Dismissed

Narasimhaiah @ Raju Dead by Lrs v. B N Ramaiah

Karnataka HC4 Jan 2023RSA/1195/2021

Case brief

AI extract

What is this about?

The Division Bench dismissed a second appeal filed under Section 100 of the CPC. The High Court held that no substantive question of law arose because the Trial Court and First Appellate Court correctly concluded that the plaintiffs failed to establish their title and lawful possession of the suit property due to lack of documentary evidence.

What did the court decide?

The appeal filed under Section 100 of the CPC is dismissed.

Narasimhaiah @ Raju Dead by Lrs Vs B N Ramaiah — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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REGULAR SECOND APPEAL No.1195 OF 2021

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BETWEEN

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NARASIMHAIAH @ RAJU DEAD BY LRS

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SMT. JAYALAKSHMAMMA @ VIJAYALAKSHMI D/O THIMMAIAH AGED ABOUT 32 YEARS R/O 1522, SANGAMESHWAR NILAYA BEML LAYOUT 5^TH STAGE, 3^RD CROSS, R.R.NAGAR, BENGALURU-560058.

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...APPELLANT

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(BY SRI S.SANGAMESHWARAN , ADVOCATE)

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AND

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B N RAMAIAH (DEAD BY LRS)

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1 . MRS. VIJAYALAKSHMAMMA W/O LATE RAJAIAH AGED ABOUT 55 YEARS

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2 . MS. NAGARATHNA D/O LATE RAJAIAH AGED ABOUT 30 YEARS

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3 . MS. MEGHANA D/O LATE RAJAIAH AGED ABOUT 20 YEARS

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4 . MR. NARENDRA S/O LATE RAJAIAH AGED ABOUT 14 YEARS REPRESENTED BY MOTHER MRS. VIJAYALASHMAMMA

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5 . MR. KODAPPA S/O LATE RAMAIAH AGED ABOUT 45 YEARS

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6 . MR. NARAYANASWAMI S/O LATE RAMAIAH AGED ABOUT 43 YEARS

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7 . GOVINDARAJU S/O LATE RAMAIAH AGED ABOUT 38 YEARS

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8 . AMMANI D/O LATE RAMAIAH W/O GOVINDAPPA AGED ABOUT 45 YEARS

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R/O KODIHALLI, HALEGUBBI MAJARE, KASABA HOBLI, GUBBI TALUK-572116.

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9 . SHANTHAMMA D/O LATE RAMAIAH W/O RAMA AGED ABOUT 35 YEARS

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10 . MRS. LAKSHMAMMA W/O RANGAIAH AGED ABOUT 59 YEARS

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11 . NARASIMHAMURTHY S/O NARASEGOWDA AGED ABOUT 65 YEARS

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12 . MR. C. HANUMARANGAIAH S/O CHIKKARANGAIAH AGED ABOUT 56 YEARS

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RESPONDENT 1 TO 7 & 9 TO 12 ARE R/O BILLIGERE VILLAGE, KASABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT-572118

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.03.2020 PASSED IN RA.NO. 60/2014 ON THE FILE OF THE C/C ADDITIONAL SENIOR CIVIL JUDGE, GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.11.2014 PASSED IN OS.NO. 180/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., GUBBI.

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

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J U D G M E N T

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This matter is posted for admission. Heard the appellant’s counsel.

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The factual matrix of the case of the appellant/plaintiff

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before the Trial Court in O.S.No.180/2007 is that the land bearing Sy.No.58 measuring 4 acres 11 guntas belong to one

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Kodigowda. The said land is pada land. The plaintiffs are the owners of the said land and they claimed the relief of declaration and permanent injunction. Based on the plaintiffs’ application before the Tahasildar and other revenue authorities to restore the pada land, the Deputy Commissioner after enquiring with the Revenue authorities directed the Tahasildar, Gubbi to take the penalty and accept the excess cess as per the Karnataka Land Revenue Rules and restore the same in the name of the plaintiff. As per the order of the Deputy Commissioner, the plaintiffs have paid the necessary amount for restoration of pada and after restoration the RTC stands in the name of Kodigowda. The plaintiffs are the only owners of the suit schedule properties and Kodigowda had six sons, by name Chikkarangaiah, Narasegowda, Hanumarangaiah, Nalluraiah, Thimmaiah and Rangaiah.

