Dismissed

Sri a Hanumanthaiah v. Sri M Kempaiah Since Deceased by Lrs

Karnataka HC5 Jan 2021RSA/355/2009

Case brief

AI extract

What is this about?

This court heard second appeals regarding property disputes based on a contested 1952 gift deed. The appeal by the gift deed's executant was dismissed, affirming the trial court's finding that the deed was valid, preventing the other heirs from claiming ownership.

What did the court decide?

The second appeals filed by the defendants and the plaintiff were dismissed with no order as to costs.

Sri a Hanumanthaiah Vs Sri M Kempaiah Since Deceased by… — 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 5^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.355/2009 C/W R.S.A.No.356/2009

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In R.S.A.No.355/2009

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BETWEEN:

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Sri.A.Hanumanthaiah S/o late Sri. Ajjanna Aged about 77 years

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Sri.Govinda S/o Sri.Jayaramaiah Aged about 40 years

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Sri.Rajanna S/o late Sri.Ajjanna Aged about 55 years

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Sri.Kalegowda (Since dead) S/o late Sri.Ajjanna Since deceased by his LRs

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Smt. Siddamma W/o late Sri.Kalegowda Aged about 58 years

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Sri. M.K.Kantharaja S/o late Sri.Kalegowda Aged about 38 years

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Smt.M.C.Radhika D/o late Sri.Kalegowda

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W/o Sri C.Y.Sridhar Aged about 35 years

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Sri.M.K.Sharan Kumar S/o late Sri.Kalegowda Aged about 31 years

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All are r/at Melukote Village & Post Doddaballapura Taluk Bengaluru Rural district – 561 205.

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...Appellants

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(By Sri G.B.Nandish Gowda, Advocate for Sri R.B.Sadasivappa, Advocate)

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AND:

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Sri. M.Kempaiah Since deceased by his LRs

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a) Smt.Siddaramakka

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W/o late Sri.M.Kempaiah Aged about 82 years

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b) Sri.Munegowda S/o late Sri.M.Kempaiah Major.

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Both are R/o Melukote Village Tubugere Hobli Doddaballapura Taluk Bengaluru Rural District.

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c) Smt.Jayamma D/o late Sri.M.Kempaiah W/o Sri.Veerakempanna

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Aged about 59 years.

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R/o Sonnaghatta Village Kundana Hobli

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Devanahalli Taluk Bengaluru Rural District.

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d) Smt.Pillamma

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D/o late Sri.M.Kempaiah W/o Sri.Siddaramaiah Aged about 57 years R/o Kanchiganahalli Village Tubugere Hobli Doddaballapura Taluk Bengaluru Rural District.

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e) Sri.Anand S/o late Sri.M.Kempaiah Aged about 52 years

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f) Sri.Ramesh S/o late Sri.M.Kempaiah Aged about 44 years

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(e) & (f) are R/o Melukote Village Tubugere Hobli Doddaballapura Taluk Bengaluru Rural District.

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… Respondents

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(By Sri B.L.Prakash, Adv. for M/s. Lawyer’s Inc. for C/R)

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This Regular Second Appeal is filed U/S 100 of CPC, against the judgment and decree dated 05.12.2008 passed by the District Judge, Fast Track Court-V, Bangalore Rural District, Bangalore in RA.39/2004 confirming the Judgment and Decree dated 15.07.2004 passed by the Civil Judge (Sr.Dvn.) Doddaballapur in O.S.NO.293/2002 and consequently dismiss the suit filed by the respondents in O.S.No.293/2002.

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In R.S.A.No.356/2009

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BETWEEN:

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Sri.A.Hanumanthaiah S/o late Sri. Ajjanna Aged about 66 years R/o Melekote Village Tubugerre Hobli Doddaballapura Taluk Bangalore Rural Dist.

