K. N. MUNIVENKATAPPA Vs. KRISHNAPPA

JUDGEMENT

(1.) This matter is listed for admission along with T.C.Rs. and I have heard the learned counsel for the appellant and learned counsel for the respondent.

(2.) The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration and permanent injunction is that the he is the absolute owner of the suit schedule property under the gift deed dtd. 29/1/1996 which was executed by Thimmappa, son of late Nyathappa and the said Thimmappa has delivered possession to the plaintiff on the same day. Hence, after receiving the delivery of possession on 29/1/1996, the plaintiff and Thimmappa has been in peaceful possession and enjoyment over the suit schedule property. The suit schedule property is a dry land situated at Kundarasanahalli Village, Kamasamudram Hobli, Bangarpet Taluk bearing Sy.No.10/1, measuring 2 acres and 3 guntas, including 6 guntas phut karab which is morefully described in the schedule. It is contended that, on the basis of the said registered gift deed, the plaintiff has been growing crops in the suit schedule property such as Ragi, Hurali etc. All the revenue records are standing in the name of plaintiff on the basis of alleged gift deed. Hence, the plaintiff has been in peaceful possession and enjoyment of the suit schedule property and he has been paying tax to the Government and hence, the plaintiff is the absolute owner of the suit schedule property and he being an illiterate person, has filed the suit against the defendant in O.S.No.36/2004 before the Civil Judge (Junior Division), KGF for the relief of permanent injunction. After completion of full-fledged trial, suit is dismissed against the plaintiff and thereafter, the plaintiff has preferred an appeal before the Senior Civil Judge, KGF in R.A.No.3/2007. During the pendency of the appeal, the plaintiff has filed an application praying the Court to permit him to file a fresh suit on the same cause of action against the defendant due to technical point. To avoid the multiplicity of proceedings, the Senior Civil Judge, KGF has granted permission to the plaintiff to file a fresh suit against the defendant on 14/6/2010. It is contended that the defendant without having any manner of right, interfering with the plaintiff's peaceful possession over the suit schedule property and the defendant by fabricating and forging the sale agreement, is claiming his title along with possession of suit schedule property, though there is no right and possession by the defendant. Hence, filed the suit seeking the relief of declaration and possession.

(3.) In pursuance of the suit summons, the defendant appeared and filed the written statement denying the very execution of gift deed by Thimmappa in favour of the plaintiff and all the entries in revenue records are concocted and fabricated by the plaintiff without any manner of right over the suit schedule property, the plaintiff is interfering with the peaceful possession of the defendant. The defendant has taken specific contention that the suit schedule property bearing Sy.No.10/1 originally belongs to Muniyamma and said Muniyamma got the suit property from one Bathyappa under a registered sale deed dtd. 11/6/1993. Therefore, the revenue records are standing in the name of Muniyamma. It is contended that Venkatappa, Son of Nyathappa was in physical possession and enjoyment of the suit property and that the said person had been in peaceful possession of other properties and said Venkatappa for his legal necessity to look into the aspect of the family, he alienated the suit schedule property in favour of the defendant under sale agreement dtd. 11/12/1991 for a valuable consideration of Rs.15,000.00. After receiving the entire amount, he has executed the sale agreement in favour of defendant on 11/12/1991 and delivered the possession over the suit schedule property to the defendant and on the basis of the said sale agreement, the defendant has been in peaceful possession and enjoyment of the suit schedule property. It is also his contention that, he has given an application to change revenue records in favour of defendant and after conducting mahazar by the revenue authorities, the suit schedule property came into the name of defendant and also in the said observation, the revenue authorities have drawn mahazar regarding the possession over the suit schedule property on the basis of possession and also on the basis of sale agreement, the defendant has been in peaceful possession over the suit schedule property as a owner of the suit property. The defendant has also taken a specific contention that the suit is barred by limitation and earlier suit filed by the plaintiff against the defendant in O.S.No.36/2004 is dismissed after completion of full-fledged trial and thereafter, he has preferred an appeal before Senior Civil Judge, KGF and in the said appeal, an application was also filed to withdraw the suit and permission was given to file a fresh suit, since he did not seek any relief of declaration in the earlier suit. Hence, it is contended that the suit is barred by limitation and very title of the plaintiff was denied in the earlier suit itself in O.S.No.36/2004.