IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI R.S.A. No.641 OF 2011 (DEC & INJ) BETWEEN:
RAMEGOWDA, S/O SANNAMUDDEGOWDA, AGED ABOUT 52 YEARS, R/AT GULUVINA ATTIGUPPE, HOSA AGRAHARA HOBLI, K.R. NAGAR TALUK, MYSORE DISTRICT – 571 238. … APPELLANT (BY SRI CHETHAN, ADVOCATE FOR SRI R.S. RAVI ADVOCATE) AND:
1. ANNEGOWDA, S/O LATE SANNASHIVEGOWDA, AGED ABOUT 49 YEARS, 2. SMT SUDHA, W/O ANNEGOWDA, AGED ABOUT 44 YEARS, 3. RAMEGOWDA, S/O LATE SANNASHIVEGOWDA, AGED ABOUT 57 YEARS, 4. KULLASHETTY, S/O LATE GENDASHETTY, AGED ABOUT 64 YEARS.
ALL ARE R/AT GULUVINA ATTIGUPPE, HOSA AGRAHARA HOBLI, KR.R.NAGAR TALUK, MYSORE DISTRICT - 571238 … RESPONDENTS (BY SRI D. NAGARAJA REDDY, ADVOCATE FOR R-2, V/O DATED: 4/4/19 APPEAL AGAINST R-1, R-3 & R-4 IS DISMISSED AS NOT PROSECUTED) THIS APPEAL IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:3.11.2010 PASSED IN R.A.NO.381/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., K.R.NAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 22.2.2006 PASSED IN O.S.No.268/2002 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., K.R.NAGAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant-plaintiff being aggrieved by the judgment and decree dated:22/2/2006 passed in O.S.No.268/2002, confirming the same vide judgment dated 3.11.2010 passed in R.A.No.381/2007 by conforming the same by the Senior Civil Judge & JMFC, K.R. Nagar, has preferred this appeal.
2. Parties are referred to by their ranks in the court below:
The appellant-plaintiff has filed a suit for injunction on the ground that he has purchased the suit schedule property from defendant No.1 on 19.09.1995 and he delivered the possession of the land bearing Sy.No.137/8 at Attiguppe Village and it is further stated that in the sale deed, instead of mentioning Sy.No.134/2 it has been wrongly mentioned as Sy.No.137/8. The land in Sy.No.137/8 measures 30 guntas whereas the land in Sy.No.134/2 measures 29 guntas. The plaintiff came to know that he has purchased the land in Sy.No.134/2 and not in Sy.No.137/8. The plaintiff filed an application for change of khata in respect of Sy.No.134/2, but khata was changed in respect of Sy.No.137/8 and the further averment of plaintiff that the notice was given to the defendant No.1 and defendant No.2 calling upon them to execute the rectification sale deed relating to Sy.No.134/2, the defendant 1 & 2 replied to the said notice and started interfering with the peaceful possession and enjoyment of the plaintiff from the suit schedule property. Hence, the plaintiff was constrained to file the suit for declaration and injunction.
3. Defendants appeared and defendant No.2 has filed written statement stating that defendant No.1 is addicted to bad habits and sold the property without any family necessity to defendant No.3 on 19.12.1989. However, defendant No.2 by taking financial assistance from her parents has purchased the suit schedule property from defendant No.3 on 04.06.1999. It is contended that the land in Sy.No.134/2 measuring 29 guntas is the ancestral property of defendant No.1 and the he has inherited the said property from his ancestors and being addicted to bad habits by playing cards and consuming alcohol sold the land in Sy.No.134/2 measuring 29 guntas under the sale deed dated 19.12.1989 without any family necessity, to defendant No.3. The defendant No.2 further contends that the land in said survey number has been purchased by her by taking financial assistance from her parents as stated supra and she is in possession of the said land in Sy.No.134/2 measuring 29 guntas.
Defendant N0.1 had no right to sell the suit schedule property. Defendant No.2 after purchasing the suit schedule lands from defendant No.3 on 4.6.1999, is in possession and enjoyment of the same as the absolute owner. The plaintiff has concocted the sale deed with an intention to knock off the suit schedule property. Defendant No.1 has no right to alienate the suit schedule property in favour of the plaintiff, hence sought to dismiss the suit.
4. The Trial Court on the basis of the pleadings has framed the following issues:
(a) Does the plaintiff prove that he has lawfully purchased the Suit Schedule Property measuring 30 guntas in survey No.134/2 of Guluvinaattiguppe village under a Sale Deed dated 19.09.1995 from the 1st Defendant and became the absolute owner and in possession of the same ?
(b) Does the plaintiff further prove that the 1st Defendant has wrongly mentioned the survey number in the Sale deed dated 19.09.1995 as survey No.137/8 measuring 30 guntas deceitfully?