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...Appellant

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(By Sri. Nandish Gowda G.B., Advocate for Sri. R.B. Sadashivappa, Advocate)

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AND:

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Sri. M.Kempaiah Since deceased by his LRs

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a) Smt.Siddaramakka Aged about 71 years W/o late Sri.M.Kempaiah

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b) Sri. Mune Gowda, 51 years S/o late Sri.M.Kempaiah

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Both are R/o Melekote Village Tubugere Hobli Doddaballapura Taluk Bangalore Rural District.

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c) Smt. Jayamma, 48 yrs, D/o late Sri.M.Kempaiah W/o Sri. Veerakempanna R/o Sonnaghatta Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural Dist.

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d) Smt.Pillamma, 46 yrs D/o late Sri.M.Kempaiah W/o Sri.Siddaramaiah R/o Kanchiganahalli Village Tubugere Hobli Doddaballapura Taluk Bangalore Rural District.

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e) Sri.Anand, 41 yrs, S/o late Sri.M.Kempaiah

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f) Sri.Ramesh, 36 yrs, S/o late Sri.M.Kempaiah

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g) Sri Krishna Murthy, 33 yrs, S/o late Sri M. Kempaiah

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Smt. Jayalakshmamma W/o Sri Govindappa, 66 yrs. 1(e) & (g) are R/o Melekote Village Tubugere Hobli Doddaballapura Taluk Bangalore Rural District.

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… Respondents

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(By Sri B.L.Prakash, Adv. for M/s. Lawyer’s Inc. For C/R-1 (A-G); R-2 served)

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This Regular Second Appeal is filed U/S 100 of CPC, against the judgment and decree dated 05.12.2008 passed by the District Judge, Fast Track Court-V, Bangalore Rural District, Bangalore in RA.37/2004 confirming the Judgment and Decree dated 15.07.2004 passed by the Civil Judge (Sr.Dvn.) Doddaballapur in O.S.NO.179/2002 and consequently, the appellant prays that this Hon’ble Court be pleased to decree the suit filed by him as prayed in the suit and etc.

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These Regular Second Appeals coming on for Further Hearing this day, the Court delivered the following:

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JUDGMENT

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These appeals are directed against the judgment and decree dated 05.12.2008 passed in R.A.Nos.37/2004 and 39/2004, by the Presiding

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Officer, FTC-V, Bengaluru Rural District, Bengaluru.

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RSA No.355/2009 filed by the defendants are

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directed against the judgment and decree passed in R.A.No.39/2004 dated 5.12.2008 and RSA

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No.356/2009 filed by the plaintiff, is directed against the judgment and decree passed in R.A.No.37/2004.

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Apparently there are two fractions battling for

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the ownership of the schedule property. Before adverting attention to other part of the case, it is necessary to mention that the serial numbers of the original suits before the trial court came across series of change by virtue of jurisdiction.

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The suit schedule property comes within the

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jurisdiction of Doddaballapura. Accordingly, original suit 179/2002 is filed by plaintiff Hanumantaiah before

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the trial court at Doddaballapura and by change of jurisdiction, the matter came to be transferred to Bengaluru and again came back to Doddaballapura. However, the last station where the matter was adjudicated was in the court of Civil Judge, Senior Division, at Doddaballapura.

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Similarly, in RSA No.355/2009 the suit in O.S.No.293/2002 was originally filed before Munsiff Court at Doddaballapura in O.S.No.165/1994 and transferred to II Additional Civil Judge (Jr.Dvn.), Bengaluru.

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For the sake of convenience, the parties are

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referred to as they are referred to in the trial court.

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In so far as O.S.No.179/2002 is concerned,

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the suit schedule property is as under: -

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“Land bearing Sy. No. 218/8B measuring 2 acres 16 guntas situated at Melukote, Tubagere Hobli, Doddaballapura Taluk”

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and insofar as O.S.No.293/2002 is concerned, the

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schedule property description is as under : -

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“ The land bearing Sy. No. 218/8B, measuring 2.16 acres, situated at Melekote, Tubugere Hobli, Doddaballapur Taluk”

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Both the suits are between the same parties. O.S.No.179/2002 is for declaration and permanent injunction and O.S.No.293/2002 is filed as a cross suit

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for permanent injunction in respect of the same property.