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In the year 1964 itself, Kodigowda divided the properties to his sons and the suit schedule property was managed by Kodigowda himself for his legal necessities. Kodigowda during his life time was under the care and custody

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of his son Thimmaiah and he was in exclusive possession of the suit property till his death. The said Kodigowda died long back. Subsequent to the death of Kodigowda, his son Thimmaiah was in peaceful possession and enjoyment of the suit schedule property. Thimmaiah died on 14.4.1998 and thereafter plaintiffs are in peaceful possession and enjoyment of the suit schedule property as absolute owners. It is also contended that the plaintiffs have preferred writ petition before the Hon’ble High Court of Karnataka, Bangalore, seeking direction to Tahasildar to initiate mutation proceedings on the claim of the plaintiffs as per the orders of the Deputy Commissioner. The High Court directed the Tahasildar to consider the objection filed by the plaintiffs and to dispose of the same. The defendants though they have no right over the suit schedule property filed petition before the Tahasildar to change khata in the name of defendants. The defendants producing documents which do not pertain to the suit schedule property, got the revenue entries in their names. The Tahasildar without verifying the document has passed order for change of khata in the name of the defendants. He has no right to change khata in the name of the defendants.

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The documents produced by the plaintiffs clearly disclose that plaintiffs are the owners in possession and enjoyment of the suit schedule property. Defendants 1 to 3 taking advantage of khata in their name have sold the suit schedule property in favour of 4^th defendant on 5.10.2007. The 4^th defendant along with other defendants attempting to interfere with the plaintiff’s peaceful possession and enjoyment of suit schedule property. After service of notice, the defendants appeared through their counsel and filed written statement denying the entire averments.

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It is specific case that Kodigowda has six sons by name Chikkarangaiah, Narasegowda, Hanumarangaiah, Nalluraiah, Thimmaiah and Rangaiah and defendants no.1 to 3 are the sons of above said Narasegowda and 2^nd defendant is the daughter-in-law of above said Narasegowda and plaintiffs are the sons and daughter of Thimmaiah. Before 1964, the sons and grand sons of above said Kodigowda divided their joint family properties and started living separately. In the said partition, the suit schedule property fallen to the share of Narasegowda-father of defendant No.1 and the said

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Narasegowda was in possession and enjoyment of the suit schedule property along with his family members. On 22.06.1964, the said Narasegowda along with his sons mortgaged the suit schedule property under nominal sale deed to one G M Chikkaveeranna of Chikkannanapalya. Subsequently, the mortgage was redeemed and defendant No.1 to 3 were in possession and enjoyment of the suit schedule property. About two years back, defendant Nos.1 to 3 made a petition before the Deputy Commissioner to restore katha of suit schedule property into the name of Kodigowda. The father of the plaintiffs namely Thimmaiah sold the property which had fallen to his share along with his sons to one Siddabasamma under registered sale deed dated 26.06.1969. From that document it is crystal clear that there was partition among the sons of Kodigowda. As per the orders of High Court, Sheristedar, Gubbi, conducted enquiry in RRT (Dis.) Cr.80/2006-07 and ordered to write khata and pahani of suit schedule property into the name of defendant Nos.1 to 3. Subsequently, defendant Nos.1 to 3 sold the suit schedule property to defendant No.4 under the registered sale deed dated 05.10.2007 and put him in possession. From past 45 years,

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defendants and Narasegowda were in possession of suit schedule property and they were raised crops regularly on the same. Now, defendant No.4 is in possession and enjoyment of the suit schedule property and he is raising crops on the same.

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Based on the pleadings of the parties, the Trial Court framed the Issues with regard to whether the plaintiffs prove that they are the absolute owners and in lawful possession of the suit schedule property and whether the plaintiffs prove the interference of the defendants. In order to prove the case of the plaintiffs, plaintiff No.1 examined as PW1 and other three witnesses have been examined as PW2 to PW4 and got marked the documents at Ex.P1 to P33. On the other hand, defendants have examined six witnesses as DW1 to DW6 and got marked the documents at Ex.D1 to D8. The Trial Court after considering both the oral and documentary evidence dismissed the suit in coming to the conclusion that the plaintiffs have not proved the case that they are the absolute owners of the suit schedule property. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred by the plaintiffs before the

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First Appellate Court and the First Appellate Court on consideration of materials available on record formed the points for consideration that whether the Trial Court has committed an error in holding that plaintiffs have failed to prove their title and possession over the suit schedule property and whether the impugned judgment and decree requires interference by the First Appellate Court and on re-appreciation of materials available on record dismissed the appeal and confirmed the judgment of the Trial Court. Hence, the present appeal is filed by the plaintiff before this Court.

