Nos.1 to 3 in the Negative. There is categorical finding that the plaintiff has not proved his ownership over the property. When the plaintiff preferred the appeal in RA No.6 of 2021, the plaintiff filed application under Order XLI Rule 27 of CPC producing additional documents to prove his ownership over the schedule property. The said application came to be dismissed by the First Appellate Court. Therefore, it is clear that the plaintiff has not proved the ownership over the schedule property. Under such circumstances, the First Appellate Court committed an error in decreeing the suit of the plaintiff. The First Appellate Court has not taken into consideration the defence taken by the defendants. Ex.D1 is the agreement upon which the appellants are in possession of the property. At the time of filing the suit, defendant No.1 Gangamma was alive and therefore, the plaintiff could not have maintained the suit. 14. Learned counsel further submitted that, as per Ex.P3, Sy.No.189/4 measuring 1 acre 7 guntas stand in the joint name of Ramachandrappa and Thippeswamy. Thippeswamy never joined in filing the suit against the defendants. Therefore, the suit of the plaintiff is liable to be dismissed. Accordingly, he prays for dismissal of the suit. 15. Per contra, learned counsel for the respondent opposing the appeal submitted that the defendants are not claiming any right over the property. Admittedly, they are in permissive possession under Ex.D1. Father of the plaintiff purchased the schedule property under the registered sale deed marked as Ex.P4. The schedule property had fallen to the share of the plaintiff. When the defendants rely on Ex.D1, he cannot dispute the ownership of land in question. Admittedly, the plaintiff is the son of Bhimappa - who is the author of Ex.D1. The defendants are not claiming any ownership of the property. Under such circumstances, the First Appellate Court on proper appreciation of the materials on record decreed the suit of the plaintiff. Admittedly, the plaintiff is the son of Bhimappa - who is the author of Ex.D1. The defendants are not claiming any ownership of the property. Under such circumstances, the First Appellate Court on proper appreciation of the materials on record decreed the suit of the plaintiff. There are no merits in the contention raised by the appellants and prays for dismissal of the suit. 16. On the basis of rival contentions, the following substantial question of law was formulated: "Whether the First Appellate Court was right in allowing the appeal filed by the plaintiff and directing the defendant to hand over the possession of the suit schedule property, ignoring the fact that the title of the plaintiff is neither pleaded nor proved?" 17. It is the specific contention of the plaintiff that he is the owner of the property in question as the same had fallen to his share. The plaintiff produced Ex.P4 - the registered sale deed under which 1.7 acres of land in Sy.No.189/4 of Kattalagere village, Chanangiri Taluk was purchased by Bhimappa, the father of the plaintiff. Defendant No.1 is the wife of Krishnappa who is the brother of Bhimappa. Ex.D1 is an admitted document produced and got marked by the defendants. As per this document, Bhimappa, the father of the plaintiff permitted Krishnappa and his wife to be in possession and enjoyment of 10 guntas of land to be enjoyed by them during their life time. It is specifically stated that remaining 20 guntas of land was retained by Bhimappa for his own use and occupation. 18. Defendant No.1 is the wife of Krishnappa who is referred to in Ex.D1. During the pendancy of suit, she also died and the appellants are their children. Defendant No.3 daughter of Krishnappa and defendant No.1 filed the written statement admitting the relationship between the parties. It is also admitted that the revenue records stood in the name of Bhimappa, the father of the plaintiff. A specific defence was taken that on 02.08.1991, the father of the plaintiff executed saguvalli kararu patra in respect of 10 guntas of land out of 5 acres in Sy.No.189/4 referred to above in favour of Krishanappa and his wife - defendant No.1 to be in possession of the same. Accordingly, they were in possession of the property. A specific defence was taken that on 02.08.1991, the father of the plaintiff executed saguvalli kararu patra in respect of 10 guntas of land out of 5 acres in Sy.No.189/4 referred to above in favour of Krishanappa and his wife - defendant No.1 to be in possession of the same. Accordingly, they were in possession of the property. When the defendants specifically admit that their parents were in permissive possession of the land on the basis of Ex.D1 and when the defendants are not claiming title over the property, they cannot have any valid defence to squat over the property. When the defendants admit that the father of the plaintiff was the khata holder and permitted his brother Krishnappa and his wife to occupy the land in question, the defendants cannot deny the right of the plaintiff to seek possession of the property. 19. Even though, it is contended that the defendants have paid the land revenue from 1990 onwards, it is only on the basis of permissive possession granted in favour of Krishnappa and his wife by the father of the plaintiff. Under such circumstances, I do not find any merits in the contention taken by the defendants. Even though, the Trial Court dismissed the suit of the plaintiff, the First Appellate Court on proper appreciation of the materials on record, decreed the suit of the plaintiff. When the defendants are not having any valid and legal defence, the claim of the plaintiff cannot be rejected. Under such circumstances, the plaintiff is entitled for the decree as prayed for. 20. The First Appellate Court on proper appreciation of the materials on record, decreed the suit of the plaintiff. I do not find any reason to interfere with the well considered order passed by the First Appellate Court. Hence, the substantial question of law is answered in favour of the plaintiff and against the defendants. 21. Hence, I proceed to pass the following: ORDER (i) The appeal is dismissed with costs. (ii) The judgment and decree dated 15.07.2022 passed in RA No.6 of 2021 on the file of the learned Senior Civil Judge and JMFC, Channagiri, is hereby confirmed. (iii) The judgment and decree dated 08.01.2021 passed in OS No.40 of 2016 on the file of the learned II Additional Civil Judge and JMFC, Channagiri, is hereby set aside. Consequently, the suit of the plaintiff is decreed as prayed for. (iii) The judgment and decree dated 08.01.2021 passed in OS No.40 of 2016 on the file of the learned II Additional Civil Judge and JMFC, Channagiri, is hereby set aside. Consequently, the suit of the plaintiff is decreed as prayed for. Registry is directed to send back the Trial Court records along with copy of this judgment.