Dismissed

Sri Subbarayappa v. Sri Muniswamy

Karnataka HC14 Feb 2022RSA/1139/2010

Case brief

AI extract

What is this about?

Regular second appeal against a first appellate decree declaring title and granting injunction. The High Court distinguished Banarsi case, holding that since the High Court dismissed the pending writ challenging the grant, the appellate court had ample power to grant the declaration and dismissed the regular second appeal.

What did the court decide?

Regular second appeal was dismissed, upholding the decree of declaration and permanent injunction granted by the First Appellate Court.

Sri Subbarayappa Vs Sri Muniswamy — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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R.S.A.No.1139 OF 2010 (DEC/INJ)

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BETWEEN:

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SRI. SUBBARAYAPPA

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AGED ABOUT 54 YEARS

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S/O NALLAPANA NAGAPPA

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SRI. NANJUNDACHARI AGED ABOUT 59 YEARS S/O NARAYANACHARI

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BOTH ARE RESIDENTS SOORANAHALLI VILLAGE KYSAMBALLI HOBLI BANGARPET TALUK KOLAR DISTRICT.

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… APPELLANTS

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(BY SRI. N.S. SHESHADRI, ADVOCATE)

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AND:

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SRI. MUNISWAMY (SINCE DECEASED BY L/RS)

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i) SMT. CHAMUDIAMMA AGED ABOUT 75 YEARS W/O LATE MUNISWAMY (SINCE R-1 (A) DECEASED BY L/RS RESPONDENT NO.1(B) TO (D)

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ii) SRI. B.M. MUNIRATHNAM AGED ABOUT 52 YEARS S/O LATE MUNISWAMY

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iii)	SRI. B.M. ANANDA AGED ABOUT 34 YEARS S/O LATE MINISWAMY
iv)	SMT. B.M. RADHAMMA AGED ABOUT 39 YEARS D/O LATE MUNISWAMY
	ALL ARE R/AT NEW TOWN BETHAMANGALA TOWN BANGARPET TALUK KOLAR DISTRICT.
2.	SRI. VENKATADASAPPA (SINCE DECEASED BY L/RS)
a)	SMT. GOWARAMMA W/O LATE VENKATADASAPPA AGED ABOUT 85 YEARS
b)	SMT. ALUVELAMMA D/O LATE VENKATADASAPPA AGED ABOUT 66 YEARS
c)	SRI. S.V. PADMANABHA S/O LATE VENKATADASAPPA AGED ABOUT 63 YEARS
d)	SRI. S.V. JAGANATHA S/O LATE VENKATADASAPPA AGED ABOU 61 YEARS
e)	SRI. S.V. PRAKASH S/O LATE VENKATADASAPPA AGED ABOUT 59 YEARS
	RESPONDENT NO.2(A) (E) ARE R/O SOORNAHALLI VILLAGE KYSAMBALLI HOBLI BANGARPET TALUK KOLAR DISTRICT. … RESPONDENTS
(BY	SRI. DESHRAJ, ADVOCATE FOR R1, (II, III, IV) R2(A), R2(B), R2(C), R2(D) AND R2(E)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 05.01.2010 PASSED IN R.A. NO.158/2001 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, KGF, DISMISSING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED:21.11.2001 PASSED IN OS.NO.112/86 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN), K.G.F.

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

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JUDGMENT

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Present regular second appeal is filed by the appellants/defendant Nos.1 and 2 against the judgment and decree dated 05.01.2010 passed in R.A.No.158/2001 on the file of the Fast Track Court, KGF (hereinafter referred to as the 'first appellate court'), in and by which, the First Appellate Court apart from confirming the judgment and decree dated 21.11.2001 passed in O.S.No.112/1986 on the file of Principal Civil Judge (Jn.Dn.) KGF (hereinafter referred to as the 'trial Court'), granted the decree of declaration to the respondent/plaintiff No.1.

