Dismissed

Sri. Bettaswamygowda v. Sri. Ramaiah

Karnataka HC2 Jul 2021RSA/441/2018

Case brief

AI extract

What is this about?

In this second appeal under Section 100 of CPC challenging a dismissal of a title and injunction suit, the single judge dismissed the appeal holding that since a partition suit had been decreed and final decree proceedings were pending, substantial questions of law were not made out for intervention.

What did the court decide?

Second Appeal No.441/2018 dismissed with a direction that no further proceedings are required in the appeal.

Sri. Bettaswamygowda Vs Sri. Ramaiah — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JULY, 2021

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BEFORE

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

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REGULAR SECOND APPEAL NO.441/2018 (DEC/INJ)

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BETWEEN:

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SRI BETTASWAMYGOWDA S/O. GANGAIAH, AGED ABOUT 54 YEARS, AKKUR VILLAGE, KOOTAGAL HOBLI, RAMANAGARA TALUK & DISTRICT-571 511

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... APPELLANT

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(BY SRI S. RANGASWAMY, ADVOCATE)

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AND

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SRI RAMAIAH,

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S/O. LATE THIMMAIAH @ KULLEGOWDA, AGED ABOUT 64 YEARS

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SMT. JAYAMMA W/O. RAMAIAH, AGED ABOUT 54 YEARS

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SRI R. PRAKASH S/O. RAMAIAH, AGED ABOUT 38 YEARS

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ALL ARE RESIDENTS OF AKKUR VILLAGE, KOOTAGAL HOBLI, RAMANAGARA TALUK & DISTRICT-571 511

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... RESPONDENTS

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(BY SRI T. NATARAJU, ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.10.2017 PASSED IN R.A. NO.40/2014 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 08.07.2014 PASSED IN O.S. NO.120/2004 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGAR.

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THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT THROUGH VIDEO CONFERENCING DELIVERED THE FOLLOWING:

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JUDGMENT

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Though the matter is listed today for Admission,

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the same is taken up for consideration with consent of

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learned counsel for both the parties.

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This appeal is directed by the plaintiff against the judgment and decree dated 30.10.2017 passed by the learned III Additional District and Sessions Judge, Ramanagara in Regular Appeal No.40/2014 wherein the appeal preferred by defendants under Section 96 of Code of Civil Procedure came to be allowed, thereby the judgment and decree passed in Original Suit No.120/2004 by the learned Additional Senior Civil Judge, Ramanagara on 08.07.2014 came to be set aside and consequently the suit was dismissed.

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For the sake of convenience, parties are referred to as per their rankings before the trial Court.

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The case of the plaintiff-appellant is that, the suit

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was filed by him before the trial Judge for the relief of declaration of title and permanent injunction in respect

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of schedule properties which consists of four items, namely:

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Land measuring 23 guntas in Survey No.58, situated in Belagavadi Village, Madabal Hobli, Magadi Taluk and bounded on the ;

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East by : Land of Plaintiff West by : Land of Ramachandraiah North by : Land of Nanjamma w/o. Shankaraiah South by : Land of Plaintiff

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Survey No. New 95, Old 12, measuring 2 acres 10 guntas, assessed at Rs.3.70 paise, situated in Akkur Village, Kootagal Hobli, Ramanagara Taluk and bounded on the;

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East by : Land of Nagamma W/o. Balaiah West by : Land of Ramachandraiah North by : Land of Plaintiff South by : Land of Puje Channegowda

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Survey No. New 193, Old 58 measuring 2 acres 22 guntas, assessed at Rs.5.10 paise, situated at Belagavadi Village, Madabal Hobli, Magadi Taluk and bounded on the;

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East by : Land of Rangaiah West by : Land of Ramakrishnaiah North by : Land of Dasappa South by : Land of Ramaiah

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Survey No.130/2 measuring 01 acre 01 gunta, assessed at Rs.1.53 paise, situated at Belagavadi Village, Madabal Hobli, Magadi Taluk and bounded on the;

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East by : Land of Bettaiah West by : Land of Ramaiah North by : Land of Chowdamma South by : Government Road

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The trial Court after consideration of oral evidence

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of PWs.1 to 5 and DW1 and documentary evidence of Exs.P1 to 51 and Exs.D1 to D12 allowed the suit in part. The operative portion of the same reads as under:

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“The suit of the plaintiff is partly decreed with costs as follows:

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The plaintiff is declared as the owner of item Nos.2 to 4 of the plaint schedule.

