Dismissed

Muddappa S/O Basappa v. Shivanna

Karnataka HC25 Mar 2024RSA/215/2020

Case brief

AI extract

What is this about?

The High Court dismissed an appeal filed by an unsuccessful plaintiff regarding a suit for declaration and permanent injunction over agricultural land. The plaintiff claimed a larger area than recorded in the sale deed, but the Court found no evidence in revenue records to support the claim and upheld the lower courts' rejection based on his contradictory pleadings in a prior suit.

What did the court decide?

The appeal was dismissed, confirming the judgments and decrees of the Trial Court and the First Appellate Court dismissing the suit.

Muddappa S/O Basappa Vs Shivanna — Contract and Commercial Disputes | Karnataka HC (2024)

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NC: 2024:KHC:12169 RSA No. 215 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 215 OF 2020 (DEC/INJ)

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BETWEEN:

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MUDDAPPA S/O BASAPPA, AGRICULTURIST, AGED ABOUT 57 YEARS, R/O HAGALAKERE VILLAGE, MATHODU HOBLI, HOSADURGA TALUK - 577 527, CHITRADURGA DISTRICT.

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…APPELLANT

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(BY SRI. R. SHASHIDHARA, ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SHIVANNA, S/O LATE MALLAPPA, AGED ABOUT 55 YEARS, AGRICULTURIST, R/O HAGALAKERE VILLAGE, MATHODU HOBLI, HOSADURGA TALUK - 577 527, CHITRADURGA DISTRICT.

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…RESPONDENT

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THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 26.07.2019 PASSED IN RA.NO.9/2014 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.12.2013 PASSED IN OS.NO.2/2009 ON THE FILE OF THE ITINERARY SENIOR CIVIL JUDGE, HOSADURGA AND ETC.,

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NC: 2024:KHC:12169 RSA No. 215 of 2020

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

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JUDGMENT

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This appeal is filed by the unsuccessful plaintiff aggrieved

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by the judgment and decree dated 13.12.2013 passed in O.S.No.2/2009 on the file of Itinerary Senior Civil Judge, Hosadurga (hereinafter 'the Trial Court') and which is confirmed by the judgment and order dated 26.07.2019 passed in R.A.No.9/2014 on the file of Prl. District and Sessions Judge, Chitradurga (hereinafter 'the First Appellate Court').

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2.The above suit in O.S.No.2/2009 was filed by the plaintiff seeking relief of declaration and permanent injunction contending inter-alia that;

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2.1 Agricultural land bearing Sy.No.11 originally measuring 24 acres and 27 guntas situated at Hagalakere Village, Mathodu Hobli, Hosadurga Taluk originally belonged to one Ajjaganna the grandfather of the defendant. Out of the said land, Mallappa father of the defendant retained an extent

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of 1 acre and 14 guntas of land on the western side in the said survey number. That except the said extent of land measuring

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NC: 2024:KHC:12169 RSA No. 215 of 2020

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1 acre and 14 guntas. Ajjaganna, the grand-father of the defendant has sold entire land to various persons.

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2.2 It is further contended that, by a registered deed of sale dated 29.06.1974 Mallappa the father of defendant had sold property within the boundaries mentioned therein in favour of Basappa the father of the plaintiff and handed over the possession to Basappa the father of the plaintiff. That the measurement of the said portion of land was mentioned approximately 3 acres in the deed of sale, but the portion of the land which was sold to Basappa the father of the plaintiff has actually measuring about 9 acres. It is further contended that the Basappa the father of the plaintiff has been in possession and enjoyment of suit schedule property within the boundaries as mentioned in the plaint without any interference by anyone and to the knowledge of Mallappa and defendant and that Basappa had improved the suit schedule property and has grown 160 coconut tress in western portion of land purchased by him by his hard work.

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2.3 That said Basappa died about 20 years ago leaving behind plaintiff and his brothers as his legal heirs who

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NC: 2024:KHC:12169 RSA No. 215 of 2020

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continued to be in uninterrupted possession and enjoyment of the suit schedule property. The plaintiff who is eldest son of deceased Basappa became the Manager of the family consisted

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himself and his four brothers. It is further contended that, Mallappa father of the defendant died about 12 years ago, after his demise defendant by taking advantage of wrong entry made in revenue records had filed a suit against plaintiff for permanent injunction in O.S.No.16/2002 on the file of Civil Judge (Jr.Dn) Hosadurga and said suit was decreed. Against the said judgment and decree plaintiff had filed an appeal before Senior Civil Judge, Holalkere in R.A.No.31/2004 and said appeal was also dismissed on 03.03.2009. After dismissal of the said appeal defendant by taking advantage of said judgment and order is started to interfere with plaintiff's peaceful possession and enjoyment of suit schedule property. Hence, filed the present suit.

