Dismissed

Sri Ramakrishnappa S/O Late Kariyappa @ Kariyanna v. Smt Rangamma W/O K. Thimmappa

Karnataka HC22 Apr 2021RSA/1122/2012

Case brief

AI extract

What is this about?

In this Regular Second Appeal, the High Court of Karnataka dismissed the appeal filed by defendants claiming title to suit property. The Second Appellate Court upheld the First Appellate Court's decision, holding that since the defendants failed to appear, adduce evidence to establish their relationship to the family or title to the property, and did not challenge the antecedent title, the suit fo

What the court decided

AI extract

Sri Ramakrishnappa S/O Late Kariyappa @ Kariyanna Vs Smt… — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF APRIL 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY REGULAR SECOND APPEAL NO.1122 OF 2012 (DEC/INJ)

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BETWEEN:

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SRI. RAMAKRISHNAPPA S/O LATE KARIYAPPA @ KARIYANNA AGED ABOUT 65 YEARS

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SRI. CHIDANANDAPPA S/O LATE KARIYAPPA @ KARIYANNA AGED ABOUT 63 YEARS

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SRI. DAYANANDAPPA S/O LATE KARIYAPPA @ KARIYANNA AGED ABOUT 63 YEARS

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ALL ARE R/O KURUBARAHALLI VILLAGE AND POST KASABA HOBLI, HIRIYUR TALUK, CHITRADURGA DISTRICT-577501.

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…APPELLANTS

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[BY SRI. B.M. SIDDAPPA, ADVOCATE (THROUGH VC)]

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AND:

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SMT. RANGAMMA W/O K. THIMMAPPA AGED ABOUT 61 YEARS R/O KURUBARAHALLI VILLAGE & POST, KASABA HOBLI, HIRIYUR TALUK, CHITRADURGA DISTRICT-577501.

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SMT. SANNAMMA W/O LATE SANAKAL THIMMAPPA

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AGED ABOUT 58 YEARS

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SMT. RANGAMMA W/O LATE SANAKAL THIMMAPPA AGED ABOUT 51 YEARS

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SRI. GOVINDAPPA S/O LATE ADAVAPPA AGED ABOUT 43 YEARS

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SRI. NAGARAJU S/O LATE ADAVAPPA AGED ABOUT 41 YEARS

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SMT. PUTTAMMA W/O LATE KENCHAPPA AGED ABOUT 63 YEARS

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ALL ARE R/O KURUBARAHALLI VILLAGE AND POST, KASABA HOBLI, HIRIYUR TALUK, CHITRADURGA DISTRICT-577501.

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THE TAHSILDAR HIRIYUR TALUK, HIRIYUR, CHITRADURGA DISTRICT-577501.

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…RESPONDENTS

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(BY SRI. K.P. YOGANNA, ADVOCATE FOR RESPONDENT NO.1; SRI. Y.D.HARSHA, ADVOCATE FOR RESPONDENT NO.6; GOVERNMENT ADVOCATE FOR RESPONDENT NO.7; NOTICE SERVED ON RESPONDENT NOs.2, 3, 4 AND 5)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 01.01.2011 PASSED IN R.A.NO.8/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, HIRIYUR ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 31.03.2009 PASSED IN O.S.NO.16/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC, HIRIYUR.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the defendant Nos.6, 7 and 8 challenging the judgment and decree of the First appellate Court in R.A. No.8/2009 by which the First Appellate Court reversed the judgment and decree of the Trial Court in O.S. No.16/2007 and decreed the suit of the plaintiff for declaration of title and perpetual injunction in respect of the land bearing Sy. No.80 measuring 01 Acre 20 guntas situate at Kurubarahalli village, Kasaba hobli, Hiriyur Taluk, Chitradurga District.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court.

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The plaintiff claimed that the suit property amongst others, belonged to the ancestors of the plaintiff and defendant Nos.1 to 5, namely Sri Adavappa and Sri Sannathimmappa, who were brothers. Their genealogy is schematically shown below:

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Sri Adavappa had two sons, namely, (i) Sri

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Sannakaaluthimmappa and (ii) Sri Adavappa.