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The defendants 1 to 3 are hereby restrained by an order of permanent injunction from causing interference or obstructing the plaintiff in his peaceful possession of item Nos.2 to 4 of the plaint schedule.

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The prayer of the plaintiff with reference to item No.1 to dismissed.

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Draw decree accordingly .”

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6. Being aggrieved by the same, the defendants filed

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a regular appeal before the first Appellate Court and the first Appellate Court allowed the appeal. The operative portion of the said judgment and decree reads as under:

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“The appeal filed by the appellants/defendant Nos.1 to 3 under Sec.96 of CPC is hereby allowed.

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Consequently, the judgment and decree passed in OS No.120/2004 by the learned Addl. Senior Civil Judge, Ramanagara on 08.07.2014 is hereby set aside. The suit in OS No.120/2004 is dismissed.

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The parties to the appeal shall bear their own costs

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Send back the LCR along with a copy of this judgment to the trial court forthwith.”

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7. Learned counsel for the plaintiff Sri S.

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Rangaswamy submits that item Nos.1 and 4 are the ancestral properties of the plaintiff and item Nos.2 and 3 are the properties granted by the Government of Karnataka by regularizing unauthorized occupation of the plaintiff’s parents. Learned counsel further submits that the trial Judge made a detail analysis of the rights of the parties and the nature of the properties and rightly decreed the suit in favour of plaintiff. however, the appellate Judge erred in dismissing the suit by setting aside the judgment of the trial Court.

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The case of the plaintiff as stated in the impugned judgment in Regular Appeal No.40/2014 is as under:

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The suit item No.1 property was granted in favour

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of plaintiff under Grant Certificate dated 22.10.2003. Katha has been mutated into his name. The suit item

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No.2 property was granted in the name and favour of father of the plaintiff, by name Gangaiah, under Grant Certificate dated 19.09.1994. Katha of the same stood in his name and he was in possession of the same as its absolute owner. The suit item No.3 bearing old Sy.No.58 new Sy.No.193 is also granted in the name and favour of father of the plaintiff under Grant Certificate dated 13.11.1998. The suit item No.4 in Sy.No.130/2 measuring 1 acre 1 gunta was the ancestral property of Gangaiah. The said Gangaiah and first defendant are brothers. They have divided the

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same under panchayat parikath dated 12.06.1981. Since plaintiff’s father Gangaiah is aged, his eye sight is feeble, hearing is impaired, he had voluntarily executed a panchayat parikath in favour of plaintiff on 09.03.2002. The Katha of suit item Nos.2 to 4 are made in favour of plaintiff as per orders in MR No.42/200001, 4/2003-04 and 23/2003-04. According to plaintiff

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defendant No.1 is the husband and second and third defendants are wife and son of the first defendant. They do not have right, title or interest or possession over suit schedule properties.

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The contentions of the defendants in the regular appeal are that the plaintiff is not in possession of the property. The measurement of the suit item No.1 in Sy.No.58/16 is 30 guntas and the same is ancestral property of the plaintiff and defendants. Under oral partition, 15 guntas of land is allotted to plaintiff and 15 guntas of land allotted to the first defendant and Katha has been mutated in MR No.24/90-91. In respect of this property O.S. No.36/2000 was filed. Sy.No.58 measuring 2 acres 22 guntas was granted to defendant Nos.1 and 2 by the Tahsildar, Magadi in LND SR 1310/91-92 and the defendants have been in possession and enjoyment of the same. Item No.2

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property bearing Sy.No.95 is totally measuring 2 acres 10 guntas. They further contended that the property was not granted in the name and favour of Gangaiah as claimed by the plaintiff. In respect of that property, 2^nd defendant has filed a suit in OS No.69/2001 against the plaintiff and that suit is pending for consideration. In Sy.No.12 measuring 3 acres 20 guntas of land is granted in the name of 2^nd defendant on 19.09.1994 and she has been in possession and enjoyment of the same by planting 280 mango plantation. Item No. 3 property in Sy.No.193 is totally measuring 5 acres 4 guntas. The Tahsildar, Magadi granted 2 acres 22 guntas of land in favour of defendants and 2 acres 22 guntas of land in the name and favour of the plaintiff. Accordingly, Katha has already been mutated. The defendants are in possession and enjoyment of that property by planting 250 mango trees aged about 9 years. The defendants by mortgaging that property to

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the State Bank of Mysuru, Jalamangala for a sum of Rs.80,000/- borrowed loan. Item No.4 property in Sy.No.130/2 is totally measuring 2 acres 4 guntas. This property is the ancestral property of the plaintiff and defendants. In a partition, 1 acre 1 gunta of land was allotted to plaintiff and 1 acre 1 gunta of land was allotted to defendants. In respect of that property, the suit in OS No.197/2001 was filed and the same is pending consideration. The alleged partition dated 09.03.2002 is not within the knowledge of the defendants. It is the defendants who have been in peaceful possession and enjoyment of suit schedule properties and there is no cause of action for the suit.

