K.R. Meenakshi and Others vs R. Nagabhushana

K.N. Phaneendra, J.—The appellant has called in question the concurrent findings recorded by the Principal Civil Judge (Jr.Dn.) and JMFC, Mulbagal, in O.S. No. 14/2007 dated 19.01.2011 and the II Additional Senior Civil Judge, Kolar, in R.A. No. 103/11 dated 29.01.2014.

This matter has come-up for admission and the matter is heard in detail regarding admission.

The appellant''s counsel has strenuously submitted that the First Appellate Court and the Trial Court have committed serious error in appreciating the oral and documentary evidence on record. Therefore, he has a very good case on merits. The court has to ascertain from the materials on record, whether any substantial question of law would arise for consideration. Therefore, it is just and necessary to have the brief factual matrix of the case to consider the issues arose between the parties and also the findings given by the Trial Court as well as the First Appellate Court.

The case of the plaintiff in brief is, he claims that he is the absolute owner in possession and enjoyment of the land measuring 1 acre 24 guntas along with 18 guntas of karab land in Sy. No. 439 situate at Mulbagal, Kasaba Hobli, Kolar District. The defendant though having no manner of right, title or interest over the said portion of the land, with the help of powerful rowdy elements, attempted to interfere with the possession and enjoyment of the plaintiff. Therefore, the plaintiff had filed a suit. It is the further case of the plaintiff that Sy. No. 439 totally measures 4 acre 2 guntas and in fact the plaintiff has sold 2 acres of land under two different sale deeds in favour of a person by name R. Nanjundappa and retained 1 acre 24 guntas -plus- 18 guntas of karab land. The said Nanjundappa has sold the said two acres of land in favour of the defendant. But the defendant claims that she is entitled to 2 acres 10 guntas of land and 10 guntas claimed by her is by way of karab land. The defendant appeared before the court, contested the suit, denied the allegations made in the plaint against her and in fact she has taken-up the contention that out of 4 acres 2 guntas of land, 2 acres 10 guntas of land was sold by the plaintiff in favour of Nanjundappa, son of M. Ramachandrappa and in fact he sold the said land in favour of the defendant for a valid consideration of Rs. 4,75,000/-. Therefore, she is entitled for 2 acres 10 guntas of land including karab land of 10 guntas. Further, it is contended by the defendant that the plaintiff is only entitled for 08 guntas of karab land and the defendant is entitled for 10 guntas of karab land. With these pleadings of the parties, the Trial Court has framed the following issues:--

"i) Whether the plaintiff proves that he is in actual possession and enjoyment of suit schedule property as on the date of suit?

ii) Whether the alleged interference is proved?"

The plaintiff examined himself as P.W. 1 and examined two witnesses as P.W. 1 & P.W. 2 and she got marked Exs. P1 to P8. On the side of the defendant, one K.G. Venkataravanappa, who was the GPA holder of defendant was examined as D.W. 1 and he got marked Exs. D1 to D9.

After appreciating the oral and documentary evidence produced by the parties, the Trial Court has answered Issue Nos. 1 & 2 in the affirmative and consequently decreed the suit of the plaintiff as prayed. Being aggrieved by the above said judgment and decree, the defendant approached the First Appellate Court in R.A. No. 103/2011.

The First Appellate Court also formulated the following points for consideration on the basis of the pleadings of the parties and also on the basis of the judgment of the Trial Court:--

"i) Whether the vendor of the defendant had right to convey 10 guntas of karab land along with two acres of cultivable land without conducting survey and locating the karab portion?

ii) Whether the plaintiff proves his possession over the suit property?

iii) Whether the trial court was justified in holding that plaintiff is in possession of the suit property including 18 guntas of karab?

iv) Whether the judgment of the trial court needs interference?

v) To what relief and decree the parties are entitled for?"

Answering Points No. 1 & 4 in the negative and Points No. 2 & 3 in the affirmative, the First Appellate Court has dismissed the appeal confirming the judgment and decree passed by the Trial Court, against which the present appeal is preferred.