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In response to the suit summons, defendant appeared

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through his counsel and filed written statement denying the plaint averments specifically contending that, Ajjagappa son of Banappa was the propositus of the family of the defendant. He had three sons by name Mallappa father of defendant, Banappa

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NC: 2024:KHC:12169 RSA No. 215 of 2020

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and Shankarappa. It is further contended that, said Mallappa, Banappa and Shankarappa have partitioned their joint family properties through Oral partition on 23-06-1997 and in said partition 7 acres 18 guntas of land fallen to share of Mallappa i.e., father of defendant and now said survey number is renumbered as Sy.No.11/3P8 and 1 acre 14 guntas in Sy.No.11 fallen to share of Mallappa and it is re-numbered as Sy.No.11/1. It is further contended that, said Mallappa has enjoyed said property as an absolute owner till his desmise. Thereafter, defendant obtained change of the khata as per law of inheritance vide M.R.No.16/2001-02. Since then khata of said property is standing in the name of defendant. It is further contended that plaintiff challenged the mutation entries made in M.R.No:16/01-02 before the Assistant Commissioner, Chitradurga in R.A.No.3/2004-05 and that said appeal is also dismissed. That the plaintiff and others have been interfering with the peaceful possession of defendant over the land in Sy No.11, measuring to an extent of 7 acres and 18 guntas. Therefore, the defendant field suit in O.S.No.16/2002 against the plaintiff and others, which was decreed by granting perpetual injunction against the said judgment and decree,

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plaintiff has filed an appeal in R.A.31/2004 before Senior Civil Judge, Holalkere and that appeal as also dismissed. As such, it is contended that present suit filed by the plaintiff is hit by Section 11 of CPC. Hence, sought for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues for its consideration:

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"1) Whether the plaintiff proves that his father Basappa purchased the suit schedule property on 29-06-1974 and he was in possession and enjoyment of it during his life time?

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2) Whether the plaintiff proves that after the death of his father, himself and his brothers are in possession and enjoyment over the suit schedule property?

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3) Whether the plaintiff proves that he has improved the suit schedule property and reared 160 coconut trees in it?

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4) Whether the plaintiff proves that there is a cause of action to the suit?

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5) Whether the defendant proves that the suit of the plaintiff is not maintainable and it is hit principles of res-judicata?

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6) Whether the plaintiff is entitled for relief of declaration and permanent injunction as prayed for?

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7) What decree or order?"

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Plaintiff examined himself as PW.1 and exhibited two

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documents as Ex.P1 and Ex.P2. Defendant examined himself as

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DW.1 and one additional witnesses has been examined in

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favour of the defendant as DW.2 and did not produce any

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NC: 2024:KHC:12169 RSA No. 215 of 2020

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documentary evidence. On appreciation of the evidence the Trial Court answered issue Nos.1 to 5 in the negative and consequently dismissed the suit.

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Being aggrieved by the aforesaid judgment and decree plaintiff filed an appeal in R.A.No.9/2014 before the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for its

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consideration:

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"1) Whether the pleading and proof is sufficient to uphold the plea of the plaintiff that his father Basappa purchased the suit property under registered sale deed dated 29.6.1974?

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2) If so, whether he was in possession and enjoyment of the suit property by rearing 160 coconut trees on the western side of the suit property and improved the suit land by his hard labour?

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3) Whether the pleadings and proof is sufficient to uphold the plea of the plaintiff that the father of the defendant sold the entire suit schedule property in favour of the father of the plaintiff, the defendant by taking undue advantage of the revenue entries tried to interfere with plaintiff's possession of the suit property?

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4) Whether the suit is hit by principles of res judicata?

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5) Whether the appellant/plaintiff has made out sufficient grounds for permitting him to produce additional evidence sought for under Order 41 Rule 27 CPC?

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8 - NC: 2024:KHC:12169 RSA No. 215 of 2020

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6) Whether the appointment of Court Commissioner for local inspection is necessary to adjudicate the dispute pending between the parties?

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7) Whether the judgment and decree of the Trial Court requires interference in the appeal?

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8) What Order?"

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On re-appreciation of the evidences, the First Appellate

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Court answered point Nos.1 to 3 and 5 to 7 in the negative and point No.4 in the affirmative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same appellant is before this Court.