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The main contention of the learned counsel appearing for the appellant that both the Courts have committed an error in dismissing the suit and fails to take note of the material available on record. The counsel for the appellant vehemently contend that an application was filed before the Tahsildar and Revenue Authorities to restore the land since the land was Pada land. The Deputy Commissioner also directed to the Tahsildar to take penalty and accept the cess and also as per the direction of the Deputy Commissioner, he had paid the

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necessary amount for restoration of Pada and after the restoration, RTC stands in the name of Kodigowda. The Courts below committed an error in coming to the conclusion that no documents are placed before the Courts to show that the plaintiffs are the absolute owners of the suit schedule property. The counsel also vehemently contend that the plaintiff claimed the right based on the Will and though the legal heir of one of the attesting witness has been examined as PW4, his evidence cannot be believed and hence, the Trial Court has committed an error and it requires interference. The First Appellate Court also not considered the grounds urged in the appeal and erroneously confirmed the judgment of the Trial Court hence, it requires interference invoking Section 100 of CPC to frame the substantive question of law.

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On perusal of material available on record and the grounds urged in the second appeal it is clear that the counsel for the appellant has not framed any substantive question of law in the appeal memo. However, this Court can consider the materials available on record to consider whether substantive

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question of law arises on account of the grounds urged in the appeal. It has to be noted that the suit is filed for relief of declaration and permanent injunction claiming that the plaintiffs are the absolute owners of the suit schedule property. In order to substantiate the fact that they are the owners of the suit schedule property, no documents are produced before the Courts below except the documents of MR extract, re-survey sketch, RTC and an endorsement issued by the Tahsildar. On the other hand, the respondents have also relied upon the documents at Ex.D1 to D3 and certified copies of sale deeds. The Trial Court also had taken note that there was a partition among the sons of said Kodigowda. It is also not in dispute that the property originally belonged to Kodigowda and plaintiffs also not claimed as absolute owners on the basis of any title deed but only contended that the plaintiffs were in possession of the suit schedule property after the partition among the sons and no doubt they are the legal heirs of Kodigowda. But the fact that the Trial Court taken note of the fact that the share which was allotted in favour of the plaintiffs was also sold in the year 1969. It is the definite case of the defendants that suit schedule

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property came to their share when the partition was taken place and the defendants are inherited the property of Kodigowda through their father and sold the property in favour of defendant No.4.

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It is also the claim of the plaintiffs before the Trial Court that they have filed an application before the Tahsildar and writ petition was also filed and direction was given to consider the objection of the plaintiffs and consider the material on record and subsequently, an enquiry was held and ordered to keep the katha in the name of defendant Nos.1 to 3. When the plaintiffs claim the relief of declaration, they have to place the documents before the Court with regard to the ownership but the same has not been placed. When such being the case, the Trial Court while answering Issue Nos.1 and 2 rightly comes to the conclusion that the plaintiffs have failed to prove that they are the absolute owners and in lawful possession of the suit schedule property and having taken note of the documents produced by the defendants comes to the conclusion that the defendants are in possession of the property and subsequently they sold the suit

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schedule property in favour of defendant No.4 in the year 2007 and the First Appellate Court also considering the grounds urged in the appeal framed the point for consideration that whether the Trial Court committed an error holding that the plaintiffs have failed to prove their title and possession over the suit schedule property and on re-appreciation of both oral and documentary evidence comes to the conclusion that the plaintiffs though they claimed that they are the absolute owners, no documents are placed before the Court and concurrent finding is given by the Trial Court. With regard to the finding is concerned and also on perusal of the material available on record, I do not find any error committed by both the Courts and there is no substantive question of law to decide the issue in the second appeal invoking Section 100 of CPC to admit the appeal. Both the Courts considered the material available on record in a proper perspective and comes to the conclusion that the plaintiffs have not produced any document to prove that they are the owners of the suit schedule property. When the relief of declaration and permanent injunction was sought and subsequently the plaint got amended stating that defendant Nos.1 to 3 have executed

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the sale deed in favour of defendant No.4, the same is null and void and not binding on the plaintiffs and whether it binds on them or not is secondary. First of all, the plaintiffs have to prove their case that they are the absolute owners of the suit schedule property but they failed to prove the same. Hence, the question of granting the relief of declaration and permanent injunction does not arise. Both the Courts have applied their mind and dismissed the suit. Hence, under this circumstance, I do not find any merit to exercise the powers under Section 100 of CPC to frame substantive question of law and to admit the second appeal.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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SD/SN

Narasimhaiah @ Raju Dead by Lrs v. B N Ramaiah

Case brief

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Narasimhaiah @ Raju Dead by Lrs v. B N Ramaiah

Case brief

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