Dismissed

Nagavva W/O Nagappa Marigoudar v. Chandrappa S/O Mallappa Banakar

Karnataka HC12 Jul 2024RSA/100055/2018

Case brief

AI extract

What is this about?

Second appeal by plaintiffs whose suit for declaration of title, injunction and recovery of possession over three VPC properties was decreed by the Trial Court but reversed on appeal. The High Court upheld the First Appellate Court's finding that title was not proved by documentary evidence, dismissed the appeal at admission for want of substantial question of law.

What the court decided

AI extract

Nagavva W/O Nagappa Marigoudar Vs Chandrappa S/O Mallappa Banakar — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:9790 RSA No. 100055 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL NO. 100055 OF 2018 (DEC-)

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BETWEEN:

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NAGAVVA W/O NAGAPPA MARIGOUDAR AGE: 77 YEARS, OCC: HOUSEHOLD, R/O: JOGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581110.

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BASAVVA W/O RAVI MARIGOUDAR AGE: 40 YEARS, OCC: HOUSEHOLD, R/O: JOGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581110.

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GOURAVVA W/O RUDRAPPA MARIGOUDAR AGE: 78 YEARS, OCC: HOUSEHOLD, R/O: JOGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581110.

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Digitally signed by SAROJA HANGARAKI

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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HALAVVA W/O RAMESHAPPA MARIGOUDAR AGE: 52 YEARS, OCC: HOUSEHOLD, R/O: JOGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581110.

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RATNAVVA W/O HANUMANTAPPA MARIGOUDAR (NOT N RA IT IS STATED HER LRS ALREADY ON RECORD)

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KUMAR S/O HANUMANTAPPA MARIGOUDAR AGE: 62 YEARS, OCC: AGRICULTURIST, R/O: JOGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581110.

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NC: 2024:KHC-D:9790 RSA No. 100055 of 2018

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NAGARAJ S/O HANUMANTAPPA MARIGOUDAR AGE: 48 YEARS, OCC: AGRICULTURIST, R/O: JOGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581110.

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…APPELLANTS

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(BY SRI PRAKASH ANDANIMATH, ADVOCATE SRI CHETAN T. LIMBIKAI, ADVOCATE)

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AND:

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CHANDRAPPA S/O MALLAPPA BANAKAR AGE: 57 YEARS, OCC: AGRICULTURIST, R/O: JOGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581110.

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SHIVAPUTRAPPA S/O HANUMANTAPPA BIDARI AGE: 52 YEARS, OCC: AGRICULTURIST, R/O: JOGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581110.

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…RESPONDENTS

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THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 03.10.2017 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HIREKERUR IN R.A.NO.34/2015 BY ALLOWING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.06.2015 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, HIREKERUR IN O.S.NO.200/2010 BY ALLOWING THIS APPEAL WITH COSTS.

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

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NC: 2024:KHC-D:9790 RSA No. 100055 of 2018

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JUDGMENT

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The present second appeal is filed under Section 100 of the Code of Civil Procedure, 1908¹ by the plaintiffs challenging the judgment and decree dated 03.10.2017 passed in R.A.No.34/2015 by the Senior Civil Judge and JMFC, Hirekerur² and the judgment and decree dated 04.06.2015 passed in O.S.No.200/2010 by the Additional Civil Judge and J.M.F.C., Hirekerur³ whereunder the suit for declaration, injunction and recovery of possession has been decreed by the Trial Court and the appeal filed by the defendants No.1 and 2 has been allowed by the First Appellate Court which has set aside the judgment and decree of the Trial Court and dismissed the suit.

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The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘First Appellate Court’

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3 Hereinafter referred to as the ‘Trial Court’

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It is the case of the plaintiffs that one Siddappa,

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the original propositus, had three sons Mahadevappa, Rudrappa and Hanumanthappa. That the Mahadevappa and Rudrappa died over 30 years ago and Hanumanthappa is missing from more than 35 years. The plaintiffs No.1 and 2 are the heirs of the deceased Mahadevappa, plaintiffs No.3 and 4 are the heirs of deceased Rudrappa and plaintiffs No.5 to 7 are the heirs of deceased Hanumanthappa.

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It is the case of the plaintiffs that the suit properties originally belong to the deceased Siddappa. That after his death, the names of his sons were entered in the revenue records of the property in respect of VPC Nos.14, 15 and 16. That the father of the plaintiffs had not sold the property to anyone during his lifetime and the plaintiffs also did not sell the property. That the defendant No.1 illegally changed the Khata in his name

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and denied the ownership of the plaintiffs. That the defendants have no right over the suit property but they

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have been colluding with Panchayat officials and created documents and defendant No.1 also sold the suit property

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in favour of defendant No.2 two days prior to filing of the suit. That the sale deed is not binding on the plaintiffs and the same is created and concocted by the defendants. Hence, the plaintiffs have filed the suit.