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Sri.R.Shashidhara, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted that the plaintiff had pleaded and produced material evidence to the effect that the father and the grandfather of the defendant had retained only an extent of 1 acre and 14 guntas of land, out of 24 acres and 27 guntas in Sy.No.11 and had sold the remaining extent in favour of various persons under different deeds of sale as detailed in the plaint. He submits that the description of the boundaries reflected in the deed of sale executed in favour of the father of

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NC: 2024:KHC:12169 RSA No. 215 of 2020

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the plaintiff includes an extent of about 9 acres, though the deed of sale refers to only 3 acres. He submits that the Trial Court and the First Appellate Court without taking into consideration of surrounding circumstances in the nature of alienation made by father and the grandfather of the defendant to various persons and retaining only an extent of 1 acre and 14 guntas of land in Sy.No.11, have come to the erroneous conclusion that what was conveyed to plaintiff was only 3 acres. He further submits that the Trial Court and the First Appellate Court have erred in relying upon deposition of PW.1 recorded in O.S.No.16/2002, wherein the plaintiff herein had admitted his father having purchased only 3 acres of land. He submits that the deposition of the plaintiff in the suit in O.S.No.16/2002 ought not to have been taken into consideration by Trial Court and the First Appellate Court to adjudicate the issue between the parties in the present suit. Thus he submits that the aforesaid aspect of non-consideration of material evidence produce by the plaintiff gives raise substantial question of law.

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Heard. Perused the records.

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It is not in dispute that the deed of sale at Ex.P1, under which the plaintiff is claiming his right, title and interest over the suit schedule property refers to 3 acres and 9 guntas

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of land. However, the case of the plaintiff is that the boundaries provided in the deed of sale would include land measuring about 9 acres. This contention is urged based on the purported sales made by father and the grandfather of the defendant to various other persons. On a query by this Court on 18.03.2024, as to if there was any revenue records reflecting the extent of about 9 acres either in the name of father of the plaintiff or the plaintiff as contended, the learned counsel for the appellant had taken an adjournment. Today, learned counsel submits that there is no records reflecting revenue entries with respect to an extent of about 9 acres. However, he emphatically submits that the sale made by the father and the grandfather of the defendant to various persons as detailed in the plaint is the evidence, which is sufficient enough to conclude that what was retained by the defendant was only 1 acre and 14 guntas and not beyond that. Therefore, he submits that consequence inference should be drawn that the extent of land conveyed in favour of the father of the

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NC: 2024:KHC:12169 RSA No. 215 of 2020

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plaintiff was about 9 acres falling within the boundaries of defendant share.

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The Trial Court and the First Appellate Court have adverted to the aforesaid sole contention urged by the plaintiff in the plaint and have declined to accept the same. The reason and the basis for the same is that, in the earlier suit filed by defendant in O.S.No.16/2002, the plaintiff herein has been examined, wherein he has categorically admitted that his father had purchased only 3 acres of land from grandfather of the defendant. He has also contended that his father had purchased another extent of 3 acres of land from the children of Ajjaganna. He has also deposed that said two portions of land are situated adjacent to each other aggregating a total extent of 6 acres and 9 guntas. He has also given boundaries to said 6 acres and 9 guntas in the said deposition. Said deposition of plaintiff herein has been extracted at paragraph No.15 of its judgment by the Trial Court. The said suit in O.S.No.16/2002 filed by the defendant herein against the plaintiff has been decreed and appeal filed by the plaintiff herein in R.A.No.9/2014 has been dismissed and said judgment and decree has attained its finality. It is thereafter the plaintiff

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NC: 2024:KHC:12169 RSA No. 215 of 2020

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filed the present suit contending as above. The Trial Court and the First Appellate Court appreciating the stance of the plaintiff in the earlier suit and improved version of his case in the present suit which are mutually contrary and contradictor to the defence set-up in the earlier suit, have come to the conclusion that the claim of the plaintiff of he being in possession of 9 acres of land was not justifiable. The deed of sale dated 29.06.1974 is a registered document. The measurement of land conveyed there under is specifically stated as 3 acres. Further in the absence of plaintiff producing any acceptable material evidence of he being in possession of 9 acres of land as claimed, the Trial Court and the First Appellate Court have declined to grant the relief of declaration and injunction as sought for.

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In the considered view of this Court, no irregularity or illegality can be found with the said reasoning arrived at by the Trial Court and confirmed by the First Appellate Court. No substantial question of law would arise for consideration in this appeal.

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NC: 2024:KHC:12169 RSA No. 215 of 2020

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Accordingly, this appeal is dismissed confirming the judgment and decree passed by the Trial Court and the First Appellate Court.

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Sd/JUDGE

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Muddappa S/O Basappa v. Shivanna

Case brief

What is this about?

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Muddappa S/O Basappa v. Shivanna

Case brief

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