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The substance of the case in brief in so far as

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O.S.179/2002 is concerned, Hanumantiah s/o Ajjanna

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is the plaintiff. The suit is filed in respect of land in Sy. No. 218/8B measuring 2 acres 16 guntas situated at Melukote Village. The plaintiff claims the said land belongs to him and that he is the absolute owner. Out of the said property, the plaintiff claims that 12 guntas kharab land is existing, it belongs to one Ajjanna s/o Lankappa. The defendants do not have any right, interest or possession over the schedule property.

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The defendants Kempaiah and

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Jayalakshmamma entered appearance and the written statement was filed by defendant No.1 contending that Lankappa executed registered gift deed on 3.10.1952 and delivered agricultural land and residential site in his favour. Consequent to said gift, the necessary revenue records were made in the name of defendant No.1.

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The substance of the suit filed by Kempaiah

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which is finally numbered as O.S. No. 293/2002 is that he is the absolute owner in possession of land in Sy.No.218/B measuring 2 acres 16 guntas situated at Melukote Village, Tubugere Hobli, Doddaballapura Taluk. Thus both the parties are claiming the same item of property. The source of claim for the plaintiff Kempaiah is that property was gifted to him by Lankappa through a registered gift deed dated 3.10.1952 and the plaintiff is in possession and enjoyment of the property. Since then he is possessing all the necessary and relevant records in his name. The suit that was filed by the said Kempaiah was for permanent injunction.

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The claim of the plaintiff Kempaiah was

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denied by the defendant. Thus for the purpose of clarity in understanding, plaintiff in one case is countered by defendants with same type of pleadings,

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but under different nomenclature. Likewise, Hanumanthaiah’s group are the plaintiffs in O.S.179/2002 being countered by the defendant Kempaiah. Thus the substance of the pleading of the plaintiff in one case would be the substance of the written statement in another case and vice versa.

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The learned trial Judge basing on the pleadings, contentions and other materials framed the following issues in each of the case:-

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Issues in O.S.179/2002

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1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

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2. Whether the plaintiff proves gift deed dated 3.10.1952 is sham, bogus, forged and fabricated as averred in para 6 of the plaint?

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

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4. Whether the plaintiff proves interference as averred in the plaint?

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5. Whether plaintiff is entitled for relief claimed in the suit?

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6. What order or decree?

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Additional Issues

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1. Whether the plaintiff proves that the 1^st defendant is in illegal possession of 15 guntas in the suit Sy.No.?

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2. Whether the 1^st defendant proves that the suit of the plaintiff is barred by law of limitation?

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3. Whether the 1^st defendant proves that the court fee paid by the plaintiff is not proper and insufficient?

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Issues In O.S.No.293/2002

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

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2. Whether the plaintiff proves interference as averred in the plaint?

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3. Whether plaintiff is entitled for the relief claimed in the suit?

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4. What order or decree?

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Learned trial Judge was accommodated with oral evidence of P.Ws.1 to 3 and the documentary evidence of EXs.P1 to 14 on behalf of the plaintiffs. oral evidence of D.Ws.1 to 4 and the documentary evidence of EXs.D1 to 38 on behalf of the defendants.

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The learned trial Judge upon the conclusion of the trial dismissed O.S.No.179/2002 with cost and consequently, O.S.No.293/2002 came to be decreed with cost. The operative portion of the judgment is as under:

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O R D E R

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The suit of the plaintiff in O.S.No.179/02 is hereby dismissed with cost. Consequently the other suit O.S.No.293/02 is decreed with cost for the reliefs prayed. In the result the

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defendants of that suit their agents, servants or anybody claiming through them are hereby restrained from an order of Permanent Injunction not to cause interference or obstruction in the plaintiff’s peaceful possession & enjoyment of the suit schedule property.