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The defendants No.1 and 2 appeared through their counsel and filed written statement, wherein they have denied the case of the plaintiff. Defendant No.1 took the contention that the suit property originally belongs to him and he has already sold the property in favour of defendant No.2. That the plaintiffs are not having any right over the suit property. Hence, the defendants sought for dismissal of the suit.

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The Trial Court based on the pleadings of the

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parties, framed the following issues:

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“1. Whether the plaintiffs prove that they have owner of the suit schedule property?

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2. Whether the plaintiffs prove that they have possession and enjoyment of suit schedule property?

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3. Whether the plaintiff further proves that sale deed dated 31-07-2010 is not binding his?

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

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5. Whether the plaintiffs entitle for permanent injunction?

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6. Whether the plaintiff is entitle for relief sought for?

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7. What Order or Decree?”

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Plaintiff No.7 examined himself as PW.1. Exs.P.1 to P.10 have been marked in evidence. Defendants No.1 and 2 have been examined as DW.1 and DW.2 respectively. A witness has been examined as DW.3. Exs.D.1 to D.7 have been marked in evidence.

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The Trial Court by its judgment and decree dated 04.06.2015, decreed the suit and passed the following order:

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“The suit filed by the plaintiffs is hereby decreed with costs.

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The plaintiffs are the owner of the suit schedule property.

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The defendants or their men or servants or any other persons is hereby restrain that not to interfering plaintiffs peaceful possession and enjoyment over the suit schedule property VPC.No.14 and 15.

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Further defendants direct that handover the property VPC.No.16 to plaintiff within the 60 days form this order if defendants is filed to do the same the plaintiff is liberty to take a necessary steps for the recovery of possession.

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Draw decree accordingly.”

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Being aggrieved, the defendants preferred R.A.No.34/2015. The plaintiffs entered appearance before

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the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration:

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“1. Whether the Trial Court is justified in holding that the plaintiffs are the owners of the suit schedule property?

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2. Whether the judgment and decree of the Trial Court is capricious, devoid of merits, erroneous and warrants for the interference by the instant court?

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3. What order?”

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The First Appellate Court by its judgment and decree dated 03.10.2017 allowed the appeal of the defendants with cost, set aside the judgment and decree passed by the Trial Court and dismissed the suit with cost. Being aggrieved, the plaintiffs have preferred the present second appeal.

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It is the contention of the appellants that the First Appellate Court erroneously interfered with the well reasoned judgment of the Trial Court and ought not to have dismissed the suit.

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NC: 2024:KHC-D:9790 RSA No. 100055 of 2018

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It is forthcoming that the Trial Court while considering issues framed by it, has recorded the following findings:

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i. The suit schedule property bearing VPC No.14 is originally in the name of one Mahadevappa and after his death the plaintiffs No.1 and 2 are in the peaceful possession and enjoyment of the same as per heirship. The suit schedule property bearing VPC No.15 is originally in the name of one Rudrappa and after his death the plaintiffs No.3 and 4 are in the peaceful possession and enjoyment of the same as per heirship. The suit schedule property bearing VPC No.16 is originally in the name of one Hanumanthappa and after his death the plaintiffs No.5 to 7 are in the peaceful possession and enjoyment of the same as per heirship;

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ii. The documents produced by the plaintiffs demonstrate that the suit properties originally belonged to the father of the plaintiffs;

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iii. An admission of DW.1 clearly shows that VPC Nos.14 and 15 are in the possession of the plaintiffs and the witness only denied that the property No.16 is not in possession of the plaintiffs and the same is in possession of the defendants as per the property exchange;

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iv. DW.1 also admitted that he sold the property two days prior to the filing of the suit. This admission clearly shows that this defendant is trying to construct some documents pertaining to the suit property;

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v. The defendants have not stated in respect of the sale deed in their written statement and also in the examination-in-chief. But DW.1 has stated that the property has been sold by the

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NC: 2024:KHC-D:9790 RSA No. 100055 of 2018

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father of the plaintiffs to defendant No.1 about 40-45 years back;

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vi. The defendants evidence contradicts the written statement and other witnesses statements;

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vii. There are no documents in favour of the defendants pertaining to the suit property;

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viii. The defendants did not have any right over the suit property and hence have no right to alienate the same to anyone in any manner;

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ix. The act of the defendant clearly shows that he has intention to grab the suit property;

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x. The defendant has stated that he was the owner of the suit property but how he got this property is not stated in the written statement or oral evidence also.

