IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.NO.136/2006 (RES) C/W R.S.A.NO.118/2006(POS) C/W R.S.A.NO.164/2006(DEC) R.S.A.NO.136/2006 BETWEEN SMT KENCHAWWA W/O BANAKAR RAMAPPA, AGED ABOUT 73 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583 131. ... APPELLANT (BY SRI P.M.SIDDAMALLAPPA, BY MYLARAIAH ASSOCIATES, ADVOCATES) AND 1. SRI KARENAHALLI SANNAMANI BANAKAR KARIBASAPPA SINCE DEAD BY LEGAL REPRESENTATIVES 1(a) SMT.NINGAMMA, WIFE OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 66 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583 131.
1(b) SRI MANJUNATHA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 45 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583131.
1(c) SRI BARAMANAGOWDA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 42 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583131.
1(d) SRI NAGARAJA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 39 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
1(e) SRI CHANDRAPPA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 36 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
1(f) SMT. NAGAMMA, DAUGHTER OF LATE K.S.BANAKAR KARIBASAPPA, WIFE OF SRI NAGAPPA, AGED ABOUT 33 YEARS, RESIDING AT KADABAGERE VILLAGE, HARAPPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
2. SRI RAMANAGOUDAR SON OF MANJAPPA AGED ABOUT 56 YEARS R/AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583 131.
... RESPONDENTS (BY SRI P.PRASANNA KUMAR, ADVOCATE FOR LEGAL REPRESENTATIVES OF DECEASED R1 R2 –SERVED BUT UNREPRESENTED) RSA NO.136/2006 IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 26.11.2005 PASSED IN R.A.NO 35/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) HARIHAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 29.3.2002 PASSED IN O.S NO.191/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC., HARAPANAHALLI.
R.S.A.NO.118/2006 BETWEEN SRI MANJAPPA S/O BANAKAR RAMAPPA, AGED ABOUT 58 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583 131. ... APPELLANT (BY SRI P.M.SIDDAMALLAPPA, ADVOCATE) AND 1. SRI KARENAHALLI SANNAMANI BANAKAR KARIBASAPPA SINCE DEAD BY LEGAL REPRESENTATIVES 1(a) SMT.NINGAMMA, WIFE OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 66 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583 131 1(b) SRI MANJUNATHA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 45 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583131.
1(c) SRI BARAMANAGOWDA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 42 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583131.
1(d) SRI NAGARAJA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 39 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
1(e) SRI CHANDRAPPA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 36 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
1(f) SMT. NAGAMMA, DAUGHTER OF LATE K.S.BANAKAR KARIBASAPPA, WIFE OF SRI NAGAPPA, AGED ABOUT 33 YEARS, RESIDING AT KADABAGERE VILLAGE, HARAPPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
2. SRI RAMANAGOUDAR SON OF MANJAPPA AGED ABOUT 56 YEARS R/AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583 131.
... RESPONDENTS (BY SMT.RASHMI JADHAV, ADVOCATE FOR JADHAV LAW ASSTS., FOR R1(A TO F) RSA NO.118/2006 IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 26.11.2005 PASSED IN R.A.NO.34/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) HARIHAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 28.3.2005 PASSED IN O.S.NO.190/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC., HARAPANAHALLI.
R.S.A NO.164/2006 BETWEEN :
1. SRI MATHIHALLI KARENAHALLI RAMEGOWDA, SON OF NANJAPPA, AGED ABOUT 54 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT -583 131.
2. SMT.KARENAHALLI BANAKAR KENCHAMMA, WIFE OF BANAKAR RAMAPPA, AGED ABOUT 64 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
3. SRI KARENAHALLI BANAKAR MANJAPPA, S/O RAMAPPA, AGED ABOUT 58 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131. …APPELLANTS (SRI P.M.SIDDAMALLAPPA, ADVOCATE) AND 1. SRI KARENAHALLI SANNAMANI BANAKAR KARIBASAPPA SINCE DEAD BY LEGAL REPRESENTATIVES 1(a) SMT.NINGAMMA, WIFE OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 66 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-583 131 1(b) SRI MANJUNATHA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 45 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
1(c) SRI BARAMANAGOWDA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 42 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
1(d) SRI NAGARAJA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 39 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
1(e) SRI CHANDRAPPA, SON OF LATE K.S.BANAKAR KARIBASAPPA, AGED ABOUT 36 YEARS, RESIDING AT MATHIHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
1(f) SMT. NAGAMMA, DAUGHTER OF LATE K.S.BANAKAR KARIBASAPPA, WIFE OF SRI NAGAPPA, AGED ABOUT 33 YEARS, RESIDING AT KADABAGERE VILLAGE, HARAPPANAHALLI TALUK, DAVANAGERE DISTRICT – 583 131.
