Dismissed

G N Lakshminarayana v. Sharadamma W/O Late G C Channappa

Karnataka HC24 Nov 2023RSA/1298/2007

Case brief

AI extract

What is this about?

In this regular second appeal regarding a land title dispute, the High Court upheld the findings of courts below affirming a 1951 family partition and the plaintiff's title. The Court dismissed the appeal, rejecting claims of adverse possession and invalidating an attempt to introduce additional evidence to fill lacunae.

What did the court decide?

The appeal was dismissed; judgments and decrees of courts below were confirmed.

G N Lakshminarayana Vs Sharadamma W/O Late G C… — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC:42551 RSA No. 1298 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1298 OF 2007 (DEC)

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BETWEEN:

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G N LAKSHMINARAYANA S/O LATE G.C. NANJUNDAIAH

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SINCE DEAD BY HIS LR'S

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1A. K.R. LASMIDEVI W/O G.N. LAKSHMINARAYANA

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1B. G.L. SHIVAKUMAR S/O G.N. LAKSHMINARAYANA

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1C. G.L. SHANKAR S/O G.N. LAKSHMINARAYANA

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Digitally signed by R DEEPA Location: High Court of Karnataka

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G N KRISHNA MURTHY S/O LATE G.C.NANJUNDAIAH AGED ABOUT 59 YEARS,

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G N MANJUNATH S/O LATE G.C.NANJUNDAIAH AGED ABOUT 56 YEARS,

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APPELLANTS 1(A-C), 2, 3 ARE R/AT No.121 MARKET ROAD DODDABALLAPURA TOWN BENGALURU RURAL DISTRICT.

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G N VENKATESH S/O LATE G.C.NANJUNDAIAH SINCE DEAD BY HIS LR'S

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4A. SMT. MANGALAGOWRAMMA K.N. AGED ABOUT 55 YEARS W/O LATE G.N. VENKATESH

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4B. VASANTH KUMAR G.V. AGED ABOUT 36 YEARS W/O LATE G.N. VENKATESH

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4C. NITHIN G.V. AGED ABOUT 34 YEARS S/O LATE G.N. VENKATESH

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APPELLANTS 4A TO 4C ARE R/AT No.2669 WARD No.3, 22^ND DIVISION HEMAVATHI PETE DODDABALLAPURA TOWN BENGALURU RURAL DISTRICT – 561 203

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G N RAMACHANDRA @ RAMU S/O LATE G.C.NANJUNDAIAH SINCE DEAD BY HIS LR'S

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5A. G.R. PRASHANTH AGED ABOUT 43 YEARS S/O LATE G.N. RAMACHANDRA @ RAMU

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5B. NAVEEN G.R. AGED ABOUT 37 YEARS S/O LATE G.N. RAMACHANDRA @ RAMU

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5C. G.R. ROOPASHREE AGED ABOUT 35 YEARS D/O LATE G.N. RAMACHANDRA @ RAMU

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APPELLANTS 5A TO 5C ARE R/AT No.2669 WARD No.3, 22^ND DIVISION

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HEMAVATHI PETE DODDABALLAPURA TOWN BENGALURU RURAL DISTRICT – 561 203

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…APPELLANTS

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(BY SRI. SHIVASHANKAR, ADVOCATE FOR A1(B&C), A2, A3 SRI. ARAVIND REDDY H., ADVOCATE FOR A1(B,C), A2, A3 AND ALSO FOR LR'S OF A4(A-C) & LR'S OF A5 AS A5(A-C)

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AND:

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SHARADAMMA W/O LATE G C CHANNAPPA SINCE DEAD BY HIS LR'S

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G C SHIVANANDA S/O LATE G C CHANNAPPA SINCE DEAD BY HIS LR'S

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2A SMT. D.K. SUMITHRA W/O LATE SIVANANDA AGED ABOUT 50 YEARS

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2B BAGYALAKSHMI D/O LATE SIVANANDA AGED ABOUT 29 YEARS

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2C SRIDEVI D/O LATE SIVANANDA AGED ABOUT 26 YEARS

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2D RAKSHITH S/O LATE SIVANANDA AGED MAJOR

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LR'S 2A TO 2D ARE R/AT No.580, BALAJI RESIDENCY DEAL HOME TOWNSHIP RAJARAJESHWARINAGAR BENGALURU – 560 098.

