IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE MOHAN SHANTANAGOUDAR

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10 th DAY OF SEPTEMBER 2012 BEFORE THE HON BLE MR. JUSTICE MOHAN SHANTANAGOUDAR REGULAR SECOND APPEAL NO.2133/2006 C/W REGULAR SECOND APPEAL No.2132/2006 IN R.S.A. NO.2133/2006 BETWEEN: 1. Sri Venkateshappa Aged about 50 years 2. Sri Ramappa Aged about 45 years 3. Sri Venkataswamy Aged about 40 years 4. Sri Chikkappaiah Aged about 35 years All are sons of late Sanjeevappa Kannampalli, Julapalya Bagepalli Taluk Appellants (By Sri G. Balakrishna Shastry, Adv.,)

2 2 AND : 1. Sri Narayanappa S/o Peddavenkatarayappa Aged 45 years R/o Vasappanahalli Julapalya, Mittemari Hobli Bagepalli Taluk Sri A.N. Nanjundappa S/o Doddamathatta Narayanappa Aged 65 years R/o Kannampalli Mittemari Hobli Bagepalli Taluk Sri Venkatarayappa S/o Sanjeevappa Aged 50 years R/o Kannampalli Mittemari Hobli Bagepalli Taluk Respondents (By Sri M.V. Sheshachala, Adv., for R1 & R2) This RSA is filed under Section 100 of CPC., against the judgment and decree dated passed in R.A.No.155/2001 on the file of the Addl. Sessions Judge, Fast Track Court, Chickballapur allowing the Appeal and setting aside the judgment and decree dated passed in O.S.No.354/1995 on the file of the Civil Judge (Jr.Dn.) Bagepalli.

3 3 IN R.S.A. NO.2132/2006 BETWEEN: 1. Sri Venkateshappa Aged about 50 years 2. Sri Ramappa Aged about 45 years 3. Sri Venkataswamy Aged about 40 years 4. Sri Chikkappaiah Aged about 35 years All are sons of late Sanjeevappa Kannampalli, Julapalya Bagepalli Taluk...Appellants (By Sri G. Balakrishna Shastry, Adv.,) AND : 1. Sri Narayanappa S/o Peddavenkatarayappa Aged 45 years R/o Vasappanahalli Julapalya, Mittemari Hobli Bagepalli Taluk. 2. Sri A.N. Nanjundappa S/o Doddamathatta Narayanappa Aged 65 years R/o Kannampalli Mittemari Hobli Bagepalli Taluk.

4 4 3. Sri Venkatarayappa S/o Sanjeevappa Aged 50 years R/o Kannampalli Mittemari Hobli Bagepalli Taluk Respondents (By Sri M.V. Sheshachala, Adv., for R1 & R2) This RSA is filed under Section 100 of CPC., against the judgment and decree dated passed in R.A.No.156/2001 on the file of the Addl. Sessions Judge, Fast Track Court, Chickballapur allowing the Appeal and setting aside the judgment and decree dated passed in O.S.No.54/1999 on the file of the Civil Judge (Jr.Dn.) Bagepalli. These RSAs coming on for hearing this day, the Court delivered the following : J U D G M E N T Sri Dadamgatta Narayanappa was the absolute owner of number of properties including Sy.No.9/2 measuring 2 acres 6 guntas and Sy.No.9/9 measuring 25 guntas situated at Kannampalli village. After his death, one of his sons viz., A.N. Nanjundappa sold the land bearing Sy.No.9/2 to an extent of 2 acres 6 guntas situated at Kannampali village in

5 5 favour of propositus of appellants viz., Sanjeevappa s/o Vemanna on as per Ex.P1. Whereas very A.N. Nanjundappa sold Sy.No.9/9 of Kannampalli village measuring 25 guntas in favour of Narayanappa s/o Venkatarayappa (respondent No.1 herein). There was no dispute till the year Sanjeevappa (propositus of the appellants herein) filed O.S. No.354/1995 against his vendor A.N. Nanjundappa and Narayanappa (respondents herein) for declaration that he is the owner of the property bearing Sy.No.9/9 measuring 2 acres 6 guntas situated at Kannampalli village and that the sale deed dated (Ex.P1) executed in his favour by A.N. Nanjundappa be rectified by substituting Sy.No.9/9 in place of Sy.No.9/2. Consequential reliefs are also sought for. Whereas the Respondent No.1 herein viz., Narayanappa s/o Peddavenkatarayappa filed O.S. No.54/99 for declaration that he is the absolute owner of the property bearing Sy.No.9/9 to an extent of 25 guntas and for

