IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR SECOND APPEAL No.2150 OF 2010 BETWEEN:
Smt. Muniyamma W/o Late Muniyappa Hindu, aged about 52 years R/at Alahalli village Kasaba Hobli Doddaballapura Taluk Bengaluru District-562103 (By Smt. S.M.Usha, Advocate) AND:
1. Smt. Ashwathamma W/o Sri Nandappa Hindu, Aged about 63 years R/at Alahalli village Kasaba Hobli Doddaballapura Taluk PIN : 562 103 2. Smt. Venkatamma W/o Sri Muniyappa Hindu, Major R/at Kodihalli village Madhure Hobli Doddaballapura Taluk …Appellant PIN : 562 103 Since Dead, R3 to R5 Are treated as LRs v/o dated 08.10.2015 3. Sri Ashwathappa (Dead) S/o Sri Ramaiah Hindu, Major R/at Kodihalli village Madhure Hobli Doddaballapura Taluk PIN : 562 103 4. Sri Muniyappa S/o Sri Ramaiah Hindu, Major R/at Kodihalli village MAdhure Hobli Doddaballapura Taluk PIN : 562 103 5. Sri Muniraju S/o Sri Ramaiah Hindu, Major R/at Kodihalli village Madhure Hobli Doddaballapura Taluk PIN : 562 103 ... Respondents (By Sri G.A.Mithun, Advocate for R1; R3 & R5 treated as LRs of deceased R2; R4 – service held sufficient) This RSA is filed under Section 100 of CPC, against the judgment and decree dated 16.12.2009 passed in R.A.No.9/2008 on the file of the Addl. District and Sessions Judge, Fast Track Court-VII, Doddaballapur, allowing the appeal and setting aside the judgment and decree dated 10.12.2007 passed in O.S.No.300/1999 on the file of Additional Civil Judge (Jr.Dn) and JMFC, Doddaballapura. The trial Court partly decreed the suit and the appellate Court allowed the appeal. The suit is filed for declaration and permanent injunction.
This RSA coming on for admission this day, the Court delivered the following:
JUDGMENT This appeal is by the first defendant in O.S.No.300/1999 on the file of the Civil Judge (Jr.Dn), Doddaballapura. The first respondent is the plaintiff in the suit.
2. It is the case of the plaintiff that her mother Muniyamma purchased 2-00 acres of land in Sy.No.36/9 of Alahalli village, Kasaba Hobli, Doddaballapura Taluk on 19.07.1961. At the time of registration of the sale deed, the extent of the land was wrongly mentioned as 3-00 acres in the sale deed instead of mentioning it as 2-00 acres. The purchaser Muniyamma continued to be in possession of 2-00 acres of land only. Thereafter, there took place a partition among her sons, namely, Ramaiah, Narayanappa and Nandappa on 17.02.1969. A registered partition deed came into existence. In the said partition, Ramaiah i.e., the husband of second defendant and father of defendant Nos.3 to 5 was allotted 1-00 acre and the husband of the plaintiff was allotted 1-00 acre. But in the partition deed also instead of showing that each of them was allotted 1-00 acre of land, wrongly it was shown that 1-20 acre was allotted to each of them. But each of them had possession of 1-00 acre only. Defendant Nos.2 to 5 actually possessed 1-00 acre of land, but they executed a sale deed on 04.09.1986 in favour of first defendant i.e., the appellant herein in respect of 1-20 guntas of land. When the first defendant tried to interfere with the plaintiff’s 1-00 acre land, she filed the suit for declaration of her title and injunction.
3. The first defendant in the written statement contended that she purchased 1-20 guntas of land from defendant Nos.2 to 5 through a sale deed dated 04.09.1986 and she is having possession of 1-20 guntas. She refuted all other allegations made in the plaint.
4. The trial Court after recording evidence of the witnesses dismissed the plaintiff’s suit for declaration for title, but granted the relief of permanent injunction, restraining the first defendant from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property.
5. Aggrieved by the judgment of the trial Court the plaintiff preferred an appeal to the District Court, which after re- appreciating the evidence, allowed the appeal and granted decree declaring the title of the plaintiff. Hence this appeal by the first defendant challenging the judgment and decree in the first appeal i.e., RA No.9/2008.
6. Learned counsel for the appellant argues that the trial Court has come to right conclusion to deny the relief of declaration of title. The trial Court held that the plaintiff did not produce the sale deed of the year 1943. Only revenue entries could not be considered to come to conclusion about the title over the land. This finding of the trial Court is well founded and reversal of the findings of the trial Court by the first appellate Court is erroneous, it should not have taken a contrary view. The first defendant is in possession of 1-20 guntas of land. Therefore it is her submission that a substantial question of law will arise in this appeal with regard to declaring title of the plaintiff based on revenue entries.
7. I have perused the reasons assigned by both the Courts. It can be very well be said that the purchase of land by Muniyamma under sale deed dated 19.07.1961 is not disputed. In the said sale deed, the extent was shown as 3-00 acres instead of showing it as 2-00 acres. The same mistake also continued in partition deed as per Ex.P.15 dated 17.02.1969. Ex.P.16 is the sale deed under which first defendant purchased the property from defendant Nos.2 to 5. In this sale deed also, it is shown that the extent sold was 1-20 acres. But, the revenue documents show that actual extent is only 2-00 acres. This being the position, the trial Court appears to have wrongly held that the sale deed executed by Thimmakka in favour of Muniyamma in the year 1943 should have been produced by the plaintiff to seek declaration for title. Defendant Nos.2 to 5 also do not dispute the purchase made by Muniyamma from Thimmakka and they cannot dispute it also. It is true that the revenue records do not convey any title. But with regard to survey number, extent of land and other descriptions of the land only the revenue records can be looked into. If the total extent was only 2-00 acres, only this extent can be considered even though in the sale deed and the partition deed larger extent is mentioned. Trial Court has misdirected itself.
8. The first appellate Court has re-appreciated the evidence once again and noticed the fact that actual land conveyed was only 2-00 acres. The partition that took place in the year 1969, there was division of 2 acres of land only. If defendant Nos.2 to 5 sold the property to defendant No.1 in the year 1986, they could not have conveyed the possession of more than 1-00 acre. These reasons given by the first appellate Court to reverse the judgment of the trial Court are well founded.
9. So far as possession of the plaintiff is concerned, the first defendant did not question it by filing a cross appeal or separate appeal before the first appellate Court. Therefore the possession of the plaintiff is held to be proved.
For the above reasons, I do not find that a substantial question of law emerges. Appeal is dismissed.
KMV/-
SD/- JUDGE