... RESPONDENTS (BY SMT.RASHMI JADHAV, ADVOCATE BY M/S. JADHAV LAW ASSOCIATES FOR R1(a to f)) RSA NO.164/2006 IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 26.11.2005 PASSED IN R.A.NO.36/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) HARIHAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 28.3.2005 PASSED IN O.S NO.176/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC., HARAPANAHALLI.
THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The plaintiffs in O.S.Nos.190 & 191/2001 and defendants in OS.No.176/2001 on the file of Civil Judge (Jr.Dn), Harapanahalli are before this Court impugning the divergent finding rendered in R.A.Nos.34 to 36/2005 on the file of CJ (Sr.Dn), Harihara.
2. These three appeals are with reference to three immovable landed properties which are bearing 1) Sy.No.313-C measuring 49 cents 2) Sy.No.314-B measuring 2 acres 17 cents and 3) Sy.No.292 measuring 3 acres 61 cents of Mathihalli village, Harapanahalli Taluk, Davangere District.
3. With reference to these three properties, three suits are filed. The first one is in O.S.No.176/2001 filed by plaintiff Karenahalli Sannamani Banakar Karibasappa (hereinafter referred to as ‘Karibasappa’ for short) on the file of Civil Judge (Jr.Dn.) Harapanahalli for the relief of declaration of ownership over the aforesaid three properties, for the relief of permanent injunction and peaceful possession and enjoyment of suit schedule items 1 to 3, for awarding cost of the suit and other consequential reliefs. The said suit was filed on 30.10.2001 against three defendants. The first defendant is Mathihalli Kerenalli Ramanagoud (hereinafter referred to as ‘Ramanagouda’ for short), second defendant is Kerenalli Banakar Kenchamma, W/o Ramappa (hereinafter referred to as ‘Kenchamma’ for short) and third defendant Kerenalli Banakar Manjappa, S/o Ramappa (hereinafter referred to as ‘Manjappa’ for short). It is also required to be clarified that defendants 2 and 3 are mother and son.
4. Subsequently, it is seen that two more suits are filed by defendants 2 and 3 in O.S.No.176/2001. The first one is O.S.No.190/2001 filed by third defendant Manjappa in O.S.No.176/2001 for the relief of possession of Sy.Nos.313-C and 292 (which are items Nos.1 and 3 in schedule to O.S.No.176/2001). The said suit is filed against Karibasappa and Ramanagouda as defendants 1 and 2 who are plaintiff and first defendant in O.S.No.176/2001. The third suit in O.S.No.191/2001 is filed by 2nd defendant - Kenchamma (also referred to as ‘Kenchavva’ in the original suit) against very same two defendants namely, Karibasappa and Ramanagouda for similar relief of possession with reference to Sy.No.314-B (which is item No.2 in the schedule to O.S.No.176/2001).
5. It is necessary to mention at this juncture that these three suits are filed in the aforesaid manner subsequent to disposal of O.S.Nos.81/1993 and 82/1993 which are the suits filed for the relief of specific performance on the file of Civil Judge (Jr.Dn.), Harapanahalli. The said suits were filed by Karibasappa and his brother Shankarappa. Admittedly, the suit in O.S.No.81/1993 was filed by Karibasappa and suit in O.S.No.82/1993 was filed by his brother Shankarappa and both suits were filed for the relief of specific performance of agreements dated 10.6.1982 with reference to aforesaid three lands and other lands, based on the agreement of sale executed by Ramanagouda who is defendant No.1 in all the present three suits. It is seen that in one of the suits plaintiff in O.S.No.191/2001 Smt.Kenchamma was also a party. The said suit for specific performance filed in O.S.Nos.81 and 82/1993 came to be disposed of by common judgment dated 16.8.2001 where it is stated that suits of the plaintiffs Karibasappa and Shankarappa are dismissed, wherein the Court which decided O.S.Nos.81 and 82/1993 directed second defendant in the said suit namely Smt.Kenchamma not to disturb the possession of Karibasappa with reference to land bearing No.393-C measuring 49 cents, Sy.No.314-B measuring 2 acres 17 cents and Sy.No.292 (which is referred to as 298) measuring 3 acres 61 cents by an order of permanent injunction. It was also ordered that the defendants 1 and 2 should pay the cost of the said proceedings to the plaintiff Karibasappa and defendants were also reserved liberty to file separate suit seeking possession of aforesaid properties from plaintiff Karibasappa in O.S.No.81/1993.
6. It is in this background O.S.Nos.190/2001 and 191/2001 are filed by Manjappa and his mother Kenchamma as plaintiffs, whereas, the plaintiff in O.S.No.81/1993 Karibasappa is concerned, instead of challenging the judgment and decree in dismissing his prayer for specific performance has filed O.S.No.176/2001 seeking declaration that he is the absolute owner of the said properties pursuant to the pleadings set out in the plaint in the original suit in O.S.No.176/2001 and for the relief of permanent injunction against Ramanagouda and also plaintiffs in O.S.Nos.190/2001 and 191/2001 i.e., Manjappa and his mother Smt.Kenchamma.