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The issues framed by the trial Court are as under:

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1) Whether the plaintiff proves that he is the absolute owner and in lawful

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possession of suit schedule properties as contended in paras 2 to 6 of the plaint?

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2) Whether the plaintiff further proves that defendants are causing interference in his peaceful possession and enjoyment without any right, title or interest in suit schedule properties?

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3) Whether the plaintiff is entitled for the relief of permanent injunction against the defendants as prayed for?

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4) Whether the defendants prove that they are the owners and in possession of suit schedule properties as claimed in paras 3 to 7 of written statement?

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5) Whether the suit of plaintiff is hit by Sec.10 of CPC since O.S. No. 36/2000 O.S. No.69/2000, O.S. No.197/2001 are pending before Civil Court in respect of suit schedule properties?

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1. What order or decree?

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The points for consideration raised by the first appellate Court are as under:

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1) Whether the plaintiff has proved that, he has been in possession and enjoyment of suit item Nos.2 to 4 properties as its absolute owner?

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2) Whether the defendants have proved that, suit item Nos.1, 3 and 4 are joint family properties?

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1. Whether the trial Court is justified in decreeing the suit of the plaintiff in respect of item Nos.2 to 4 properties?

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The learned counsel Sri S. Rangaswamy for plaintiff submits that the schedule properties are absolute properties of the plaintiff and he is in possession and enjoyment of the same and also revenue records are muted in his name. It is his contention that

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the plaintiff acquired the schedule properties by grant and also share of the joint family properties. The partition was prior to 1990 between the plaintiff and the defendants. The fact is that the plaintiff and defendant No.1 are stated to be siblings. His further contention is that the old Survey No.12 New Survey No.95 measuring 2 acres 10 guntas was granted in favour of Gangaiah, the father of plaintiff through Grant Certificate dated 19.09.1994. The said document does not mention the boundaries and it is stated that 2 acres 20 guntas in Survey No.12. The boundaries to the said property are not stated in the cross-examination. Plaintiff has admitted that 3 acres 20 guntas of land in Survey No.12 was granted to Jayamma, the wife of first defendant. While replying to a suggestion, both, the plaintiff and wife of the first defendant are claiming their properties, but there are no evidence. Learned first appellate Judge has observed that there is no evidence on record to the

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effect that 2 acre 20 guntas of land was granted as per Ex.P2. In this regard, some paragraphs of impugned judgment and decree passed in Regular Appeal are extracted as under:

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“14. It is the contention of the plaintiff that, the land bearing old Sy.No.58 new Sy.No.193 and land bearing Sy.No.130/2 are his absolute properties by virtue of grant certificate issued to him and his father. It is relevant to note at the outset itself that, in respect of item No.1 property in Sy.No.58 measuring 23 guntas, the trial Court has held that, that property is covered in suit in OS No.36/2000 and half share is allotted to the 1^st defendant. Accordingly, trial Court has held that, property bearing Sy.No.58 measuring 23 guntas i.e. item No.1 of schedule properties is the joint family property. It is pertinent to note here itself that, against the findings of the trial Court in respect of item No.1 property in Sy.No.58 measuring 23 guntas, the plaintiff has not

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filed the appeal. Therefore, this Court need not discuss the fact and evidence in respect of item No.1 of suit schedule properties. Accordingly, this Court is not resorted to do the same.

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15. It is the contention of the plaintiff that, property bearing old Sy.No.12 new Sy.No.95 measuring 2 acres 10 guntas is granted in the name and favour of his father Gangaiah. Ex.P2 is the grant certificate dated 19.09.1994, which would indicate that, 2 acres 2 guntas of land in Sy.No.12 is granted to Gangaiah. The reading of Ex.P2 would indicate that, no boundary is given to the property measuring 2 acres 20 guntas in Sy.No.12. In a comprehensive suit for declaration of title and permanent injunction, it is for the plaintiff to prove the existence of the property and its boundary.