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Being aggrieved by the said judgment and decree A. Hanumanthaiah, the plaintiff in

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O.S.No.179/2002 (defendant in O.S.No.293/2002) has preferred R.A.No.37/2004 (R.S.A.No.356/2009). It is to be remembered that O.S.No.179/2002 was dismissed and appeal was preferred by the plaintiff A. Hanumanthaiah in R.A.No.37/2004. Similarly, even as a defendant in O.S.No.293/2002 where the suit was decreed in favour of A. Hanumanthaiah preferred in R.A.No.39/2004 (R.S.A.No.355/2009).

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In order to bring further clarity, it is necessary to state that the particular subject matter

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of the suit schedule property is claimed by A. Hanumanthaiah’s group as the owners and also seeking the declaration of title, injunction and other reliefs. Similarly, the claim laid by M. Kempaiah seeking permanent injunction in other suit.

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While admitting the appeals, on 19.04.2010 this Court formulated the following substantial questions of law in both the appeals as under:

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“ Whether the Judgment and Decree of the Courts below are perverse in misreading the evidence and material on record?

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Whether the Judgment and Decree of the Courts below are perverse in recording a finding contrary to the material on record with regard to the gift?

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Whether the Judgment and Decree of the Courts below are perverse in misreading and mis-applying the

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disputed genealogical tree produced by the plaintiffs and the defendants?”

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In the circumstances of the case, I find the

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following questions are also to be treated as additional substantial questions of law:

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(1) Whether the sons of A. Hanumanthaiah who are divided, then can one son challenge the gift deed executed by deceased Lankappa?

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(2) When the description of property in respect of the measurement is not stated whether the extent can be reckoned through the other attending circumstances?

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Sri G.B. Nandish Gowda for Sri

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R.B.Sadasivappa, learned counsel for the appellants

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would submit that basically the schedule property in Sy.No.218/4 to the extent of 2 acres 16 guntas is the ancestral property of the plaintiff. The original

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propositus is one A. Hanumanthaiah, as such except the descendants of A. Hanumanthaiah and others including defendants do not have any right title and interest over the schedule property. Learned counsel would further submit that as defendants in the suit, where the suit of plaintiff and defendants are clubbed in respect of the same subject matter with same kind of claims and contentions. The contentions of the written statement in the first case would be the defence of the written statement in other cases.

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The non-discussion of counter claim by trial Court would it make difference or prejudice in disposal of the case or whether the matter which is being already covered in evidence and documents should be again heard and disposed of.

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Learned counsel for the appellant would submit that the alleged gift deed dated 03.10.1952

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executed by Lankappa cannot take away the rights of the appellant and exact measurement is not given. Moreover, the property was never gifted and Lankappa had no intention of gifting the property to defendant M. Kempaiah’s group.

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Sri B.L.Prakash, learned counsel for the

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defendants would submit that the title of the defendant M.Kempaiah is full proof to gift deed. The action and the representation of the plaintiff A.Hanumanthaiah’s group is neither proper nor truthful nor justifiable. The possession and enjoyment of the schedule property by the defendant M.Kempaiah’s group is evident by both revenue and panchayath records. There are no change of circumstances from the date of gift deed dated 03.10.1952. Learned counsel would further submit that non-discussion of counter claim by the trial Court or the Appellate Court doesn’t make any difference.

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In the totality of circumstances, the

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following points are amply clear that:

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There exists a land in Sy.No.218/4 of Melekote Village and the devolution of the property upto deceased Lankappa is not disputed.

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The dispute starts because of the registered gift deed stated to have executed by Lankappa in favour of M. Kempaiah on 03.10.1952.

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The donee under the said gift deed A. Kempaiah is the fostered son of the donor. The donor is Lankappa son of Ajjaiah.

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It is a registered gift deed with the description of the property which was gifted

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under the landed property is in Sy.No.218/8 dry land situated at Melekote Village, Tubugere Hobli, Doddaballapura

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Taluk measuring East to West 12 yards and

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North to South 24 yards, bounded on:

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East by : land belongs to Konaganahalli Hanumaiah

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West by : Land belongs to Sri Lankappa (donor)

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North by : Land belongs to Sri Hallaiah Ramaiah

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South by : Govt. Road.

