Allowed

Muni Anjanappa v. Muniyappa Since Deceased by LRs

Karnataka HC8 Nov 2023RSA/1237/2008

Case brief

AI extract

What is this about?

In a Regular Second Appeal, the High Court allowed the appellant's challenge to the First Appellate Court's order. The court held the First Appellate Court's refusal to declare ownership was perverse given the evidence of a past compromise decree and possession, reversing that aspect of the lower judgment to restore the trial court's decree for declaration.

What did the court decide?

Impugned judgment set aside; trial court's decree for declaration restored; records sent back.

Muni Anjanappa Vs Muniyappa Since Deceased by LRs — Property and Title | Karnataka HC (2023)

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RSA.No.1237/2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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R.S.A.NO.1237 OF 2008

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BETWEEN:

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MUNIANJINAPPA

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SINCE DEAD BY HIS LRs

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1a) SMT. SUBBAMMA

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W/O LATE MUNIANJINAPPA AGED ABOUT 62 YEARS

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1b) K.M.MUNIRAJU

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S/O LATE MUNIANJINAPPA AGED ABOUT 45 YEARS

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1c) K.M.MANJUNATH

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S/O LATE MUNIANJINAPPA AGED ABOUT 43 YEARS

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ALL ARE R/AT KANCHAGANALA VILLAGE, TUBEGERE HOBLI, DODDABALLAPURA TALUK,

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2 . HANUMANTHARAYAPPA

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S/O DASAPPA

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AGED ABOUT 58 YEARS, R/AT KANCHAGANALA VILLAGE, TUBEGERE HOBLI, DODDABALLAPURA TALUK

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...APPELLANTS

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(BY SRI. M RAVINDRANATH, ADVOCATE FOR A1(a to c) AND A-2)

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AND:

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MUNIYAPPA SINCE DECEASED BY LRs NARAYANASWAMY

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RSA.No.1237/2008

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S/O MUNIYAPPA, AGED ABOUT 55 YEARS, R/AT KANCHAGANALA VILLAGE, TUBEGERE HOBLI, DODDABALLAPURA TALUK SINCE DEAD BY HIS LRs

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1a) SMT. YESHODAMMA W/O LATE NARAYANASWAMY AGED ABOUT 55 YEARS R/AT KANCHAGANALA VILLAGE, TUBEGERE HOBLI, DODDABALLAPURA TALUK

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1b) NAGAVENI D/O LATE NARAYANASWAMY W/O PRAKASH AGED ABOUT 33 YEARS R/AT THIPPAPURA, VEERA PURA POST, KASABA HOBLI, DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT.

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1c) SMT. SUMITHRA D/O LATE NARAYANASWAMY W/O LOKESH AGED ABOUT 30 YEARS R/AT KANCHAGANALA VILLAGE, TUBEGERE HOBLI, DODDABALLAPURA TALUK

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d) NAGARJUN S/O LATE NARAYANASWAMY AGED ABOUT 28 YEARS R/AT KANCHAGANALA VILLAGE, TUBEGERE HOBLI, DODDABALLAPURA TALUK

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2 . MRS. MUNIYAMMA D/O MUNIYAPPA AGE: MAJOR, R/O THIMMASANDRA, KASABA HOBLI, DODDABALLAPURA TALUK

RESPONDENTS

RSA.No.1237/2008

(BY SRI. S R HEGDE HUDLAMANE, ADVOCATE FOR R1(a TO d) AND R-2)

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THIS RSA IS FILED UNDER SECTION 100 OF THE CPC PRAYING TO a) CALL FOR RECORDS IN O.S.NO.320/1995 ON THE FILE OF CIVIL JUDGE (JUNIOR DIVN.) DODDABALLAPUR AND R.A.NO.12/2003 ON THE FILE OF CIVIL JUDGE (SENIOR DIVN.) DODDABALLAPUR AND ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT DATED 23^RD NOVEMBER 2007 PASSED IN R.A.NO.12/2003 ON THE FILE OF CIVIL JUDGE (SENIOR DIVN.), DODDABALLAPUR, IN SO FAR AS IT RELATES TO RELIEF OF DECLARATION AND b) GRANT DECREE FOR A DECLARATION IN FAVOUR OF THE APPELLANTS HEREIN WITH AN ORDER FOR COSTS, ON SUCH TERMS AND CONDITIONS THAT THIS HON'BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THIS CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 21.08.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Appellants in this Regular Second Appeal are

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plaintiffs, challenging the impugned judgment and order passed by the First Appellate Court, partly allowing the appeal filed by the defendants, who challenged the judgment and decree passed by the trial Court decreeing the suit of the plaintiffs for declaration and permanent injunction. The First Appellate Court has dismissed the suit of the plaintiffs so far as relief of declaration of ownership is concerned, but confirmed the order granting permanent

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RSA.No.1237/2008

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injunction restraining defendants from causing illegal interference to the possession and enjoyment of suit schedule property by the plaintiff.

