Dismissed

Sri M S Dharmapala v. Sri M N Manjunatha

Karnataka HC16 Oct 2024RSA/1272/2021

Case brief

AI extract

What is this about?

This second appeal against a partition suit decree was dismissed. The High Court held that the courts below were justified in accepting the plaintiffs' title based on a registered partition deed found to be authentic, despite the appellants' challenge.

What did the court decide?

The appeal was dismissed, and the impugned judgments and decree passed by the courts below were confirmed.

Sri M S Dharmapala Vs Sri M N Manjunatha — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:41948 RSA No. 1272 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF OCTOBER, 2024

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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. 1272 OF 2021 (DEC/INJ)

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BETWEEN:

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SRI M S DHARMAPALA S/O LATE SHIVALINGEGOWDA AGED ABOUT 66 YEARS

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SRI.M.S. KUMARASWAMY S/O LATE SHIVALINGEGOWDA AGED 63 YEARS,

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BOTH ARE AGRICULTURISTS, R/O MUGULAVALLI VILLAGE AND POST, AMBLE HOBLI, CHIKKAMAGALUR TALUK-577 101

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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(BY SRI. SACHIN B S., ADVOCATE)

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AND:

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SRI M N MANJUNATHA S/O LATE NIRVANEGOWDA AGED 59 YEARS,

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…APPELLANTS

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SRI.M.N. RENU KUMAR S/O LATE NIRVANEGOWDA,

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SRI.M.N.VISHWANATHA S/O LATE NIRVANEGOWDA

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ALL ARE AGRICULTURISTS

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NC: 2024:KHC:41948 RSA No. 1272 of 2021

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R/O MUGULAVALLI VILLAGE AND POST CHIKKAMAGALURU TALUK - 577 101

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…RESPONDENTS

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(BY SRI. K S GANESHA., ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 28.09.2020 PASSED IN RA.No.27/2020 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.03.2020 PASSED IN OS No.296/2016 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKAMAGALURU.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This second appeal is filed by the appellants challenging the judgment dated 28.09.2020 passed in R.A.No.27/2020 by the learned Prl. Senior Civil Judge and

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CJM, Chikkamagaluru and the judgment and decree dated 10.03.2020 passed in O.S.No.296/2016 by the learned III Additional Civil Judge and JMFC at Chikkamagaluru.

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For convenience, parties are referred to based

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on their ranking before the trial Court. The appellants are

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3 - NC: 2024:KHC:41948 RSA No. 1272 of 2021

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the defendants, and the respondents are the plaintiffs. The plaintiffs filed a suit for declaration and permanent injunction.

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

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It is the plaintiffs' case the plaintiffs' father, Nirvane Gowda, and the defendants' father late Shivalinga Gowda, were the brothers. On 18.11.1959, the partition was effected, and the same was reduced into writing, and it was registered on 18.11.1959. In the said partition, the suit schedule property was allotted to the share of the father of the plaintiffs' and the possession was handed over to them. During the lifetime of the plaintiffs' father, he was in possession and enjoyment of the suit schedule property. After his demise, the plaintiffs were in peaceful possession and enjoyment of the suit schedule property. It is contended that the name of the plaintiffs' father was shown as Veerappa Gowda. The khata was mutated in the

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4 - NC: 2024:KHC:41948 RSA No. 1272 of 2021

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name of the late Shivalinge Gowda since he was his eldest son. The plaintiffs came to know about this fact and approached the revenue authorities for a change of khata into their names. The defendants agreed to cooperate with the plaintiffs' for a change of khata. Defendant Nos.1 and 2 submitted an affidavit to the Tahsildar expressing their no objection to changing the khata. The plaintiffs submitted one more application. The Tahsildar did not consider the said application, and the Tahsildar refused to change the khata in the name of the plaintiffs. On 09.06.2016, the defendants visited the suit property and tried to take forcible possession of the suit schedule property. On the basis of katha, the plaintiff resisted the action of the defendants. Hence, a cause of action arose for the plaintiffs to file a suit for declaration and permanent injunction.

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Defendant No.1 filed a written statement.

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Defendant No.2 filed a memo adopting the written statement filed by defendant No.1. Defendant No.1 denied

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5 - NC: 2024:KHC:41948 RSA No. 1272 of 2021

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the plaint allegations except by admitting the relationship between the parties. It is contended that defendant No.1 knew about the allotment of the property in the favour of late Nirvane Gowda in the partition deed dated 18.11.1959. It is contended that the defendants' father is in possession and enjoyment of the suit property. The father of the defendant died in the year 1988. The defendants are in peaceful possession and enjoyment of the suit schedule property. It is contended that the suit filed by the plaintiffs is barred by limitation, and pray to dismiss the suit.

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The Trial Court, based on the above said pleadings, framed the issues.

