Allowed

Sri Munikempanna v. Sri Ramachandrappa

Karnataka HC16 Jun 2023RSA/1615/2009

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Karnataka modified the decree in a property suit. The court held that the suit was not barred by non-joinder as the plaintiff represented the entire branch. It also ruled the suit was within limitation under Article 65 based on title rather than prior possession, and held the sale deeds were not binding on the appellants.

What did the court decide?

The decree was modified to declare the appellant as a joint owner along with other legal heirs of Sri. Appaianna and to confirm the sale deeds were not binding on them.

Sri Munikempanna Vs Sri Ramachandrappa — Succession and Inheritance | Karnataka HC (2023)

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NC: 2023:KHC:20899 RSA No. 1615 of 2009

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 1615 OF 2009 (DEC)

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BETWEEN:

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SRI.MUNIKEMPANNA

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S/O LATE MUNISHAMAPPA SINCE DEAD BY LR'S

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1(a) SMT. PILLAMMA

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W/O LATE SRI.MUNIKEMPANNA AGED ABOUT 70 YEARS

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1(b) SMT. SUMITHRAMMA D/O LATE SRI.MUNIKEMPANNA AGED ABOUT 45 YEARS

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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1(c) SRI. SUBRAMANI S/O LATE SRI.MUNIKEMPANNA AGED ABOUT 43 YEARS

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1(d) SRI. NAGESH S/O LATE SRI.MUNIKEMPANNA AGED ABOUT 35 YEARS

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ALL ARE R/O GANGAVARA VILLAGE, REDDIHALLI POST, CHANNARAYAPATTANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT.

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NC: 2023:KHC:20899 RSA No. 1615 of 2009

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SRI L.MUNIRAJU

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S/O LAKSHMAIAH AGED ABOUT 37 YEARS R/OF GANGAVARA VILLAGE REDDIHALLI POST CHANNARAYAPATTANA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT.

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SRI J KEMPEGOWDA S/O LATE JEEYAPPA AGED ABOUT 58 YEARS R/O SOMATHANAHALLI VILLAGE REDDIHALLI POST CHANNARAYAPATTANA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT.

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…APPELLANTS

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(BY SRI. D.R. RAVISHANKAR, SENIOR COUNSEL A/W SRI. V. SUDHAKAR, ADVOCATE)

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AND:

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SRI. RAMACHANDRAPPA S/O LATE DODAMUNINANJAPPA AGED ABOUT 55 YEARS R/OF GANGAVARA VILLAGE REDDIHALLI POST CHANNARAYANPATTANA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT

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…RESPONDENT

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(BY SRI. M.K SHIVARAM AND SRI. G.V. SHASHIKUMAR, ADVOCATES FOR C/R)

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NC: 2023:KHC:20899 RSA No. 1615 of 2009

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THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DTD:23.10.2009 PASSED IN R.A.NO.79/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, DEVANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD:15.11.2007 PASSED IN O.S.NO.151/2005 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., DEVANAHALLI.

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

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ORDER

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This appeal is filed seeking to set aside the judgment

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and decree dated 23.10.2009 passed in R.A.No.79/2007 by Fast Track Court, Devanahalli and judgment and decree dated 15.11.2007 passed in O.S.No.151/2005 by Civil Judge (Jr.Dvn) & JMFC, Devanahalli and consequently dismissal of the suit in O.S.No.151/2005.

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The present appeal is filed by the defendants No.1 to 3 therein and the respondent herein is the plaintiff before the trial Court.

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The parties herein are referred as per their ranking before the trial Court.

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NC: 2023:KHC:20899 RSA No. 1615 of 2009

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The plaintiff had filed the suit against the defendants in O.S.No.151/2005 seeking for declaration to declare that he is the owner of the suit schedule property and for possession of the suit property and also to declare that the sale deeds executed by defendant No.1 in favour of defendant Nos.2 and 3 are not binding on him.