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Adavappa

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Sannakaaluthimmappa Adavappa + 1. Sannamma (D-1)

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Rangamma (D-2)

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Govindappa (D-3) Nagaraju (D-4)

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Sri Sannathimmappa had six sons, namely, Sri Alattappa, Sri Karianna, Sri Govindappa, Sri Ajagappa, Sri Kurithimmappa and Sri Kenchappa. The family tree of Sri Sannathimmappa is as below:

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Sannathimmappa

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Alatappa Ajagappa Kenchappa Karianna Kurithimmappa

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Govindappa

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Kenchappa + Puttamma (D-5)

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Thimmappa + Rangamma (plaintiff)

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Amongst the above, Sannakaaluthimappa, his brother Adavappa, Sannathimappa and his six sons are not alive.

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The plaintiff claimed that the suit property and

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other properties were partitioned long ago amongst Sri Adavappa and Sri Sannathimmappa, in terms of which 0- 20 guntas fell to the share of Adavappa and 2 Acres 25 guntas fell to the share of Sannathimmappa. The revenue records stood in the name of Sri Karianna and Sri Kurithimmappa, sons of late Sri Sannathimmappa as they were the surviving eldest male members who were managing the affairs of the joint family. Later, Sannathimmappa’s children partitioned the suit property in the year 1994-95 in terms of which 01 Acre 05 guntas fell to the share of Sri Kenchappa (husband of defendant No.5), son of Sri Govindappa, while 01 Acre 20 guntas fell to the share of Thimmappa (husband of the plaintiff), son of Kenchappa. The Plaintiff therefore sought for transfer of the revenue records to her name in respect of 1-20 acres in Sy.No.80. The defendant No.9 refused to incorporate

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her name on the ground that the suit property stood in the names of some other persons. The plaintiff claimed that on verification, she came to know that the defendant Nos.6, 7 and 8 got their names entered in the revenue records pursuant to IHC 265/1996-97. The plaintiff attempted to secure a copy of IHC 265/1996-97 but received an endorsement dated 12-10-2006 that the records were not available. Therefore, she renewed her request for transfer of khatha which was again rejected on the same ground. The plaintiff claimed that the defendants 6 to 8 were strangers to her family. She claimed that the only possible way in which the defendant Nos. 6 to 8 could have got their names entered in the revenue records is by taking advantage of the similarity of their father’s name (Kariappa) and the name of second son of Sannathimappa namely Karianna. She contended that defendant Nos.6, 7 and 8 were not related to her family and were therefore strangers, who had no right, title or interest in the suit property. She alleged that the defendant No.8 attempted to erect a structure on the suit property on 04.02.2007,

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which was resisted by her. Thus, she sought for the relief of declaration of her title to the suit property and for perpetual injunction.

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The summons in the suit were issued to defendants. Except the defendant No.4, all the other defendants appeared through counsel. The defendant Nos.6, 7 and 8 contested the suit and claimed that they are the children of Karianna, son of Sannathimmanna and upon the death of Karianna, their names were entered into revenue records. They also contended that based on this fact, the revenue documents were transferred to their names.

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The defendant No.9 also contested the suit and claimed that the suit was not maintainable against him without issuing prior notice under Section 80 of Civil Procedure Code, 1908 and without arraying the State Government as a party.

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7. Based on these rival contentions, the Trial

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Court framed the following Issues:

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1. Whether the plaintiff proves that the suit schedule property is the ancestral properties of herself and defendant No.1 to 5?

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1. Whether the plaintiff further proves that one Adavappa and Sannathimmappa were, her and defendant No.1 to 5’s ancestors?

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1. Whether the plaintiff further proves that the ancestral property in the suit schedule property was partitioned to an extent of 20 guntas and 2 acres 25 guntas respectively in between the Adavappa and Sannathimmappa during their life time?

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1. Whether the plaintiff further proves that she has got the suit schedule property through the partition took place in their joint family during the year 1994 and 1995?

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1. Whether the plaintiff further proves that, since the partition, she has been in actual, physical and peaceful possession and enjoyment of the suit schedule property?

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1. Whether the plaintiff further prove that the revenue authorities have refused to enter her

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name in the revenue records in respect of the suit schedule property?

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1. Whether the plaintiff further proves that the defendant No.6 to 8 have no right, title and interest over the suit schedule property?