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The plaintiffs to prove their case, plaintiff No.2 was examined as PW.1 and marked 16 documents as Exs.P1 to P16. In rebuttal, defendant No.1 was examined as DW.1 and marked 9 documents as Exs.D1 to D9. The trial Court, after recording the evidence, hearing on both

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6 - NC: 2024:KHC:41948 RSA No. 1272 of 2021

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the sides and after assessment of oral and documentary evidence, decreed the suit of the plaintiffs with costs. It was declared that the plaintiffs are of the absolute owners of the suit schedule property. The permanent injunction was granted in favour of the plaintiffs, restraining the defendants from disturbing the peaceful possession of the plaintiffs over the suit schedule property. The defendants aggrieved by the judgment and decree passed in O.S.No.296/2016, preferred an appeal in R.A.No.27/2020 on the file of learned Prl. Senior Civil Judge and CJM, Chikkamagaluru.

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The First Appellate Court framed the points for consideration.

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The First Appellate Court, on re-assessment of

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oral and documentary evidence, dismissed the appeal by confirming the judgment and decree passed by the trial Court vide judgment and decree passed by the trial Court vide judgment dated 28.09.2020. The defendants

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NC: 2024:KHC:41948 RSA No. 1272 of 2021

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aggrieved by the impugned judgments, filed this regular second appeal.

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9. Heard the learned counsel for the defendants.

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Learned counsel for the defendants submits

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that the Courts below have committed an error in passing the impugned judgments, wherein the defendants have produced the documentary evidence which discloses that they are in possession and enjoyment of the suit schedule property. Without looking into the document i.e., Ex.D1, the courts below have made an error in declaring that the plaintiffs are the absolute owners of the suit schedule property and an error in granting an decree of permanent injunction. Hence, on these grounds, he prays to allow the appeal.

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Perused the records and considered the

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submissions of learned counsel for the defendants.

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8 - NC: 2024:KHC:41948 RSA No. 1272 of 2021

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The plaintiffs filed a suit for declaration of title and injunction based on the registered partition deed dated 18.11.1959 and produced the registered partition deed marked as Ex.P14, which discloses that the suit schedule property was fallen to the share of the father of the plaintiffs and the father of the plaintiffs was in possession and enjoyment of the suit schedule property till his death and after his demise, the plaintiffs succeeded to the suit schedule property. They became the absolute owner of the suit schedule property. In rebuttal, though the defendants contended that they were in possession of the suit schedule property, from the perusal of the crossexamination of DW.1, wherein DW.1 has denied the signature on the written statement and vakalath submitted by his counsel. The evidence of DW.1 is not a trustworthy witness. The trial court recorded the demeanor of DW.1 in denying the signature on the written statement, and Vakalath. The courts below were justified in passing the impugned judgments. The trial Court should have immediately probed into the matter. If should have

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recorded statement of the counsel for DW.1 to find out if vakalatnama in his favour and written statement were not signed by DW.1 whom he represented. It was apparent that DW.1 was trying to get out of the situation when confronted with his signature on the vakalatnama and the written statement. It was a case where instead of going into a protracted trail, the trial Court could have decreed the suit of the plaintiffs. The Hon'ble Apex Court in the case of K.S. SATYANARAYANA VS V.R. NARAYANA RAO reported in AIR 1999 SUPREME COURT 2544 at para No.8 has held as under:

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It was a case where instead of going into a protracted trial, trial court could have decreed the suit of the plaintiff against the 1^st defendant as well at the stage of Order X (Examination of Parties by the Court) of the Code of Civil Procedure. After the 1^st defendant admitted having received rupees one lakh from the plaintiff he could not retain that money on the spacious plea that there was no privity of contract between him and the plaintiff. Amount of rupees one lakh had been given to him by the plaintiff as he wanted to purchase ground floor of his property. The agreement to sell for the purpose was entered into through the 2^nd defendant whom the 1^st defendant had authorised to enter into any such agreement on

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10 - NC: 2024:KHC:41948 RSA No. 1272 of 2021

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his behalf. The plaintiff could not have paid to the 1^st defendant rupees one lakh but for the agreement to sell in respect of ground floor of his property. It is only on the basis of this agreement (Exh.P-2) which is entered into by the 2^nd defendant on the strength of Exh.P-1 that the plaintiff paid rupees one lakh each to the 1^st and 2^nd defendants. If we accept the pleadings of the 1^st defendant then the amount of rupees one lakh had been given by the plaintiff under some mistake. In any case, it was not a payment gratuitously made. Doctrine of undue enrichment would squarely apply in the present case and the plaintiff would be entitled to restitution. In this connection Sections 70 and 72 of the Indian Contract Act, 1872 may be referred to, which are as under:-

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"70. Obligation of person enjoying benefit of non-gratuitous act.- Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

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72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion.- A person to whom money has been paid, or any thing delivered, by mistake or under coercion, must repay or return it."

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11 - NC: 2024:KHC:41948 RSA No. 1272 of 2021

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The courts below were justified in passing the

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impugned judgments. Considering the law laid down by the Hon'ble Apex Court in the case of K.S. SATYANARAYANA

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(SUPRA), I do not find any error in the impugned judgments or any substantial question of law that arises for my consideration in this appeal.

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In view of the above discussion, I proceed to

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pass the following:

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ORDER

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The appeal is dismissed .

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The impugned judgments and decree passed by the Courts below are hereby confirmed.

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No order as to the costs.

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Sd/(ASHOK S.KINAGI) JUDGE

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SSB

Sri M S Dharmapala v. Sri M N Manjunatha

Case brief

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Sri M S Dharmapala v. Sri M N Manjunatha

Case brief

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