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G C PRAKASH S/O LATE G C CHANNAPPA AGED ABOUT 49 YEARS

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G C SRINIVAS S/O LATE G C CHANNAPPA AGED ABOUT 62 YEARS

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G C CHOWDAPPA S/O LATE G C CHANNAPPA AGED ABOUT 48 YEARS

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G C SHIVAKUMAR S/O LATE G C CHANNAPPA AGED ABOUT 44 YEARS

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G C PARAMESH S/O LATE G C CHANNAPPA AGED ABOUT 40 YEARS

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RESPONDENTS 1 TO 7 ARE R/AT NO.1451, DEVARAJNAGAR, DODDABALLAPURA TOWN, BANGALORE RURAL DIST. – 561 203

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G C SOWBHAGYA D/O LATE G C CHANNAPPA AGED ABOUT 41 YEARS, R/AT SHANTHINAGAR, MUTHYALAMMA TEMPLE ROAD, DODDABALLAPURA TOWN, BANGALORE RURAL DIST – 561 203

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G C RAJALAKSHMI D/O LATE G C CHANNAPPA AGED ABOUT 40 YEARS, 12^TH CROSS, CUBBONPET, BANGALORE-560 002

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G C MAHALAKSHMI D/O LATE G C CHANNAPPA AGED ABOUT 39 YEARS

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NC: 2023:KHC:42551 RSA No. 1298 of 2007

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R/AT BOMMASANDRA, D. PLAYA, GOWRIBIDANURU TQ., KOLAR DIST. – 563 101

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…RESPONDENTS

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[(BY SRI. UMESH MOOLIMANI & SRI. SHIVAKUMAR SWAMY, ADVOCATE FOR SRI. S.V. PRAKASH, ADVOCATE FOR R2, R2(2), R2(3), R2(4), R3, R4-R8, R9 & R10 VIDE ORDER DATED 25.05.2023 SERVICE HELD SUFFICIENT IN R/O R2(2) & R2(3) ARE LR'S OF DECEASED R2(1)]

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THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 11.01.2007 PASSED IN RA.NO.48/2002(OLD.NO.94/00) ON THE FILE OF THE CIVIL JUDGE (SR.DN.) DODDABALLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DT. 15.04.2000 PASSED IN OS.NO.226/1989 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.) & JMFC DODDABALLAPURA.

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

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JUDGMENT

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This second appeal is filed by the appellants challenging the judgment and decree dated 11.01.2007, passed in R.A.No.48/2002 (Old No.94/2000) by the Civil Judge (Sr. Dn.), Doddaballapura, confirming the judgment and decree dated 15.04.2000 passed in O.S.No.226/1989 by the Additional Civil Judge (Jr. Dn.) Doddaballapura.

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For the sake of conveniences parties are referred to as per their ranking before the trial Court. The appellants are the defendants and respondents are the plaintiffs.

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The brief facts leading rise to filing of this appeal are as under:

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The plaintiffs filed a suit for declaration of title and permanent injunction. It is contended that one original propositus Gutte Chowdappa had two wives. Out of wedlock through first wife, Sri G.C.Nanjunda Murthy was born and out of the wedlock through second wife Thimmakka, they had three sons namely G.C.Channappa, G.C.Nanjunda Murthy and Gurunanjunda Murthy. The said Gutte Chowdappa died about 25 years back leaving behind his children. During his lifetime, himself and his sons were residing jointly and possessing movable and other immovable property belongs to joint family and they acquired some of the property out of earnings from the joint family property. During the lifetime of said Gutte Chowdappa, he had decided to partition the joint family property. Accordingly, the Panchayath partition was effected on 12.09.1951 and the Panchayath palupatti was drawn which was signed by Gutte Chowdappa and his sons and on the very same