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Another dry land in Sy.No.218/8 situated at

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Melekote Village, Tubugere Hobli,

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Doddaballapura Taluk, dry land (two pieces

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of property fallen under schedule), bounded on:

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East by : land belongs to Sri Lankappa

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West by : Government Halla

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North by : Land belongs to Sri Maneharalaiah

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South by : Government Road.

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The land available in pieces (thundu) and

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the gift deed that is being questioned by the legal heirs of A. Hanumanthaiah. In fact, claiming interference and disturbance thereby praying for declaration of title and to further declare that the gift deed with respect to suit schedule property in favour of M. Kempaiah as not binding on them and to declare the revenue records in that connection is not binding and seeking permanent injunction and other reliefs. This suit was defended by A. Kempaiah and Jayalakshmamma. The said A. Kempaiah died during the trial and his legal representatives are brought on record. The same is challenged by the plaintiffs for declaration of ownership and to declare that the pahani entries are illegal.

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Coming back to legal position, the suit for cancellation of instrument as provided under the Specific Relief Act arises when existence of a

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particular document which is tainted with fraud, misrepresentation or otherwise and it is voidable at the option of the aggrieved party. The aggrieved party would be the person who has executed such instrument under wrong circumstances or the documents is claimed against the interest of a person over the properties. It is doesn’t stop further on their own, if the elder member has executed a deed through coercion, fraud, mistake etc., even his legal representatives can challenge such documents. But what has to be proved is the existence of the circumstances which vitiated the legality of the gift deed.

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In this connection, it is necessary to

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mention whenever fraud is pleaded particulars as contemplated under Order 6 Rule 4 of CPC are to be present to establish that Lankappa was not interested to gift or he was under coercion or mis-represented

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and much force was used on him. To do an act of executing a gift deed which otherwise in normal circumstances he would have not done. It is in this connection that pleading and evidence is required, incidentally in original suit which is for the relief as stated above the evidence which are not available. Further when the suit for declaration of title, in other words declaration of title and for declaring the documents as sought for there is no necessity for seeking declaration of such gift deed to be decreed as null and void.

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No doubt there is a bar under Section 133 of Karnataka Land Revenue Act, 1964 regarding revenue jurisdiction or whatever it may be, when once the title is declared by the Civil Court that means the end of litigation and any contrary record maintained in the revenue entry is invariable and will have to be changed by mentioning the mandate of the Court. It

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is not a case of challenging the suit on the basis of lack of jurisdiction.

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The next element that comes up before this Court is regarding the suit filed by the defendants which was finally numbered as O.S.No.293/2002 and that is plaintiff A. Kempaiah died during the proceedings and his children were brought on record.

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The suit in O.S.No.179/2002 was dismissed on the ground that the plaintiff did not establish the gift deed in favour of M. Kempaiah as sham or bogus. The next aspect is that the other suit is filed by M. Kempaiah against A. Hanumathaiah’s group in O.S.No.293/2002 on the ground that on 03.10.1952 Lankappa gifted the schedule property in favour of M. Kempaiah along with other properties. In this connection, it is necessary to mention on perusal of records reveal that Lankappa the donor and M.

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Kempaiah is the fostered son. After fostering M. Kempaiah he got another son Ajjanna and in this way M. Kempaiah is fatherless and also the gift deed is not been challenged on the ground that Lankappa was vagabond and there is no necessity to gift the property and that there are other properties were also in the name of A. Hanumanthaiah.

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The children of A. Hanumanthaiah got the property partitioned and got their share. However, the present schedule property is being accepted, if it would be given a serious thought that the present schedule property which is gifted as claimed by the plaintiff is challenged by sole A. Hanumanthaiah and not by their brothers and he do not object it because it is a property consisting of two items which was gifted and A. Hanumanthaiah as their beneficiary, consciously this has not been challenged by them and it is only the defendant A. Hanumanthaiah.