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The respondent/plaintiff No.1 filed suit in O.S.No.112/1986 seeking judgment and decree for declaration of his title and consequential permanent injunction on the premise that the land measuring 2 acres 36 guntas in Sy.No.29 of Sooranahalli village, Kyasamballi Hobli, Bangarpet Taluk, Kolar District was granted in his favour on 08.01.1986 and that he is in possession and enjoyment of the same. That on 10.06.1986 appellants/defendant Nos.1 and 2 tried to interfere with his possession, constraining him to file suit for declaration and permanent injunction.

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Appellants/defendant Nos.1 and 2 along with defendant No.3 filed written statement denying the claim of the respondent/plaintiff No.1 with regard to grant dated 08.01.1986 and also his possession. It was contended that respondent/plaintiff No.1 was working in the Police Department and he was resident of Baithamangala.

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That the alleged grant being opposed to law and invalid, did not confirm any right on the respondent/plaintiff No.1. It is further specifically contended by the appellants/defendant Nos.1 and 2 that land in Sy.No.29 is a Gomal land, totally measuring 28 acres 13 guntas. Out of the said extent, six persons, namely, defendant Nos.1 to 4 and one Munivenkatappa and Rangappa have been in possession of 7 acres 33 guntas of land. That the respondent/plaintiff No.1 had earlier managed to obtain the grant certificate in respect of 4 acres of land in the year 1984 attempted to interfere with the possession of land which was cultivated by Munivekatappa. A Regular appeal in R.A.No.16/1984-85 was filed by said

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Munivekatappa before the Assistant Commissioner, who after holding an enquiry rejected the grant made in favour of respondent/plaintiff No.1 as the land in question was in possession of several persons. Thereafter, the respondent/plaintiff No.1

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using his influence had managed to obtain grant certificate on 08.01.1986. On the basis of which he was trying to interfere with possession of the land of the defendants. Hence, sought for dismissal of suit.

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The Trial Court based on the aforesaid

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pleadings, framed the following issues.

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"1) ªÁ¢ zÁªÁ C£ÀÄ¸ÀÆa ¸ÀéwÛ£À°è ªÀiÁ°ÃPÀgÁVgÀÄvÁÛgÉ JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?

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1. ªÁ¢ zÁªÁ C£ÀÄ¸ÀÆa ¸ÀévÀÄÛUÀ¼À°è PÁ£ÀÆ£ÀÄ§zÀÞ ¸Áé¢üÃ£Á£ÀÄ¨sÀªÀ ºÉÆA¢gÀÄvÉÛÃ£É JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?

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ºÁUÁzÀgÉ, ªÁ¢ zÁªÁ C£ÀÄ¸ÀÆa ¸ÀéwÛ£À ¸Áé¢üÃ£Á£ÀÄ¨sÀªÀPÉÌ ¥ÀæwªÁ¢UÀ¼ÀÄ ºÀ¸ÀÛPÉëÃ¥ÀªÀÅAlÄ ªÀiÁrgÀÄvÁÛgÉ JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?

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1. AiÀiÁªÀ DzÉÃ±À?"

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and recorded evidences. Original plaintiff-

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Muniswamy died and his L.Rs were brought on record.

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One B.M.Munirathnam has examined

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himself as P.W.1 with two more witnesses as P.W.2 and P.W.3 and exhibited 18 documents marked as Ex.P.1 to Ex.P.18. Defendant Nos.1 and 2 examined themselves as D.W.1 and D.W.2 and exhibited 14 documents marked as Ex.D.1 to Ex.D.14.

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The trial Court on appreciation of evidence partly decreed the suit granting relief of permanent injunction having found that the plaintiffs to be in possession of the suit schedule property. As regards the relief of declaration of title, the trial Court declined to pass any order inasmuch as a writ petition in W.P.Nos.3587835881/2001 filed by the appellants/defendant Nos.1 and 2 questioning the order of Grant in favour of

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Respondent/Plaintiff No.1 was pending consideration before this Court.

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Aggrieved by the said judgment and decree of permanent injunction

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appellants/defendant Nos.1 and 2 preferred R.A.No.158/2001 before the First Appellate Court.

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Based on the grounds urged in appeal

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memorandum, the First Appellate Court framed the following points for its consideration.

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"1. Whether the plaintiff proves lawful possession over plaint suit schedule property as on the date of suit?

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2. Whether the plaintiff further proves alleged interference of the defendants?

