Dismissed

Kumbalamma Since Dead by Her Lrs v. Sri Madaiah S/O Late Sannaiah

Karnataka HC7 Nov 2023RSA/297/2012

Case brief

AI extract

What is this about?

In a regular second appeal regarding a suit for declaration of title and permanent injunction over Chakra Inam Koduge lands, the High Court held that the appellants failed to prove that the grantee 'Mada' was the same person as their deceased husband 'Chakramadaiah'. Consequently, the appeal was dismissed, confirming the first appellate court's order set aside against the appellants.

What did the court decide?

None; appeal dismissed and first appellate judgment confirmed.

Kumbalamma Since Dead by Her Lrs Vs Sri Madaiah S/O… — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:39697 RSA No. 297 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^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. 297 OF 2012 (DEC/INJ)

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BETWEEN:

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KUMBALAMMA

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SINCE DEAD BY HER LRS

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1(a) SMT. THAYAMMA AGED ABOUT 58 YEARS D/O CHAKRAMADAIAH

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1(b) MT. JAYAKKA D/O CHAKRAMADAIAH AGED ABOUT 48 YEARS

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Digitally signed by R DEEPA Location: High Court of Karnataka

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BOTH 1(a) AND (b) ARE RESIDING AT SAGARE VILLAGE, KANDALIKE HOBLI H D KOTE TALUK 571114 MYSORE DISTRICT

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1(c) SMT. PUTTATHAYAMMA W/O MARANINGAIAH AGED ABOUT 32 YEARS D/O CHAKRAMADAIAH R/AT DEVALAPURA VILLAGE KASABA HOBLI H D KOTE TALUK 571114 MYSORE DISTRICT

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MAHADEVAIAH S/O CHAKRAMADAIAH AGED ABOUT 55 YEARS

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2 - NC: 2023:KHC:39697 RSA No. 297 of 2012

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3. SHETTAIAH S/O CHAKRAMADAIAH AGED ABOUT 47 YEARS

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BASAVAIAH S/O CHAKRAMADAIAH AGED ABOUT 42 YEARS

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SHIVAIAH S/O CHAKRAMADAIAH AGED ABOUT 39 YEARS

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APPELLANT NO.2 TO 5 ARE ALL R/AT SAGARE VILLAGE KANDALIKE HOBLI H D KOTE TALUK 571114 MYSORE DISTRICT

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…APPELLANTS

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(BY SRI B S NAGARAJ, ADVOCATE)

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AND:

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SRI MADAIAH S/O LATE SANNAIAH AGED ABOUT 71 YEARS R/AT SAGARE VILLAGE, KANDALIKE HOBLI, H D KOTE TALUK 571114 MYSORE DISTRICT

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SRI. SANNAGANDU SINCE DEAD BY LRS

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2(a) SRI. MADAIAH S/O SANNAGANDAIAH AGED ABOUT 55 YEARS

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2(b). SRI SARAGURAIAH S/O SANNAGANDAIAH AGED ABOUT 53 YEARS

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2(c). SRI PUTTAMADA S/O SANNAGANDAIAH AGED ABOUT 50 YEARS

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3 - NC: 2023:KHC:39697 RSA No. 297 of 2012

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2(d). SRI NAGARAJU S/O SANNAGANDAIAH AGED ABOUT 48 YEARS

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2(e). SRI. MUDDAIAH S/O SANNAGANDAIAH AGED ABOUT 45 YEARS

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2(f). SMT. PUTTATHYAMMA D/O SANNAGANDAIAH AGED ABOUT 40 YEARS

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2(g). SMT. SHIVAMMA D/O SANNAGANDAIAH AGED ABOUT 35 YEARS

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SRI. MADAIAH S/O SANNAGANDU AGED ABOUT 55 YEARS

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R2(a) TO 2(g) & R3 ARE ALL R/AT HEGGANUR VILLAGE, KANDALIKE HOBLI, H D KOTE TALUK 571114 MYSORE DISTRICT

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…RESPONDENTS

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(BY SRI THARANATH SHETTY, ADVOCATE FOR R1)

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RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT & DECREE DT 30.7.2011 PASSED IN R.A.NO.116/ 2009 (OLD NO.59/2004) ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, HUNSUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED19.2.2004 PASSED IN O.S.NO.119/1996 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., H.D.KOTE.TRIAL COURT DECREED THE SUIT, APPELLATE COURT ALLOWED THE APPEAL. THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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NC: 2023:KHC:39697 RSA No. 297 of 2012

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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 appellant

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challenging the judgment and decree dated 30.07.2011 passed in R.A.No.59/2004 (Old) – R.A.No.116/2009 (New) by the Fast Track Judge at Hunsur.

