Dismissed

Mr Nagegowda v. Mr G N Manju

Karnataka HC2 Sept 2024MSA/37/2021

Case brief

AI extract

What is this about?

The High Court dismissed an appeal challenging an appellate order that remanded a property suit for fresh adjudication. The court held that the trial court failed to properly appreciate the probative value of tax demand register extracts and should have summoned the original register. The remand order was upheld, and the trial court was directed to conclude the matter by March 2025.

What did the court decide?

Appeal dismissed; remand order upheld; trial directed to conclude by 31.03.2025.

Mr Nagegowda Vs Mr G N Manju — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:35464 MSA No. 37 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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MSA NO. 37 OF 2021 (DEC/INJ)

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BETWEEN:

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MR. NAGEGOWDA, S/O TAKKADI SIDDEGOWDA, AGED ABOUT 54 YEARS, R/AT K. GOWDAGERE VILLAGE, KERAGODU HOBLI, MANDYA TALUK, MANDYA DISTRICT-571 446.

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…APPELLANT

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(BY SRI. SHARATH GOWDA G B.,ADVOCATE)

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AND:

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Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA

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MR. G N MANJU, S/O LATE NATHAPPA @ NATHEGOWDA, AGED ABOUT 35 YEARS, R/AT K. GOWDAGERE VILLAGE, KERAGODU HOBLI, MANDYA TALUK, MANDYA DISTRICT-571 446.

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MRS. Y. SHOBHA, D/O LATE NATHAPPA @ NATHEGOWDA, AGED ABOUT 37 YEARS, R/AT NEAR AYURVEDIC HOSPITAL, HOSAHALLI EXTENSION, MANDYA CITY-571 606.

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RESPONDENT NO.1 AND 2 ARE THE LEGAL HEIRS OF DECEASED ORIGINAL PLAINTIFF IN OS NO.836/2011 I.E., NATHAPPA @ NATHEGOWDA.

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…RESPONDENTS

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(BY SRI.KALYAN R.,ADVOCATE FOR R1 & R2)

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NC: 2024:KHC:35464 MSA No. 37 of 2021

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THIS MSA FILED UNDER ORDER 43 RULE 1(4) OF THE CPC TO SET ASIDE THE JUDGMENT AND DECREE DATED 04.08.2020 PASSED IN RA NO.16/2018 ON THE FILE OF 1^ST ADDITIONAL SENIOR CIVIL JUDGE AND CJM AT MANDYA AND ETC.,

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THIS MSA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri. Sharath Gowda, learned counsel for the

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appellant and Sri. Kalyan R, learned advocate for the respondent Nos. 1 and 2.

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Appellant is the defendant in O.S.No.836/2011,

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who has challenged the order of remand dated 04.08.2020 passed in RA No.16/2018 by the first appellate court whereby judgment and decree passed in O.S.No.836/2011 was set aside and the suit is remitted to the trial court for

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fresh disposal in accordance with law.

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Facts in brief which are utmost necessary for

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disposal of the appeal are as under:

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3 - NC: 2024:KHC:35464 MSA No. 37 of 2021

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a) A suit came to be filed for the relief of declaration and injunction in respect of a residential property bearing Property No.312/B measuring East to West towards Northern side 25 feet, towards Southern side 15 feet, and North to South 55 feet, situated in K Gowdagere Village, Keragodu Hobli, Mandya Taluk, (hereinafter referred to as ‘suit property’).

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b) It is the contention of the plaintiff that the suit property is the ancestral property of the plaintiff and katha of the suit property is standing in the name of Sri. Boregowda, who is the father of the plaintiff. It is further contended that father of the plaintiff died leaving behind plaintiff as only legal heir. Thereafter, plaintiff is in possession of the suit property by paying tax to the Government. It is also contended that without there being any manner of right, title or interest over the suit property, defendants started interfering questioning the title of the plaintiff in respect of the suit property and therefore, he filed the suit.

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NC: 2024:KHC:35464 MSA No. 37 of 2021

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c) Pursuant to the suit summons, defendants entered appearance and denied the plaint averments. Learned trial judge recorded the evidence of the plaintiff and three more witnesses as PW1 to PW4. On behalf of the plaintiff, as many as 22 documents were placed on record. Ex.P12 is the copy of the Demand Register at an undisputed point of time in respect of the suit property.

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d) As against the evidence placed on record by the plaintiff, defendant Nagegowda got examined himself as DW1 and one more witness namely Lakkashetty as DW2. Eight documents were placed on record on behalf of the defendant comprising of the copy of the Plaint, Written Statement and order sheet in O.S.No.193/2007 and copy of Miscellaneous Petition No.6/2008 and order sheet in the said Miscellaneous case. Ex. D7 is the Assessment Register Extract in respect of the property filed by the defendant and Ex.D8 is the copy of the Rectification Deed.

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e) Learned trial judge on conclusion of recording of evidence, on cumulative consideration of oral and

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5 - NC: 2024:KHC:35464 MSA No. 37 of 2021

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documentary evidence on record, recorded a categorical finding that the plaintiff failed to prove his title to the suit property by placing cogent and convincing evidence on record and dismissed the suit. Trial Court also discarded

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the probative value of Ex. P12 which is a copy of Tax Demand Register at an undisputed point of time in respect of the suit property where the name of the ancestors of the plaintiff is forthcoming.