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3. To what order or decree?"

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and on re-appreciation of evidence, the first appellate Court by its judgment and order dated 05.01.2010 allowed the appeal decreeing the suit in

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its entirety granting of relief of declaration of title and confirming the decree of permanent injunction granted by the Trial Court.

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appellants/defendant Nos.1 and 2 are before this Court.

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Sri. N.S.Sheshadri, learned counsel for

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the appellants/defendant Nos.1 and 2 reiterating the grounds urged in the appeal memorandum submitted ;

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(a) that the respondent/plaintiffs has never

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been in possession of the subject land, admittedly plaintiff No.1 was a police constable serving in various places of Kolar district along with his family members. As such, he was not entitled for grant of land under the provisions of the Karnataka Land Revenue Act and Rules, consequently the grant certificate was illegal and non-est .

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(b) that the trial Court had declined to grant the relief of declaration on the premise that the writ petition in WP No.35878/2001 filed by the appellants/defendants questioning the order dated 07.09.2001 passed by the Karnataka Appellate Tribunal (hereinafter referred to as 'KAT') was pending consideration. In the aforesaid factual

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position of the matter, the First Appellate Court erred in decreeing the suit declaring the respondents/plaintiffs to be absolute owners of the property.

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(c) that the First Appellate Court ought not to have granted relief of declaration without there being a cross appeal as contemplated under order XLI Rule 22(1) of the C.P.C. He relied upon the judgment of Apex Court in the case of BANARSI AND OTHERS vs. RAM PHAL reported in (2003)

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9 SCC 606.

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Hence, submits that substantial question of law arise for consideration in the matter.

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Per contra, Sri.Deshraj, learned counsel for the respondents/plaintiffs justifying the order passed by the First Appellate Court submitted;

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(a) that since the possession of the respondents/plaintiffs over the suit schedule

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property has been upheld by the Trial Court and the First Appellate Court, and in view of the above writ petition filed by the defendant Nos. 1 and 2 having been dismissed, no error can be found with the judgment and order passed by the First Appellate Court and the Trial Court. As such, no substantial question of law would arise for consideration and Hence, sought for dismissal of the appeal.

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Heard learned counsel for the parties and perused the records.

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There is no dispute of the fact that the land in question was subject matter of a grant dated 08.01.1986 in favour of the original plaintiff No.1-Muniswamy. The appellants/defendants herein had challenged the said grant in R.A.No.47/1986 before the Assistant Commissioner, who by his order dated 04.03.1993 allowed the appeal and cancelled the grant made in favour of plaintiff No.1Muniswamy and remitted the matter to the

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Tahsildar for fresh enquiry. That upon the death of Muniswamy- the plaintiff No.1 in the year 1991, his legal representatives preferred an appeal before the Deputy Commissioner, Kolar, who by his order dated 31.07.1995 set aside the order passed by the Assistant Commissioner and allowed the appeal. Being aggrieved by the said order, appellants/defendant Nos.1 and 2 had preferred the revision petition before the KAT, which by its order dated 31.05.1996 had dismissed the said revision

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petition as not maintainable. Aggrieved by the same, W.P.Nos.6695-97/1997 was filed before this Court by the appellants/defendant Nos.1 and 2. This Court by its order dated 16.07.1999 had held the revision was maintainable and remitted the matter to the KAT. Upon such remand, the KAT had passed the order dated 07.09.2001 confirming the order passed by the Deputy Commissioner. Aggrieved by the said order of the KAT, appellants/defendants filed W.P.No.35878/2001.

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This Court by its order dated 27.06.2006 had dismissed the said writ petition. However, reserving liberty to the appellants/defendants to work out their remedies before the competent Civil Court. Said order of this Court in WP No.35878/2001 has attained finality. 14. The Trial Court while appreciating the evidence made available, has held that the respondent/plaintiff No.1 was in possession of the land. However, in view of the interim order that had been granted by this Court in W.P No.35878/2001 staying the operation and implementations of the order passed by the Deputy Commissioner and KAT, had declined to grant relief of declaration even while restraining the appellants/defendants permanently from interfering with the possession of the respondents/plaintiffs by way of permanent injunction. Aggrieved by the same, appellants/defendants had filed R.A.No.158/2001

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before the First Appellate Court. In the meanwhile, by order dated 27.06.2006 the W.P.Nos.3587835881/2001 was dismissed.