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

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

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Plaintiffs filed a suit for declaration of title and consequential relief of permanent injunction. It is the case of the plaintiffs that the suit schedule properties are Chakra Koduge lands. The said properties were granted in favour of one late Chakramadaiah (husband of the first plaintiff and father of plaintiff Nos.2 to 5) and Maliya,

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5 - NC: 2023:KHC:39697 RSA No. 297 of 2012

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Biliya, Tamata on 12.04.1961 by the Special Deputy Commissioner, Mysore in view of the services rendered by them on Inam Koduge. The suit schedule properties were allotted to Chakramadaiah and he was cultivating the same till his death. Maliya, Biliya and Tamata are enjoying their shares separately. It is the case of plaintiffs that the defendants have no manner of right over the suit schedule properties, have been trying to trespass into suit schedule properties. Chakramadaiah died on 07.03.1996 leaving behind the plaintiffs as his legal heirs and after his demise the plaintiffs are cultivating the suit schedule properties. All the revenue records stood in the name of Madaiah and three others. It is contended that the defendants are trying to prevent the plaintiffs from getting mutation order in respect of the suit schedule properties. Hence, cause of action arose for the plaintiffs to file the suit.

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The defendants filed their written statement

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denying that the suit schedule properties were granted in favour of Chakramadaiah on 12.04.1961. Chakramadaiah

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and other Chakras like Maliya, Biliya and Tamata were never been in joint cultivation of the suit schedule properties by doing Chakra Inam services. It is denied that the suit schedule properties were partitioned and in the said partition, the suit properties fell to the share of Chakramadaiah. It is contended that the plaintiffs are not

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having any right over the suit properties and are not in possession of the suit schedule properties. The father of Chakramada is one Saragooraiah. Suit schedule properties were granted to Maliya, Biliya, Mada and Tamata. In the grant certificate, their names are shown. The name Sannana Mada as mentioned in grant certificate is the name of the defendant No.1. There was a dispute between Tamataiah's family of Sagare Village and the family of the defendants. Therefore, at the instigation of the family members of Tamataiah, the 1^st plaintiff and other plaintiffs have filed this false suit contending that the name Mada is the name of the husband of the 1st plaintiff and father of other plaintiffs. Grand father of the 1^st defendant is one Marigullaiah. Defendant No.2 is the son

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NC: 2023:KHC:39697 RSA No. 297 of 2012

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of the elder brother of the defendant No.1 and 3^rd defendant is the son of the defendant No.2. It is contended that one Marigullaiah who was the grandfather of defendant No.1, alone was performing Chakra Inam Service during his life time. After his death his first son Sannaiah, the father of defendant No.1 was performing the Chakra Inam Service. After the death of Sannaiah, Sannagandaiah, the last son of Marigullaiah, was performing Chakra Inam Service. It is further contended that because of the dispute between defendant Nos.1 and 2, defendant No.2 left the Sagare village and defendant No.1 was performing Chakra Inam Services. Further, in 1961, the suit properties were granted to defendant No.1 along with other Chakras by the Special Deputy Commissioner, Mysore. It is stated that the plaintiffs have no manner of right over the suit schedule properties and all the revenue records stood in the name of the defendant No.1 and three others. Hence, prays to dismiss the suit.

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NC: 2023:KHC:39697 RSA No. 297 of 2012

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Trial Court on the basis of the pleadings of the

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parties framed the following five issues:

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"1. Whether the plaintiffs proves that, he is the owner of the suit schedule property by virtue of the grant made by the Special Deputy Commissioner on 12.04.1961 as a Chakra Inamu?

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2. Whether the plaintiffs further proves that, plaintiffs are personally cultivating the suit schedule property from the date of filing of this suit?

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3. Whether the plaintiffs further proves that defendants are trying to interfere over the plaintiffs peaceful possession and enjoyment of the suit schedule property?

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4. Whether the plaintiffs are entitled for the relief?

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5. What order or Decree?"

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The plaintiffs in order to establish their case plaintiff No.1 was examined herself as PW1 and also examined another witness as PW2 and got marked 52 documents as Ex.P1 to P52. The first defendant examined himself as DW1 and got marked 43 documents as Ex.D1 to D43.

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NC: 2023:KHC:39697 RSA No. 297 of 2012

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The trial Court considering the oral and documentary evidence answered Issue No.1 to 4 in the affirmative and consequently decreed the suit of the plaintiffs by declaring that the plaintiffs are the absolute owners of the suit schedule properties and restrained the defendants by way of decree for permanent injunction from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule properties in any manner.

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The defendants, being aggrieved by the judgment and decree dated 19.02.2004 passed by the Civil Judge (Jr. Dvn.) & JMFC at H.D. Kote in O.S.No.119/1996 have preferred an appeal in RA OLD No.59/2004 - RA NEW No.116/2009 before the Fast Track Judge at Hunsur.