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Each and every pleadings in

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O.S.No.179/2002 have purporting effect to the other suit in O.S.No.293/2002, through the legal proceedings M. Kempaiah and his legal

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representatives have taken uniform stand that the source of title is gift deed which contains the vacant site and the land as stated above. In this connection, learned counsel for the plaintiff Hanumanthaiah and the defendant in connected suit would submit that 2 acres 16 guntas of land was not gifted on 03.10.1952 which is marked as Ex.P2. The document is in Kannada and as I am acquainted with Kannada language, I have translated the description of the property mentioned therein as under:-

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Item No.1: A land in Sy.No.212/4, Melekote Village extended 2 acres 2 guntas

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being bounded on the East by remaining

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land of the donor, West by

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Paramashivaiah’s land, North by Kannuru Munishamappa’s land and South by land of the donor.

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Item No.2: A dry land in Sy.No.218/8, Melekote Village bounded on East by Kanaghanahalli Hanumaiaha’s land, West by land of the donor, North by Harallaiah and Ramaiah’s land and South by Government Land. The property extended within the boundaries measuring East to West by 12 yards and North to South by 24 yards.

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Item No.3: A land in Sy.No.218/8, Melekote Village bounded on East by land of the donor, West by Government fit, North by Muniharallaiah’s land and South by Government Land.

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Item No.4: The pieces of land situated within the boundaries to an extent of Sy.No.199/2 bounded on Easy by Lankappa’s land, West by Melattichikkabyrappa’s land, North by Chikkasubbaiah’s land and South by Munishamappa’s Land and the land is wet in nature.

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Item No.5: 4 guntas of land being bounded on the East by land of the donor, West by Chikkabyrappa’s land, North by Melanatti Munishamappa’s wet land and South by Malina Allasajappana’s land.

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Totally five items of properties are gifted. It

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is in this connection, while reading item Nos.1 and 2, learned counsel would submit that the land gifted is the portion of land in Sy.No.212/4 to the extent of 2

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acres 2 guntas. The elementary principles of reading of the properties when it clearly bifurcates by item wise. I do not find that the land has been gifted and there are no lands and on the other hand on perusal of the reading and presenting level of the learned counsel is that there are no Item Nos.1 and 2, total portion of items are given. If that were to be the case of the plaintiff, it is not a partial challenge of the gift deed. Moreover it does not require the interpretation with reference to entire case filed or pleadings on the other hand. Items of land, the extent of land is not given in item No.2 and boundaries as contemplated.

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In this connection the contention of the learned counsel regarding the interpretation of the extent and reading of the documents is not acceptable and hence, not accepted.

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The next aspect is regarding the element of counter claim. Learned counsel for the appellant submits that counter claim was made in the written statement filed by A. Hanumanthaiah’s group in O.S.No.293/2002 and they are as under:

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Para 4. - With regard to para 3 it is submitted that it is absolutely false that the plaintiff was gifted that the said property under registered gift deed dated 03.10.1952 by one Lankappa. The said Lankappa had no title to the property exclusively for him to gift the said property in favour of the Plaintiff. The schedule property is ancestral property of Lankappa that stood originally in the name of Ajjappa did not belong to Ajjappa in the sense that in the same is an ancestral property of Ajjappa. Therefore, Lankappa had no right if any to gift the entire property to the plaintiff, who is described in the said gift deed. As a fostered son. The gift is denied

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on the plaintiff is called upon to prove the said gift in strict sense of the term.

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The Rules of Pleadings suggest praying of

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facts alone and being impleading of the plaintiff or the defendants. The unique circumstances of the case is that plaintiff is M. Kempaiah. He has filed a suit for permanent injunction, the subject matter in question is the landed property in Sy.No.218/8 of Melekote Village. The defendants/A. Hanumanthaiah’s group have denied the claim of the plaintiff. Apart from that they have also filed a counter claim as stated above in the suit filed by A. Hanumanthaiah in O.S.No.293/2002. The prayer sought in respect of the same property by A. Hanumanthaiah as under:

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a)Permanent injunction restraining

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Defendants 1 to 4 from interfering with

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the peaceful possession and enjoyment

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of the plaintiff on the schedule land in

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any manner.