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There are two items in the suit schedule

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property. Item No.1 is the land bearing Survey No.74 to an extent of 21 guntas situated at Somathanahalli village of Channarayapatna Hobli in Devanahalli Taluk and Item No.2 is the land bearing Survey No.46/21 measuring 15 guntas situated at Somathanahalli village of Channarayapatna Hobli in Devanahalli Taluk.

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The case of the plaintiff before the trial Court was that he is the absolute owner of the suit property. He stated that one Muni Nagappa died leaving behind him his three sons namely Venkataramanappa, Munishamappa and Chikka Kempanna. The said Chikka Kempanna died issueless and said Venkataramanappa died leaving behind

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him his only son Mari Nagappa @ Appajappa. The said Appajappa died leaving behind him his three sons namely Munishamappa, Nanjamariappa and Muni Nagappa. Defendant No.1 is the son of said Munishamappa. The said Munishamappa the second son of Muni Nagappa died leaving behind him his only son Appaianna. The said Appaianna died leaving behind him his two sons namely Dodda Muni Nanjappa and Chikka Muni Nanjappa. The plaintiff is the son of Dodda Muni Nanjappa. Defendant Nos.2 and 3 are the purchases of the suit schedule property from defendant No.1. The said Appajappa and Appaianna got divided the joint family properties as per registered partition deed dated 15.08.1967. In the said partition, the suit schedule properties were fallen to the share of said Appaianna, the grand father of the plaintiff. After the family partition, one Muniyappa S/o Sonnappa had filed form No.7 as against Appajappa @ Mari Nagappa in respect of property bearing survey No.46/21. After the death of Appajappa, his son Munishamappa gave statement before the land tribunal consenting for granting

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of 20 guntas of property in favour of Muniyappa. Accordingly, land tribunal conferred the occupancy right in respect of 20 guntas of land in Survey No.46/21. It is stated that defendant took undue advantage of the revenue entries, sold the suit schedule properties in favour of defendant Nos.2 and 3. The said sale deed are stated to be not binding on the plaintiff. He further stated that plaintiff had filed an appeal before the Assistant Commissioner challenging the revenue entries and the Assistant Commissioner was pleased to stay the entries. It is stated that cause of action arose on 16.05.2005.

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The defendant No.1 in the written statement contended that the suit is not maintainable and the plaintiff has not made out cause of action for filing the suit and the suit is not binding for mis-joinder and non-joinder of necessary parties. He admitted the relationship with the plaintiff and he has also admitted the genealogical tree submitted by the plaintiff and the family partition between Mari Nagappa and Appaianna in the year 1967. He has

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NC: 2023:KHC:20899 RSA No. 1615 of 2009

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admitted that the said partition to the extent of 31 guntas in Sy.No.74 and 22 guntas in Sy.No.46/21 of Samathanahalli village were allotted to the share of his grand father Mari Nagappa. He has also admitted that 21 guntas of land in Sy.No.74 and 15 guntas of land in Sy.No.46/21 of Samathanahalli village were allotted to the share of Appaianna. He further stated that after the partition, Mari Nagappa and Appaianna were independently and separately residing. It is contended that Appaianna sold the property to Mari Nagappa and received the consideration amount and there was no written agreement or sale deed. It is contended that, thereafter, Mari Nagappa was in possession and enjoyment of the entire extent of land in Sy.No.74 and Sy.No.46/21. He further contended that after the death of Mari Nagappa, his three children partitioned the properties on 10.06.2002 and in the said partition, the suit property was fallen to his share. He further stated that one Muniyappa S/o Sonnappa filed form No.7 against his grand father in respect of 37 guntas of land in Sy.No.46/21 and

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the occupancy right was granted in respect of 20 guntas of land in favour of said Muniyappa. He contended that Appaianna has two children namely Dodda Muni Nagappa and Chikka Muni Nagappa. Chikka Muni Nagappa has two children namely Devaraja and Basavaraja and Dodda Muni Nagappa has wife Kenchamma and three children namely G.M. Ramachandrappa, G.M. Munirajappa and G.M. Somanath. He contended that the legal heirs of Dodda Muni Nanjappa partitioned the properties as per partition deed dated 16.03.2002 and in the said partition, suit properties were not included because they were aware that the suit property is not their properties. He further contended that he sold the suit property in favour of second and third defendant and he has further contended that plaintiff is not entitled for the relief claimed in the suit.