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The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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"1) Whether the appellants have made out that judgment and decree passed by the trial Court is not based on sound principles of law and the facts and circumstances of the case?

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10 - NC: 2023:KHC:39697 RSA No. 297 of 2012

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2) Whether the appellants have made out that the judgment and decree passed by the trial Court has to be interfered with?

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3) What order?"

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The First Appellate Court on re-appreciation of

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oral and documentary evidence answered point Nos. 1 and 2 in the affirmative and point No.3 as per the final order. The First Appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court and consequently the suit of the plaintiffs was dismissed. Plaintiffs aggrieved by the judgment and decree passed by the First Appellate Court on 30.07.2011 in R.A.No.59/2004(OLD) – R.A.No.116/2009 (NEW) are before this Court in the present second appeal.

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This appeal was admitted on 16.06.2012 to consider the following substantial question of law:

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"Whether the first Appellate Court adopted well established principles of law in re-appreciating the evidence and justified in reversing the judgment and

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11 - NC: 2023:KHC:39697 RSA No. 297 of 2012

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decree of the trial Court, by dismissing the suit of the appellant?"

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Heard the learned counsel for plaintiffs and

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learned counsel for defendants.

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Learned counsel for plaintiffs submits that the First Appellate Court has committed an error in passing the impugned judgment. He submits that the suit schedule properties were granted in favour of the husband of plaintiff No.1 and father of plaintiff Nos.2 to 5. He submits that the plaintiffs are in peaceful possession and enjoyment of the suit schedule properties after the death of Chakramadaiah. He submits that in order to establish their possession over the suit schedule properties, the plaintiffs have produced records, ie., RTC extract of the suit schedule properties and also produced copy of the judgment in OS No.159/1980, wherein the suit for permanent injunction was filed against the husband of the plaintiff No.1. He submits that the First Appellate Court has failed to consider the documents produced by the

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12 -

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NC: 2023:KHC:39697 RSA No. 297 of 2012

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plaintiffs and wrongly passed the judgment. He submits that the trial Court has not framed the issue regarding relationship of plaintiffs with Mada. He submits that the Mada @ Chakramadaiah is the husband of plaintiff No.1 and father of plaintiff Nos. 2 to 5. He submits that the defendants in their cross-examination have admitted that they have challenged the grant order made in favour of Chakramadaiah. Hence, on these grounds he prays to allow the appeal.

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Per contra , learned counsel for defendants submits that the plaintiffs are not at all related to Mada. He submits that the Chakramadaiah is not the same person, ie., Mada. He submits that the name Mada referred to in the grant order is not the husband of plaintiff No.1 and father of Plaintiff Nos.2 to 5. He submits that the plaintiffs have no relationship with Mada, which is the name shown in the grant order. He submits that the plaintiffs have not produced any records to show the relationship with Mada and further he submits that the

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13 - NC: 2023:KHC:39697 RSA No. 297 of 2012

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First Appellate Court on consideration of the oral and documentary materials on record has rightly re-appreciated the evidence and passed the impugned judgment. Impugned judgment passed by the First Appellate Court is just and proper and does not call for any interference by this Court. 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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Plaintiff No.1 examined herself as PW.1. She has reiterated the plaint averments in the examination-inchief. In support of her contention, produced Exs.P.1 to P35 are the RTC extracts in respect of land bearing survey No.331 stands in the name of Madaiah, Maliyaiah, Billiyaiah, Tamataiah. Exs.P.36 to P41 are the tax paid receipts. Exs.P.42 to P47 are certified copies of record of rights and index of lands of suit schedule properties, Exs.P.48 and P49 are the certified copy of the judgment and decree

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14 -

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NC: 2023:KHC:39697 RSA No. 297 of 2012

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passed in O.S.No.159/1980 filed by Bilinaika against Chakramadaiah i.e., the husband of plaintiff No.1 for the

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relief of permanent injunction in respect of property bearing Sy.No.494. The said suit came to be dismissed. The plaintiffs in the said suit preferred an appeal in R.A.No.70/1986 and said appeal also dismissed. Ex.P.50 and 51 are the certified copies of judgment and decree passed in R.A.No.70/1986 and Ex.P.52 is the certified copy of the grant order dated 12.04.1961 which discloses that the Special Deputy Commissioner, Inams Abolition, Mysuru Division, Mysuru, was pleased to grant the suit schedule properties at item Nos.1 to 7 and the lands in Survey No.14 in favour of Malaya, Biliya, Mada and Tamata. The controversy involved in this case is whether the name shown as Mada in the Ex.P.52 is the name of defendant No.1 or the name of the husband of plaintiff No.1 and father of plaintiff Nos.2 to 5.

