Allowed

S N Krishnappa v. S Ramesh

Karnataka HC16 Jan 2021RSA/3045/2007

Case brief

AI extract

What is this about?

In a Second Appeal filed under Section 100 CPC, the High Court of Karnataka set aside a First Appellate Court order that had dismissed a prayer for declaration of title due to non-payment of court fee and failure to frame additional issues. The High Court held the lower order was irregular and unconstitutional, directing the plaintiff to pay the correct court fee and decree the suit for declaratio

What did the court decide?

The First Appellate Court order rejecting declaration is set aside; the suit is decreed in favor of the plaintiff for declaration of title.

S N Krishnappa Vs S Ramesh — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.S.A.No.3045/2007

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BETWEEN:

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S N KRISHNAPPA S/O LATE NARAYANAPPA AGED ABOUT 64 YEARS SINCE DEAD BY LRS.

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1a) SMT.NAGA RATHNAMMA W/O RAMACHANDRAPPA AGED ABOUT 59 YEARS R/AT #142, KESARANAHALLI SOREGOWDANAKOTE BANGARPET

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KOLAR – 563 162.

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1b) SMT.AMARAVATHI S K W/O LATE SRI NAGABHUSHANAGOWDA AGED ABOUT 54 YEARS R/AT THALURU, BATHALAHALLI BANGARPET

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KOLAR – 563 129.

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1c) SMT. SHOBHAVATHI S K W/O NAGARAJA T N AGED ABOUT 51 YEARS R/AT WARD No.5 TANK BUND ROAD CHINTAMANI TOWN CHIKKABLLAPUR DISTRICT – 563 125.

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1d) SMT.SHASHIKALA S K W/O M B SHIVAREDDY AGED ABOUT 44 YEARS R/AT 00, CHINTAHAMANI TOWN CHINTHAMANI CHIKKABALLAPUR – 563 125.

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1e) NAVEEN S S/O LATE SRI SRINIVASA S K AGED ABOUT 26 YEARS R/AT SHAPUR VILLAGE AND POST KOLAR TALUK AND DISTRICT – 563 101. ..APPELLANTS

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(BY SRI K RAGHAVENDRA RAO, ADVOCATE)

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AND:

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S RAMESH S/O LATE SUBBARAYAPPA AGED ABOUT 34 YEARS R/AT SHAPUR VILLAGE HUTHUR HOBLI KOLAR (TALUK) KOLARP - 563 101. ..RESPONDENT

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(BY SRI B N SURESH BABU, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 11.09.2007 PASSED IN R.A.No.179/2005 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE(SR.DN), KOLAR, PARTLY ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 07.04.2005 PASSED IN O.S.No.195/2001 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN), AND JMFC, KOLAR.

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THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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Learned counsel for appellants present.

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Counsel for respondent absent. Matter is of the year 2007 in terms of the appeal and of the year 2005 in terms of regular appeal and of the year 2001 in terms of original suit. There are no grounds to grant adjournment because of the absence of respondent’s counsel.

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2. Appeal is directed against the Judgment and

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decree dated 11.09.2007 passed in R.A.No.179/2005 wherein one S.N.Krishnappa, S/o late Narayanappa filed suit in O.S.No.195/2001 that came to be decreed and being aggrieved by the said Judgment and decree defendant-S.Ramesh preferred regular appeal No.179/2005 that came to be partly allowed and

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Judgment and decree passed by the learned trial Judge was modified by rejecting the relief of declaration and the relief of permanent injunction was confirmed. Operative portion of the order passed in R.A.No.179/2005 is as under:

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“The appeal filed by the appellant/defendant is allowed in part with cost.

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The judgment and decree passed by the trial court in O.S.No.195/2001 dated 07.04.2005 with respect to the declaration of plaintiff’s title to the suit schedule property is set aside. The prayer of the plaintiff for the relief of declaration is rejected.

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The Judgment and decree passed by the trial court for the relief of permanent injunction is confirmed.

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The defendant his agents and his supporters etc are permanently restrained

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from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff.”

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In order to avoid confusion and overlapping

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parties hereinafter shall be referred in accordance with the rankings before the trial court.

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This appeal is preferred by plaintiff against dismissal of the suit in respect of declaration of title. The defendant has not preferred any appeal.

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The substance of the case is that plaintiff claim to be in possession and enjoyment of the schedule property and when the father of plaintiff was alive he was in unauthorized possession and on 20.03.1977 Tahsildar, Kolar Taluk issued notice to the father of the plaintiff late Narayanappa in No.C.R.789/1976-77 directing him to give statement regarding unauthorized cultivation of the suit schedule property.