7. Now coming to the pleadings in O.S.No.176/2001, the case of the plaintiff Karibasappa is that, he is in peaceful possession and enjoyment of suit schedule properties item Nos.1 to 3 without any obstruction from defendants 1 to 3 and that defendants have no right over the suit property as well as possession and enjoyment of the same and that the plaintiff is not a trespasser over the suit property and he carries the title (ownership) by virtue of 16 years long peaceful possession and enjoyment over the said properties. He also contends that he has invested huge amounts for improvement of suit schedules items 1 to 3 by digging a well, installing pump set in Sy.No.314-B and has been in possession and enjoyment of other two items also since 1985, it is also contended that there is no criminal dispute between the parties with reference to physical possession of plaintiff over suit schedule items 1 to 3 and that defendants are having knowledge of plaintiff’s peaceful possession and enjoyment for more than 16 years continuously for unbroken period with the revenue entries standing in his name and KEB connection to the borewell being in the name of plaintiff Karibasappa. He seek declaration of his title over suit schedule properties i.e., item Nos.1 to 3 in the schedule. He also would try to say that he has secured the suit schedule item from first respondent Ramanagowda under agreement of sale dated 10.6.1982. According to him, the cause of action for filing of the suit arose on 10.6.1982, the date of agreement and on 30.4.1984 and 1985 when he got the suit lands mutated in his name and acquired necessary rights over suit schedule properties and also on 16.8.2001 when the suit in O.S.No.81/1993 filed by him is disposed of by the Court of Civil Judge, Harapanahalli in dismissing of the said suit. With aforesaid pleadings, he would seek the relief of declaration of his title, ownership over the said properties and for permanent injunction against defendants 1 to 3 in the said suit.
8. In the said suit, the defendants 1 to 3 entered appearance through counsel. However, in the said suit only third defendant Manjappa has filed written statement for himself, in the written statement he would refer to his name as K.Manjunatha, which is filed on 10.12.2001 and the same is adopted by his mother, second defendant by filing a Memo on 10.12.2001. In the said defence what was contended is, the plaintiff in O.S.No.176/2001 has no right in suit property subsequent to judgment in O.S.No.81/1993. However, plaintiff is continuing in possession of the same. In the said suit after pleadings were complete, the following issues were framed:
(1) Whether the plaintiff proves that his title over the suit schedule property?
(2) Whether the plaintiff further proves his long and continuous possession over the suit schedule property?
(3) Whether the plaintiff proves that he is entitled for decree of declaration?
(4) To what order or decree?
In the said suit, on behalf of plaintiff, Karibasappa adduced evidence as P.W.1 and he also adduced evidence through four other persons as P.Ws.2 to 5 and he relied upon 22 documents, which are at Exs.1 to 22. The relevant document is the judgment and decree in O.S.No.81/1993, the earlier suit filed by plaintiff Karibasappa for the relief of specific performance against defendants 1 and 2 which is at Exs.P19 and P20 and also, Ex.P21 is the agreement of sale dated 10.6.1982, which is wrongly shown as sale deed in the schedule to judgment in O.S.No.176/2001.
9. The trial Court, on appreciation of pleadings, oral and documentary evidence on record has proceeded to dismiss the suit of the plaintiff by answering issue No.1 with reference to plaintiff’s title to the suit schedule property in the negative, with reference to his long, continuous possession of suit schedule property in the affirmative and with reference to third issue regarding his right to seek decree of declaration in the negative and consequently by answering issue No.4, the suit of the plaintiff is dismissed. This is one part of the litigation.
10. Coming to the second part of litigation, it is with reference to two suits filed by mother and son i.e., Smt.Kenchamma and her son Manjappa in O.S.Nos.191/2001 and 190/2001 respectively on the file of Civil Judge (Jr.Dn.), Harapanahalli. Admittedly, these two suits are filed against Karibasappa as first defendant and Ramanagouda who is the person said to have executed the agreement of sale in favour of Karibasappa on 10.6.1982, which document is at Ex.P21 in O.S.No.176/2001. These two suits are for the relief of possession of suit schedule item Nos.1 to 3 in O.S.No.176/2001.