6 6 injunction in respect of the said property. Both the suits were clubbed together and decided together. The trial Court decreed O.S. No.354/1995 filed by Sanjeevappa and dismissed O.S. No.54/1999 filed by Narayanappa (Respondent No.1 herein). Feeling aggrieved by the Judgment and Decree passed by the trial Court, Respondent No.1 herein viz., Narayanappa filed R.A. No.155/2001 and R.A. No.156/2001 before the Fast Track Court, Chikballapur. Both the appeals were allowed and consequently the Judgment and Decree passed by the trial Court is set aside. The suit filed by Sanjeevappa i.e. O.S. No.354/95 came to be dismissed by the first appellate court and the suit filed by Narayanappa i.e. O.S. No.54/99 came to be decreed by the first appellate Court. Questioning the said Judgment and Decree, these appeals are filed by sons of Sanjeevappa. 2. The case of Sanjeevappa is that he was an illiterate and a bonded labourer; though the land sold in his favour

7 7 was Sy.No.9/9, his venodor (who was the bond writer by profession) has erroneously shown the survey number as 9/2; that the original sale deed remained with the vendor viz., A.N. Nanjundappa (respondent No.2 herein) and the same was not handed over to the purchaser viz., Sanjeevappa; since the respondents herein did not object to the possession and enjoyment of the property by Sanjeevappa, he did not file suit for about 21 years; when respondents started interfering with the peaceful possession of the property by Sanjeevappa, he came to know that survey number is wrongly mentioned in the sale deed Ex.P1. Thus he filed a suit for declaration that he is the owner of Sy.No.9/9 and for rectification of survey number as Sy.No.9/9 in place of Sy.No.9/2 in the sale deed Ex.P1. The case of Respondent No.2 herein is that Sanjeevappa is the purchaser of the property bearing Sy.No.9/2 measuring 2 acres 6 guntas and he has not purchased the property bearing Sy.No.9/9; that the

8 8 boundaries mentioned in the sale deed Ex.P1 tally with the boundaries of the property in actual possession of Sanjeevappa; that Respondent No.2 herein viz., Narayanappa purchased the property bearing Sy.No.9/9 to an extent of 25 guntas and the boundaries mentioned in the sale deed Ex.D1 in respect of Sy.No.9/9 tally with the area possessed by respondent No.2; that the suit filed by Sanjeevappa is barred by time inasmuch as the suit could not have been filed after the period of 21 years. On these and among other grounds, he prayed for dismissal of O.S. No.54/ At the time of admission of this appeal, the following question of law was raised: Whether the common judgment and decree passed by the First Appellate Court in R.A. Nos.155/2001 and 156/2001 is perverse, arbitrary and contrary to the documentary evidence available on record justifying reversal

9 9 of the judgment and decree passed in O.S. No.354/95 and also in O.S. NO.54/99? 4. Sri Balakrishna Shastry, learned advocate for the appellants submits that fraud is played on the part of the appellants by Respondent No.2 herein taking undue advantage of illiteracy of appellants father; even the original sale deed was not handed over in favour of Sanjeevappa, the propositus of appellants; the respondents had taken the advantage of the concession given by the appellants to form a road in the middle of his land; that Respondent No.2 never owned property bearing Sy.No.9/2; that survey number is wrongly mentioned. Hence the first appellate Court is not justified in dismissing O.S. No.354/95 on the ground of delay and laches as well as on merits. Sri Sheshachala, learned advocate for respondents 1 and 2 opposes the appeal by contending that the first appellate Court is justified in not granting the prayer of the

10 10 propositus of the appellants as he had come before the Court by filing O.S. No.354/95 after the lapse of about 21 years from the date of the sale deed. Since the boundaries mentioned in Ex.D1 and Ex.P1 tally with the boundaries of the properties in actual possession of the parties and as the boundaries are specific, no interference is called for. 5. It is not in dispute that Ex.P1 was executed in favour of father of the appellants by Respondent No.2 herein as back as on According to the appellants herein, who are the legal representatives of the original vendee, they are the owners of the property bearing Sy.No.9/9 and as the sale deed mentions wrong survey number, the same should be rectified and consequently they should be declared as owners of Sy.No.9/9. Admittedly, the father of the appellants herein viz., Sanjeevappa filed the suit for rectification of the sale deed after 21 years of the sale deed executed in his favour. The case of Sanjeevappa (propositus of the appellants)

