Dismissed

G.H. Rangappa Dead by Lrs Smt Hanumakka v. the Mahantheshappa

Karnataka HC6 Dec 2023RSA/1003/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka in a regular second appeal dismissed the appeal filed by unsuccessful defendants in a suit for declaration and possession. The court upheld the appellate court's judgment held that Article 65 of the Limitation Act does not apply as the defendants did not assert adverse possession.

What did the court decide?

The appeal filed by the unsuccessful defendants was dismissed, upholding the decree passed in their favor by the Appellate Court.

G.H. Rangappa Dead by Lrs Smt Hanumakka Vs the… — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC:44362 RSA No. 1003 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1003 OF 2023 (DEC/POS)

BETWEEN:

G.H. RANGAPPA

DEAD BY LRS

SMT HANUMAKKA

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W/O LATE G H RANGAPPA AGED ABOUT 57 YEARS R/O SOMAGUDDU VILLAGE CHALLAKERE TALUK

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VANAJAKSHAMMA

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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W/O LATE G H MURUDENDRAPPA AGED ABOUT 63 YEARS R/O KULENUR VILLAGE CHANNAGIRI TALUK

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DIST- DAVANAGERE

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SIDDALINGAPPA

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S/O LATE G H MURUDENDRAPPA AGED ABOUT 37 YEARS R/O KULENUR VILLAGE CHANNAGIRI TALUK DIST- DAVANAGERE

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ASHA

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D/O LATE G H MURUGENDRAPPA AGED ABOUT 32 YEARS

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R/O MANCHIGENAHALLI VILLAGE

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2 - NC: 2023:KHC:44362 RSA No. 1003 of 2023

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DIST CHITRADURGA

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SHANTAMMA SINCE DEAD BY LR

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ANASUYA W/O G H SIDDARAMAPPA AGED ABOUT 57 YEARS R/O SANTHEBENNUR VILLAGE KARANJI CHANNAGIRI ROAD NEAR GOWDRU BASAPPA HOUSE TQ-CHANNAGIRI DIST-DAVANAGERE

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…APPELLANTS

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(BY SMT.SUMANGALA GACHCHINAMATH, ADVOCATE FOR SRI. GURUDEV I GACHCHINAMATH, ADVOCATE)

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AND:

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THE MAHANTHESHAPPA S/O LATE HOLEYAPPA AGED ABOUT 63 YEARS

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DHARAMAPPA S/O LATE HOLEYAPPA AGED ABOUT 61 YEARS

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MALLIKARJUNA S/O LATE HOLEYAPPA AGED ABOUT 47 YEARS

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SHIVAMMA W/O KENCHAPPA AGED ABOUT 59 YEARS

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NINGAMMA

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3 - NC: 2023:KHC:44362 RSA No. 1003 of 2023

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W/O LOKAPPA AGED ABOUT 65 YEARS R/O TURUCHAGATTA VILLAGE TALUK AND DISTRICT DAVANAGERE

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MENAKAMMA W/O GUDDAPPA AGED ABOUT 45 YEARS R/O BARAMASAGARA HOBLI TALUK AND DISTRICT CHITRADURGA

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…RESPONDENTS

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(BY SRI. SATISHCHANDRA R, ADVOCATE FOR C/R1 TO 6)

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THIS RSA IS FILED UNDER SECTION 100 CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.04.2023 PASSED IN RA NO.4/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC CHANNAGIRI ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 02.03.2020 PASSED IN O.S. NO. 227/2017 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC CHANNAGIRI.

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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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The captioned second appeal is filed by unsuccessful defendants who have questioned the judgment and decree rendered by the appellate Court in R.A.No.4/2021 wherein the plaintiffs' suit seeking relief of declaration and possession is decreed by the appellate Court by reversing the judgment and decree rendered by the trial Court.

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NC: 2023:KHC:44362 RSA No. 1003 of 2023

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For the sake of convenience the parties are

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referred to as per their rank before the trial Court.

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The facts leading to the case are as under:

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The plaintiffs have instituted the suit in O.S.No.227/2017 seeking relief of declaration and possession. It is the specific case of the plaintiffs that one Mallappa is the propositus of the plaintiffs' family. Plaintiffs' contended that their great grand father namely Mallappa @ Mallarappa purchased the suit schedule property under registered sale deed dated 4.9.1935 for a sale consideration of Rs.50/- from one Huchangappa s/o. Halappa and Rangappa who is defendant No.1. Plaintiffs further contended that after the death of Mallarappa, his son Ningappa inherited the suit schedule property who is the grand father of plaintiffs and after the death of Ningappa his son Holeyappa inherited the suit schedule property who is none other than the father of plaintiffs. It is the specific case of the plaintiffs that till the death of Holeyappa, the suit property was admittedly standing in

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5 - NC: 2023:KHC:44362 RSA No. 1003 of 2023

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the name of plaintiffs' ancestor. After the death of father of plaintiffs, defendant No.1 has managed to get his name mutated without the knowledge of the plaintiffs herein. This lead to initiation of mutation proceedings. The Assistant Commissioner, Davanagere, relegated the plaintiffs to avail the remedy before the civil Court. Hence, the present suit is filed.

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The defendants on receipt of summons contested the proceedings. The defendants denied the title of plaintiffs. Defendants specifically contended that defendant No.1 has not executed sale deed in favour of Mallarappa.