11. In the suit filed by Kenchamma, the suit schedule property is Sy.No.314-B and in the suit filed by her son Manjappa, the remaining items i.e., Sy.Nos.313-C and Sy.No.292 are the suit schedule properties collectively. They are seeking possession of all three properties, which are suit schedule item Nos.1 to 3 in the schedule to O.S.No.176/2001 filed by Karibasappa and in the said suits it is also stated that they are seeking possession of the property pursuant to the right reserved to them in O.S.No.81/1993 on the file of Civil Judge (Jr.Dn.), Harappanahalli, which was disposed of by judgment and decree dated 16.8.2001. In OS.No.81/93 plaintiff – Karibasappa had sought the relief of specific performance not only against Ramanagouda but also against Kenchamma for the reason as on that day one of the agreement properties i.e., Sy.No.314-B was already registered in the name of Kenchamma under registered sale deed dated 27.9.1993 which is marked as Ex.P3 in the proceedings before the trial Court (in OS.No.191/2001). It is in this background she was arrayed as one of the defendants in OS.No.81/1993. In the court below it has come on record that Kenchamma as head of the family got the agreement of sale for all the three suit properties in OS.No.81/1993 in favour of her son Manjappa under agreement of sale dated 28.4.1992, which is at Ex.P1 in the court below in OS.No.190/2001 and pursuant to said agreement of sale, she also got registered one of the items of properties referred to therein in her name and the other 2 items are still pending in agreement to be registered in her name.
12. In the said suit in OS.No.81/1993, it is stated that while dismissing the suit filed by Karibasappa for declaration of his ownership over the suit schedule properties liberty was reserved to Ramanagouda and Kenchamma, who had by then entered into an agreement of sale with reference to schedule properties in O.S.No.81/1993 in her son’s name, namely Manjappa and subsequently, she also got one of the items of properties registered in her name directly, to seek possession of the said properties from plaintiff - Karibasappa independently.
13. It is in this background Kenchamma filed the suit in OS.No.191/2001 for possession of Sy.No.314-B which was schedule property in the said suit and since the agreement which she had entered into was in the name of her son Manjappa, she got another suit filed in the name of her son Manjappa based on Ex.P1 which is O.S.No.190/2001. In fact, on the backside of Ex.P1 there is an endorsement where there is reference to the agreement of sale though for all the properties, it is restricted only to remaining two properties in as much as one of the properties being already registered in the name of agreement holder – Kenchamma, who was actually financing the entire transaction got the agreement entered in her son’s name. The endorsement on the backside of Ex.P1, the agreement of sale dated 28.4.1992 as well as evidence of the parties would substantiate the said aspect.
14. These two suits in OS.Nos.190 and 191 of 2001 are also independently contested by the parties. Admittedly in these two suits also, the contesting defendant is only Karibasappa and not Ramanagouda, though he was represented by counsel in the said proceedings.
15. In the suit filed by Kenchamma in O.S.No.191/2001, the defence of first defendant is of total denial of pleadings in the original suit. Simultaneously, re-affirming his pleadings in O.S.No.176/2001 in opposing the prayer of Smt.Kenchamma-plaintiff to seek possession of suit schedule property. Similar is the defence in O.S.No.190/2001 also. In both the suits, the Courts below proceeded to frame issues as under:
In O.S.No.191/2001 “1) ªÁ¢AiÀļÀÄ, vÀ£Àß ªÁzÀ ¥ÀvÀæzÀ 1£Éà ¥ÁågÁzÀ°è ºÉý PÉÆArgÀĪÀAvÉ vÁ£ÀÄ ¢£ÁAPÀ 27.09.1993 gÀ Rjâ ¥ÀvÀæzÀ ¥ÀæPÁgÀ zÁªÁ ±ÉqÀÆå¯ï D,ÛAiÀÄ£ÀÄß 2£Éà ¥ÀæwªÁ¢¬ÄAzÀ vÀ£Àß ¸Áé¢üãÀPÉÌ ¥ÀqÉzÀÄPÉÆArzÀݼÀÄ JA§ ¸ÀAUÀwAiÀÄ£ÀÄß gÀÄdĪÁvÀÄ¥Àr,gÀÄvÁÛ¼ÉAiÉÄà ?
2) ªÁ¢AiÀļÀÄ, zÁªÁ ±ÉqÀÆå¯ï D,ÛAiÀÄ£ÀÄß 1£Éà ¥ÀæwªÁ¢¬ÄAzÀ vÀ£Àß ¸Áé¢üãÀPÉÌ ¥ÀqÉzÀÄPÉƼÀî®Ä ºÀPÀÄ̼ÀîªÀ¼ÁVgÀÄvÁÛ¼É JA§ÄzÀ£ÀÄß ªÁ¢AiÀļÀÄ gÀÄdĪÁvÀÄ ¥Àr,gÀÄvÁÛ¼ÉAiÉÄÃ?
3) ªÁ¢AiÀļÀ zÁªÉAiÀÄÄ PÁ®«ÄwAiÀÄ°ègÀÄvÀÛzÉAiÉÄà ?
4) ªÁ¢AiÀļÀÄ zÁªÁ ¨ÉÃrPÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉƼÀî®Ä CºÀð½gÀÄvÁÛ¼ÉAiÉÄà ?