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The First Appellate Court while considering the appeal of the defendants and while answering the points

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NC: 2024:KHC-D:9790 RSA No. 100055 of 2018

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framed by it for consideration, has recorded the following findings:

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i. The admission of PW.1 goes to show that they are not in possession of the suit properties. But the Trial Court has wrongly come to the conclusion that the plaintiffs are in possession of Item Nos.1 and 2 of the suit schedule properties;

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ii. Exs.P.1 to P.3 stands in the names of Mahadevappa, Rudrappa and Hanumanthappa. Further, Exs.P.4 to P.6 stands in the name of defendant No.1. As such, the plaintiffs have failed to prove that they are in possession of the suit properties;

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iii. Though DW.1 in his cross-examination has admitted that plaintiffs No.1 to 4 are in possession and enjoyment of Item Nos.1 and 2 suit schedule properties, in support of the

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NC: 2024:KHC-D:9790 RSA No. 100055 of 2018

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admission of DW.1, the plaintiffs have not produced sufficient cogent material before the Court to prove that they are in possession of the suit properties;

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iv. Only on the basis of the admission of DW.1, the Trial Court has wrongly come to the conclusion that the plaintiffs No.1 to 4 are in possession of the Item Nos.1 and 2 of the suit property;

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v. The Trial Court failed to consider the admission of PW.1 himself that they are not in possession of the suit properties;

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vi. It is the plaintiffs who come to the Court seeking the relief of declaration and as such it is their burden to prove the case and weakness of the defendant cannot be taken as an advantage;

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vii. Though the plaintiffs have contended that the schedule properties are ancestral properties, in order to prove the same, the plaintiffs have not produced any iota of material before the Court. They simply produced Exs.P.1 to P.3 and though the Tavaragi Gram Panchayat has issued Ex.P.10 stating that there is no record to show how Khata of the schedule properties stands in the name of the defendant No.1, but the said documents does not support the case of the plaintiffs in any manner;

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viii. DW.3 has clearly deposed that Mahadevappa, Rudrappa and Hanumanthappa have sold the suit properties in the name of the father of the defendant No.1. Though the defendant No.1 has not produced any document to show that he is the absolute owner of the suit properties,

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as already observed it is the plaintiffs who approached the Court seeking the relief of

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NC: 2024:KHC-D:9790 RSA No. 100055 of 2018

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declaration and as such it is their burden to prove the case;

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ix. Defendants have produced Exs.D.3 and D.4 to show that the defendant No.1 was paying tax to the concerned Tavaragi Gram Panchayat with respect to the suit property since 199394. But the Trial Court has miserably failed to consider the same and it has wrongly decreed the suit of the plaintiffs;

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x. If really the plaintiffs were in possession of the suit schedule properties, they ought not to have sought for the alternative relief of possession of the schedule properties. The said fact itself goes to show that the plaintiffs are not in possession of the schedule properties;

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xi. The plaintiffs have not produced sufficient and cogent material to show that they are the absolute owners of the schedule properties.

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It is the forthcoming from the aforementioned that although the Trial Court has decreed the suit, the First Appellate Court upon re-appreciation of the oral and documentary evidence on record, has noticed that the Trial Court has decreed the suit merely on the admission of DW.1. As rightly observed by the First Appellate Court, the declaration as sought for by the plaintiffs with regard to the title of the property cannot be granted merely on the admission of a witness.

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The First Appellate Court has also noticed the admission of PW.1 that the plaintiffs are not in possession of the suit properties. It is further noticed that the Trial Court had ignored the said important admission of PW.1 and hence the finding of the Trial Court that the plaintiffs are in possession of the suit properties is erroneous and contrary to the material on record.

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It is further forthcoming that although the plaintiffs have filed the suit seeking for declaration of title as well as for injunction and in the alternative, for

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NC: 2024:KHC-D:9790 RSA No. 100055 of 2018

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possession, the plaintiffs have not produced any document to demonstrate as to how they are entitled to seek a declaration as to title. As rightly noticed by the First Appellate Court, merely on the admission of DW.1 the Trial Court has decreed the suit which is erroneous and has rightly been interfered with by the First Appellate Court.

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The First Appellate Court has further rightly observed that the decree as sought for by the plaintiffs for declaration as also the consequential relief of injunction/possession ought not to be granted without the plaintiffs producing any documentary evidence as to how they have title to the suit property.

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In view of the discussion made above, the First Appellate Court was perfectly justified in interfering with the judgment and decree passed by the Trial Court and dismissing the suit.

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The appellants have failed in demonstrating that any substantial question of law arises for consideration in the above appeal. Hence, the above appeal is dismissed at the stage of admission itself as being devoid of merit.

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Sd/JUDGE

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SH CT:GSM List No.: 1 Sl No.: 32

Nagavva W/O Nagappa Marigoudar v. Chandrappa S/O Mallappa Banakar

Case brief

What is this about?

What the court decided

Nagavva W/O Nagappa Marigoudar v. Chandrappa S/O Mallappa Banakar

Case brief

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