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The First Appellate Court taking into consideration of this aspect of the matter at

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paragraph 15 of its judgment has held as under.

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"15. I have perused the judgement of the Trial court and the trial court has not at all considered the oral and documentary evidence adduced by the parties with proper prospective as they are to be considered even though the plaintiff has proved this case for the relief as prayed by him. The trial court has declined to grant the relief of title to the suit schedule land to the plaintiff only on the ground that the order of the Deputy Commissioner and so also the order of the K.A.T. have been stayed by the Hon'ble High Court in the writ petition. But in view of the Order passed by the Hon'ble High Court of Karnataka in the said WP the defendant have not made out any case as contended by them. As I already stated above the Plaintiff have proved their title possession and enjoyment of the suit schedule land and the entire findings given by the trial court on issue No.1 to 3 are in the Negative are vitiated and the said issues are to be held in the Affirmative and the suit filed by the Plaintiff is to be decreed as prayed. The learned counsel for the appellant has also taken up the contention that the trial court has declined the relief of Declaration and no cross appeal is filed and no separate appeals is filed and the findings in this regard attained finality and relied citation report in KLJ 1977(2) page 387, but on the other

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hand the learned counsel for the respondent has also relied citation reported in ILR 2005 KAR page 6011 and HCC 1999 page 3571 wherein in the first citation their Lordship have held that filing of cross objection after 1976 amendment is purely optional and not mandatory and their lordship have also relied on Apex Court judgment reported in AIR 1989 supreme court page 3579 i.e. the 2nd citation wherein their lordship have held that the filing of cross objection after amendment of 1976 is purely optional and not mandatory. Such being the case the contention of the counsel for the appellant in this regard is goes in vain and it has no santity in the eye of law. The appellate court has got ample of power to grant the relief which is refused by the trial court, as the evidence recorded by the trial court and documents produced by the parties clearly establishes that the plaintiff is in possession and enjoyment of the suit schedule land in view of evidence of PW.1 to PW3 and EX.P1 to P18 and are entitle for the reliefs as prayed. Hence under these circumstances as discussed above the appellant/defendants have miserably failed to make out the grounds as urged in the appeal memo, and they failed to succeed in their attempt. Hence I answer these points accordingly."

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Under the above facts and circumstances, no infirmity or illegality can be found in the reasoning given by the First Appellate Court as extracted hereinabove.

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Learned counsel for the

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appellants/defendant Nos.1 and 2 relied upon the

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judgment of Hon'ble Apex Court in the case of

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BANARSI AND OTHERS VS. RAM PHAL reported in (2003)9 SCC 606 and referred to paragraph 22, wherein it is held as under.

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"22. For the foregoing reasons we are of the opinion that the first appellant court ought not to have, while dismissing the appeals filed by the defendant -appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first appellate court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first appellate court."

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The aforesaid judgment of Apex Court is of no avail

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to the appellants/defendant Nos.1 and 2. The facts and circumstances of the aforesaid case is completely different and distinct from that of facts and circumstances of the present case. In the instant case, there is no refusal of relief by the Trial Court with regard to the title of the respondents/plaintiffs. The Trial Court declined to

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pass any order regarding title only for the reason that there was pendency of the writ petition before the High Court, filed by the appellants/defendants and that there were was interim order passed by therein. However, the Trial Court had held the lawful possession of the property to be with the plaintiff. As noted above, the writ petition having been dismissed by this Court by order dated 27.06.2006 favoring the plaintiff, nothing prevented the first appellate court from granting declaratory relief as sought for.

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In the aforesaid facts and circumstances, the reasoning assigned by the Trial Court and the First Appellate Court are just and proper and no substantial question of law arises for consideration in the matter. Hence, appeal is dismissed.

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Sd/JUDGE

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Sri Subbarayappa v. Sri Muniswamy

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Sri Subbarayappa v. Sri Muniswamy

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