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day, the Will was also executed by Gutte Chowdappa. In the said partition, 'A' schedule property of the panchayath palupatti was allotted to the share of G.C.Channappa i.e., the husband of plaintiff No.1 and father of plaintiff Nos.2 to 10 and 'B' schedule property of the panchayath palupatti was allotted to the share of G.C.Nanjundamurthy and the remaining property was retained by Gutte Chowdappa and G.C.Nanjunda as both of them wanted to continue to live jointly. Since from the date of partition, the members of the family started to live separately by enjoying their respective shares allotted to them. It is contended that apart from 'A' schedule property to the panchayath palupatti, two houses and vacant site was allotted to the share of G.C.Channappa. During the lifetime of G.C.Channappa, he was in peaceful possession and enjoyment of the suit schedule property along with the plaintiffs. He died in the year 1985 leaving behind the plaintiffs and the plaintiffs have succeeded to the suit schedule property and after the death of G.C.Channappa, the property was transferred in the name of the plaintiffs and the plaintiffs are paying the tax. It is contended that the defendants have no right, title or interest over the suit schedule property. The defendants tried to

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interfere into the peaceful possession. The plaintiffs lodged a complaint against the defendants and the criminal case was registered against the defendants. Inspite of it, the defendants have not given up the illegal acts. Hence, cause of action arose for the plaintiffs to file a suit for declaration of title and permanent injunction.

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Defendant No.1 filed the written statement denying the averments made in the plaint and other defendants adopted the same. It is denied that the Gutte Chowdappa died about 25 years back. It is admitted that on 12.09.1951 there was a partition in the joint family properties and at the time, Will was executed by Gutte Chowdappa on 06.05.1952 and not on 12.09.1951 as claimed by the plaintiffs in the plaint. The said Will was executed by late Gutte Chowdappa in favour of mother of the defendants, which includes the schedule landed property. Further, it is contended that in the partition it is not clear whether late G.C.Channappa bequeathed the suit schedule property. It is contended that the defendants are not aware about the property given to the other uncles of the defendants i.e., G.C.Najundamurthy and

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G.C.Gurunanjundamurthy. It is admitted that the remaining

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property was retained by the grandfather i.e., Gutte Chowdappa among other movables and immovable properties, which include the suit schedule property. It is contended that the plaintiffs have created panchayath palupatti. Further, it is contended that the suit schedule landed property is in possession and enjoyment of the father of the defendants and all the revenue records clearly go to establish that it is in his possession. Thereafter, the father of the defendants died and the suit schedule property is in peaceful possession and enjoyment of the defendants' mother Smt. Gowramma and the entire documents are still in her name. It is contended that on 20.03.1963, late G.C.Channappa executed a sale agreement in the presence of his brother agreeing to sell the suit schedule property in favour of father of the defendants for valuable consideration and since then, the defendants father and after his death his wife i.e., these defendants' mother are in peaceful possession and enjoyment of the same and cultivating the land even today without any interruption. It is contended that some of the documents are with the plaintiffs and the said documents were got created by the plaintiffs. The legal notice was issued to the Government for issuing a false revenue documents in

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favour of the plaintiffs. It is contended that the plaintiffs have no right, title or interest over the schedule property and there is no cause of action to file a suit. It is contended that the first plaintiff's husband and father of late G.C.Channappa executed a sale agreement and took release from 20.03.1963 the date on which the possession was handed over to the father of the defendants. It is contended that the defendants dug-up a well and constructed the same by obtaining a loan from P.L.D. Bank. The suit land in question does not belongs to the plaintiffs. Hence, prayed to dismiss the suit.

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Defendant Nos.2 to 4 filed a memo adopting the

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written statement filed by defendant No.1.