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The plaintiff filed an application before Tahsildar, Kolar and sought for regularization of his possession by granting the land to him. The Land Grant Committee recommended for grant of the schedule property to the plaintiff and it was granted to him in LND RUO 85/97-98 dated 06.01.97. Saguvali Chit was issued by Tahsildar on 06.02.98. Thus, plaintiff satisfied all the features of absolute ownership and possession over the schedule property and has been cultivating the same. In the beginning suit was filed for the relief of permanent injunction and valuation slip was filed accordingly. Later by virtue of denial of title by the defendant suit was amended to include declaration of plaintiff’s title over the schedule property.

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The defendant on appearance denied plaintiff’s claim and also filed the additional written statement by contending that the suit of the plaintiff for

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declaration of title is not maintainable in law as the plaintiff is not the owner in possession. It is further stated that the land bearing Sy.No.11 to an extent of 2 acres bounded on East by Cheeyandahalli Village limits, West by land of Doddakempanna now Muniswamappa, North by land of Chikkakempanna and South by land of Muniswamappa. The schedule property was granted to the defendant’s father long back in the year 1989. The grant certificate was issued to defendant’s father on 30.09.89 and defendant is carrying on cultivation over the schedule property and is in actual possession of the same. Thus, in sum and substance both the plaintiff and defendant claim that the schedule property was allotted to them. The suit schedule property as described in the decree is as under:

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Land situated at Shapur village, Huthur Hobli, Kolar Taluk, bearing Sy.No.11, dry, measuring 2 acres including phoot karab of

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00.03 guntas assessed at Rs.3.85, bounded on East –Cheyandahalli boundry, Mulbagal Taluk, West-land of Muniswamappa, Northland of Chikka Kempanna and Southformerly land of Narayanappa and now it is in possession of Govindappa and land of Muniswamappa.

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Thus, this defendant by claiming the grant in respect of the property described by him that the suit schedule property belonged to him. There are some discrepancies between the boundaries and also insofar as the documents filed.

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This Court took up the matter for admission and

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the following substantial question of law was framed on 16.07.2008.

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Whether the appellate Court was justified in denying the relief of declaration, on the ground the Court fee is not paid?

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9. The learned trial Judge has framed the following

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issues as under:

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1. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property?

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2. Whether the plaintiff proves that the alleged interference by the defendant?

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3. Whether the plaintiff proves that he is entitled for the relief as sought for?

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4. What decree or order?

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Addl. Issues

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1. Whether the defendant proves that the property as described in his additional written statement was granted to by father in the year 1989 and he became the absolute owner of the same after the death of his father, as contended in para 2 of the Additional written statement?

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2. Whether the defendant is entitled for the decree of declaration of his title over the suit schedule property?

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The learned trial Judge was accommodated with

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oral and documentary evidence as under:

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“List of witnesses examined on behalf of plaintiff

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P.W.1 - Krishnappa

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List of documents marked on behalf of plaintiff

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Ex.P.1 & 1(a) - Saguvali Chit

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Ex.P.2 - Mutation

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Exs.P.3 to 5 - RTC extracts

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Ex.P.6 - Patta Book

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List of witnesses examined on behalf of

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defendant

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D.W.1 - Ramesh

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D.W.2 - Shankarappa

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D.W.3 - Venkateshappa

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List of documents marked on behalf of defendant

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Ex.D.1 - Saguvali Chit

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Ex.D.2 - RTC extracts

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Ex.D.3 - Mutation

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Ex.D.4 - RTC extracts

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Ex.D.5 - Kandayam receipt

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Ex.D.6 - Patta book”

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The learned trial Judge came to the conclusion that plaintiff is the absolute owner and entitled for decree as prayed for and accordingly decreed the suit.

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Sy.No.11 appears to be vast land and both the plaintiff and defendant are claiming to have granted 2 acres of land. The real controversy between the parties is that the defendant is claiming the suit schedule property as the same is belonging to him. In this connection, the plaintiff has produced Ex.P.1, which is the Saguvali Chit granted to him in respect of the land measuring 2 acres in Sy.No.11 and the boundaries are mentioned as under:

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East by : Cheyandahalli boundary West by : Land of Muniswamappa North by : Land of Chikkakempanna South by : Land of Narayanappa

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Similarly, Ex.D.1 is the Saguvali Chit claiming to

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have been granted to the defendant. Incidentally, the boundaries are mentioned as under:

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East by : Cheyandahalli boundary West by : Land of Doddakempanna North by : Land of Chikkakempanna South by : Land of Muniswamappa

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There are differences in boundaries. However,

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learned counsel for appellant Sri.R.K.Raghavendra Rao would submit that the learned First Appellate Judge accepts the plaintiff’s title and possession of the schedule property but rejected the declaratory relief on the ground of court fee.