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On the basis of the above pleadings, the trial Court has framed the following issues:

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Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

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Whether the 1^st defendant proves that his grand father was in possession of the suit property since 1968 as claimed in para 10 of the written statement?

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Whether the suit is bad for non-joinder of necessary parties?

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Whether the suit is in time?

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Whether the plaintiff is entitled for the relief of declaration & possession as prayed?

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What order or decree?

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The plaintiff has been examined as PW-1 and got examined Exs.P1 to P7. The defendant No.1 himself has been examined as DW1 and defendant No.2 himself examined as DW2 and defendant No.3 himself examined as DW3 and one independent witness has been examined as DW4 and got marked Exs.D1 to D19.

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After hearing the arguments and appreciating

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the evidence on record, the trial Court answered the issue

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Nos. 1, 4 and 5 in the 'Affirmative' and issue Nos.2 and 3 in the 'Negative' and decreed the suit by judgment and decree dated 15.11.2007.

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Aggrieved by the said judgment and decree, defendants No.1 to 3 filed an appeal in R.A.No.79/2007 on the file of the Presiding Officer, Fast Track Court, Devanahalli (First Appellate Court).

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The First Appellate Court after hearing the arguments on both the sides has formulated the following points for consideration:

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Whether the trial Court was justified in accepting the pleadings and evidence of the plaintiff that the plaintiff representing the branch of Appayanna's branch and they are the absolute owners of the suit schedule properties?

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Whether the trial Court was justified in holding that the sale deeds marked at Ex.P3 and P4 are not binding on the rights of the plaintiff/his branch?

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Whether the trial Court has erred in framing proper issues on the strength of the pleadings presented by the respective parties?

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NC: 2023:KHC:20899 RSA No. 1615 of 2009

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Whether the trial Court has erred in appreciating the oral and documentary evidence and legal principles applicable to the case on hand resulted in mis-carriage of justice?

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What order?

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The First Appellate Court answered Point Nos.1

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and 2 in the 'Affirmative' and Point Nos. 3 and 4 in the 'Negative' and dismissed the appeal by judgment and decree dated 23.10.2009 confirming the judgment and decree passed by the Civil Judge (Jr.Dn) & JMFC, Devanahalli in O.S.No.151/2005 dated 15.11.2007.

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Defendant Nos.1 to 3 have challenged the judgment and decree passed by trial Court and the First Appellate Court in this Second appeal.

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This second appeal came to be admitted to consider the following substantial questions of law.

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I. Whether the Courts below were justified in proceeding to consider the dispute without reference to the plea of non-joinder of necessary parties?

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NC: 2023:KHC:20899 RSA No. 1615 of 2009

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II. Whether the Courts below were justified in overlooking the bar of limitation, which was pleaded by the appellants?

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Heard arguments of learned Senior counsel for appellants along with counsel on record for the appellants and learned counsel for respondent.

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Learned counsel for appellants would contend that Sri. Appaianna to whom the suit schedule properties were allotted in the partition deed dated 15.08.1967 registered on 30.10.1967 (Ex.P.2) had sold them in favour of Sri. Mari Nagappa @ Appajappa – grandfather of defendant No. 1 under oral sale and was put in possession. He contends that the RTCs of the suit schedule properties stands in the name of defendants and plaintiff and his other family members have not challenged the entries in the name of defendant No.1. Even plaintiff has not challenged the grant of occupancy rights in favour of Sri. Muniappa by the Land Tribunal to an extent of 20 guntas on southern portion in survey No. 46/21 which measures

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NC: 2023:KHC:20899 RSA No. 1615 of 2009