5) K£ÀÄ rQæ CxÀªÁ DzÉñÀ ªÀiÁqÀ¯ÁVzÉ ? “ In O.S.No.190/2001 “1) ªÁ¢AiÀÄÄ, ªÁzÀ ¥ÀvÀæzÀ 1£Éà ¥ÁågÁzÀ°è ºÉýgÀĪÀAvÉ, vÁ£ÀÄ ¢.28.4.1992 gÀ Rjâ PÀgÁgÀÄ ¥ÀvÀæzÀ ¥ÀæPÁgÀ, zÁªÁ ±ÉqÀÆå¯ï D,ÛUÀ¼À£ÀÄß 2£Éà ¥ÀæwªÁ¢¬ÄAzÀ vÀ£Àß ¸Áé¢üãÀPÉÌ ¥ÀqÉzÀÄPÉÆArzÀÝ£ÀÄ JA§ ¸ÀAUÀwAiÀÄ£ÀÄß gÀÄdĪÁvÀÄ ¥Àr,gÀÄvÁÛ£ÉAiÉÄà ?
2) ªÁ¢AiÀÄÄ zÁªÁ ±ÉqÀÆå¯ï D,ÛUÀ¼À£ÀÄß 1£Éà ¥ÀæwªÁ¢¬ÄAzÀ vÀ£Àß ¸Áé¢üãÀPÉÌ ¥ÀqÉzÀÄPÉƼÀî®Ä ºÀPÀÄ̼ÀîªÀ£ÁVgÀÄvÁÛ£É JA§ÄzÀ£ÀÄß gÀÄdĪÁvÀÄ ¥Àr,gÀÄvÁÛ£ÉAiÉÄà ?
3) ªÁ¢AiÀÄ zÁªÉAiÀÄÄ PÁ® «ÄwAiÀÄ°ègÀÄvÀÛzÉAiÉÄà ?
4) ªÁ¢AiÀÄÄ zÁªÁ ¨ÉÃrPÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉƼÀî®Ä CºÀð¤gÀĪÀ£ÉÃ?
5) K£ÀÄ rQæ CxÀªÁ DzÉñÀ ªÀiÁqÀ¯ÁVzÉ ?”
16. Thereafter, in both the suits evidence was recorded. In both O.S.Nos.190/2001 and 191/2001 the plaintiff in O.S.No.190/2001 Manjappa who is also son of Kenchamma, the plaintiff in O.S.NO.191/2001 adduced evidence as P.W.1 and in support of both the cases, one Basavanagouda was examined as P.W.2. In O.S.No.190/2001 Exs.P1 to P3 are marked whereas in O.S.No.191/2001 Exs.P1 to P9 are marked in support of the plaintiffs’ prayer. In both the suits on behalf of defendant the first defendant Ramanagouda was examined as D.W.1.
17. It is necessary to mention at this juncture that though Ramanagouda was second defendant, he did not file written statement, instead, he adduced evidence in support of defendant Karibasappa as D.W.1. The first defendant Karibasappa examined himself as D.W.2. They also examined four other persons namely, Shambappa, Chandrappa, Ningappa and Neelagiriyappa as D.W.3 to D.W.6 in both suits independently. Based on the pleadings and evidence in both the suits, O.S.Nos.190/2001 and 191/2001 are decreed by answering all the issues, which were framed pursuant to the pleadings raised by plaintiffs in their favour and with reference to the defence raised by the first defendant Karibasappa, against him and consequently, Karibasappa was directed to deliver possession of suit schedule property in both suits to the plaintiffs in the said suit. With this the first round of three suits came to an end in O.S.No.176/2001 being dismissed by judgment dated 28.3.2005 and O.S.Nos.190/2001 and 191/2001 being decreed by judgment and decree dated 28.3.2005 and 29.3.2005 respectively.
18. Thereafter, the appeal proceedings commenced, wherein, the plaintiff-Karibasappa in O.S.No.176/2001 filed appeal before the Court of Civil Judge (Sr.Dn.), Harihara in R.A.NO.36/2005 against three persons who are defendants 1 to 3 in the Court below, challenging the judgment and decree dated 28.3.2005 passed in O.S.No.176/2001. Similarly, he also filed another two appeals one in R.A.No.34/2005 which is in challenge to the judgment and decree dated 28.3.2005 passed in O.S.No.190/2001 filed by Manjappa and in R.A.No.35/2005, which is in challenge to judgment and decree dated 29.3.2005 passed in O.S.No.191/2001 filed by Smt.Kenchamma. All these three appeals were filed on the file of Civil Judge (Sr.Dn.), Harihara. Incidentally, these three appeals are also taken up independently and were disposed of by separate judgments passed in the said appeals. The lower appellate Court, framed the following points for consideration in all the three appeals. The points for consideration raised in R.A.No.36/2005 (OS.No.176/2001) are as under:
(1) Whether the judgment and decree passed by the learned trial Court is arbitrary, perverse, capricious and opposed to well established principles of law?