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Learned counsel further submits that the plaintiff was surprised to know that the declaratory relief came to be rejected on the ground of Court Fee. Learned counsel would draw my attention to paragraph Nos.15

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and 16 of the judgment of first appellate court, which reads as under:

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“15. In the above concept, I have perused the entire records along with oral and documentary evidence adduced by the parties and also the judgment and decree of the trial court. On perusal of the same, it is no doubt true that the trial court has not at all framed additional issues with respect to the declaration of the suit schedule property. In this regard it is pertinent to state here that it is no doubt true that the plaintiff has amended his pleading with respect to declaratory relief on the suit schedule property. But on perusal of entire record and also the order sheet nothing is seen for payment of additional court fee for the relief of declaration and the plaintiff has not at all paid court fee with respect to the said relief. Such being the case, framing of additional issues does not arise and the plaintiff is not entitled for declaratory

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relief as he has not paid the court fee to the relief of declaration of title to the suit property. Further it is relevant to state here that after amending the plaint with respect to declaratory relief, the defendant has filed additional written statement and he has also paid court fee of Rs.25/- and praying the relief of declaration on the suit schedule property. The learned counsel for the appellant has vehemently address his 11 RA.179/2005 argument that he has not filed counter claim. But the same is not sustainable in view of the payment of court fee by the defendant and he cannot bow hot and cold. On perusal of the additional written statement filed by the defendant, it is under Or.8 Rule 1 of CPC and praying the court of the relief of declaration on the suit schedule property and the trial court has treated the same as counter claim. When the defendant has not at all filed counter claim under Or.8 Rule 6(4), the said written statement filed by the

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defendant cannot be taken as counter claim. On the basis of the said written statement the defendant has paid court fee. On looking to that fact, the question of payment of court fee doesn’t arise and he is not entitled for the relief of declaration of the title without filing counter claim and without filing counter claim the defendant has paid court fee and the same is not sustainable in the eye of law. Further the defendant has contended that the burden of proving additional issues are casted on him and the same are wrongly framed. The said contention of the defendant is also not sustainable with respect to additional issue No.2 as the defendant has not filed counter claim and the question of framing additional issue No.2 doesn’t arise. On looking to these material facts, the trial court has erred in these aspects and the same is perverse, capricious and arbitrary and it calls for the interference by this court.

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16. On the other hand, on perusal of the evidence of PW.1 and also the documents produced by him i.e., Ex.P1 to P6 are clearly goes to show that the plaintiff is in peaceful possession and enjoyment of the suit schedule 12 RA.179/2005 property. In the contrary, the defendant has also produced Saguvali chit and other documents as per Ex.D1 to 5, on perusal of the boundaries in Ex.D1, which is not at all tallying with the boundaries of the suit schedule property and other documents is view of Ex.D1 have no sanctity in the eye of law to disprove the boundaries of the suit property. Such being the case, the contention taken by the defendant that the plaintiff has given wrong boundaries is not sustainable as the boundaries given in the suit schedule are tallies with Ex.P1 i.e., Saguvali chit. The trial court has discussed the matter on issue No.1 to 3 and rightly given finding on those issues

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are in the affirmative and the said finding of the trial court doesn’t calls for any interference by this court. . As the plaintiff has not paid the required court fee with respect to additional prayer for declaration of title on the suit schedule property, and he is not entitled for the said relief. Further it is relevant to state here that counsel for the defendant has crossexamined the plaintiff and inspite of that nothing is elicited from the mouth of the plaintiff to discard his evidence and the documents produced by him. On perusal of the cross examination of PW.1 wherein PW.1 has clearly admitted that Sy.No.11 is an vast extent of 49 acres of land which clearly revels that out of the same the plaintiff is in possession of the suit schedule property and the defendant is claiming the property of the plaintiff as his property and the same is not sustainable as Ex.D1 discloses about different boundaries to that the property of the plaintiff. The property of the defendant is

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entirely different property and defendant cannot claim the suit schedule 13 RA.179/2005 property as his property. Further on perusal of cross examination of DW.2, the same is goes against the contention of the defendant as this witness did not know how the defendant has got his property and he don’t know the survey number of the suit schedule property and so also the extent of the suit schedule property hence has discoursed above the entire contention taken by the defendant are all goes in vein such being the case the defendant without having any right title and interest on the suit property is interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff, and the said illegal act of the defendant is to be restrained to protect the property and lawful possession of the plaintiff in the suit schedule property. Hence as discoursed above it is not just and necessary to go through further detail in the matter as the

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same are repetition of facts. Hence, under these circumstances as discussed above, the appellant is partly succeeded in his attempt and the judgment and decree of the trial court calls for interference by this court as discussed answer point No.1 accordingly.”