Perusal of the judgment of the Trial Court and First Appellate Court reveals that, both the courts below have appreciated the oral and documentary evidence on record and examined the sale deeds executed by the plaintiff in favour of R. Nanjundappa, marked at Exs. P1 & P2 and also the sale deeds executed by said R. Nanjundapa in favour of the defendant as per Ex. D2. Both the courts below have come to the conclusion that in respect of Sy. No. 439 measuring 4 acres 2 guntas, there is no dispute that the plaintiff was the owner of the said property earlier and it is also not in dispute that under Exs. P1 & P2, the plaintiff has sold 2 acres of land in favour of R. Nanjundappa and it is the case of the defendant that she purchased the said 2 acres of land from R. Nanjundappa under Ex. D2. Both the courts below after appreciation of these documents have come to the conclusion that R. Nanjundappa did not have any right, title or interest over the Karab land and hence, he had no right to convey the land in favour of the defendant and also the sale deed (Ex. D2) attached with survey sketch discloses that Block No. 1 measures 1 acre 32 guntas, out of which 8 guntas is Karab and Block No. 2 measures 10 guntas and out of which 10 guntas is Karab. But the defendant has not proved the sketch annexed to the sale deed in accordance with law, except producing the sale deed and sketch. It is also observed by both the courts below that the defendant has not produced any evidence to prove that the schedule property is purchased by her under Ex. D2. The defendant has also not produced any material to show that only 08 guntas of Karab land is situated within the property of the plaintiff.

On the basis of such oral and documentary evidence, the courts below have come to the conclusion that the vendor (Nanjundappa) of the defendant had no right, title and interest or he was not in possession over additional 10 guntas of land to sell the same as if it is Karab land in favour of the defendant.

A careful perusal of Ex. P1 which is the sale deed dated 17.12.1999 wherein the schedule of the property is mentioned, it is noticed that the properties sold under the sale deed was in Sy. No. 439 of Mulbagal Village. Out of the total extent, only 01 acre of land was sold to R. Nanjundappa having specific boundaries i.e., East by: same survey number, West by: Same survey number, remaining property, North by: Poolchand and K.M. Rangaiah Land & South by : Ambedkar Hostel Building''s road. With said specific boundaries the plaintiff had sold the land in favour of R. Nanjundappa under another sale deed dated 30.06.1999 marked at Ex. P2. On perusal of the recitals in the said sale deed, it shows that out of total extent 01 acre land having boundaries- East by: Gandhodi Venkataramaiah and Serkar Sabi Lands, West by : same survey number, North by : K.M. Rangaiah Setty''s land and South by : Bandahalli Road and Dr. B.R. Ambedkar Hostel Road has been sold. These two sale deeds clearly discloses that only 2 acres of land has been sold by the plaintiff in favour of R. Nanjundappa. The document Ex. D2 under which the defendant has purchased the property from R. Nanjundappa, the schedule mentioned therein shows that the said Nanjundappa has sold 01 acre of land under Ex. D2 along with 10 guntas of Karab land and the said Nanjundappa sold two items of the land, out of which, 02 acres of land was purchased by him from the plaintiff. In the schedule it is mentioned that he sold 02 acres of land and apart from that 10 guntas of Karab land in addition to 02 acres of land was also sold. There is no explanation anywhere in the said sale deed as to how this 10 guntas of excess land could have been alienated by Nanjundappa. Any amount of oral evidence would not substitute the recitals in the document. Therefore, both the courts below appreciating these documents have categorically held that Nanjundappa had no transferable title or possession over property which was not purchased by him under sale deeds -Exs. P1 & P2 in order to execute the sale deed-Ex. D2 in favour of the defendant and put the defendant in possession of the 10 guntas of Karab land.

Looking from any angle, there is no substantial question of law arises between the parties. Further added to that, in a suit for injunction, the court has made a roving enquiry with regard to documentary and oral evidence and gave finding on documentary and oral evidence that the plaintiff has been in possession and enjoyment of the remaining land of 01 acre 24 guntas along with the Karab land totally measuring 02 acres 02 guntas i.e., to say, if out of 04 acres 02 guntas, 02 acres of land was sold to R. Nanjundappa, the land measuring 02 acres and 02 guntas had remained in possession of the plaintiff.

Looking from any angle, there is absolutely no substantial question of law arises in this Regular Second Appeal. Hence, at the admission stage itself, the appeal held to be not maintainable. Hence, the appeal is liable to be dismissed. Accordingly, I proceed to pass the following order:--

At the admission stage itself, the appeal is dismissed as devoid of merit, as no substantial question of law arises for consideration.