(2) Is there any sufficient reasons to interfere in the order of the learned trial Court?
(3) To what order?
The points for consideration in R.A.No.34/2005 (OS.NO.190/2001) are as under:
(1) Whether the judgment and decree of the learned trial Court is arbitrary, perverse, capricious and opposed to well established principles of law?
(2) Is there any sufficient reasons to interfere in the order of the trial Court?
(3) What decree or order?
Similarly, the points for consideration in R.A.No.35/2005(O.S.No.191/2001) are as under:
(1) Whether the judgment and decree of the learned trial Court is arbitrary, perverse, capricious and opposed to well established principles of law?
(2) Is there any sufficient reasons to interfere in the order of the trial Court?
(3) What decree or order?
19. The lower appellate Court by a separate judgment allowed the appeal filed by Karibasappa by its order dated 26.11.2005 in recognizing his right to be in possession of the property under agreement dated 10.6.1982 while rejecting his prayer for accepting his long standing possession as adverse to the defendants 1 to 3 in O.S.No.176/2001. In the light of accepting the grounds urged in the appeal filed before the lower appellate Court by Karibasappa, the appeals which are filed by Kenchamma and Manjappa seeking possession of the property impugned to the judgment passed in O.S.No.81/1993 are rejected by the lower appellate Court by passing separate judgment in each of the appeals on 9.1.2006. As against the divergent finding rendered by the lower appellate Court in all the three appeals, these three appeals are filed.
20. The appeal in R.S.A.No.164/2006 is by all the defendants in O.S.No.176/2001 namely, Ramanagouda, Kenchamma and Manjappa, whereas, the appeals in R.S.A.Nos.118/2006 and 136/2006 are concerned, they are filed by plaintiff Manjappa and Smt.Kenchamma who are plaintiffs in O.S.Nos.190/2001 and 191/2001 and respondents in R.A.Nos.34/2005 and 35/2005 respectively. All these three appeals are admitted by this Court on different dates to consider the following substantial question of law, which are framed separately in each of the appeals on the dates referred to herein below:
(i) R.S.A.No.136/2006 is admitted by order dated 19.7.2016 to consider:
“Whether the judgment and decree of the First Appellate Court is perverse in holding that the defendants’ right is to be protected by the principle of adverse possession, notwithstanding the judgment and decree passed in the earlier suit in O.S.No.81/1993?”
(ii) R.S.A.No.118/2006 is admitted by order dated 17.7.2008 to consider:
“Whether the appellate Court was justified in holding that the defendant No.1 has become the owner of the suit schedule property by way of adverse possession, when that was not an issue in the suit?”.
(iii) R.S.A.No.164/2006 is admitted by order dated 5.7.2006 to consider:
“Whether the appellate Court was justified in passing the decree in the suit of the respondent for declaration of title and for permanent injunction based on holding that the respondent has established possession by adverse possession, although he claims the possession by virtue of agreement of sale, his prayer was refused by the trial Court?”
21. All the three appeals are thereafter taken up for final disposal in the presence of Sri.P.M.Siddamallappa, learned counsel appearing for the appellants and Sri.Prasanna Kumar, Smt.Rashmi Jadhav, learned counsel appearing for contesting respondents.
22. Though three different substantial question of law is framed in each of these three appeals, one which is filed challenging the judgment and decree passed in OS.No.176/2001 confirmed in RA.No.36/2005 and another in respect of judgment and decree passed in OS.Nos.190 and 191 of 2001 which are confirmed in RA.Nos.34 and 35 of 2005, the substantial question of law actually arises for consideration in these three appeals after looking into the substantial question of law framed at the time of admission in each of the appeals is as under:
In the absence of plaintiff in OS.No.176/2001 pleading adverse possession in RA.No.36/2005 and raising the same as plea in OS.No.176/2001 and as defence in OS.Nos.190 and 191 of 2001 which are filed for possession, whether the lower appellate court was justified in considering the relief for adverse possession in the absence of such plea or defence in both the trial court as well as the lower appellate court?