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37 guntas. He contended that the family members of Sri. Appaianna have entered into partition deed dated 18.03.2002 (Ex.D.1) and the suit schedule properties were not subject matter of the said partition deed. This very fact goes to show that the suit schedule properties were not belonging to the plaintiff and his family members. He contends that the suit schedule properties were included in the partition deed dated 10.06.2022 (Ex.D.10) which has been entered into among the family members of defendant No. 1 and suit schedule properties were allotted to the share of defendant No. 1. Defendant No. 1 got mutated his name to the suit schedule properties as per the said partition deed (Ex.D.10). The plaintiff has not stated why the suit schedule properties were not included in the partition deed dated 18.03.2002 (Ex.D.1). He contends that the plaintiff and other family members were all aware that grandfather of defendant No. 1 and subsequently, father of defendant No.1 were in possession of the suit schedule properties and the plaintiff and his family members were not having claim over it and

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therefore, they have not included the same in the partition deed – Ex.D.1. He contended that defendant No. 1 and his father and grandfather were in possession of the suit schedule properties from the year 1968-69 as could be seen from the RTC entries. The plaintiff has not stated in the plaint the date of their dispossession. The suit ought to

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have been filed within three years from the date of partition deed dated 18.03.2002 but it is filed on 25.05.2005 and therefore the suit is barred by limitation. He contended that defendant No.1 and his father and grandfather were in possession of the suit schedule properties for more than 12 years and they have perfected their title by adverse possession. He contended that the suit is for possession based on their prior possession and therefore, Article 64 of the Limitation Act is applicable. He placed reliance on the following decisions:

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I. Ramaiah Vs. N. Narayana Reddy (Dead) by LRs, 2004 (7) SCC 541

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II. Ravinder Kaur Grewal and others Vs. Manjit Kaur and others, AIR 2020 SC 3799

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III. Smriti Debbarma (Dead) Through Legal Representative Vs. Prabha Ranjan Debbarma and others, AIR 2023 SC 379

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He contended that the suit has to be filed within

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12 years from the date of dispossession and Article 64 of the Limitation Act is applicable and on that point he placed reliance on the decision in the case of Ramaiah Vs. N. Narayana Reddy (Dead) by LRs reported in 2004 (7) SCC 541 .

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He contends that the oral sale by the grandfather of plaintiff in respect of the suit schedule properties in favour of grandfather of defendant No. 1 amounts to family settlement and document in question being family settlement and not document containing terms and recitals of the family settlement are not required to be registered.

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On that point he placed reliance on the decision in the case of Ravinder Kaur Grewal and others Vs. Manjit

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Kaur and others reported in AIR 2020 SC 3799 .

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He contends that in a suit for declaration and

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possession the decree cannot be passed in favour of the plaintiff on the ground that the defendants were unable to establish their right, title and interest in the property. On that point he placed reliance on the decision in the case of

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Smriti Debbarma (Dead) Through Legal Representative Vs. Prabha Ranjan Debbarma and others , reported in AIR 2023 SC 379 .

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Learned counsel for respondent would contend that defendant No.1 has admitted in his written statement that suit schedule properties were allotted to the share of Sri. Appaianna in the partition deed of the year 1967 (Ex.P.2) and possession of the properties allotted to the sharers were with the respective sharers. When defendant No.1 has admitted the title and possession of the suit schedule properties then he has to prove better title in him. The alleged sale and possession as contended in the written statement of defendant No.1 does not state any date of sale. He contends that the continuance of the

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name of father of plaintiff in the RTC even after the partition deed (Ex.P.2) does not confer any title on defendant No. 1, his father and grandfather. He contends that the plaintiff and his family members were all along in possession of the suit schedule properties and they have been dispossessed recently by virtue of the partition deed dated 10.06.2002 (Ex.D.10) on the ground that the suit schedule properties were allotted to the share of defendant No.1. When the said properties were allotted to the share of grandfather of plaintiff, family members of defendant No.1 have no right and title to include those properties in their partition deed dated 10.06.2002 (Ex.D.10). The plaintiff claims possession based on title and therefore, Article 65 of the Limitation Act is applicable. He contends that defendant No. 1 claims adverse possession but he has not admitted title of the plaintiff and has not stated on what date his title became adverse to the title of plaintiff. Defendant No.1 claims title at one stretch and adverse possession at another stretch and very said aspect destroys his plea of adverse possession.

