Dismissed

Sri.Shivalingaiah v. Smt.Mahadevamma

Karnataka HC1 Dec 2023RSA/291/2023

Case brief

AI extract

What is this about?

In a second appeal regarding an injunction suit over property rights, the High Court bitpart of the Trial Court's reversal of the decree. The Court held that since the appellant failed to file a written statement, additional evidence could not be considered, and the appellate court's finding was unimpeachable.

What did the court decide?

Additional evidence application rejected; appeal dismissed upholding the decree.

Sri.Shivalingaiah Vs Smt.Mahadevamma — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:43336 RSA No. 291 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.291 OF 2023 (INJ)

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BETWEEN:

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SRI.SHIVALINGAIAH S/O LATE MADAIAH AGED ABOUT 42 YEARS R/AT JOGIPURA VILLAGE KASABA HOBLI MALAVALLI TALUK - 571430 MANDYA DISTRICT

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…APPELLANT

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(BY SRI. T M VENKATA REDDY, ADVOCATE)

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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AND:

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SMT.MAHADEVAMMA W/O LATE SHIVALINGAIAH D/O LATE CHINNAIAH @ MOTTAIAH AGED ABOUT 50 YEARS R/AT JOGIPURA VILLAGE KASABA HOBLI MALAVALLI TALUK - 571430 MANDYA DISTRICT

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…RESPONDENT

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(BY SRI. NAIK N R, ADVOCATE)

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NC: 2023:KHC:43336 RSA No. 291 of 2023

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.12.2022 PASSED IN RA.NO.15/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 08.07.2022 PASSED IN O.S.NO.360/2018 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, MALVALLI AND ETC.

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

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JUDGMENT

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The captioned second appeal is filed by the defendant, who has questioned the judgment rendered in R.A.No.15/2022, wherein the plaintiff's suit seeking relief of injunction simpliciter, though dismissed by the Trial Court, the same is reversed by the Appellate Court and the plaintiff's suit seeking injunction is decreed.

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For the sake of brevity, the parties are

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referred as they are ranked before the Trial Court.

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3 - NC: 2023:KHC:43336 RSA No. 291 of 2023

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3. Brief facts leading to the case are as under;

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The plaintiff has instituted a suit by contending

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that suit land is granted to her father by name Chinnaiah @ Mottaiah and his name was mutated on 05.05.1973. The plaintiff contended that pursuant to the grant, the name of the plaintiff's father was mutated in the revenue records and he was in exclusive possession till his death. The plaintiff further pleaded that after death of her father, her name came to be mutated in the revenue records under RRTCR No.152/18-19 as per Ex.P.10. The plaintiff claimed that she is in exclusive possession and that she has been paying taxes to the concerned Authorities. Alleging interference by the defendant, the present suit for injunction is filed.

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Defendant though served with summons, did

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not choose to contest the proceedings. Trial Court answered issue No.1 in the Negative. While answering issue No.1 in the Negative, the Trial Court taking

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NC: 2023:KHC:43336 RSA No. 291 of 2023

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cognizance of Ex.P.16, which is the partition deed executed between plaintiff and her children, held that the plaintiff has failed to substantiate her lawful possession. Referring to Ex.P.16, the Trial Court was of the view that the plaintiff has no subsisting right in the suit land and therefore, she is not entitled for injunction.

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Feeling aggrieved by the judgment and decree

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of the Trial Court, the plaintiff preferred an appeal before the Appellate Court. The Appellate Court being a final fact finding authority has independently assessed the evidence on record. The Appellate Court referring to the mutation under MR No.10 held that the plaintiff has inherited the property from her father. After the death of plaintiff's father, her name was mutated in the revenue records. The Appellate Court was not inclined to concur with the findings recorded by the Trial Court on Ex.P.16, which is the registered partition deed. While taking note of the partition effected by the plaintiff with her sons during pendency of the partition suit, the Trial Court was of the

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5 - NC: 2023:KHC:43336 RSA No. 291 of 2023

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view that there is no bar for the family members to effect inter-se partition. The Appellate Court held that what needs to be examined is, as to whether plaintiff is in lawful possession as on the date of filing of the suit. It is in this background, the Appellate Court has reversed the findings recorded by the Trial Court on issue Nos.1 and 2. The appeal is allowed and the suit filed by the plaintiff is decreed.

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The defendant has questioned the divergent findings and has produced documents by way of additional evidence. By placing reliance on the additional documents, he is asserting that he is the owner of these suit lands. Now, in the affidavit filed in support of the application under Order 41 Rule 27, the defendant claimed that the name of the plaintiff's father was illegally mutated in the revenue records in the year 1972. The defendant claimed that the suit land is Thoti Inam Land and that it originally belonged to the grandfather of the defendant.

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NC: 2023:KHC:43336 RSA No. 291 of 2023

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Heard learned counsel appearing for the

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defendant. Perused the judgment rendered by the Appellate Court reversing the decree of the Trial Court. I have also given my anxious consideration to the averments made in the affidavit filed in support of the application under Order 41 Rule 27.

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Though it is alleged in the appeal memo that defendant is asserting that his grandfather sold the land in question, in the affidavit filed in support of the application, there is no reference in regard to any title documents to substantiate his claim.

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Be that as it may, the additional documents cannot be looked into as the defendant has not chosen to contest the suit by filing written statement. The documents have to be necessarily supported by the pleadings mentioned either in the plaint or in the written statement. The defendant has not chosen to file the written statement. If there is no evidence let in by the

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NC: 2023:KHC:43336 RSA No. 291 of 2023

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defendant, the question of entertaining additional evidence, which is now sought to be produced under Section 100 of CPC, would not arise.

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Though a feeble attempt is made by the defendant contending that the suit land is originally owned by his grandfather, no title documents are produced along with the application. Now, let me examine as to whether findings recorded by the Appellate Court on issue No.1 while reversing the findings recorded by the Trial Court on issue No.1 warrants interference.

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The plaintiff to substantiate her lawful possession has produced the record of rights. The Appellate Court while re-assessing the evidence has taken cognizance of the tax paid receipts and revenue records, which clearly indicates that the name of the plaintiff's father was duly mutated in the revenue records in column Nos.9 and 12 in the year 1972. Therefore, these documents clearly give an impression that plaintiff's father

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8 - NC: 2023:KHC:43336 RSA No. 291 of 2023

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was in possession since 1972. Ex.P.10 is the mutation, wherein the plaintiff's name is duly mutated after demise of her father. Merely because pending suit, the plaintiff has effected partition with her sons that in itself will not constitute a bar for the plaintiff to seek injunction. As on the date of filing of the suit, the plaintiff alleged that she is in lawful possession and there is an interference by the defendant. These significant details are looked into by the Appellate Court while re-assessing the evidence independently. The Appellate Court has rightly assessed the evidence and has come to the conclusion that the plaintiff is in lawful possession and there is an interference. Subsequent arrangement between the plaintiff and her sons will not be a bar for the plaintiff to seek injunction against the defendant.

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I do not find any infirmities in the findings recorded by the Appellate Court.

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NC: 2023:KHC:43336 RSA No. 291 of 2023

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No substantial question of law arises for

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consideration. Accordingly, the appeal is dismissed.

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In the light of the findings recorded by this Court, I.A.No.1/2021 is liable to be rejected and accordingly, it is rejected.

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Sd/JUDGE

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NBM

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List No.: 1 Sl No.: 7

Sri.Shivalingaiah v. Smt.Mahadevamma

Case brief

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Sri.Shivalingaiah v. Smt.Mahadevamma

Case brief

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