23. Heard Sri.P.M.Siddamallappa, learned counsel appearing for the appellant/s in all the three appeals and Sri.Prasanna Kumar, learned counsel appearing for the common sole respondent – Karibasappa. Perused the judgments impugned as well as the oral and documentary evidence available on record and after going through the same, this Court would answer the substantial question of law which is framed in RSA.No.136/2006 in affirmative, against the respondent – Karibasappa, in RSA.No.118/2006 in the negative, against the respondent – Karibasappa and in RSA.No.164/2006 in the negative, against respondent – Karibasappa. While doing so, the additional common substantial question of law to all the 3 appeals is answered in the negative, against the common respondent – Karibasappa, for the following reasons:
24. Admittedly, the proceedings between the appellant/s and common respondent in these three appeals find its root to an agreement of sale dated 10.6.1982 followed by a suit in OS.No.81/1993 on the file of Civil Judge (Jr.Dn), Harapanahalli. The agreement of sale dated 10.6.1982 is executed by Ramanagouda, first appellant in RSA.No.164/2006, which he has entered with the plaintiff in OS.No.81/1993, namely Karibasappa for sale of 3 items of suit schedule properties in OS.No.176/2001. It is seen that besides the agreement of sale in favour of Karibasappa, Ramanagowda had also entered into one more agreement with Karibasappa’s brother Shankarappa for sale of some other properties. It is in this background initially 2 suits were filed in OS.Nos.81/1993 and 82/1993, for the relief of specific performance. In the said suits, several defences were taken, one of that is with reference to limitation that the suits of plaintiffs are not sustainable. The said suits were tried together and came to be disposed of on merits by common judgment dated 16.8.2001.
25. It is necessary to mention at this juncture that even before OS.No.81/1993 was filed by Karibasappa for the relief of specific performance in respect of suit schedule properties in OS.No.176/2001 the 1st defendant Ramanagowda in the said suit had entered into an agreement for sale in respect of three landed properties in favour of Manjappa son of Kenchamma under an agreement of sale dated 28.4.1992. The said agreement is at Ex.P1 in OS.No.190/2001, wherein it was clearly stated that Kenchamma had got an agreement entered into between Ramangowda as Vendor and her son Manjappa as purchaser in respect of 3 items of lands namely Sy.Nos.314/b, 313/c and 292 of Mattihalli, Harapanahalli Taluk, Ballary, for the consideration shown therein. It is subsequent to this agreement of sale the suit in OS.No.81/1993 was filed by Karibasappa.
26. Subsequent to filing of the suit it is seen that one of the items of properties in agreement of sale at Ex.P1 was registered in favour of Kenchamma vide Ex.P3, dated 27.9.1993. It is in this background Kenchamma was arrayed as one of the parties in OS.No.81/1993, where she had taken up a defence that all the three properties were agreed to be purchased in the name of her son and out of that one property she got registered in her name. This fact is also confirmed by the endorsement on the backside of Ex.P1 – agreement of sale where specifically a shara is written indicating that one of the schedule items to the agreement is registered in favour of Kenchamma and other 2 items continued to be under agreement with Manjappa at the request of Kenchamma and it is also seen in the evidence of parties in the court below in OS.No.81/1993.
27. In this background, the court below while considering the suit in OS.No.81/1993 filed by Karibasappa dismissed his suit for specific performance by judgment and decree dated 16.8.2001, wherein it had also observed that both 1st defendant – Ramanagowda and 2nd defendant – Kenchamma are entitled to seek possession of lands which were delivered to Karibasappa under Section 53A of the Transfer of Property Act. Pursuant to such liberty, OS.Nos.190 and 191 of 2001 are filed by Kenchamma in her name as well as in the name of her son Manjappa seeking possession of the properties which were subject matter of OS.No.81/1993.
28. It is an interesting thing to note that though Karibasappa - plaintiff in OS.No.81/93 failed to secure the relief of specific performance in said suit, instead of pursuing the same by filing an appeal took a short cut in seeking declaration of his ownership to said land by filing suit in OS.No.176/2001. In the said suit, he would arraign the original owner - Ramanagouda and agreement holder -Manjappa and his mother Kenchamma, in whose name one of the properties in question is already registered, wherein at no place he would take a plea that he has perfected his title to the suit properties by adverse possession. In the said suit, he conceded that the he has been in possession as provided under the provisions of Section 53A of the Transfer of Property Act. He would also try to assert that once having come in to possession of the property it cannot be disturbed; that he has been in continuous possession and enjoyment of the property for more than 16 years as on the date of filing of the suit for declaration; that he has got the revenue entries registered in his name, he has sunk a borewell in one of the suit schedule properties and has been in possession, cultivation and enjoyment of the same as such, he is entitled for declaration. Though the relief which he has sought is unknown to canons of law, the plaintiff instead of pursuing his claim by filing an appeal against the judgment and decree in OS.No.81/1993 has filed the present suit in OS.No.176/2001 for declaration of his ownership.
29. In OS.No.176/2001, the defence of Kenchamma and Manjappa is that the plaintiff in OS.No.176/2001 having accepted the finding of trial court in OS.No.81/1993 in rejecting his prayer to specifically enforce the agreement of sale dated 10.6.1982 and reserving liberty to Ramanagowda and Kenchamma to secure possession of the properties under the agreement of sale which she got entered into in her son Manjappa’s name vide Ex.P1 and the sale deed executed in her name vide Ex.P3, has no right to seek ownership of those lands in as much as he has not filed any appeal against the judgment and decree passed in the earlier suit which is filed by him in OS.No.81/1993. While taking such defence in OS.No.176/2001, Kenchamma and her son Manjappa have independently filed two suits in OS.Nos.190 and 191 of 2001 on the file of Civil Judge (Jr.Dn), Harapanahalli for the relief of possession which is pursuant to the liberty reserved to Kenchamma and Ramanagowda under judgment and decree dated 16.8.2001 in OS.No.81/1993. In the said suits in O.S.No.190 & 191/2001, the defence of Karibasappa is similar to the pleadings in OS.No.176/2001. So far as Ramanagouda is concerned, he remained mute spectator in all these three suits.