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The plaintiffs filed a re-joinder to the written statement filed by defendant No.1 denying the contents of the written statement and prayed to decree the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiffs prove that the suit schedule property was allotted to the share of

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deceased G.C.Channappa in a partition dated 12.09.1951?

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2. Whether the plaintiffs prove that ever since from the date of partition, they are in exclusive possession and enjoyment of the suit schedule property without any interference?

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3. Whether the plaintiffs prove that there was an interference from the defendants?

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4. Whether the defendants prove that the plaint schedule property was not allotted to the share of deceased G.C.Channappa?

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5. Whether the defendants prove that they have perfected their title to the suit schedule property by way of adverse possession?

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6. Whether the defendants prove that deceased G.C.Channappa had executed an agreement to sell dated 20.03.1963 in favour of their father in respect of the suit schedule property agreeing to sell the same?

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7. Whether the defendants prove that the suit is bad for non-joinder of necessary party?

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8. What decree or order?

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In order to prove the case of the plaintiffs, the plaintiff Nos.1 and 2 examined themselves as PW-1 and PW-2 and got examined three witnesses as PW-3 to PW-5 and got marked 6 documents as Exs.P1 to P6. Defendant No.3 examined as DW-1 and got examined two witnesses as DW-2 & DW-3 and got marked 15 documents as Exs.D1 to D15. The trial Court on assessment of oral and documentary evidence, answered issue Nos.1 to 3 in the affirmative, issue Nos.4 to 7 in the negative and issue No.8 as per final order and consequently, decreed the suit of the plaintiffs. It is ordered and declared that the plaintiffs are the absolute owners of the suit schedule property. The defendants are restrained by way of permanent injunction from interfering with plaintiffs' peaceful possession and enjoyment of the suit schedule property.

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The defendants aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.48/2002(New) R.A.No.94/2000(old) before the Civil Judge (Sr. Dn.), Doddaballapura. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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"Whether the impugned judgment and decree of the trial Court is illegal, arbitrary, perverse or contrary to the facts and circumstances of the case calling for interference?"

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The First Appellate Court, on re-assessment of the oral and documentary evidence placed on record by the parties, answered point in the negative and consequently, dismissed the appeal filed by the defendants, confirming the judgment and decree passed by the trial Court. The defendants, aggrieved by the judgments and decrees passed by the courts below, have filed this second appeal.

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This court admitted the appeal on the following substantial question of law :

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1. Whether the courts below were correct and justified in decreeing the suit holding that there was partition of the joint family properties on 12.09.1951 as per exhibit P1 without considering the rebuttal evidence placed by the defendants by producing exhibit D1 to D15 to dispute the same?

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2. Whether the courts below were correct in decreeing the suit without taking into consideration the evidence produced by the

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defendants regarding possession of defendants over the suit schedule property?

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3. Whether lower appellate court was justified in dismissing the application filed by defendants/appellants for additional evidence?

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Heard learned counsel for the defendants and

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learned counsel for the plaintiffs.

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Learned counsel for the defendants submits that the plaintiffs have failed to prove the partition alleged to have been taken place on 12.09.1951. He submits that the defendants are in possession of the suit schedule property. Further, he submits that the defendants have produced the documents Exs.D1 to D15 to establish that the defendants are in possession of the suit schedule property. He submits that though the Courts below placed a reliance on Ex.P1, has passed the impugned judgments and decrees. He submits that Ex.P1 is inadmissible in evidence. The Courts below have committed an error in placing a reliance on inadmissible document. He further submits that the Courts below have not properly appreciated the evidence of the defendants. Hence, on these grounds, he prays to allow the appeal.