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1. Whether the plaintiff further proves that the defendant No.6 to 8 have interfered with the peaceful possession and enjoyment of the plaintiff over the suit schedule property?

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1. Whether the 9^th defendant proves that, the present suit is not maintainable as the plaintiff has not given a notice u.s.80 of CPC to him?

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1. Whether the 9^th defendant further proves that the suit is bad for non-joinder of necessary parties?

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1. Whether the defendant No.6 to 9 prove that his Court has no pecuniary jurisdiction to try the present suit?

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1. Whether the plaintiff further proves that she is entitled for relief claimed in the suit?

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1. What order or decree?

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The plaintiff’s son was examined as PW.1 and he marked the documents as Exs.P1 to P11. The defendants did not cross-examine the plaintiff’s witness and did not adduce any evidence and did not mark any document.

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Having regard to the oral and documentary

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evidence on record, the Trial Court held that the plaintiff did not produce any oral evidence to establish the partition between Adavappa and Sannathimmappa. It also held that the plaintiff was unable to prove the fact of partition amongst the children of Sannathimappa in the year 1994-95. It also held that the plaintiff failed to prove that the defendant Nos.6, 7 and 8 did not belong to her family by adducing evidence of her family members. It also held that the plaintiff had failed to challenge the mutation of the revenue records to the names of defendant Nos.6, 7 and 8 by filing before the competent authority. It also held that the plaintiff had failed to comply with Section 80 and Order XXVII Rule 5A of the Code of Civil

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Procedure before filing suit against defendant No.9. Hence, it held that the plaintiff is not entitled to the relief though defendant Nos.6 to 9 did not lead any evidence. Thus the Trial Court dismissed the suit.

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Being aggrieved by the aforesaid Judgment and Decree of the Trial Court, the plaintiff filed R.A. No.8/2009. The defendant No.5 filed a cross appeal against the Judgment and Decree of the Trial Court in so far as the finding on issue Nos. 3, 4, 5, 6, 7 and 8. The First Appellate Court secured the records of the Trial court, heard the learned counsel for the parties and after perusal of the records of the Trial Court, framed the following points for consideration:

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1. Whether Trial Court has committed any error in not appreciating the evidence of PW-1 and Ex.P-1 to P-11 documents produced by the plaintiff in its entirety?

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1. Whether Trial Court has committed any error in not considering the fact that defendants have not lead any oral and

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documentary evidence and defendants have not cross-examined PW-1 and not challenged evidence of PW-1 and Ex.P-1 to P-11 documents?

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1. Whether the Trial Court has committed any error in holding that plaintiff has failed to prove the oral partition set up by her?

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1. Whether the impugned Judgment and Decree calls for interference in this appeal?

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1. What order?

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The First Appellate Court held that defendant Nos.6 to 8 had not filed any appeal against the findings recorded by the Trial Court on issue Nos.1 and 2. The First Appellate Court noticed the contention of the plaintiff that defendant Nos.6 to 8 were strangers and taking advantage of the similarity in the name of their father and the son of Sannathimmappa, namely, Kariyanna, had got their names entered in the revenue records. The First appellate Court held that defendant Nos.6 to 8 who were interested to deny the claim of the plaintiff, did not cross-examine the

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plaintiff’s witness and did not adduce any evidence to show that the father of defendant Nos.6 to 8 was related to the family of the plaintiff and defendant Nos.1 to 5. The First Appellate Court perused Ex.P2 which did not indicate the names of the defendant Nos.6, 7 and 8. It also perused Ex.P4 which was an endorsement issued by the Tahasildar stating that the mutation proceedings in IHC.No.260/96-97 which was the basis for entering the names of defendant Nos.6, 7 and 8 was not available. It also perused Ex.P7 which was the akarbandh extract of the land in question which showed that the names of the ancestors of the plaintiff’s husband were rounded off to insert the name of defendant Nos.6, 7 and 8. Since the defendant Nos.6, 7 and 8 did not contest the proceedings, an adverse inference was drawn against them. The First Appellate Court held that the defendants not having rebutted the evidence of the plaintiff, she was entitled to the relief sought for in the suit. Hence, the First Appellate Court allowed the appeal and decreed the suit. The First Appellate court also allowed the Cross-Appeal filed by

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defendant No.5 and declared that the plaintiff is the owner of the suit schedule property and consequently, restrained the defendant Nos.6 to 8 from interfering with the plaintiff’s possession of the suit schedule property. The dismissal of the suit against the defendant no.9 was confirmed.