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The plaintiff has filed the suit not only for himself but for the benefit of his family members and same can be ascertained from his evidence and also in the plaint where he has stated that the acts of defendant affected his share in the suit schedule properties. He contends that the other family members of the plaintiff i.e., legal heirs of Sri. Appaianna are not necessary parties as the plaintiff has claimed the relief for the benefit of the legal heirs of Sri. Appaianna. Considering all these aspects the trial Court and the first appellate Court have rightly rejected the contention of the defendant and granted relief to the plaintiff.

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The trial Court has considered the plea of the defendant i.e, suit is bad for non-joinder of necessary parties in issue No. 3 and given its findings in paragraph No. 12 of the judgment. The trial Court has taken into consideration that the suit filed by the plaintiff is not for partition and he has claimed declaration and his claim of ownership is on the basis of partition dated 15.08.1967

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and his claim is as a family member of Sri. Appaianna’s branch. The trial Court has also observed that it is between the plaintiff and other family members of Sri. Appaianna’s branch to partition the suit properties and other family members of Sri. Appaianna’s branch have not filed any suit against the defendant. The trial Court has come to the conclusion that the plaintiff has filed the suit claiming his ownership not in his individual capacity but as a family member of Sri. Appaianna’s branch and on that aspect the trial Court has based its finding on the deposition of P.W.1 (plaintiff) and held that the suit is not bad for non-joinder of necessary parties. The first appellate Court has also considered the said aspect of the matter in point No.1 formulated by it and answered the said point in the affirmative holding that the trial Court was justified in accepting the pleading of the plaintiff that the plaintiff is representing the branch of Sri. Appaianna.

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The suit schedule properties had fallen to the share of Sri. Appaianna in the partition deed dated

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15.08.1967 (Ex.P.2). Said Sri. Appaianna is the grandfather of the plaintiff. Said Sri. Appaianna had two sons, namely, Sri. Doddamuninanjappa and Sri. Chikkamuninanjappa. Plaintiff, Sri. Munirajappa and Sri. Somanath are the children of Sri. Doddamuninanjappa and Sri. Devaraj and Sri. Basavaraj are the sons of Sri. Chikkamuninanjappa. The suit properties were allotted to the share of Sri. Appaianna i.e., grandfather of plaintiff. The said suit properties were not divided among the legal heirs of Sri. Appaianna and therefore, legal heirs of Sri. Appaianna are all having share in the suit schedule properties. Even though the plaintiff has sought for declaration that he is the owner of the suit schedule properties and he is entitled to possession, he has sought it not only on his behalf but on behalf of other family members, i.e., legal heirs of Sri. Appaianna. The trial Court and the first appellate Court ought to have moulded the relief and ought to have declared that the legal heirs of Sri. Appaianna are owners of the suit schedule properties and plaintiff is entitled to possession of suit schedule

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properties on behalf of legal heirs of Sri. Appaianna. Said decree granted by the trial Court and confirmed by the first appellate Court if modified to the above effect will not affect the defendants who are appellants herein. If the said relief is moulded, the contention of the defendant that suit is bad for non-joinder of necessary parties does not hold any substance. Accordingly, substantial question of law No. 1 is answered in the affirmative.

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Defendant No.1 has admitted in his pleadings

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and also in his evidence that item Nos.1 and 2 of suit schedule properties were allotted to the grandfather of plaintiff - Sri. Appaianna in the partition deed dated 15.08.1967 (Ex.P.2) and he has been put in possession of his share as per the said partition deed. When defendant No.1 admits the allotment of suit schedule properties to the share of Sri. Appaianna, the claim of the plaintiff seeking relief of possession is based on title and not based on prior possession. The claim of the defendant No.1 is that his grandfather purchased item Nos.1 and 2 of suit

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schedule properties by oral sale and they have been put in possession of the suit schedule properties. Either in the pleadings or in the evidence defendant No.1, he has not stated the date of that oral sale and date on which his grandfather was put in possession. There is no sale deed executed by the said Sri. Appaianna in favour of Sri. Muninagappa – grandfather of defendant No.1 in respect of item Nos. 1 and 2 of the suit schedule properties which were allotted to the share of Sri. Appaianna. The suit schedule properties were worth more than Rs.100/- and any transfer is required to be made by a registered document as rightly held by the first appellate Court. Therefore, the defendants failed to establish their title over the suit schedule properties.