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Particularly, the first appellate Judge has recorded a finding in favour of the plaintiff on facts and gives a verdict against its finding, it takes exception for not raising additional issues by the trial Court. The amendment was said to have been made by virtue of the denial of the title of the plaintiff and First Appellate court should have even gone to the extent of framing the additional issue, if necessary. In this connection, Order 14 Rule 1 of the CPC., reads as under;

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“1. Framing of issues

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(1) Issues arise when a material proposition of fact or law is affirmed by

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the one party and denied by the other.

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(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

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(3) Each material proposition affirmed by one-party and denied by the other shall form the subject of distinct issue.

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(4) Issues are of two kinds:

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(a) issues of fact,

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(b) issues of law.

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(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on

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which the right decision of the case appears to depend.

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(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.”

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The appellate Court gives a finding that the boundaries of the property of the plaintiff does not match with the boundaries of the defendant’s property. Further, the appellate Court finds that plaintiff has not paid the Court Fee. In this connection, Sections 24 and 26 of the Karnataka Court Fees and Suit Valuation Act, 1958 reads as under;

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“24. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under section 25-

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(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on 1 [rupees one thousand]1, whichever is higher;

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(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one half of the market value of the property or on 1 [rupees one thousand]1 , whichever is higher;

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(c) xxxxx

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(d) In other cases, whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on 3[rupees one thousand].

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26. Suits for injunction.- In a suit for injunction,

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(a) Where the relief sought is with reference to any immovable property, and

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(i) where the plaintiff alleges that his title to the property is denied, or

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(ii) where an issue is framed regarding the plaintiff’s title to the property, fee shall be computed on one-half of the market value of the property or on 3 [rupees one thousand], whichever is higher;

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(b) x x xx

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(c) in any other case, whether the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees one thousand], whichever is higher.”

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Whenever the suit of the plaintiff is filed for injunction, the valuation is made under Section 26(c)

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of the Karnataka Court Fees and Suit Valuation Act. However, Section 24 of the Karnataka Court Fees and Suit Valuation Act comes into operation when the declaration of title or recovery of possession are claimed as reliefs.

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The amendment did not bring further facts, further documents or further claims but it just speaks about the declaration of title. The learned counsel for the appellant Sri.K.Raghavendra Rao would submit that he came in appeal because of denial of declaratory relief by the first appellate court. The other documents filed by the plaintiff apart from Ex.P.1 – Saguvali Chit are i.e., Ex.P.2 - Mutation Extract and Exs.P.3 to 5 - RTC extracts. Insofar as the defendant is concerned, Ex.D.1 is the Saguvali Chit and other documents i.e., Ex.D.2 – RTC extract and it is mentioned as Darkasth in column No.10,

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which indicates granted land and mutation extract in Ex.D.3 and however, mutation number is not mentioned. No doubt, he is also granted landed property of two acres.

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Thus, the details of boundaries of the defendant do not go to the description of the plaint schedule and learned trial Judge has rightly decreed the suit. The plaintiff should have been directed to pay the Court fee within a particular day and if payment was not made, it should have rejected the pleadings of the plaintiff regarding the relief of declaration and in that new law cannot be invented for dismissal of the suit.

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In the result, I find the judgment of the first appellate court is incomplete, irregular and unfair and is liable to be set-aside.

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Substantial question of law is answered

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accordingly.

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Accordingly, the appeal is allowed .

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The judgment and decree of the First Appellate Court dated 11.09.2007 passed in R.A.No.179/2005 in

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respect of the relief of the declaration that was rejected is set-aside.

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The suit of the plaintiff is decreed as prayed for.

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However, the plaintiff is directed to file a fresh valuation slip and the court fee applicable for declaration of title of the schedule property.

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Sd/JUDGE

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SBN/NBM

S N Krishnappa v. S Ramesh

Case brief

What is this about?

What did the court decide?

S N Krishnappa v. S Ramesh

Case brief

What is this about?

What did the court decide?

What the court decided

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