Cross-suits over ownership of one acre twenty guntas in Sy.No.45; concurrent findings that Mallesha proved title through registered sale deeds while Boraiah failed to establish title by succession or oral partition. Second appeal dismissed with no substantial question of law arising.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.1367 OF 2016 (DEC) C/W REGULAR SECOND APPEAL NO.1368 OF 2016 (DEC)
IN R.S.A.No.1367/2016
BETWEEN:
SRI BORAIAH, S/O. LATE SIDDAIAH ALIAS SIDDEGOWDA, AGED ABOUT 66 YEARS, R/AT KAMPALAPURA, HULIYURDURGA HOBLI, KUNIGAL TALUK – 572 02. ... APPELLANT (BY SRI R.S. RAVI, SENIOR ADVOCATE FOR SRI AKARSH KUMAR GOWDA, ADVOCATE)
AND:
Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA
SRI MALLESHAIAH ALIAS MALLESHA, S/O. LINGAPPA ALIAS NINGAPPA, AGED ABOUT 56 YEARS, R/AT KAMPALAPURA, HULIYURDURGA HOBLI, KUNIGAL TALUK, 57202. (IN THE LOWER APPELLATE COURT BY MISTAKE THE NAME OF MALLESHA HAS BEEN WRONGLY TYPED AS MALLESHAIAH) ... RESPONDENT
(BY SRI R.B. SADASIVAPPA, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.04.2016 PASSED IN RA NO.39/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., KUNIGAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.06.2013 PASSED IN
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O.S.NO.112/2005 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., KUNIGAL AND ETC.
IN R.S.A. NO.1368/2016
BETWEEN:
SRI BORAIAH, S/O. LATE SIDDAIAH ALIAS SIDDEGOWDA, AGED ABOUT 66 YEARS, R/AT KAMPALAPURA, HULIYURDURGA HOBLI, KUNIGAL TALUK – 57202. ... APPELLANT (BY SRI R.S. RAVI, SENIOR ADVOCATE FOR SRI NARENDRA D.V. GOWDA, ADVOCATE)
AND:
SRI MALLESHAIAH, S/O. LINGAPPA ALIAS NINGAPPA, AGED ABOUT 56 YEARS, R/AT KAMPALAPURA, HULIYURDURGA HOBLI, KUNIGAL TALUK – 57202. (IN THE LOWER APPELLATE COURT BY MISTAKE THE NAME OF MALLESHA HAS BEEN WRONGLY TYPED AS MALLESHAIAH) ... RESPONDENT (BY SRI NANDISH GOWDA G.B., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.04.2016 PASSED IN R.A.NO.40/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., KUNIGAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.06.2013 PASSED IN O.S.NO.182/2005 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., KUNIGAL AND ETC.
THESE APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Both the appeals are taken up together, as they arise out of the common judgment and decree in RA Nos.39/2013 and 40/2013 on the file of Senior Civil Judge and JMFC, Kunigal (herein after referred to as 'First Appellate Court' for short), confirming the judgment and decree in OS.Nos.112/2005 and 182/2005 on the file of Additional Civil Judge and JMFC, Kunigal (herein after referred to as 'trial Court' for short).
3. Brief facts are that:
Suit property in both the suits are Sy.No.45 measuring 1 acre 20 guntas (herein after referred to as 'schedule property' for short). The plaintiff-Mallesha in
OS.No.112/2005 averred that the schedule property is the self acquired property of the plaintiff, having purchased under registered sale deed dated 27.04.1970, for valuable consideration from Thirumalashetty, who had purchased the schedule property from the previous owner-Siddaiah on 14.06.1964, under registered sale deed and enjoyed the schedule property as the owner.
Mallesha had paid the mortgage money to the legal representatives of Kalashetty and mortgage has been discharged and that he is the absolute owner in possession of the schedule property.
6. Plaintiff-Mallesha filed rejoinder in
OS.No.112/2005 bringing the family genealogical tree of the parties and contended that the late Siddegowda s/o Kempegowda is not the father of defendant-Boraiah, he is
the great grandfather of Boraiah and the father of Boraiah is Siddaiah as mentioned in the family genealogical tree.
the suits framed the following issues in OS.No.112/2005 and OS.No.182/2005, which reads as under:
" Issues in OS 112/2005
1. Whether the plaintiff proves that he is an absolute owner of the suit schedule properties by virtue of registered sale deed dated 27.04.1970?
2. Whether the plaintiff proves that with respect to the suit schedule properties mortgage was redeemed as contended in para-4 of the plaint?
3. Whether the plaintiff further proves that, the defendant has interfered with his peaceful and enjoyment of suit schedule properties?
4. Whether the defendant proves that the plaintiff and his vendors manipulated and concocted alleged sale deeds dated 14.06.1964, 27.4.1970 as contended in para-7 of the written statement?
5. For what reliefs parties are entitled to?
6. What order or decree?
Issues in OS 182/2005
1. Whether the plaintiff proves that he is an absolute owner of the suit schedule properties by virtue of M.R.No. 1/73-74?
2. Whether the plaintiff proves that the defendant and his vendors manipulated and concocted alleged sale deeds dated 14.06.1964, 27.04.1970?
3. Whether the plaintiff further proves that the alleged mortgage was redeemed on 14.02.1974 in M.R.No.1/73-74 as contended in para-4 of the plaint?
4. Whether the defendant proves that he is the absolute owner of the suit schedule property by virtue of sale deed dated 27.04.1970?
5.
6. What order or decree?"
plaintiff-Mallesha examined himself as PW1, four witnesses as PW2 to PW5, marked documents at Ex.P1 to Ex.P35. On the other hand, the defendant-Boraiah examined himself as DW1, one witness as DW2, marked documents at Ex.D1 to D22.
and documentary evidence held:
to prove that the mortgage was redeemed on
14.02.1974 by Boraiah.