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The claim of defendant No.1 is based on the revenue entries in the RTCs of the suit schedule properties. The revenue entries in the RTCs does not confer title. The revenue entries in respect of the suit schedule properties in the RTCs continue in the name of

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grandfather of defendant No.1 i.e., Sri. Muninagappa even after the partition deed (Ex.P.2). The source of title of the properties which were included in the said partition deed which took place among the family members of defendant No.1 which were allotted to share of defendant No.1 is not forthcoming. The family members of defendant No.1 have no right and title over the suit schedule properties to include them in their partition deed (Ex.D.10). Therefore, this Ex.D.10 – partition deed does not confer any title on defendant No.1 on basis of allotting the suit schedule properties in the said partition to his share. Merely because father of defendant No.1 conceded for grant of occupancy rights to an extent of 20 guntas on southern side of survey No. 46/21 does not confer any title on defendant No.1 or his father. In the entire property bearing survey No. 46/21 an extent of 22 guntas has been allotted to the share of grandfather of defendant No.1. Grant of occupancy rights in respect of 20 guntas in survey No. 46/21 as conceded by the father of defendant No.1 under Ex.D.15 can be in the share allotted to the

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grandfather of defendant No.1 i.e., to an extent of 22 guntas in survey No. 46/21. Father of defendant No.1 has no right to concede for grant of occupancy rights in respect of the property allotted to the share of grandfather of plaintiff. Therefore, defendant No.1 has no right, title and interest over the suit schedule properties to alienate them in favour of defendant Nos. 2 and 3. Therefore, the trial Court and the first appellate Court have rightly held that the sale deeds Ex.P.3 and Ex.P.4 executed by defendant No.1 in favour of defendant Nos.2 and 3 are not binding on the plaintiff and legal heirs of Sri. Appaianna.

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Suit of the plaintiff seeking relief of possession is based on the title. In the plaint it is stated that the defendants have recently dispossessed the plaintiff from the suit schedule properties. The suit for possession based on title can be filed any time in view of the provisions of Article 65 of the Limitation Act. Suit of the plaintiff is not based on his prior possession but it is based on title and therefore, Article 64 of the Limitation Act does not apply

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and Article 65 of the Limitation Act is applicable. In case of suit for possession based on title under Article 65 of the Limitation Act it is for the defendant to prove when his possession became adverse. Even though defendant No.1 has pleaded adverse possession but he has not stated when his possession over the suit schedule properties became adverse to the true owner. Defendant No.1 has pleaded that he is owner by virtue of oral sale deed and also that he has perfected his title to the suit property by adverse possession. Said contentions of defendant No.1 cannot be accepted as one contention would destroy the other. Therefore, defendant No. 1 has failed to prove that his possession of the suit schedule properties is adverse possession. Therefore, the trial Court and the first appellate Court have rightly held that the suit filed by the plaintiff is within Limitation. In view of the above, substantial question of law No.2 is answered in the affirmative and the appeal is dismissed with the following modifications in the decree passed by the trial Court.

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I. Plaintiff is declared as the joint owner along

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with the other legal heirs of Sri. *Appaianna.

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II. Plaintiff is entitled to possession of suit schedule properties on behalf of himself and other legal heirs of Sri. *Appaianna.

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III. Sale deeds executed by defendant No.1 in favour of defendant Nos.2 and 3 are not binding on the plaintiff and other legal heirs of Sri. *Appaianna in respect of the suit schedule properties.

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Sd/JUDGE

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AG/LRS List No.: 1 Sl No.: 13

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*Corrected vide Court order dated 10.07.2023

Sri Munikempanna v. Sri Ramachandrappa

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Sri Munikempanna v. Sri Ramachandrappa

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