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14. Per contra , learned counsel for the plaintiffs submits

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that there was a partition between the plaintiffs and the defendants amongst the family members of the plaintiffs and the defendants on 12.09.1951 and the said partition was reduced into writing on 12.09.1951. He further submits that the said fact was admitted by DW.3 in the course of crossexamination. The trial Court considering the admission of DW.3 and Ex.P1 has rightly held that there was a partition between the family members of the plaintiffs and the defendants and the same was reduced into writing as per Ex.P1. On the strength of Ex.P1, names of family members were entered in the revenue records. Subsequently, the defendants got deleted the names of the parties in the revenue records. He further submits that though the plaintiffs have produced Ex.P1 also filed an application before the trial Court seeking a direction to defendant No.1 to produce the original of Ex.P1. Though the Court has passed an order but the defendant No.1 did not filed a memo stating that defendant No.1 is not in possession of original Ex.P1. He further submits that DW.3 in the course of cross-examination has admitted that he possess original of Ex.P1 and there is no difficulty in producing original of Ex.P1.

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Hence, he submits that defendant No.1 has not produced the original of Ex.P1 and the trial Court has rightly drawn an adverse inference against defendant No.1 and rightly passed the impugned judgment. Hence, the judgment and decree passed by the trial Court is just and proper and does not call for any interference. Hence, he prays to dismiss the appeal.

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Perused the records and considered the

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submissions of learned counsel for the parties.

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Substantial questions of law Nos.1 to 3 : Substantial question of law Nos.1 to 3 are taken together for common discussion as they are interlinked with each other.

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Plaintiff Nos.1 and 2 were examined themselves as

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PW.1 and PW.2 and reiterated the plaint averments in the examination-in-chief and contended that there was a partition in the family of the plaintiffs and defendants on 12.09.1951 and the suit schedule properties were fallen to the share of deceased G.C.Channappa and document was executed. The said document was marked as Ex.P1. From the perusal of Ex.P1, the said land bearing Sy.No.61/3 measuring 1 acre 37

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guntas was allotted to the share of first plaintiff's husband along with other properties. On the strength of Ex.P1, first plaintiff's husband name was entered in the revenue records. In order to prove the case of the plaintiffs, the plaintiffs have produced Ex.P2 which stands in the name of the first plaintiff's husband in the year 1986-87 and after his demise, the katha was changed in the name of the plaintiffs and further the plaintiffs have produced Exs.P5 and 6 i.e., the record of rights, which discloses the suit schedule property was standing in the name of first plaintiff's husband. Further, the plaintiffs in order to prove the relationship between the parties, examined PW.3 to PW.5, who have deposed that there was a partition between the family members on 12.09.1951 and as per partition deed, the parties were put in possession of their respective shares and on the basis of the said partition, the names of the respective parties were entered in the revenue records. In rebuttal, DW.3 was examined and he has deposed that the said land belongs to the defendants as his father was growing several crops like ragi etc. Further, he has deposed that there was a partition in the year 1951. He admits about the partition but disputes that the property allotted to the share of husband

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of plaintiff No.1 was not the suit land, but the different land and further deposed that G.C.Channappa had executed an agreement of sale in respect of suit property in favour of his elder brother i.e., the father of defendants on 20.03.1963 and after the death of father, the defendants continued to be in possession over the suit schedule property and further deposed that the defendants are in exclusive possession without any interference by the plaintiffs and they have acquired the title by way of adverse possession and the defendants are in possession of the suit schedule property for more than 40 to 45 years. Further, in order to prove the possession over the suit schedule property, the defendants examined one witness, who has deposed that the defendants are in possession of the suit schedule property for more than 40 to 45 years. The trial Court discarded the evidence of DW.2 on the ground that DW.1 in his cross-examination has stated that the defendants are not cultivating the suit property personally now, it is cultivated by Virupakshappa and Shivanna on vara i.e., Will and further, he has stated that they are cultivating the suit land for more than 12 years. Further, the defendants have not examined the persons, who are cultivating the land on their behalf. From the

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perusal of the records it is clear that there was a partition between G.C.Channappa and his brothers. In the said partition, the suit schedule property was fallen to the share of father of the plaintiffs and the same was reduced into writing and marked as Ex.P1. The execution of Ex.P1 has not been seriously disputed by the defendants and further, DW.3 in the course of cross-examination has clearly admitted that there was a partition between the family members of the plaintiffs and the defendants and the same was reduced into writing as per Ex.P1. At one stretch, the defendants denied the partition dated 12.09.1951 and at another stretch, the defendants contended that the father of the plaintiffs executed an agreement of sale in favour of the defendants and the defendants are in possession of suit property in part performance of the contract.