OS.No.112/2005 and the plaintiff in OS.No.182/2005 preferred appeal before the First Appellate Court, the First Appellate Court while re-appreciating and reconsidering the entire oral and documentary evidence, concurred with the judgment and decree of the trial Court. Aggrieved, Boraiah is before this Court in the regular second appeal.
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that his father had mortgaged the schedule property in favour of Kalashetty and in order to substantiate his contention, he is producing certified copy of the mortgage deed dated 17.11.1961 and the additional document sought to be produced is relevant for the Court to pass the judgment in the present dispute between the parties.
a. Justifying the judgment and decree of the Courts below, learned counsel would mainly contend that the plaintiff-Mallesha is the absolute owner of the schedule property having purchased under registered sale deed dated 27.04.1970 from the vendor Thirumalashetty, who had purchased the property in the year 1964.
of Siddegowda, when the material and evidence clearly indicates that he is not the son of Siddegowda, but the son of Siddaiah, who is shown in the family genealogical tree produced before the Courts below.
c. That the Courts below considering the oral and documentary evidence have rightly arrived at a conclusion that the plaintiff-Mallesha has established his ownership over the schedule property and the concurrent findings of facts recorded by the Courts below does not warrant any interference under Section 100 CPC and sought for dismissal of the appeal.
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Kempegowda(dead)
Siddegowda(dead)
Javaregowda(dead) Sannaiah(dead)
Siddaiah(dead)
Kariningamma(I wife) Channamma(II wife) 1. Sidda
2. Byra
Siddaiah (dead) 3. Javaraiah
4. Boraiah(def)
Byraiah 5. Kempa
6. Rajanna
Ningappa(d) Byrappa Channappa(dead) Mari(dead)
Narasamma(wife)
Jayamma Shivalingamma Malleshaiah
17. Plaintiff-Mallesha purchased the schedule
property under registered sale deed dated 27.04.1970 from the vendor namely Thirumalashetty, at the time of purchasing of the schedule property, the plaintiff was minor and he was represented by his mother Narasamma as a minor guardian, the sale deed is marked at Ex.P1 and the sale deed by Siddaiah and on behalf of his two minor
sons, namely Byraiah and Javaregowda in favour of the Thirumalashetty-vendor of the plaintiff dated 14.06.1964 is at Ex.P2, in Ex.P1-the sale deed in favour of Mallesha, it reveals that the vendor of the plaintiff had received Rs.1,400/- as sale consideration and directed the plaintiffMallesha to redeem the mortgage, as the mortgage amount was not redeemed, there was a suit initiated by the wife and children of Kadashetty, which came to be decreed.
Siddaiah who is non other than the elder brother of defendant and further, in a partition effected between the brothers, the schedule property has fallen to the share of defendant. The specific contention of defendant-Boraiah is that his father is Siddaiah, the son of Siddegowda. The trial Court and the First Appellate Court observed and arrived at a conclusion that the defendant-Boraiah in his cross-examination has clearly admitted that his grandfather's name is Siddegowda and his father’s name is Siddaiah, who is also called as Siddaiah. The First Appellate Court while re-appreciating the entire oral and documentary evidence, especially at paragraph Nos.19, 20 and 21 has held that the defendant-Boraiah has failed to establish and prove his title over the schedule property on the basis of succession and his claim about oral partition is
also been failed to be established by the defendantBoraiah.
certified copy of the mortgage deed dated 17.11.1961 and
according to the defendant, his father had mortgaged the schedule property in favour of Kadashetty, perusal of the averments in the written statement, the defendant pleaded that ‘late father of the defendant mortgaged the part of the written statement schedule property to an extent of 2 acres, in favour of one H. Kadashetty and the same is redeemed by the third son by name Byraiah s/o late Siddaiah the elder brother of the defendant, the additional evidence sought to be produced is permitted only under three circumstances, which are:
evidence cannot be allowed, if the appellant was not
diligent in producing the relevant documents in the Court below.
about the alleged deed dated 29.07.1961 and the defendant-Boraiah wants to contend that his father is also called as Siddegowda, when the fact remains that the defendant failed to establish that his father name is Siddegowda. The additional evidence sought to be produced by the defendant does not come under the ingredients, which needs to be satisfied for allowing an application under Order XLI Rule 27 CPC, the additional evidence sought to be produced is not required to pronounce the judgment and accordingly, IA. No.1/2024 for additional documents is hereby rejected.
over the schedule property and the plaintiff in OS.No.112/2005 has established his title based on Ex.P2 and P2-the sale deed dated 27.04.1970 in favour of the plaintiff and dale deed 14.06.1964 in favour of his VendorThirumalashetty, the manner in which the Courts below have considered the entire oral and documentary evidence, this Court is of the considered view that the same does not warrant any interference under Section 100 CPC and no substantial question of law arises for consideration in the present appeals and this Court pass the following:
ORDER
dismissed.
Sd/(K.S. HEMALEKHA) JUDGE
AT / List No.: 1 Sl No.: 24
3 issues framed by the court
Whether the plaintiff in OS.112/2005 proved absolute ownership of Sy.No.45 by sale deeds dated 14.06.1964 and 27.04.1970?
Whether Boraiah established title to the schedule property by succession or oral partition?
Whether additional evidence (mortgage deed dated 17.11.1961) could be admitted under Order XLI Rule 27 CPC?
2 provisions across 1 enactments
Boraiah s/o late Siddaiah alias Siddegowda
Malleshaiah alias Mallesha s/o Lingappa @ Ningappa
K.S. Hemalekha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
