IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.896 OF 2015 BETWEEN:
SRI K.L.SHANKARE GOWDA, S/O LATE M.LINGAIAH, AGED ABOUT 62 YEARS, RESIDENT OF NO.148/G, 4TH CROSS, KARASAVADI MAIN ROAD, HOSAHALLI EXTENSION, MANDYA TOWN – 571 401.
...APPELLANT (BY SRI B.N.PUTTALINGAIAH, ADVOCATE) AND:
1. SMT. NAGARATHNA, @ H.NAGARATHNAMMA, W/O R.A.JAVAREGOWDA AGED ABOUT 46 YEARS.
2. SRI SATISH BABU @ R.J.SANDESH BABU, S/O R.A.JAVAREGOWDA, AGED ABOUT 31 YEARS.
3. SRI SANTHOSH BABU, @ R.J.SANTHOSH KUMAR S/O R.A.JAVAREGOWDA AGED ABOUT 28 YEARS ALL ARE RESIDENTS OF ‘SHAMA SUNDARA NILAYA’ CAUVERY NAGARA, 3RD CROSS, HANIYAMBADI MAIN ROAD, TUNGA MARGA, MANDYA TOWN – 571 401.
...RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED:26.02.2015 PASSED IN RA.NO.121/2010 ON THE FILE OF THE II ADDL.DISTRICT AND SESSIONS JUDGE, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:31.10.2007 PASSED IN O.S.NO.191/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND JMFC AT MANDYA AND ETC., THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is by the plaintiff questioning the judgment and decree dated 26.02.2015 passed by the Appellate Court in R.A.No.121/2010 confirming the judgment and decree dated 31.10.2007 passed in O.S.No.191/2005.
2. For the sake of convenience, the parties are referred to as per their status before the courts below.
3. The case of the plaintiff is that he is the absolute owner in lawful possession of the suit schedule property. The plaintiff has averred in the plaint that he has purchased the suit schedule property from his previous owner by name Ramakrishna Shetty under registered sale deed dated 16.09.2004. The plaintiff has also narrated the flow of title in his plaint by contending that the suit schedule property was originally owned by Chikkalingaiah, who in turn sold Sy.No.70/1 in favour of Kalaiah @ Chikkaiah under registered sale deed dated 26.08.1988. Subsequently, the said Kalaiah sold to one D.Jayalakshmi (wife of appellant) under registered sale deed dated 26.08.1988, who in turn sold to Ramakrishna Shetty on 18.03.1993. The present appellant would aver in the plaint that he is in lawful possession and enjoyment over the suit schedule property and that the defendants have absolutely no manner of right, title or interest whatsoever in any portion of the suit schedule property. The plaintiff further contended in the plaint that the defendants were making attempts to interfere with his peaceful possession and enjoyment over the suit schedule property and inspite of request, the defendants were not in a mood to heed to the request and further, defendants disclosed that the suit was filed by the vendor of the plaintiff, who is the husband of defendant No.1 and they are entitled to take possession of the suit schedule property. The plaintiff further averred in the plaint that on 19.06.2005, the defendants along with their henchmen came near the suit schedule property and made an unsuccessful and illegal attempt and tried to trespass and dispossess the plaintiff from the suit schedule property and on account of timely intervention of the plaintiff and elderly people, the defendants did not succeed in the illegal attempt and hence, plaintiff was constrained to file a bare suit for injunction in O.S.No.191/2005 against the defendants.
