Dismissed

Sri H.J. Sathynarayana v. H.J. Padmanabha

Karnataka HC4 Jun 2024RSA/1176/2013

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal summarily, upholding the finding that the plaintiff failed to establish title due to a forged sale deed and lack of diligence in prosecuting the suit, rejecting allegations of lawyer negligence.

What did the court decide?

The appeal was dismissed at the admission stage with no relief granted to the appellant.

Sri H.J. Sathynarayana Vs H.J. Padmanabha — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:19200 RSA No. 1176 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ REGULAR SECOND APPEAL NO. 1176 OF 2013 (DEC)

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BETWEEN:

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SRI. H.J. SATHYNARAYANA, S/O ANANTHA ACHAR, AGED ABOUT 70 YEARS, R/O 1ST CROSS, VIDYANAGAR, SIRSI TOWN, KARWAR DISTRICT.

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…APPELLANT

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(BY SRI. NARAYAN MAYYAR, ADVOCATE FOR SRI. S.R. HEGDE HUDLAMANE, ADVOCATE)

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AND:

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Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA

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H.J. PADMANABHA, S/O ANANTHA ACHAR, AGED ABOUT 59 YEARS, R/O BRAHAMANARA BEEDI, ANAVATTI VILLAGE, SORABA TALUK, SHIVAMOGGA - 577 201.

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SMT. H.J. SUNDARA BAI, W/O ANANTHA ACHAR, AGED ABOUT 72 YEARS, SINCE DEAD REPRESENTED BY R1.

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…RESPONDENTS

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(BY SRI. R. GOPAL, ADVOCATE FOR R1 AND R2; VIDE ORDER DATED 17.01.2024, R1 IS LR'S OF DECEASED R2)

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2 - NC: 2024:KHC:19200 RSA No. 1176 of 2013

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 24.4.2013 PASSED IN R.A.NO.194/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II, SHIMOGA, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 11.11.2009 PASSED IN OS.NO.88/2007 ON THE FILE OF CIVIL JUDGE (SR.DN.) AND JMFC, SORAB.

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

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a. To set aside the Judgment and Decree made in R.A.NO.194/2011, passed by the District and Sessions Court, Shimoga, In the Court of Fast Track - II Shimoga, dated 24.4.2013, their by confirming the Judgment and Decree passed by Civil Judge (Sr.Div) & J.M.F.C. Sorab made in O.S.NO.88/2007 dated 11.8.2009, and kindly grant the prayer made in the said suit.

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b. Issue such other incidental relief which may be deemed fit on the facts and circumstances of the case and also for cost.

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NC: 2024:KHC:19200 RSA No. 1176 of 2013

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JUDGMENT

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The appellant is before this Court challenging the judgment dated 11.08.2009 in O.S.No.88/2007 by the Civil Judge (Sr.Div) & J.M.F.C, Sorab, which has been confirmed by the judgment dated 24.04.2013 in R.A.No.194/2011 by the District and Sessions Judge, Shivamogga.

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The appellant, who was a plaintiff in the said suit, had sought for relief of declaration and possession of the suit schedule property, claiming that the said property originally belongs to Aryara Sanna Mallappa, which has been mortgaged in favour of Narasimha Achar on 10.01.1931. Despite such a usufructory mortgage having been executed, the possession of the land was not handed over and subsequently, Aryara Sanna Mallappa executed a sale deed in favour of the plaintiff on 07.12.1991 and the plaintiff was put in possession thereon. It is on that basis, it is contended that the plaintiff is the owner of the property in possession thereof, which was interfered with by the defendants and

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4 - NC: 2024:KHC:19200 RSA No. 1176 of 2013

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resulting in his dispossession. It is in that background the aforesaid suit for declaration and possession was filed.

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The Trial Court dismissed the said suit taking into consideration the plaint and written statement filed, the affidavits filed in lieu of evidence and the evidence recorded, observing that the documents, which have been produced have not been marked as evidence and there is nothing on record to indicate the title of the plaintiff. Challenging the same R.A.No.194/2011 was filed contending that plaintiff was not informed about the various dates on which adjournment was taken by the advocate, and it is in that background the plaintiff could not prosecute the matter. In the said appeal, evidence was led by the plaintiff and certain documents were marked. The defendants led their evidence and marked Exs.D1 to 76.

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In the First Appellate Court proceedings, the plaintiff was confronted with a handwriting expert report, which came to be marked as Ex.R1. The said handwriting expert

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5 - NC: 2024:KHC:19200 RSA No. 1176 of 2013

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report having been submitted in C.C.No.250/1995, which had been initiated by the defendants for alleged forgery of the sale deed of the year 1981 claimed by the plaintiff.

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The First Appellate Court taking into consideration the said report and also the fact that the plaintiff had no satisfactory explanation and any reasons for the delay in prosecuting the matter and having considered that Aryara Sanna Mallappa had expired in the year 1942 and as such, held that the question of execution of the sale deed in favour of the plaintiff in the year 1981 would not arise. Thus, on merits also, the First Appellate Court has given a finding that the plaintiff was not able to establish his title.

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Be that as it may, the First Appellate Court dismissed the appeal on the ground that the plaintiff was not diligent in prosecuting the matter and there is no satisfactory explanation for the delay in preferring the appeal. It is challenging these findings that the appellants are before this Court.

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6 - NC: 2024:KHC:19200 RSA No. 1176 of 2013

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Learned counsel for the appellant / plaintiff would submit that it is only on account of his Lawyer not having informed the dates of hearing, that the plaintiff could not be present for marking of the documents that he submits that the plaintiff has a good case on merits, the First Appellate Court ought to have taken into consideration the above submission and remanded the matter to the Trial Court for granting permission to lead evidence, mark documents so that the judgment could be passed on merits of the matter.

