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2022 Supreme(Online)(Kar) 54858
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 29TH DAY OF JUNE, 2022
BEFORE
THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO.1152 OF 2004(DEC)
BETWEEN
SRI. M.H. GANGAPPA
S/O HONNAGANGAIAH
SINCE DECEASED BY HIS LRS
A)
SMT. LAKSHMAMMA
W/O LATE. M.H. GANGAPPA
SINCE DECEASED BY LRS APPELLANTS 1(B) TO (G)
B)
SRI. G. MAHADEVAIAH
S/O LATE. M.H. GANGAPPA
AGED ABOUT 59 YEARS.
C)
SRI. G. SHIVASHANKARAIAH
S/O LATE M.H. GANGAPPA
AGED ABOUT 44 YEARS.
D)
SRI. G. VISHWANATH
S/O LATE M.H. GANGAPPA
AGED ABOUT 49 YEARS.
E)
SMT. G. HONNAMMA
D/O LATE. M.H.GANGAPPA
AGED ABOUT 61 YEARS.
F)
SMT. G. PREMA
D/O LATE M.H. GANGAPPA
AGED ABOUT 55 YEARS.
G)
SMT. VASANTHAKUMARI
D/O LATE M.H. GANGAPPA
AGED ABOUT 45 YEARS.
ALL ARE RESIDING AT
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MALLARABANUVADI VILLAGE
NELAMANGALA TALUK
BENGALURU DISTRICT – 562 123.
…APPELLANTS
[BY SRI. Y.K. NRAYANASHARMA, ADVOCATE FOR APPELLANT(b)
AND (d); V/O DATED V/O/DT: 28.02.2019 (B-G) ARE TREATED AS LRS
APPELLANT (a); SRI. K.R. RAMESH, ADVOCATE FOR APPELLANT(c)]
AND
SRI. M.H.HONNASHAMAIAH
S/O HONNAGANGAIAH
AGED ABOUT 75 YEARS
R/AT MALLARABANUVADI
NELAMANGALA TALUK
BENGALURU DISTRICT – 562 123.
…RESPONDENT
(BY SRI. V. RAMESH BABU, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41 R
1 CPC AGAINST THE JUDGEMENT AND DECREE DATED: 28.08.2004
PASSED IN O.S.NO. 255/1992, ON THE FILE OF THE 1ST ADDL. CIVIL
JUDGE (SR.DN) BENGALURU RURAL DISTRICT, BENGALURU
DISMISSING
THE
SUIT
FOR
DECLARATION,
POSSESSION,
MANDATORY INJUNCTION, PERMANENT INJUNCTION AND FOR
MESNE PROFITS.
THIS APPEAL COMING ON FOR FURTHER HEARING , THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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This appeal by the plaintiffs in O.S.No.255/1992 is
directed against the impugned judgment and decree dated
28.08.2004 passed by the I Addl. Senior Civil Judge,
Bangalore Rural District, Bangalore, whereby the said suit for
declaration, possession, mandatory injunction and other reliefs
in respect of the suit schedule immovable property was
dismissed by the trial Court.
2.
Heard learned counsel for the appellants and
learned counsel for the respondent and perused the material
on record.
3.
A perusal of the material on record including the
impugned judgment and decree will indicate that the appellant
herein instituted the aforesaid suit in respect of two items of
plaint schedule immovable properties viz., land bearing
Sy.No.125/1B measuring 1 acre 2 guntas described as item
No.1 and Sy.No.4/1 measuring 20 guntas described as item
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No.2,
both
situated
at
Mallahara
Banawadi
Village,
Nelamangala Taluk, Bangalore District. The said suit was
contested by the respondent / defendant who not only
disputed the title and possession of the plaintiff over the suit
schedule properties but also, the location and identity of the
properties as alleged by the plaintiff. The trial Court framed
the following issues:
“ 1.
Whether the plaintiff proves that
plaintiff is the absolute owner of Item No.2 of suit
schedule properties in furtherance of the
settlement deed dated: 06.05.1973?
Or Alternatively
Whether the defendant proves that he has
acquired title and possession in respect of 0.20.0
in Sy.No. 4/1 by settlement deed and by sale
deed executed by his father, as averred in para -
2 of the written statement?
2.
Whether the plaintiff proves that he
was in possession of Item No.2 of the plaint
properties?
3.
Whether the plaintiff proves that the
defendant has encroached 0-20-0 in S.No. 4/1
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with boundaries morefully described at Item No.2
of plaint schedule?
4.
Whether plaintiff proves that plaintiff
and purchased Item No.1 of plaint schedule
properties as per the registered sale deed
executed
on
6-9-51
by
Veeraiah
of
Goundanapalaya?
5.
Whether
defendant
proves
that
S.No.125/1 sold by father of Veeraiah was Sold
with an understanding to reconvey?
6.
Whether defendant proves that S.No.
125/1 sold by Veeraiah was repurchased by
father in the name of plaintiff?
7.
Whether defendant proves that S.No.
125/1 measuring 4.30-0 was retained by father
without including it in the settlement deed dated:
6.5.73 and father was the owner of the entire
extent of 4.30.0?
8.
Whether defendant proves that 1.02
reconveyed from Veeraiah in the name of
plaintiff is a part and parcel of the said 4.30.0
retained by father?
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9.
Whether defendant proves that on
account of sale in favour of Veeraiah S.No.
125/1 was renumbered as 125/1a and 125/1b?
10.
Whether defendant proves that his
father had sold S.No. 125/1A and 125/B totally
measuring 4.30.0 to him in 1979?.
11.
Whether defendant proves that he has
acquired title in respect of both suit schedule
properties by adverse possession?
12.
Whether plaintiff proves that defendant
has encroached and illegally occupied item No.1
of plaint property on 21.08.1991?
13.
Whether plaintiff proves that suit is
within time?
14.
Whether plaintiff proves that the
valuation of suit properties made and Court fee
paid is correct?
15.
Whether plaintiff proves that he is
entitle for declaration and possession of suit
properties?
16.
Whether plaintiff proves that he is
entitle for the relief of mandatory injunction?
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17.
Whether plaintiff proves that he is
entitle for mesne profits?
18.
To What relief parties are entitled?”
4.
The original plaintiff having expired during the
pendency of the suit, his wife and children - the appellants
herein continued to prosecute the suit and on their behalf, his
son G. Shivashankaraiah was examined as PW-1 and Exs.P1
to P43 were marked. The defendant - respondent examined
himself as DW1 and two witnesses DW2 and DW3 and
Exs.D1 to D48 were marked on his behalf. The trial court
heard both sides and proceed