4. The defendants on receipt of summons, contested the proceedings by filing written statement. The defendants would stoutly deny the entire averments made in the plaint. The defendants took a specific contention that the vendors of the plaintiff had no semblance of right and title over the suit schedule property. The defendants specifically disputed the alleged flow of title narrated in the plaint. The defendants specifically contended that the present plaintiff and his wife are into money lending and chit business and that the present plaintiff is an employee in KPTCL (CHESCOM) and both have indulged in creating false documents. The defendants in support of their contention, specifically contended that Sy.No.70/1 measuring 7 guntas was owned by Bukki Boregowda and in a family partition between Bukki Boregowda and his sons, 3 guntas in the said Sy.No.70/1 of Hosahalli along with some other properties were allotted to Lingaiah S/o Bukki Boregowda. The said partition was reported to the Revenue Authorities and the name of Lingaiah came to be duly mutated to the revenue records pertaining to the suit schedule property which were allotted to him in a family partition. The said Lingaiah having become the absolute owner pursuant to partition, sold Sy.No.70/1 in favour of Ningappa S/o Thibbaiah Sudbbappa of Veerajipura Village under registered sale deed dated 18.02.1961 for a valuable sale consideration. The defendants would also contend in the written statement that pursuant to acquisition of valid right and title, the said Ningappa’s name was duly mutated to the revenue records in MR.No.310/60-61. The said Ningappa in turn sold it to R.A. Javaregowda under registered sale deed dated 13.05.1994 who is none other than the husband of the first defendant Nagarathna. The defendants have taken a specific contention that the alleged erstwhile vendor of plaintiff namely Chikkalingaiah and the subsequent purchasers have no right, title over the suit property and they were never in possession over the suit schedule property. On this set of grounds, the defendants prayed to dismiss the suit.
5. The Trial Court based on the rival contentions formulated issues and the plaintiff in support of his contention examined himself as PW.1 and examined one independent witness as PW.2. To corroborate the pleadings and oral evidence, produced documentary evidence vide Exs.P-1 to P-17. Per contra, the defendants in support of their contention, examined DWs.1 to 3 and by way of rebuttal evidence produced Exs.D-1 to D-13.
6. The Trial Court having examined the oral and documentary evidence, answered issue No.1 in the negative and while dealing with issue No.1 has examined the oral evidence of PW.1 and PW.2. The Trial Court has also taken note of the earlier suit filed by the vendor of plaintiff namely, Ramakrishna Shetty in O.S.No.280/2002. The Trial Court has meticulously examined the categorical statements made by the plaintiff in the cross-examination wherein it is elicited in cross-examination and PW.1 would admit in unequivocal terms that he has no concern to the property which was sold by Lingaiah son of Bukki Boregowda in favour of B.Lingappa of Veerajipura. PW.1 further admits that several houses are constructed in Sy.No.70/1. PW.1 would also admit that after Javaregowda purchased the suit property from Ningappa, he submitted an application to measure the land bearing Sy.No.70/1 and durasti was conducted on the said property purchased by Javaregowda and the old Sy.No.70/1 was assigned a new number as Sy.No.70/1P2 and this material aspect is admitted by PW.1 in cross-examination and he would admit that he has no objection to the new number assigned by Survey Authorities. The Trial Court further appreciated the evidence of PW.1 and also recorded that the plaintiff was well aware of the pendency of suit between Ramakrishna Shetty and the husband of defendant No.1 namely, Javaregowda in O.S.No.280/2002. PW.1 further admitted in unequivocal terms that it was well within his knowledge that the suit schedule property was not at all mutated in the name of Ramakrishna Shetty by CMC.
7. The Trial Court has further culled out the cross-examination of plaintiff at page 25 of the judgment which virtually runs in a paragraph and this portion of cross-examination assumes lot of significance and the same has been examined by the Trial Court taking into consideration of the fact that one D. Jayalakshmi, who is none other than wife of present plaintiff was claiming to be the owner of the suit schedule property and she would sell this suit schedule property in favour of Ramakrishna Shetty under registered sale deed dated 18.03.1993. Now the further cross-examination at page 25 indicates that Ramakrishna Shetty having fought litigation and having found that his vendor did not have a clear title started insisting for return of sale consideration and in this context, the present plaintiff who is the husband of Jayalakshmi was compelled to repurchase from Ramakrishna Shetty and the plaintiff would repurchase suit property for the same sale consideration i.e., Rs.40,000/- which was paid on 18.03.1993. This clinching admission by the plaintiff in cross-examination would virtually enable the Court to adjudicate the real controversy between the parties.
8. The Trial Court having examined all the categorical admissions which go to the route of the case and having further examined the rebuttal evidence adduced by the defendants and having examined the title deeds, rightly dismissed the suit filed by the plaintiff by holding that plaintiff has not acquired any right and title over the suit schedule property pursuant to the sale deed vide Ex.P-1 and neither plaintiff nor his vendors were ever found to be in possession and enjoyment over the suit property.