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In the course of cross examination of PW.1, it is elicited that plaintiff No.1 is the third wife of

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Chakramadaiah and first wife of Chakramadaiah is alive and it is elicited that at the time of filing the suit, it is not pleaded in the plaint that Chakramadaiah was already married and it is admitted that name of father of defendant No.1 is Sannaiah. She does not know what is written in the application. It is elicited that husband of the plaintiff No.1 submitted an application before the Special Deputy Commissioner for land grant and she does not know what was written in the said application, in the place of the name of the father of her husband and she also admitted that she has not produced the said application.

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In order to prove the relationship between plaintiff No.1 with Mada, plaintiffs examined one witness as PW.2. He has deposed in the same line of PW.1. He admits that the plaintiff No.1 is the third wife of Chakramadaiah and he do not know the name of second wife of Chakramadaiah. He further admits that he do not know the name of first wife of Chakramadaiah’s first wife name is Puttaveeramma and she is still alive. It is suggested to PW.2 that the said suit lands were not granted in favour of husband of plaintiff

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No.1. The said suggestion was denied by PW.2. He admits that at the time of filing the suit, he has engaged a counsel.

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In rebuttal, defendant No.1 was examined as DW.1 and he has reiterated the written statement averments in the examination-in-chief and produced the documents Ex.D.1 to 31 are the RTC extracts in respect of suit schedule properties and Ex.D32 and 33 are the tax paid receipts. Ex.D34 and 35 are the Index of lands, Ex.D.36 and 37 are the record of rights, Ex.D.38 is the endorsement issued by the Deputy Commissioner, Ex.D.39 to 41 are the certified copy of the application, statement and endorsement, Ex.D42 is the voters list of plaintiff’s husband name and Ex.D43 is the voters list of defendants name.

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From the perusal of the documents produced by the parties, discloses that suit schedule properties were granted in favour of Bilinaika, madaiah and his brothers and suit schedule properties are in the joint names and

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further the plaintiffs in order to prove that Chakramadaiah and Mada is one and the same person, the plaintiffs have not produced any records to show that Mada and Chakramadaiah are one and the same. Further voters list discloses that the name of husband of plaintiff No.1 as Madaiah and name of father of Madaiah as Saraguraiah though the defendants have denied that PW.1 is not the wife of Mada. The burden is on the plaintiffs to establish the relationship of plaintiff No.1 with Mada. As observed above, that plaintiff No.1 has not produced any record to show the relationship of plaintiff No.1 with the Mada and Further the plaintiff No.1 has also failed to establish that Mada and Chakramadaiah are one and the same. The plaintiff No.1 has produced the copy of the judgment passed in O.S.No.159/1980 to establish the relationship of PW.1 with deceased Chakramadaiah and the judgment passed in O.S.No.159/1980 which is marked as Ex.P.48. From the perusal of the cause title of the judgment in O.S.No.159/1980 which discloses that plaintiff No.1 is the wife of deceased Chakramadaiah, as observed

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above ,the plaintiff has not produced any records to show that very same Chakramadaiah is also called as Mada. In the absence of evidence on record, that Chakramadaiah was called as Mada, this Court is of the opinion that the plaintiffs have failed to prove that they are the legal heirs of alleged Mada and deceased Chakramadaiah are the one and the same persons.

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Learned counsel for the plaintiffs submits that the defendants have not proved the title over the suit schedule properties. It is well established principles of law that, the person who approached the Court must establish his case independently, but cannot depend upon the weakness of the defendants. In view of the law laid down by the Hon’ble Apex Court in the case of T.K. Mohammed Abubucker (D) through LRs. And others Vs. P.S.M. Ahamed Abdul Khader and others, reported in AIR 2009 SC 2966 , the Hon’ble Apex Court held that "The plaintiff filed suit for declaration of title and possession, can succeed only by making out his title and entitlement

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to possession and not on any alleged weakness in the title or possession of the defendants." Admittedly, the plaintiffs have failed to prove that the suit schedule properties were granted in favour of the husband of plaintiff No.1 and father of plaintiff Nos.2 to 5. Thus, the First Appellate Court considering the material on record has rightly passed the judgment. Hence, I do not find any error in the impugned judgment. In view of the above discussion, substantial question is answered in the affirmative.

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Accordingly, I proceed to pass the following:

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ORDER

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Appeal is dismissed.

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The judgment and decree passed by the First Appellate Court in R.A.No.59/2004(Old) R.A.No.116/2009 (New) is hereby confirmed.

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No order as to the costs.

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SD/-

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JUDGE

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VK, SKS

Kumbalamma Since Dead by Her Lrs v. Sri Madaiah S/O Late Sannaiah

Case brief

What is this about?

What did the court decide?

Kumbalamma Since Dead by Her Lrs v. Sri Madaiah S/O Late Sannaiah

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