IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR SECOND APPEAL No.1414 OF 2010 BETWEEN 1. U.S.Anantha Aradhya, Aged 52 years, S/o. Late U Surappa Aradya, R/o. Uragadur, Shivamogga Taluk-577201.
2. U.S.Malathesha Aradhya, Aged 40 years, S/o. Late U Surappa Aradya, R/o. Uragadur, Shivamogga Taluk-577201.
3. Smt. Anasuya Chikka Jois, W/o. Chikka Jois, Aged about 61 years, R/o. Arasalu, Hosanagar Taluk-577418.
4. Smt. Geetha H S Joshi, W/o. H S Joshi, Aged about 54 years, House Hold, R/o. Aravandi Koppal Taluk, Raichur District-584101.
5. Smt. Shantha C S Rao, W/o. Chandrashekar Rao, Aged about 53 years, House Hold, R/o. Shivappanaik Nagar, Sagar, Shivamogga Taluk-577201.
6. Smt. Vasantha Kumari, W/o. M H Prabhakara, Aged about 54 years, House Hold R/o. Hithla, Thirthahalli Taluk-577432 7. Smt. Sujatha, W/o. V C Vidhya, Aged about 38 years, House Hold, R/o. Simbil Mansion 199, S V Road Santhacruz West, Bombay-400054.
8. U S Sridhara Aradhya, Aged 51 years, S/o. Late Surappa Aradya, R/o. Madapura Somawarepet Taluk, North Coorg District.
9. U S Rajashekar Aradhya, Aged about 51 years, R/o. Srinivasa Nilaya, New Devaandra Extension, K.R.Uragadur, Bengaluru-560036.
(By Ms. Deepika Joshi, Advocate for Sri. Pruthvi Wodeyar, Advocate;
Vide order dated 9.1.2019, appeal filed by A4 & A5 does not survive for consideration) AND 1. Venugopala Mudaliyar, Since deceased by his LRs, …Appellants (a) Danamma, W/o. Late Venugopal Mudaliyar, Aged 76 years, (b) Krishnappa, S/o. Late Venugopal Mudaliyar, Aged 58 years, (c) Dandapani, S/o. Late Venugopal Mudaliyar, Aged 51 years, (d) Venkataramana, S/o. Late Venugopal Mudaliyar, Aged 45 years, (e) Subramani, S/o. Late Venugopal Mudaliyar, Aged 36 years (f) Smt. Amrutha, D/o. Late Venugopal Mudaliyar, Aged 27 years (g) Manjunath, S/o. Late Venugopal Mudaliyar, Aged 31 years, (h) Ravi, S/o. Late Venugopal Mudaliyar, Aged 36 years, (i) Lakshmana Since dead by his LRs.
(a) Smt. Baby, W/o. Late Lakshmana, Aged 41 years Occ: Coolie, (b) Sri. Venkatesh, S/o. Late Lakshmana, Aged 16 years, Minor, (c) Sharada, D/o. Late Lakshmana, Aged 14 years, Minor, (d) Shabari, D/o. Late Lakshmana, Aged 12 years, Minor, (Represented by his guardian respondent 1(i)(a) All are residents of Uragadur Shivamoga Taluk-577201.
2. Krishnappa @ Contractor Krishna, S/o. Late Venugopal Mudaliyar, Aged 56 years, R/o. Uragadur, Shivamogga Taluk-577201.
…Respondents This RSA is filed under Section 100 of CPC against the judgment and decree dated 17.2.2010 passed in R.A.No.129/2004 on the file of the Presiding Officer, Fast Track Court-III, Shivamoga, dismissing the appeal and confirming the judgment and decree dated 05.11.1997 passed in O.S.No.1057/89 on the file of the Prl.Civil Judge (Jr.Dvn.) Shivamoga.
This RSA coming on for admission this day, the court delivered the following:
JUDGMENT This appeal is by the plaintiffs in O.S.1057/1989 on the file of Principal Civil Judge (Senior Division), Shimoga. The plaintiffs are the children of U.Surappa Aradya. In their suit they claimed declaration that the agreement dated 27.12.1972 is not binding on them and it is unenforceable. They stated that on 28.1.1959, suit schedule property fell to the share of their father in a partition. Their father was in possession till he died on 14.6.1989. A portion of this property was relinquished for construction of a temple on the southern side of the plaintiffs’ house. After death of their father, katha was transferred to their name and they are in possession of this schedule property. The defendants have no manner right, title or interest. They tried to interfere with the possession of the plaintiffs on the basis of an agreement said to have been executed by the plaintiffs’ father 18 years ago. In fact their father did not have exclusive right to execute an agreement. Even if the agreement had been executed by their, father it was never acted upon and that the defendants were not put in possession of the suit property. Therefore, the agreement is not binding on the plaintiffs.
2. The defendants pleaded that the plaintiffs’ father executed an agreement of sale in their favour on 27.12.1972 in respect of 35 guntas of land situated on the western side of the road. By executing the agreement, the plaintiffs’ father put them in possession. The defendants have been cultivating the said land without any disturbance. There was no disturbance to their possession till the plaintiffs’ father was alive. Plaintiffs started disturbing their possession thereafter demanding possession of the suit land. Since defendants refused, they filed a false suit.
3. The trial court raised issues and after appreciating evidence, dismissed the suit holding that the plaintiffs’ father had executed an agreement of sale in favour of the defendants on 27.12.1972 and pursuant to the agreement the defendants were put in possession. Defendants have been cultivating the land. The evidence of PW1 shows that the plaintiffs’ father did not cultivate the said land and even the plaintiffs never cultivated it. It appears that there was a mortgage of the suit land in favour of one Nagappa and in regard to this the trial court has held that there was no delivery of the property to Nagappa pursuant to mortgage deed. Ex.D1, the mortgage deed was never acted upon though it was a usufructory mortgage. Finding possession not being with the plaintiffs, the trial court ultimately dismissed the suit. Plaintiffs preferred an appeal to the District Court, Shimoga. The Fast Track Court-III dismissed the appeal confirming the findings of the trial court.
4. Learned counsel for the appellants tries to make out a case for admission by submitting that the agreement in the year 1972 is contrary to section 29 of the Indian Contract Act. The agreement does not specify as to which portion of the land was agreed to be conveyed to the defendants. Because of uncertainties in the terms of the contract, it was a void agreement. Possession was ever with the plaintiffs.
5. I do not think that the arguments advanced by the appellants counsel gives rise to a substantial question of law. Both the courts have held that the suit property was with the possession of the defendants on the basis of the agreement of sale. In fact the trial court has clearly held that land situated towards west of the road is with the possession of the defendants. The first appellate court has re-appreciated the evidence thoroughly. I do not find perversity in the appreciation of evidence. Therefore, finding on facts by the two courts below cannot be disturbed. There is a clear finding by the courts below with regard to land sought to be conveyed to the defendants. They took over possession pursuant to agreement of sale that came into existence in the year 1972. It is worthy to note here that the plaintiffs tried to assail the said agreement after their father’s death. Uncertainty in the argument is not forthcoming. Section 29 of the Contract Act cannot be applied. Substantial question of law does not arise. Appeal is dismissed.
SD/- JUDGE ckl