9. The judgment and decree of the Trial Court was taken in appeal by the present appellant in R.A.No.121/2010. The Appellate Court on re- appreciation of the evidence on record, has proceeded to hold that the present appellant has failed to prove that he is in actual possession and enjoyment over the suit property and the alleged interference is also not proved. The Appellate Court would also concur with the reasoning assigned by the Trial Court and could not find any infirmities in the judgment passed by the Trial Court and hence, dismissed the appeal filed by the plaintiff.
10. Heard learned counsel appearing for the appellant.
11. Learned counsel for the appellant would vehemently argue on various grounds urged in the appeal memo. Learned counsel for the appellant would contend that the plaintiff’s wife had in fact purchased the property on 26.08.1988 which is much prior to the sale deed executed by Ningappa in favour husband of first defendant which is dated 13.05.1994 and as such, the defendants cannot claim any possession over the suit property. Learned counsel for the appellant would also contend that wife of the present appellant namely D. Jayalakshmi after purchasing the land bearing Sy.No.70/1 on 26.08.1988, had sought for conversion and there is a conversion order in respect of Sy.No.70/1 and hence, both the Courts erred in dismissing the suit and as such, the judgment and decree of the courts below suffer from serious infirmities and the same would give raise to substantial questions of law as framed in the appeal memo.
12. This Court has examined the judgment and decree of the courts below meticulously. The Trial Court has dealt with the documents adduced by both the parties and has recorded a categorical finding that defendants by way of rebuttal evidence have been able to demonstrate flow of title. The evidence adduced by the defendants to demonstrate that B.Lingaiah was allotted the suit property in a family partition who in turn sold to one Ningappa on 18.02.1961 make it abundantly clear that B. Lingaiah was the absolute owner and he sold the suit land on 18.02.1961. If B.Lingaiah had sold the suit property in favour of Ningappa in 1961, it would be difficult to accept as to how plaintiff’s original vendor namely Chikkaiah and his son C.Chandrashekar could have sold the same property in favour of appellant’s wife on 26.08.1988. In that view of the matter, the sale deeds of appellant, his wife and Ramakrishna Shetty cannot be accepted as title deed.
13. The record of rights furnished also indicate that pursuant to partition, B.Lingaiah’s name was duly mutated in the revenue records. Subsequently, the title was passed on to Ningappa and based on a registered sale deed, Ningappa’s name was also duly mutated in the revenue records in MR.No.310/60-61. The said Ningappa’s name duly appeared in the revenue records in column No.9 and 12(2) of record of rights. The husband of defendant No.1 purchased the suit property under registered sale deed dated 13.05.1994 for valuable sale consideration and his name was duly mutated in MR.No.20/94-95 and these revenue entries are not at all challenged either by the plaintiff nor by his vendors. The plaintiff in cross- examination has admitted in unequivocal terms that his vendor namely, Ramakrishna Shetty had filed a suit in O.S.No.280/2002 and the said suit came to be dismissed which is not in dispute. At page 25 of the judgment, the Trial Court has culled out categorical admissions given by PW.1 and the same would clearly throw light on the real controversy between the parties. Ramakrishna Shetty having realized that the vendors of plaintiff had no clear title has virtually insisted to repurchase, since the said Ramakrishna Shetty had purchased the present suit property from the wife of the present plaintiff namely D.Jayalakshmi.
14. It is quite relevant to note that the plaintiff’s wife sold the suit property to Ramakrishna Shetty on 18.03.1993 for a sale consideration of Rs.40,000/- and plaintiff would repurchase the same in the year 2004 for the same sale consideration. Though there is reconveyance, the same will not confer any title, since D.Jayalakshmi had not acquired title under registered sale deed dated 26.08.1988. This relevant portion of cross-examination would clinch the issue and it would lead to only inference that in fact plaintiff’s vendor did not have any clear title and no cogent and clinching evidence is forthcoming to demonstrate as to how the vendors of the plaintiff had acquired title over the suit property. In the absence of this clinching evidence and in view of the clinching and cogent rebuttal evidence adduced by the defendants, the Courts below have rightly dismissed the suit and the reasoning assigned by both the courts are based on sound judicial principles and are based on law. The present appeal filed by the plaintiff does not give raise to any substantial question of law.
In the light of the above said discussions, the second appeal is dismissed.
No order as to costs.
Sd/- JUDGE CA