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Being aggrieved by the aforesaid judgment and decree of the First Appellate Court, the defendant Nos.6 to 8 have filed the present second appeal.

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It is relevant to note that the defendant Nos.6 to 8 have not challenged the judgment and decree of the First Appellate Court insofar as it relates to allowing of cross-appeal filed by defendant No.5.

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Learned counsel for defendant Nos.6 to 8 contends that the documents produced by the plaintiff, namely, Ex.P3 and Ex.P10, demonstrated that defendant Nos.6 to 8 were the owners of the suit property. Therefore, he contended that the First Appellate Court

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could not have blindly decreed the suit only on the mere ground that defendant Nos.6, 7 and 8 had not entered the witness box.

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The records of the Trial Court and the First Appellate Court were secured. It is seen that the plaintiff had adduced the evidence of her son who marked Exs.P1 to P11. He deposed that the joint family properties were partitioned between Sri Adavappa and Sri Sannathimmappa. At the said partition, 20 guntas fell to the share of Sri Adavappa and 02 Acres 25 guntas fell to the share of Sri Sannathimmappa. Thereafter the revenue records of the suit property stood in the names of Sri Karianna and Sri Kurithimmappa, sons of late Sri Sannathimmappa, as they were the eldest male members of the family. He contended that again in the year 199495, Sri Sannathimmappa’s children partitioned the property in terms of which the suit property fell to the share of the plaintiff, the wife of Sri Thimmappa. He claimed that the defendant Nos.6 to 8 were absolute

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strangers to the family of the plaintiff and that they had no right, title or interest in the suit property. He claimed that the names of the defendant Nos.6 to 8 were mistakenly entered in the revenue records and he attributed this mistake to the similarity in the names of the father of the defendant Nos.6 to 8 and Kariappa @ Karianna, the predecessor of the plaintiff’s husband. He claimed that defendant No.8 was a politician who manipulated the similarity in the names to usurp the suit property which belonged to the plaintiff.

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Though the defendant Nos.6 to 8 entered appearance and filed their written statement that they were the children of Kariyanna, S/o Sannathimappa, none of the defendants 6 to 8 entered the witness box to contest the claim of the plaintiff. They did not make even an attempt in the first appeal filed by the plaintiff for permission to contest the suit. Though defendant No.5 filed a Cross Appeal before the First Appellate Court which was allowed along with the appeal filed by the plaintiff, yet

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the defendant Nos.6 to 8 have not challenged the judgment of the First Appellate Court allowing the Crossappeal. Further the defendants 6 to 8 have not disputed the antecedent title of Sri Sannathimappa to the land measuring 2-25 acres in Sy.No.80. Their claim was that they were the children of Sri Kariappa, son of Sannathimappa, which was thoroughly denied by the plaintiff. In the teeth of this, the defendant Nos.6 to 8 were bound in law to establish their relationship. The defendant Nos.1, 2, 3 and 4 claiming through the branch of Adavappa did not raise any objection for decreeing the suit, obviously as they derived 0-20 guntas in Sy.No.80 which was not the subject matter of the suit.

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In that view of the matter, in the absence of any claim by the defendant Nos.6 to 8 in the suit property, the First Appellate Court was justified in reversing the Judgment and Decree of the Trial Court and decreeing the suit of the plaintiff. Since the defendant Nos.6 to 8 did not assert any irregularity in the manner of disposal of the suit

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by the Trial Court and the appeal by the First Appellate Court and as defendant Nos.6 to 8 have not established their claim to the suit property, no substantial question of law arises for consideration in this appeal and hence, it is dismissed.

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Consequently, all pending applications are also rejected.

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Sd/JUDGE

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sma

Sri Ramakrishnappa S/O Late Kariyappa @ Kariyanna v. Smt Rangamma W/O K. Thimmappa

Case brief

What is this about?

What the court decided

Sri Ramakrishnappa S/O Late Kariyappa @ Kariyanna v. Smt Rangamma W/O K. Thimmappa

Case brief

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What the court decided

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