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The plaintiffs to substantiate their claim produced the certified copy of the sale deed dated 4.9.1935, which is marked at Ex.P14. Plaintiffs also placed reliance on the genealogical tree to demonstrate the manner in which the plaintiffs' family inherited the property after the demise of original propositus Mallarappa. Defendants have not chosen to contest the

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suit. The trial Court having answered Issue Nos.1 to 4 in the negative has non-suited the plaintiffs on the ground that the suit is not filed within three years. Trial Court referring to the order passed by the Assistant Commissioner which is of the year 2006 was of the view that plaintiffs ought to have brought the suit within three years. The appellate Court also applied the provisions of Article 65 of the Limitation Act (for short 'the Act") and held that suit was not brought within twelve years and therefore, the suit is barred by limitation and consequently, the suit is dismissed.

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Feeling aggrieved by the judgment and decree of the trial Court, the plaintiffs preferred an appeal before the appellate Court. The appellate Court as a final fact finding authority has independently assessed the pleadings and oral and documentary evidence let in by plaintiffs. In absence of rebuttal evidence, the appellate Court while taking cognizance of title deed vide Ex.P14 held that plaintiffs' propositus Mallarappa has purchased the

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property way back in 1935. Referring to Exs.P3 and P8, the appellate Court further held that plaintiffs have succeeded in substantiating the flow of title from propositus Mallarappa to his Class-I heir. Referring to Ex.P8, the appellate Court found that after the death of Mallarappa, his son Ningappa inherited the property. After the death of Ningappa, his son Holeyappa, who is the father of plaintiffs inherited the property. However, after the demise of Ningappa, the name of the plaintiffs' father was not mutated in the revenue records. Referring to these documents coupled with Ex.P10, which is the death certificate of Holeyappa and also the fact that defendants have not disputed plaintiffs' relationship with propositus Mallarappa proceeded to hold that plaintiffs have succeeded in establishing their title. The appellate Court also held that plaintiffs' have also succeeded in substantiating that they are tracing their right and title over the suit schedule property through one Mallarappa.

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7. Appellate Court while examining the finding

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recorded by the trial Court on limitation has placed reliance on the judgment rendered by the Apex Court in the case of Indira .vs. Arumugam and another¹ and held that Article 65 of the Act has no application to the present case on hand. Appellate Court held that since the defendants are not asserting adverse possession and the suit being one for declaration and possession, plaintiffs are entitled to seek possession. The Appellate Court also held that length of possession by defendants cannot be a deciding factor to non-suit the plaintiffs unless the defendants have perfected their title by adverse possession and plaintiffs have lost their right under Section 27 of the Limitation Act. The appellate Court having reversed the findings and conclusions recorded by the trial Court allowed the appeal and has accordingly, decreed the suit.

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1 ILR 1998 KAR 1422

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NC: 2023:KHC:44362 RSA No. 1003 of 2023

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Heard the learned counsel for the defendants

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and the learned counsel appearing for plaintiffs. I have given my anxious consideration to the divergent findings recorded by both the Courts below.

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Though learned counsel appearing for defendants, for the first time, has made a feeble attempt in disputing the relationship of plaintiffs with one Mallarappa, this Court having examined the material on record is not inclined to accede to the said argument. The appellate Court in particular has meticulously dealt with all significant details and has recorded a finding of fact that relationship of plaintiffs with their ancestor Mallarappa is not at all disputed by the defendants. The appellate Court referring to Exs.P8 and 10 has also recorded a categorical finding that original owner Mallarappa who acquired right and title in 1935 died leaving behind his son Ningappa and Ningappa died leaving behind his son Holeyappa who is none other than the father of plaintiffs. Referring to these significant details, the appellate Court has recorded a

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finding that plaintiffs' have succeeded in establishing their relationship with the original owner Mallarappa. On examining the findings and conclusions recorded by the trial Court, this Court would find that the trial Court had not properly appreciated the evidence adduced by plaintiffs. Plaintiffs by producing title deed have succeeded in substantiating that suit property is owned by their ancestor. In absence of rebuttal evidence, the trial Court by a cryptic order has non-suited the plaintiffs by applying Article 65 of the Limitation Act (for short "the Act"). The present suit is filed by the plaintiffs seeking possession. When possession is sought based on a title, Article 65 has no application, unless defendants who are resisting possession are able to demonstrate that they have perfected their title by way of adverse possession. The right to seek possession is taken away under Section 27 of the Act. Though original owner does not lose title over the property, but right to seek possession is lost under Section 27 of the Act and for non-suiting plaintiffs, both Section 27 and Article 65 of the Act have to be read

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conjointly and not in isolation. Section 27 of the Act will come into play only when the plea of adverse possession is established under Article 65 of the Act. In the present case on hand, defendants have not set up the plea of adverse possession. Therefore, Article 65 of the Act has no application to the present case on hand.

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This Court would find that there is a procedural error at the hands of the trial Court. Without framing an issue on limitation, the trial Court has strangely proceeded to non-suit the plaintiffs by holding that suit is barred by limitation. The suit is dismissed in two folds. Firstly, the trial Court holds that the relief of declaration is barred as the suit is not brought within three years of the date of order of the Assistant Commissioner relegating the plaintiffs to the civil Court which is the of the year 2006. The second point on which the trial Court has non-suited the plaintiffs is by applying Article 65 of the Limitation Act on the ground that the plaintiffs have not sought possession within 12 years. The appellate Court has

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rightly reversed the findings and conclusions recorded by the trial Court which not only suffers from perversity but also suffers from serious infirmities. The judgment rendered by the appellate Court is in accordance with law. The appellate Court has rightly followed the dictum laid down by the Apex Court in the case of Indira (supra). I do not find any illegality in the judgment rendered by the appellate Court. No substantial question of law arises for consideration.

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Accordingly, the appeal is dismissed.

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Sd/JUDGE

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ALB

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List No.: 1 Sl No.: 34

G.H. Rangappa Dead by Lrs Smt Hanumakka v. the Mahantheshappa

Case brief

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G.H. Rangappa Dead by Lrs Smt Hanumakka v. the Mahantheshappa

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