11 11 completely rests on the prayer of the rectification of the sale deed. If the sale deed is rectified, then the appellants are bound to succeed. Hence the entire matter hinges round whether the rectification can be permitted after 21 years. There is no specific period of limitation fixed for filing the suit for rectification. Thus the residuary Article- 113 is applicable. Hence, Mr. Sanjeevappa ought to have filed suit within three years from the date of the sale deed. From the date of the sale deed itself, the time starts to run for filing the suit. Since such a suit is not filed within the prescribed period of limitation, the first appellate Court is justified in dismissing O.S. No.354/94 as barred by time. Moreover Sanjeevappa himself has admitted in his evidence that he got the entries changed in his name within one month from the date of execution of the sale deed in respect of Sy.No.9/2 and the original sale deed was handed over in his favour after one month from the date of the sale deed. He further admits that he has acquired the property

12 12 25 years prior to the date of his deposition. However he tried to withdrew his earlier admission before the Court by further deposing that the original sale deed is still with respondent No.2 herein. Be that as it may, the original sale deed is not produced before this Court. No action is taken by Sanjeevappa to get the original sale deed in his favour. If really the same was possessed by Respondent No.2 herein who is the vendor of the property he would not have waited for 25 years for the same. Even according to Sanjeevappa, he got his name entered in the revenue records within one month from the date of the sale deed. This clearly goes to show that Sanjeevappa knowing fully well about the sale deed executed in his favour, got his name entered in the revenue records based on the sale deed. Inspite of the same, he did not choose to file suit within the period of limitation for rectification of sale deed.

13 13 6. It is not in dispute that the 2 nd respondent is the vendor of the property. He executed the sale deed Ex.P1 in favour of Sanjeevappa to an extent of 2 acres 6 guntas and so also he executed the sale deed in favour of Respondent No.1 as per Ex.D1. The sale deed executed in favour of Sanjeevappa was dated , whereas sale deed executed in favour of Respondent No.1 is dated The sale deed Ex.P1 executed in favour of Sanjeevappa i.e. the propositus of the appellants herein clearly reveals that northern boundary has kaluve i.e. canal and the southern boundary has road. For the purpose of this case, we are not concerned with the eastern and western boundaries. According to Sanjeevappa, the road was shifted to the middle of the property by his consent for the benefit of the villagers at large and that he was paid compensation for the same. But there is nothing on record to show that the portion of his property is acquired at any point of time by the Government and he

14 14 was paid compensation. Thus the first appellate Court is justified in concluding that there is nothing on record to show that the road is shifted from the end of the southern portion of the appellants property to the middle of the property. 7. It is curious to note that plaint in O.S. No.354/95 was amended by order dated by inserting sketch- B to the main plaint. Sanjeevappa had shown the road on the southern boundary prior to the amendment. However, he did not seek amendment till the filing of the written statement by the defendant. After filing of the written statement, Sanjeevappa got the plaint immediately amended and shown the road towards middle of the property. Thus it is clear that while pleading fraud, the plaintiff was not specific and he was not certain with regard to allegations of fraud. The contention of Sri Balakrishna Shastry that there was no area available for selling in favour of Respondent No.1 herein inasmuch as the entire

15 15 area was sold in favour of the propositus of the appellants also cannot be accepted. According to him, if really same land remains with the vendor, he would not have missed to mention so in the sale deed Ex.P1. When the southern portion of the boundary of the property sold in favour of Sanjeevappa is a road, nobody can expect the vendor to show that the remaining portion of his property still lies after the road. It is highly imaginary that the owner would mention that after the southern boundary of his land i.e. after the road, part of his land is retained. 8. If really road were to be shifted from southern portion of the property to the middle portion of the property, then the owners of the western and eastern portions of the property also should have been affected by such road. There is nothing on record in that regard. In the sale deed Ex.P1, the properties sold in favour of Sanjeevappa is one piece of land. However, according to the amended plaint, land has become two pieces and

16 16 therefore he continues to be the owner of another portion of the land also. It is not the case of Sanjeevappa that on account of any natural calamities or changes in the land, the road is shifted to the middle portion of the property. Having regard to such material on record, the first appellate Court is justified in negativing contention of the appellants. In my considered opinion, the first appellate Court is justified in coming to the conclusion that the appellants have not proved their case and on the other hand Respondent No.2 herein has proved his case. Documentary evidence available on record justifies the reversal of the judgment and decree passed by the trial Court. The question of law raised is answered accordingly. Accordingly, the appeals fail and the same stand dismissed. Gss/nk- Sd/- JUDGE