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b) Grant costs of this suit and such other reliefs as this Hon’ble Court deems fit to grant in the circumstances of the case in the interest of justice and equity.

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Thus what he has sought by way of counter

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claim as prayed in the other suit in O.S.No.293/2002 is nothing but the claim as prayed in O.S.No.179/2002. Thus the question of law as framed regarding the possession is fatal. It has not discussed the counter claim made by the defendants. In the normal course the appreciation of evidence discussed on the right or righlessness on the part of a person, but there are circumstances where the independent claim has been made. No doubt the judgment is not complete till the counter claim is decided. But here

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the contents of the material has to be presented in a mathematical manner in O.S.No.179/2002 as prayed and the schedule property is same in O.S.No.293/2002 in the matter of claim and in the matter of subject matter.

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The prayer of A. Hanumanthaiah’s group in O.S.No.179/2002 are as under “THEY ARE EQUAL TO PRAYERS MADE IN THE WRITTEN STATEMENT IN THE

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FORM OF COUNTER CLAIM IN O.S.NO.293/2002.” Thus, the absence of separate discussion regarding the counter claim is nothing but asking for second time appreciation of evidence in O.S.No.179/2002. Further the gift deed dated 03.10.1952 is not challenged. The revenue entries in Ex.P13 is correlated. The plaint of A. Hanumanthaiah’s group in O.S.No.179/2002 is nothing but written statement in the other suit and vice versa.

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Misc.Civil No.7282/2010 is filed for

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production of the following documents as additional documents:

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Certified copy of the sale deed

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dated 06.05.1930 executed by Sri Melekote Thammanna and his wife Smt. Sanjeevamma in favour of Sri Lankappa.

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Copy of the preliminary record with

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respect to Sy.No.218/4.

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Accepting the cause shown in the affidavit, Misc.Civil No.7282/2010 is allowed. Documents are taken on record and perused the same.

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The another point raised by the learned

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counsel for the appellant is that the trial Court has held the suit was barred by limitation. This is

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necessary to understand that he had made application in the year 1993.

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The learned trial Judge has observed in para

¶245

20 of the judgment that in the cross examination, A. Hanumanthaiah’s group deposed that he gave representation to revenue authorities to change the name of respondent in respect of Sy.No.218/8 to the schedule property. Accordingly, he gave representation in the year 1994 and that was not denied and also show that he had knowledge of existence of the name of A. Kempaiah in the year 1994 itself. The suit was filed in the year 1994. To look at the suit should have been filed in the year 1997. Another aspect of the matter is A. Hanumanthaiah as plaintiff and also as defendant in O.S.No.179/2002 and O.S.No.293/2003 is isolated in making the claim. None of the other children of A.

¶246

¶247

Hanumanthiah has raised their little finger to question the authenticity, legality and validity of the gift deed.

¶248

In this connection through the deep analysis

¶249

of all the aspects mentioned above, the reliefs prayed by A.Hanumanthaiah’s group in both RSA Nos.355/2009 and 356/2009 is lack of substantial question of law entertainable under Section 100 of CPC and the question of counter claim in this circumstances is only making mountain out of mole. It has no impact. However, considering the evidence and pleadings in two sets i.e., two plaints and two written statements, evidence, documents tells many time in so many words that the rights seeking counter claims on various reliefs are also adjudicated. I find the judgment and decree passed by learned trial Judge wherein suit in O.S.No.179/2002 is dismissed and suit in O.S.No.293/2002 wherein it was decreed. Consequently, R.A.37/2004 and 39/2004 are also

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¶251

dismissed and do not call for interference, they deserve to be confirmed. The substantial questions of law are answered accordingly.

¶252

For the foregoing reasons, appeals are

¶253

dismissed.

¶254

Sd/JUDGE

¶255

GJM

Sri a Hanumanthaiah v. Sri M Kempaiah Since Deceased by Lrs

Case brief

What is this about?

What did the court decide?

Sri a Hanumanthaiah v. Sri M Kempaiah Since Deceased by Lrs

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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