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For the sake of convenience, the parties are referred to by their rank before the trial Court.

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It is the case of the plaintiffs that they are the absolute owners of suit schedule property. Its Khata is standing in the name of Plaintiff No.1 and they are raising crops like Ragi and Jowar. It was acquired by their father Dasappa and after his death, plaintiffs have succeeded to the same.

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3.1 Defendant is a relative of plaintiffs. He is making false claim over portion of suit schedule property to an extent of 2 acres 20 guntas through sale executed by plaintiffs' father Dasappa and his brother Anjinappa during 1949. It was a nominal sale deed. The possession of suit schedule property was never handed over to the defendant. Plaintiffs' grandfather Muthappa filed O.S.No.256/1959 before the Munsiff Court, Doddaballapura

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for partition and separate possession against Dasappa, Anjinappa, Muniyappa (defendant) and others. It was

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compromised. Defendant being one of the parties, has signed the compromise. In the said compromise, it was accepted that suit schedule property and other properties belong to plaintiffs' father. Dasappa's brother Anjinappa died issueless. Thus, plaintiffs are the absolute owners of suit schedule property.

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3.2 Defendant in collusion with Revenue Authorities

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got changed Khata of suit schedule property in his name in violation of the compromise decree. On 04.09.1995 at 2.00 p.m. defendant along with his henchmen trespassed into the suit schedule property and tried to plough the standing crops forcing the plaintiffs to approach the Civil Court.

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Defendant has appeared and filed written statement admitting that Dasappa and his brother Anjinappa sold 2 acres 20 guntas out of suit schedule property on 12.03.1949. However, it is denied that it is a nominal sale deed. Defendant is not aware of the compromise entered into in O.S.No.256/1959. It is also

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denied that plaintiffs are in possession and enjoyment of suit schedule property. Plaintiffs are not entitled for any relief through the sale deed dated 12.03.1949, defendant

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RSA.No.1237/2008

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has become the absolute owner of suit schedule property and sought for dismissal of the suit.

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Based on the pleadings, the trial Court has

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framed the issues.

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In order to prove their case, on behalf of plaintiffs, four witnesses are examined as PWs-1 to 4, Exs.P-1 to P-10 are marked.

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On behalf of defendants, three witnesses are examined as DW-1 to 3 and Exs.D-1 to 11 are marked.

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Vide judgment and decree dated 28.02.2003, the trial Court decreed the suit granting relief of declaration and injunction.

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Defendant challenged it before the Senior Civil Judge, Doddaballapura in R.A No.12/2003. It came to be allowed in part dismissing the suit for declaration but confirming the relief of permanent injunction.

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Being aggrieved by the same, the plaintiffs are before this Court contending that the impugned order passed by the First Appellate Court is bad in law and contrary to the established principles of law, besides the

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factual probability of matter. The evidence placed on record prove that the sale deed of 1949 is not acted upon. The RTC entries upto 1992-93 are standing in the name of plaintiff's father, which goes to show that possession is not delivered. It is the plaintiff who have paid the taxes. There is no evidence to show that defendant has exercised right of ownership over suit schedule property. The First Appellate Court has failed to appreciate the evidence in right perspective. The conduct of the parties demonstrate that respondent had no right over suit schedule property. Viewed from any angle the impugned judgment and order is not sustainable and prays to allow the appeal, set aside the impugned judgment and decree and restore the judgment and decree of the trial Court.

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Vide order dated 13.07.2010, the following substantial question of law is framed:

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"Whether the First Appellate Court is justified in not granting declaration as prayed for when they have granted the relief of permanent injunction in the facts of the case?"

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Heard elaborate arguments of both sides and

perused the records.

RSA.No.1237/2008

Thus, plaintiffs sought declaration of the title and permanent injunction to the suit schedule property contending that the sale deed dated 12.03.1949 is nominal and it is not acted upon. To evidence this fact, among other things, the plaintiffs have relied upon a compromise entered into in O.S.No.256/1959 to which defendant is also a party and has consented for allotting the properties which are subject matter of the sale deed to the share of plaintiff and defendant Nos.1 and 2 therein. Present plaintiffs are the sons of defendant No.1 there in i.e Dasappa. It is the case of the plaintiffs that defendant No.2 therein Anjanappa died issueless and therefore Plaintiffs alone succeeded to the suit schedule properties.

