Sri Ujjinappa vs Sri Jayanna

L. Narayana Swamy, J. - Against the concurrent judgment and decree, the defendant No.4 has filed this regular second appeal.

The facts leading to the case are that bothers by name Ramaiah and Thimmappa were the owners of the land to the extent of 2 acres 07 guntas of which Thimaiah @ Thimmappa sold 1 acre 5 gutnas to the plaintiff as per Ex.Pl dated 7.7.1977 and remaining 1 acre 2 guntas has been sold by wife of Ramaiah and her son subsequently as per Ex.P3. Since from the date of sale deeds plaintiff was put in possession. As things stood thus, defendant No.3 who purchased the property from the wife of Ramaiah as per Ex.Dl on 25.10.1983 and from him again defendant No.4 Ujjanappa purchased the same on 17.12.1986 as per Ex.Dl5.

The plaintiffs filed suit for declaration and injunction and the trial Court decreed the suit. Against the same, all the defendants filed R.A. No.34/2007 which came to be dismissed by confirming the judgment and decree of the trial Court by the judgment and decree dated 14.8.2014. Hence this appeal.

The substantial question of law raised by the appellant is that what was sold as per Ex.Pl & Ex.P3 it is the land situated in Boothanahalli and not Arabala village. Hence the suit was filed in respect of the suit schedule property as if it is situated in Boothanahalli and this rectification has not been carried out and despite the fact that the appellant raised objection, the trial Court has committed an error in decreeing the suit. The second substantial question of law is, when there is no issue in respect of amendment by reading Arabala, the trial Court had no jurisdiction to decree the suit in respect of the suit schedule property said to have been situated at Boothanahalli. As long as the rectification has not been carried out, since no amendments are filed, it is not for the Courts below to decree the suit.

The learned Counsel for the appellant submits that the 4th defendant who had purchased the property being in possession in 1986 as per Ex.D15, he has challenged the judgment of the trial Court in Regular Appeal and also before this Court. In view of these substantial questions of law, the judgments of both the Courts below are to be set aside.

The learned Counsel for the respondent submitted to dismiss this appeal. Though there are four defendants in the suit, all the defendants had filed regular appeal of which only 4th defendant has filed this appeal. Hence the appeal is not maintainable since the property has not been transferred in his favour and second defendant who sold the property as per Ex.P3 on 10.3.1982, he became the title holder. When such being the case, question of selling the land to the defendant No.3 and in turn defendant No.4 does not arise as defendants 1 & 2 had no title to transfer the land by sale deeds Ex.D 1 & D15, they are non est in the eye of law. Rightly, both the Courts concurrently decreed the suit. No substantial question of law arises.

With regard to question of law that the plaintiff has not filed rectification deed for changing the Boothanahalli and Arabala cannot be accepted since suit has been filed for rectifying the sale deed by adding Arabala village instead of Boothanahalli village and on this ground first submission of the appellant''s Counsel is rejected and consequentially it was not for the trial Court to frame separate issue as to whether Boothanahalli has been amended into Arabala.

In the circumstances, I do not find any substance in the substantial questions of law sought to be raised in this second appeal.

Accordingly, the appeal stands rejected.