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Learned counsel for the defendants would however, submit that the entire suit is false, a frivolous expedition, which is an abuse of process of law. The plaintiff, being the stepbrother of the defendants, has fabricated the sale deed, to claim, the title and possession of the property which has been allotted to the defendants under a partition deed, which has been admitted. His submission is also that once earlier in the year 1981 itself, the plaintiff had sought to interfere with the possession of the defendants, resulting in the defendants filing a suit in O.S.No.260/1991 seeking for injunction against the

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NC: 2024:KHC:19200 RSA No. 1176 of 2013

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plaintiff, which was also granted, the appeal in R.A.No.42/1997 came to be dismissed, and R.S.A.No.930/2000 thereon also came to be dismissed.

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The above three concurrent judgments would reflect that the defendants are in possession of the property from way back in the year 1991 and the question of the plaintiff now contending that the plaintiff has been dispossessed in the year 2001 is completely false and frivolous one, made post the disposal of R.S.A.No.931/2000, hence, he submits that there is no substantial question of law, which arises in the present matter, the Trial Court has dealt with the matter on the facts, which has been established and there being no substantial question of law, the appeal would be liable to be dismissed.

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Heard the learned counsel for the appellant, learned counsel for the respondents and perused papers.

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It is not in dispute that the property originally belonged to Aryara Sanna Mallappa, who had executed usufrcutory mortgage in favour of Narasimha Achar, the grandfather

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8 - NC: 2024:KHC:19200 RSA No. 1176 of 2013

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of plaintiffs and defendants on 10.01.1993. Though it is contended otherwise, the First Appellate Court has taken into consideration that the said Aryara Sanna Mallapa expired in the year 1942, the claim of the plaintiff is that a sale deed came to be executed in favour of the plaintiff by the said Aryara Sanna Mallappa on 07.12.1991 and he was in possession of the property. This contention of the plaintiff being put in possession would have to be taken into consideration along with the earlier round of litigation commencing from the filing of O.S.No.260/1991.

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As far as back in the year 1991 itself, the defendants had filed a suit against the plaintiff claiming interference with their possession by the plaintiff. The said suit came to be decreed in favour of the defendants and an order of injunction granted in favour of the defendants against the plaintiff restraining the plaintiff from interfering with the possession of the defendants. An appeal having been filed by the plaintiff in R.A.No.42/1997 came to be dismissed, the second appeal filed in R.S.A.No.931/2001 also came to be dismissed on 29.01.2001.

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9 - NC: 2024:KHC:19200 RSA No. 1176 of 2013

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While so dismissing the second appeal, this Court observed that if at all the plaintiff had a right over the property, he could file necessary suit for declaration of title and restoration of possession.

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However, the plaintiff has chosen to file a suit for declaration of title and restoration of possession, claiming that the plaintiff had been dispossessed of the property in the year 2001. As far back as on 03.04.1991 in O.S.No.260/1991, the Trial Court had confirmed the possession of defendants and held that the plaintiff was not in possession. These aspects have been considered by the First Appellate Court, due to which before the Trial Court, the plaintiff did not lead any evidence.

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The contention of the learned counsel for the plaintiff now that the Advocate did not inform him of the adjournments and the proceedings before the Trial Court, cannot be believed since on enquiry, he submits that the plaintiff has not taken any action against his advocate.

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It is very easy for the plaintiff or the appellant before this Court to make allegations against a counsel, who is not

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10 - NC: 2024:KHC:19200 RSA No. 1176 of 2013

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present before this Court. If at all the plaintiff had taken any action against his counsel for negligence or otherwise or disciplinary proceedings before the Bar Council, it would have been available for that counsel to defend himself against such allegations. No such proceedings having been initiated it cannot now be contended that the lawyer was negligent or otherwise.

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Be that as it may, even on perusal of the judgment of the First Appellate Court as also the order sheet of the Trial Court, it indicates that the matter has been adjourned on as many as 18 times for the purpose of evidence of the plaintiff, which was not led. The other reason given by the plaintiff is that his daughter was not well and she was residing at Rathnagiri. The First Appellate Court has also dealt with the said matter, observing that she started residing in Rathanagiri in the year 2011, much subsequent to the dismissal of the suit on 11.08.2009 and has disbelieved the statement made by the plaintiff.

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Thus, both grounds which have been urged by the appellant are statements of facts, which have been

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11 -

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NC: 2024:KHC:19200 RSA No. 1176 of 2013

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considered by the First Appellate Court, and there is no substantial question of law, which would arise to be considered in the present matter.

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Insofar as the sale deed is concerned, the First Appellate Court has taken into consideration the Ex.R1, the handwriting report filed in C.C.No.260/1991 and has held that the signature of Aryara Sanna Mallappa has been fabricated. If that be so, the very sale deed dated 07.12.1991 relied upon by the plaintiff to try and establish his title is negated by the said elements. Thus, even on merits, the plaintiff not being able to establish his title over the property, the possession having already been vested with the defendants in the year 1991, there being no substantial question of law that would arise for consideration, the above appeal is dismissed at the admission stage.

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GJM List No.: 1 Sl No.: 20 CT: BHK

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Sd/JUDGE

Sri H.J. Sathynarayana v. H.J. Padmanabha

Case brief

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Sri H.J. Sathynarayana v. H.J. Padmanabha

Case brief

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