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Further, the defendants are also claiming title by way of adverse possession. The defendants are in possession of the suit schedule property and they have acquired the title by way of adverse possession. In order to claim adverse possession, the defendants first shall admit the title of the plaintiffs over the suit schedule property and must establish

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that the defendants are in possession and enjoyment of the suit schedule property openly without interruption and without obstruction for more than 12 years. I would like to place reliance on the judgment of the Hon'ble Apex Court in the case of SHAKEEL AHMED VS. SYED AKHLAQ HUSSAIN in

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C.A.No.1598/2023 disposed of on 01.11.2023, wherein the Hon'ble Apex Court held that "no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney". The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question.

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Admittedly, in the instant case, the plaintiffs have

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denied the execution of the alleged agreement of sale and further, the defendants have not filed any suit for relief of specific performance of contract on the basis of alleged

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agreement of sale and further, the defendants have failed to prove that they are in possession of the suit schedule property for more than 12 years without any interruption.

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Further, the plaintiffs have contended that there was a partition in the year 1951 and the same was reduced into writing. The plaintiffs have produced the copy of panchayath palupatti effected between the family members.

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The plaintiffs have filed an application for production of original Ex.P1. The said application came to be allowed by the trial court. Pursuant to the order passed by the trial Court, defendant No.1 filed a memo stating that defendant No.1 is not in possession of original Ex.P.1. The trial court permitted the plaintiffs to lead secondary evidence and partition deed was marked as Exaz.P.1. Further, DW.3 in the course of cross examination has clearly admitted that he is in possession of the original Ex.P.1 and he has no difficulty in producing Ex.P.1. The defendants inspite of admitting in the course of cross examination have not produced original Ex.P.1. Hence, for withholding of document, an adverse inference has

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to be drawn against the defendants under section 114(g) of Evidence Act, 1872. The Courts below were justified in placing reliance on Ex.P.1 and has rightly come to a conclusion, that there was partition in the joint family properties on 12.09.1951 as per Ex.P.1.

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In rebuttal, the defendants have not produced any records to show that there was no partition as alleged by the plaintiffs in the plaint on 12.09.1951. Though the defendants have produced Exs.D1 to D15, but from the admission of DW.3, it is clear that he is in possession of original Ex.P.1. The trial court was justified in declaining to consider Exs.D1 to D15. Further, the plaintiffs have also produced the records to show that by virtue of Ex.P.1, property fallen to the respective shares were delivered to the respective parties. The trial court was justified in recording the finding that on the basis of Ex.P.1, the parties are in respective possession of respective shares and the plaintiffs are in possession of the suit schedule property. In view of the above discussion, I answer substantial question Nos.1 and 2 in the affirmative.

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Substantial question No.3: During the pendency of the suit, the defendants filed an application for production of additional documents under order 41 rule 27 of CPC. The first appellate court has recorded a finding that from the perusal of the documents produced along with the application, the said documents are not related to the suit schedule property. The object of filing the application under Order 41 Rule 27 of CPC is not to fill up lacuna. In the instant case, by way of filing an application for production of additional documents, they are trying to fill up the lacuna which is not permissible in the eye of law. In view of the Hon’ble Apex court in the case of N.KAMALAM (DEAD) AND ANOTHER VS. AYYASAMY AND ANOTHER reported in (2001) 7 SCC 503 , held that additional evidence cannot be produced to fill up lacuna or the gaps or to patch up omissions in the appeal. The first appellate court considering the law laid down by the Hon’ble Apex Court, rejected the application filed by the defendants for production of additional evidence. In view of the above discussion, I answer substantial question No.3 in the affirmative. Hence, I do not find any grounds to interfere with the impugned judgments and decrees passed by the Courts below.

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