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f) Being aggrieved by the dismissal of the suit, plaintiff filed an appeal before the first appellate court.

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g) Learned judge of the first appellate court, after securing the records, heard the arguments of the parties in detail and upon reappreciating the material evidence on record found that the probative value of Ex.P12 has not been properly appreciated by the learned trial judge and also noted about the contra title to the property claimed by the defendant based on the sale deed and the effect of Ex. D8 Rectification Deed, set aside the judgment and

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NC: 2024:KHC:35464 MSA No. 37 of 2021

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decree of trial court and remanded the matter to the trial

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court for fresh disposal in accordance with law.

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h) The operative portion of order of the first

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appellate court reads as under:

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“ORDER

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The appeal filed under order XLI rule 1 read with section 96 of the Code of Civil Procedure is hereby allowed.

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The impugned Judgment and decree n Os No.836/2-011 dated 01.02.2018 on the file of I Addl. Civil Judge & JMFC, Mandya is hereby set aside and the matter is remanded to the learned trial court.

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The learned trial court is directed to dispose of the matter as expeditiously as possible.

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Office is directed to draw the decree accordingly.

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The office is hereby directed to send the trial court records immediately to the learned trial court.

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Office is directed t o send a copy of this order along with the records.”

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4. Being aggrieved by the same, the appellant has

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filed this appeal before this court .

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7 - NC: 2024:KHC:35464 MSA No. 37 of 2021

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Sri. Sharath Gowda, learned counsel

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representing the appellant, reiterating the grounds urged in the Appeal Memorandum, contended that learned judge of the trial judge has rightly appreciated the probative value of Ex.P12 by furnishing the necessary reasons in discarding the Ex.P12 which has been lightly brushed aside

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by the of learned judge of the first appellate judge resulting in miscarriage of justice uncalled for and therefore, sought for allowing the appeal.

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Per contra, Sri. R Kalyan learned counsel for

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respondent – plaintiff supports the impugned judgment and seeks dismissal of the appeal.

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Having heard the learned counsel for the parties

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in detail, this court perused the material placed on record. Sri. Sharath Gowda, learned counsel for the appellant filed

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a memo along with copy of Ex.P12 for perusal of this court. The same is taken on record.

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NC: 2024:KHC:35464 MSA No. 37 of 2021

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This court perused the Ex.P12 meticulously. No

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doubt, the reasoning recorded by the learned trial judge that Ex.P12 does not contain the necessary details as to which panchayath has issued Ex.P12 and what are the base documents for the entries made in Ex.P12 and such other necessary details are not forthcoming in Ex.P12. It is true that on perusal of Ex.P12, prima facie these details are absent in Ex.P12.

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However, this court cannot lose sight of the fact that Ex.P12 is only an extract of the Demand Register and not the Demand Register itself. Learned trial judge if at all doubted the veracity of Ex.P12, nothing prevented him to summon the very Tax Demand Register itself. Plaintiff is claiming that the suit property is ancestral property and therefore, except the tax paid receipts and other revenue entries, no other document of title would be available for the plaintiff to establish the right over the property.

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A declaratory relief is sought when there is a cloud on the title of a litigant. In the case on hand,

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9 - NC: 2024:KHC:35464 MSA No. 37 of 2021

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defendant has claimed a contra title and plaintiff is claiming that it is an ancestral property. At an undisputed point of time, the suit property was a revenue property and later on when the city has grown, the agricultural property which was belonging to the family of a person would have now come under the jurisdiction of the local municipality. Assessment number is also furnished by the plaintiff in the schedule and taxes are being paid. Therefore, a detail enquiry is necessary whether the property belonging to the ancestors is the property that has been now claimed by the plaintiff which is now having the municipal katha number.

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Without holding such an enquiry, without taking the necessary steps to ascertain the genuineness Of EX.P.12, dismissal of the suit for declaration has thus resulted in miscarriage of justice, is the findings recorded by the learned first appellate judge if not in so many words.

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10 -

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NC: 2024:KHC:35464 MSA No. 37 of 2021

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More over, the defendants will have an

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opportunity to meet the case of the plaintiff when the fresh adjudication takes place on the aforesaid aspects of the matter.

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Therefore, the order of the first appellate court cannot be faulted with on the ground that there is improper appreciation of the material evidence on record so as to interfere with the order of the first appellate court by exercising the power vested in this Court under Order

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XLIII rule 1(u) of Code of Civil Procedure, 1908.

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Accordingly, the following:

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ORDER

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i) The appeal is dismissed

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ii) The order of the remand of the first appellate court is upheld.

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iii) Since the suit is of the year 2011, the trial court is hereby directed to adjudicate it afresh and conclude the same on or before 31.03.2025.

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NC: 2024:KHC:35464 MSA No. 37 of 2021

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iv) It is needless to emphasis that the parties shall cooperate for the same.

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v) It is also made clear that admissions made by the parties cannot be allowed to be withdrawn.

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vi) The parties shall appear before the trial court without further notice on 23.09.2024.

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vii) No order as to costs.

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Sd/(V SRISHANANDA) JUDGE

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Bsv List No.: 1 Sl No.: 40

Mr Nagegowda v. Mr G N Manju

Case brief

What is this about?

What did the court decide?

Mr Nagegowda v. Mr G N Manju

Case brief

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