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16. It is relevant to note here itself that, PW1 during the course of his crossexamination has categorically admitted that,

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3 acres 20 guntas of land in Sy.No.12 is granted to Jayamma wife of 1^st defendant. Very interestingly, at the time of crossexamination of DW.1 the counsel for the plaintiff has suggested to her that, she got granted 3 acres 20 guntas of land in Sy.No.12. Therefore, it can be gathered that, both plaintiff and the wife of defendant No.1 by name Jayamma are claiming their property right over one and the same property. There is no evidence on record to the effect that, 2 acres 20 guntas of land granted under Ex.P2 Saguvali chit dated 19.09.1994 and 3 acres 20 guntas of land granted in the name and favour of Jayamma as per the orders of Tahsildar are altogether different. Therefore, in a suit for permanent injunction, it is for the plaintiff to ascertain the exact boundaries of the land bearing Sy.No.12 measuring 2 acres 20 guntas. In fact the Saguvali chit at Ex.P2 does not indicate the boundaries of 2 acres 20 guntas of land in Sy.No.12. Therefore, it can be said

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that, plaintiff has failed to identify the property in Sy.No.12 measuring 2 acres 20 guntas.

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17. To show that, plaintiff is in possession and enjoyment of Sy.No.12 measuring 2 acres 20 gutnas, he has placed reliance on Ex.P22 grant list. Mere production of grant list is not suffice to come to the conclusion that, property described at item No.2 of suit schedule properties is granted under Ex.P2. There is no boundary in the grant certificate at Ex.P2.

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18. It is the settled proposition of law that, in respect of unidentified and unascertained property, permanent injunction should not be granted. If that concept of law is taken into consideration, no reliance can be attached to the contents of Ex.P2 Saguvali chit dated 19.09.1994. In addition to the above document, the plaintiff has produced Ex.P7 to Ex.P9, Ex.P16, Ex.P17, Ex.P30 to Ex.P32,

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Ex.P34 and Ex.P35 RTCs which stand in the name of father of plaintiff by name Gangaiah. Ex.P36 to Ex.P39, Ex.P49 to Ex.P51 are the RTCs of item No.2 of suit schedule properties stands in the name of plaintiff. In respect of item No.2 property, plaintiff has produced boundary as per Ex.P24 and sketch as per Ex.P23 and Ex.P25. To show that, at the time of preparation of sketch at Ex.P23 and Ex.P25, Jayamma the wife of 1^st defendant is also present, there is no explanation before the Court.”

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The substantial question of law proposed by the appellant are as under:

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1) The final findings/conclusions of the First Appellate Court in its judgment and decree dated 30.10.2017 in R.A. No.40/2014 are de-hors the pleadings of the parties in the appeal as well as original suit, the proved documentary evidences and oral evidences of the parties and the witnesses, relevant

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provisions of law in particular Section 94A of the Karnataka Land Revenue Act, 1964 read with rules there-under, Section 10 of the CPC and relevant provisions of law of evidence. Be that as it may, the judgment and decree of the First Appellate Court impugned in this Second Appeal does not stand to test of law and reason, consequently, is hit by rule of law.

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Learned counsel Sri T. Nataraju for the

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respondents submits that the contention of the defendants is that the suit schedule properties are the joint family properties as the same was originally headed by Gangaiah father of the plaintiff and the first defendant and there was no partition. He further submitted that O.S. No.30/2020 is a suit filed by the first defendant for partition and separate possession of the properties and the said suit came to be decreed and the matter is now pending FDP No.3/2018 and the

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judgment and decree passed by the trial Judge in O.S. No.30/2000 was not challenged.

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In the above said circumstances, I find it was not right on the part of plaintiff to approach the Court for declaration of title and permanent injunction when the suit for partition was decreed and consequential proceedings under Section 54 of CPC for final decree proceeding is pending in FDP No.3/2018 . In the circumstances of the case, the entertainment of appeal under Section 100 of CPC is based on the determination of substantial questions of law. Insofar as the finding of fact is concerned, even there is particular view by the trial Court or the first Appellate Court on the particular set of fact and if these Courts were to find different views that cannot be a question of law within the purview of Section 100 of CPC. In the present appeal there are no aspects or grounds to entertain the appeal

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on the basis of presence of substantial question of law. Further the conduct of the plaintiff to circumvent the FDP proceedings does not hold well on him. Appeal does not require further proceedings, as there are no substantial questions of law for consideration and it is liable to be dismissed at this stage itself. Accordingly, the appeal is dismissed.

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Sd/JUDGE

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Sbs*

Sri. Bettaswamygowda v. Sri. Ramaiah

Case brief

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Sri. Bettaswamygowda v. Sri. Ramaiah

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