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Of course, defendant has disputed the case of the plaintiffs and claim that as per the sale deed, he is in possession and enjoyment of property is conveyed through the said sale deed in question and sought for dismissal of the suit.

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The trial Court accepted the case of the plaintiffs and decreed the suit in entirety. On the other hand, the First Appellate Court dismissed the suit so far as

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RSA.No.1237/2008

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declaration of title is concerned. However, it has confirmed the judgment of the trial Court so far as a grant of permanent injunction is concerned.

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It is pertinent to note that defendant has not challenged the order of the First Appellate Court confirming grant of permanent injunction. However, the plaintiffs have come up with this Second Appeal, raising a substantial question of law - Whether the First Appellate Court is justified in not granting declaration as prayed for, when it has granted the relief of permanent injunction in the facts of the case?

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During the course of his evidence, plaintiff No.1 has reiterated the plaint averment and deposed that in O.S.No.256/1959 present defendant was also a party and

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he has conceded the fact that he is not having any right over the suit schedule property. The evidence of PW-1 that since more than 50 years there are in possession and enjoyment of suit schedule property is corroborated by the testimony of PW-2 to 4. PW-1 to 4 have denied that defendant and his children are in possession and enjoyment of suit schedule property. DW-1 who is the son

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RSA.No.1237/2008

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of the defendant has deposed that from the date of purchase his father and after his death, he is cultivating the 2 acres 20 guntas purchased through the sale deed dated 01.03.1949. DW-2 and 3 have also reiterated the contention of defendant.

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However, during his cross-examination DW-1 has admitted that one Muthappa the brother of plaintiff Dasappa filed suit in OS.No.256/1959 in respect of Sy.Nos.29 and 12 items of properties and in the said suit, his father i.e., defendant herein was a party and it ended in compromise. Though he has denied that in the said suit, the properties which are the subject matter of sale deed dated 01.03.1949 were included, as evident from the compromise decree at Ex.P7 suit item No.1 is the land in Sy.No.3/1 measuring 3 acres 36 guntas of Kanchinal village and item No.9 is terrace house in Khaneshumari No.64/2 of the same village. He has admitted that his father consented to relinquish in his right in respect of terrace house measuring 5 ankanas in Khaneshumari No.64/2, but denied that he also conceded to give up his right in respect of portion of suit schedule property.

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RSA.No.1237/2008

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DW-1 has admitted that Khata of suit schedule property stood in the name of plaintiffs till 1995. Again he has admitted that Khata and Pahani of suit schedule property stands in the name of plaintiffs. In fact, DW-2 has admitted that plaintiffs are cultivating suit schedule property since the death of their father Dasappa and it is in their possession since 50 years. DW-3 Narasimhachar admitted that the RTCs of suit schedule property were previously in the name of Dasappa and after his death the names of plaintiffs are appearing in them. Thus the oral testimony of DWs-2 and 3 is contrary to the defence of the defendant that he is in possession and enjoyment of suit schedule property and that Khata and RTCs are standing in his name.

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Now coming to the compromises entered into between the parties in O.S.No.256/1959. As evident from the decree in the said suit at Ex.P7, the subject matter of sale deed at Ex.D1 are at item Nos.1 and 9. As per the compromise entered into between the parties, suit item No.9 i.e., terrace house in Kaneshumari No.64/2 is allotted to the share of plaintiffs therein and there is a specific

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RSA.No.1237/2008

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averment that defendant No.3 Muniyappa who is defendant in the present case is not having any right over the said property. In the said compromise, 3 acres in item number 2 (survey number 29), 20×19 yard in item No 6 i.e Khaneshumari No.2, item No.9- terrace house measuring five ankana in Khaneshumari No.64/2, item No.10- tile roofed house in Khaneshumari number 64/3 are allotted to the share of plaintiff therein. The remaining properties namely item No.1 (Sy.No.3/1 measuring 3 acres 38 guntas) 1 acre 20 guntas in item No.2 i.e, Sy.No.29, 10×10 ft in item No.6 i.e., Khaneshumari No.2, item Nos.7, 8 and 11 are allotted to the share of defendant Nos.1 and 2 only.

