Kalasappala Gengavva vs Kalasappala Nagappa and Kalasappala Siddappa

K.N. Keshavanarayana

The unsuccessful plaintiff in O.S.No. 1/2002 on the file of the Senior Civil Judge, Harapanahalli has presented this second appeal against the concurrent judgment and decree of the Courts below dismissing her suit filed for declaration of title and also for permanent Injunction in respect of rick yard measuring 17 cents bearing Survey No. 155/D1 of Arasikere village in Harappanahalli Taluk.

The plaintiff filed the said suit for the relief of declaration of her title and also permanent injunction against the defendant nos.1 and 2, interalis contending that she purchased the suit schedule property from her father under a sale deed dated 05.01.2001 and since then she has been in possession of the same and that subsequently, mutation was also effected in her name and that the defendants who have no manner, right, title or interest of the same, are trying to interfere with her peaceful possession and have created cloud in respect of her title to the property.

The defendants contested the suit. They denied the averments made in the plaint. They contended that they are the owners of the land measuring 18 cents in Survey No. 155/Bi and that the plaintiff is trying to lay claim over land bearing survey no.155/81 under the guise of collusive sale deed executed by her father in respect of survey no.155/D1. They contended that the plaintiff has not been in possession of the property claimed by her, torefore, the plaintiff is not entitled for any relief.

It appears that during the pendency of the suit a Surveyor was appointed as Court Commissioner for local inspection and to submit a report After visiting the suit schedule property and the neighboring properties the Commissioner, submitted, his report and he was also examined as CW--1 before the Trial Court.

The parties led evidence, examined independent witness also, The Trial Court on appreciation of oral and documentary evidence answered all the material issues against the plaintiff and dismissed the suit holding that the plaintiff has failed to prove her title to the property.

The Trial Court further held that the fact that the Commissioner''s report has not been disputed or challenged, clearly establishes that the plaintiff under the guise of having purchased land hearing survey no.155/D1 is laying claim over survey No. 155/B1, which is stated to be in possession of the defendants.

In the circumstances, the Trial Court dismissed the suit The Lower Appellate Court confirmed the said judgment and decree by dismissing the appeal filed by the plaintiff. As against those concurrent judgment and decree, the plaintiff is before this Court

I have heard the learned counsel for the appellant, as well as the learned counsel for the respondents,

After hearing the learned counsel on both sides, I find no question of law, much less, substantial question of law having been involved in this appeal As noticed supra, the claim of the plaintiff was that she purchased land bearing survey no.155/D1 to an extent of 17 cents under Exhibit P1 from her father. To show that her father was the owner of the land bearing survey No. 135/D1, she also produced certain extracts of revenue records. Both the courts below have found that the lather of the plaintiff was the owner of survey no. 155/D1, totally measuring 1 acre. Out of which, plaintiff claims to have purchased 17 cents,

10, The courts below have also found that the land bearing survey no.155/B1 totally measures 4 acres 78 cents and the defendants claim to be in possession of survey no.155/B1. The Courts below on the basis of oral and documentary evidence have recorded finding that the plaintiff is unable to establish the identity of the land which she claims to have purchased from her father in the year 2001

Both the courts have noticed that the report submitted by the Commissioner, which has not been disputed by either of the parties indicates that land bearing survey No. 155/D1 and 155/B1 are separated by a gram panchayat road. It is also the report of the Commissioner that the land as per the description found in the sale deed at Exhibit - P1 and the description of the land under Schedule to the Sale deed is not identifiable,

The Commissioner has reported that when the plaintiff was sought to identify the property claimed by her, she showed a portion of property in survey No. 155/B1, as the one purchased by bear from her father. On the basis of this both the courts have recorded a finding that the plaintiff is trying to lay claim over the land bearing survey No. 155/B1, while she claim to have purchased land in survey No. 155/D1.

13 Under these circumstances, both the Courts below have held that the plaintiff has failed to prove the identity of the property claimed to have been purchased by her and therefore she is not entitled for the relief of declaration as sought in the plaint. The judgment of the courts below rests on pure question of fact and appreciation of the evidence and does not involve any question of law, much less, substantial question of law.

Both the courts below on proper appreciation of the evidence have recorded a finding that the plaintiff is not entitled for the relief of declaration as she is laying claim over the property bearing survey No. 155/B1, though she claims to have purchased land bearing survey No. 155/D1.

Having regard to the facts and circumstances, I find no substantiel question of law, involved in this appeal Therefore, the appeal is without any merit and the same is dismissed.