30. The trial court after recoding evidence independently in all the three suits has rightly decreed the suits of Kenchamma and Manjappa in OS.Nos.190 and 191 of 2001, whereas rejected the suit in OS.No.176/2001 filed by Karibasappa. The said judgment of trial court in OS.No.176/2001, OS.Nos.190 and 191 of 2001 are subject matter of appeals before the lower appellate court in RA.Nos.34 to 36 of 2005. Out of them, RA.No.34/2005 is by Manjappa, RA.No.35/2005 is by Kenchamma and RA.No.36/2005 is by Karibasappa.
31. At this juncture it is necessary to mention that in none of the suits there is reference to either Karibasappa claiming title by way of adverse possession in the suit filed by him or the plaintiff in OS.Nos.190 and 191 of 2001 contending that Karibasappa has set up the defence of adverse possession. The difference between the parties is only with reference to Kenchamma and Manjappa contending that possession of Karibasappa is permissive in nature whereas, Karibasappa contending that it is contractual in nature. Be that as it may. Whether it is permissive possession or contractual possession, both are legally protected possession is not in dispute.
32. However, what is not taken in to consideration by the lower appellate court is that the right of Karibasappa is curtailed by the trial Court in OS.No.81/1993 while dismissing his suit holding that he has no right to seek specific performance of suit schedule properties in OS.No.81/1993. In fact, the trial Court has recognized the right of Kenchamma, who is purchaser of one of the properties under registered sale deed dated 27.9.1993 which is subsequently marked as Ex.P3 in the subsequent round of litigation and the agreement of sale dated 28.4.1992 which was got executed by Kenchamma in the name of her son Manjappa. After looking into the same the trial court in OS.No.81/1993 has reserved liberty to Kenchamma as well as Ramanagouda to claim possession of suit schedule items in OS.No.176/2001, which were schedule properties in OS.No.81/1993 as well from Karibasappa. It is also seen that the said judgment and decree not being challenged and the liberty that is reserved by the said court in favour of Ramanagowda and Kenchamma (which would survive to her son Manjappa, since the agreement of sale was executed in his favour at the instance of Kenchamma) remains undisturbed and the judgment and decree passed by the trial court in subsequent suits, namely OS.Nos.190 and 191 of 2001 in recognizing the right of plaintiff therein to seek possession of suit schedule items in Ex.P1 – agreement of sale, which are the very same schedule item properties in OS.No.176/2001 filed by Karibasappa for the relief of declaration, appears to be just and proper.
33. Therefore, when the judgment that is rendered by the trial court in second round of suits is just and proper, the lower appellate court has committed grave error in considering that there is claim of adverse possession by Karibasappa in the suit filed by him in OS.No.176/2001 and that he has set up the same as defence in other two suits, namely OS.Nos.190 and 191 of 2001. This would clearly indicate that the lower appellate court has ignored the facts available in three suits and also the legal points which were raised in the said appeals before it consequently, has passed the judgments independently in all the three appeals without even understanding the facts of the case from which the appeals have arisen.
34. In that view of the matter, the judgments rendered by the lower appellate court are neither supported by facts nor the legal provisions and the finding which is rendered by it, is under certain presumptions that the appellant in all the 3 appeals is trying to seek relief pursuant to the suit filed by him in OS.No.176/2001 for possession on the basis of adverse possession and trying to defend the other two suits filed against him by Kenchamma and Manjappa for the relief of possession by way of adverse possession, which findings is erroneous.
35. In that view of the matter, the divergent finding rendered by the lower appellate court in RA.Nos.34 to 36 of 2005 does not stand to reason and the same is required to be set side by answering the substantial question of law in the manner referred to supra. Accordingly, all the three appeals in RSA No.136/2006, 118/2006 and 164/2006 are allowed, by setting aside the divergent judgment and decree dated 26.11.2005 rendered by the lower appellate Court in each of the appeals in R.A.No.34, 35 and 36/2005. Consequently, the judgment and decree dated 28.3.2005 in O.S.No.176/2001 and judgment and decree dated 28.3.2005 and 29.3.2005 in OS.Nos.190 and 191 of 2001 on the file of Civil Judge (Jr.Dn), Harapanahalli is confirmed.
Sd/- JUDGE bkp/nd/-