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20.1 In the compromise petition, it is also stated that the Niraganti land is to be enjoyed equally between plaintiffs on the one hand and defendant Nos.1 and 2 on the other of the said suit. The relevant portion in Kannada reads as under:

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¤ÃgÀÄUÀAn E£ÁAw d«ÄÃ£À£ÀÄß ¸ÀªÀÄ¨sÁUÀªÁV ªÁ¢ CzsÀð, 1 ªÀÄvÀÄÛ 2£ÉÃ ¥ÀæwªÁ¢UÀ¼ÀÄ CzsÀð C£ÀÄ¨sÀ«¸ÀvÀPÀÌzÉÀÝAvÀ®Æ,

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RSA.No.1237/2008

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20.2 There is a specific averment in the compromise decree that third defendant Muniyappa therein, who is defendant herein is not having any right over the properties and this would help the minor children. The relevant portion in Kannada reads as under:

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3£ÉÃ ¥ÀæwªÁ¢ ªÀÄÄ¤AiÀÄ¥Àà¤UÉ 1-11£ÉÃ LlA d«ÄÃ£ÀÄUÀ¼À°è K£ÉÆAzÀÄ ºÀQÌ®èªÉAvÀ®Æ, F gÁfÃ£ÁªÉÄ ªÉÄÊ£Àgï ªÁ¢UÀ½UÉ C£ÀÄPÀÆ®ªÁVgÀÄvÉÛ.

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20.3 In the compromise petition, it is specifically stated that the sale deed standing in the name of defendant No.3 therein (at Ex.D1) is not handed over to the plaintiffs therein as the landed property is also involved in the said sale deed and it is handed over to defendant Nos.1 and 2 therein to whom the said landed property is allotted. The relevant portion in Kannada reads as under:

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3£ÉÃ ¥ÀæwªÁ¢AiÀÄ ºÉ¸ÀjUÉ ºÀÄnÖgÀÄªÀ RjÃ¢ ¥ÀvÀæªÀ£ÀÄß ªÁ¢UÉ ªÁ¥À¸ÀÄì PÉÆnÖgÀÄªÀÅ¢®è AiÀiÁPÉAzÀgÉ EzÀgÀ°è d«ÄÃ£ÀÄ ¸ÉÃjgÀÄvÉÛ. 1 ªÀÄvÀÄÛ 2£ÉÃ ¥ÀæwªÁ¢UÀ¼À §½ EgÀÄvÉÛ.

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20.4 This explains the reason as to why defendant

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is not in possession of the sale deed and by falsely

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contending that it is missing, he has produced certified copy at Ex.D1.

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Thus, despite defendant getting a Sale deed in his name in respect of portion of suit schedule property and another item i.e. a residential property, it was never acted upon. He never insisted upon getting possession of these properties. He also failed to get Khata and Pahani in his name. During the suit in O.S.No.256/1959, as a party to the said suit he has consented for allotting the said properties to the share of defendant Nos.1 and 2 and plaintiffs therein respectively. This supports the contention of plaintiffs that the sale deed was nominal and it was never acted upon. On the other hand, the material placed on record prove that it is the plaintiffs who are the absolute owners of suit schedule property and in lawful possession and enjoyment. They also proved illegal interference by the defendant forcing them to approach the Civil Court.

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Though the trial Court rightly granted both the relief of declaration and injunction, the First Appellate Court erred in holding that plaintiffs have failed to prove

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RSA.No.1237/2008

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the title but only established their possession and illegal interference by the defendant and thereby set aside the relief of declaration granted by the trial Court. The findings of the First Appellate Court are contrary to the evidence placed on record and as such perverse. In the result, the appeal succeeds and consequently the substantial question of law is answer in the Negative and accordingly the following:

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ORDER

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(i) Appeal filed by the plaintiffs is allowed.

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(ii) The impugned judgment and decree dated 23.11.2007 in R.A.No.12/2003 on the file of Civil Judge (Sr.Dn.), Doddaballapur is set aside.

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(iii) Consequently, the judgment and decree dated 28.02.2003 in O.S.No.320/1995 on the file of Prl.Civil Judge (Jr.Dn) and JMFC., Doddaballapur is restored.

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(iv) The Registry is directed to send back the trial Court as well as the First Appellate Court records along with copy of this Judgment forthwith.

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MDS/RR

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Sd/JUDGE

Muni Anjanappa v. Muniyappa Since Deceased by LRs

Case brief

What is this about?

What did the court decide?

Muni Anjanappa v. Muniyappa Since Deceased by LRs

Case brief

What is this about?

What did the court decide?

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