(c) Does the Plaintiff further prove that survey No.137/8 measuring 10 guntas is a bagayath land situated in different place far away from the suit schedule boundary and belongs to the 4th Defendant?
(d) Does the 2nd Defendant prove that she became absolute owner and in possession of 29 guntas in survey No.134/2 of Guluvinaattiguppe village, having purchased the same from the 3rd Defendant for Rs.30,500/- and the 1st Defendant had no salable right, interest or possession over the said property to execute the Sale Deed dated 19.09.1995 in favour of the Plaintiff?
5. The plaintiff in support of his case, has examined himself as PW1 and four witnesses as PWs. 2 to 5 and got marked documents as Ex.P1 to Ex.P16 and Defendant No.2 examined herself as DW1 and one witness as DW2 and got marked documents as Ex. D1 to D9.
6. The trial court answered issue Nos. 1 to 3 in negative and issue No.4 in affirmative holding that plaintiff has failed to prove that he has lawfully purchased the suit schedule property vide sale deed dated 19.9.1995 from defendant No.1 and became the absolute owner in possession of the same and further held that plaintiff has failed to prove that the defendant No.1 has wrongly mentioned survey number as Sy.No.137/8 instead of 134/2. Further also held that defendant No.2 has proved that she became the absolute owner in possession of land in Sy.No.134/2 measuring 29 guntas having purchased the same from defendant No.2 for valuable consideration of Rs.30,500/- and the defendant No.1 had no saleable right, interest and possession over the suit schedule property to execute the sale deed dated 19.9.95 in favour of the plaintiff and consequently, dismissed the suit of the plaintiff.
7. The plaintiff being aggrieved by the judgment and decree passed in O.S.No.268/02 dated 22.2.2006 filed RA No.381/07. The Appellate Court has framed the following points for consideration:
(a) Whether the trial court was right in holding that the plaintiff has not
(b) Whether the impugned judgment and decree passed by the trial court calls for interference?
(c) What order?
and held that the trial court was right in holding that the plaintiff has not established his ownership and possession over the suit schedule property and held that the judgment and decree passed by the trial court is correct and declined to interfere with the judgment of the trial court and consequently dismissed the appeal.
8. The plaintiff being aggrieved by the judgment and decree passed by the Courts below has filed the present appeal.
9. Heard the learned counsel for the parties. The case of the plaintiff’s that he has produced the registered sale deed Ex.P3 wherein the said sale deed discloses that plaintiff has purchased the land in Sy.No.137/8 measuring 30 guntas but not Sy.No.134/2. The said sale deed was executed on 19.5.1995 and the plaintiff has filed the suit on 16.12.2002 almost after lapse of 6 years and further the plaintiff has not produced any records to show that the boundary shown in the registered sale deed is of Sy.No.134/2 but not Sy.No.137/8. Defendant No.1 has already sold the land bearing Sy.No.134/2 measuring 29 guntas in favour of defendant No.3 on 19.12.1989. Defendant No.3 in turn sold the suit land to defendant No.2 on 19.9.1995. As on the date of the execution of the registered sale deed by defendant No.1 in favour of plaintiff, defendant No.1 was not the owner of land in Sy.No.134/2, as he has already sold the said property to defendant No.3 in the year 1989 itself. So defendant No.1 was not having any right, title or interest over the land Sy.No.134/2 as on the date of execution of registered sale deed in favour of plaintiff.
10. The plaintiff – PW1 in the course of cross examination has clearly admitted that on 19.9.1995 defendant No.1 was not having any right, title or interest to sell the land in Sy.No.134/2. Further, he admits that Defendant No.1 has executed the registered sale deed in favour of Defendant No.2 in respect of Sy.No.134/2. He further admits that after purchasing the suit schedule property by defendant No.2, he has filed the present suit. He also admits that he has filed the false case after lapse of 7 years. He also admits that about 5 years back, he came to know that defendant No.1 was not having any right, title or interest over the suit schedule property. The trial court after considering the evidence of parties and documents has rightly held that the plaintiff has failed to prove that he has purchased the land in Sy.No.137/8 but not Sy.No.134/2 measuring 29 guntas. Both the lands are totally different and measurement is also different. Therefore, the Trial Court has rightly come to the conclusion that the plaintiff has failed to prove that he is the owner of the land in Sy.No.134/2 and dismissed the suit of the plaintiff and the Appellate Court, after re- appreciating the evidence, has affirmed the judgment and decree of the Trial Court.
11. In view of the above facts and circumstances of the case, I am of the opinion that no substantial question of law would arise for consideration in this appeal. Accordingly, the appeal is dismissed.
Sd/- JUDGE NM