Dismissed

Smt Lakshmamma v. Sri Appanna

Karnataka HC23 Aug 2024RSA/272/2014

Case brief

AI extract

What is this about?

Regular second appeal challenging lower courts' dismissal of a suit for declaration and permanent injunction. The High Court upheld the finding that appellants failed to prove title and valid possession due to valid registered sale deeds held by respondents and lack of factual basis for ownership.

What did the court decide?

Regular second appeal dismissed; judgments and decrees passed by courts below confirmed.

Smt Lakshmamma Vs Sri Appanna — Partition | Karnataka HC (2024)

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF AUGUST, 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. 272 OF 2014 (DEC/INJ)

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BETWEEN:

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SMT LAKSHMAMMA

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SINCE DEAD BY LEGAL REPRESENTATIVES

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SRI MUNISHAMIGOWDA S/O LATE NARAYANAPPA AGED ABOUT 58 YEARS

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SRI N MUNEGOWDA S/O LATE NARAYANAPPA AGED ABOUT 38 YEARS

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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SRI NARAYANASWAMY S/O LATE NARAYANAPPA AGED ABOUT 38 YEARS

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ALL ARE R/A BYAPPANAHALLI VILLAGE SUGUTUR HOBLI KOLAR TALUK AND DISTRICT - 563 101

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…APPELLANTS

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(BY SRI. B V VIDYULATHA, ADVOCATE)

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AND:

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SRI APPANNA S/O MUNISHAMAPPA MAJOR

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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R/A T HOSAHALLI VILLAGE CHINTAMANI TALUK

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CHINTAMANI DISTRICT - 563 123

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(DELETED VIDE COURT ORDER DATED 16.08.2016)

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SRI SUDHAKARAREDDY S/O DODDIHALLI NARAYANAPPA MAJOR

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SRI K NEELAKANTASETTY S/O KRISHNAPPA MAJOR

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SRI NARAYANASWAMY S/O LATE NARAYANAPPA AGED ABOUT 48 YEARS

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SRI V SRINIVASAPPA S/O LATE NARAYANAPPA MAJOR

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SRI VENKATARAMANAREDDY S/O RAMASETTY MAJOR, R/AT MUTHUKADAHALLI VILLAGE CHINTAMANI TALUK CHIKKABALLAPURA DISTRICT - 563 123

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6(A) GOPALASHEETTY S/O VENKATARAMANAREDDY AGED ABOUT 60 YEARS

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6(B) VENKATAPPASHETTY S/O VENKATARAMANAREDDY AGED ABOUT 55 YEARS

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6(C) MANJUNATHA S/O VENKATARAMANAREDDY AGED ABOUT 53 YEARS

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6(D) SRINIVASA S/O VENKATARAMANAREDDY AGED ABOUT 50 YEARS

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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6(E) CHANDRAPPA S/O VENKATARAMANAREDDY AGED ABOUT 55 YEARS

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6(A) TO 6(E) ALL ARE R/AT MUTHUKADAHALLI VILLAGE CHINTAMANI TALUK CHIKKABALLAPURA DISTRICT - 563 123.

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…RESPONDENTS

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(BY SRI. B.R. VISHWANATH, ADVOCATE FOR R2 TO R5 R6(A-E) AER SERVED

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R1 IS DELETED VIDE ORDER DATED 16.08.2016)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 19.2.2013 PASSED IN R.A.NO.68/2009 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHINTAMANI, DISMISSING THE APPEAL AND CONFIRMING JUDGEMENT AND DECREE DTD 9.6.2009 PASSED IN OS.NO.92/2005 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC, CHINTAMANI.

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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 regular second appeal is filed by the appellants challenging the judgment and decree dated 19.02.2013, passed in R.A.No.68/2009 by the learned Senior Civil Judge & JMFC, Chintamani, and the judgment and decree dated 09.06.2009, passed in O.S.No.92/2005 by the

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4 - NC: 2024:KHC:34285 RSA No. 272 of 2014

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learned Additional Civil Judge (Jr.Dn.) & JMFC,

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Chintamani.

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For the sake of convenience, parties are

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referred to as per their ranking before the trial Court. The appellants are the plaintiffs and respondents are the defendants.

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The brief facts leading rise to filing of this

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appeal are as under:

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Plaintiffs filed a suit for declaration and permanent injunction. It is the case of the plaintiffs that, the suit schedule properties are the ancestral properties of the plaintiffs. One Bachappa is the grandfather of the plaintiffs 2 to 4 and he had 2 sons namely, Narayanappa and Venkatareddy. The plaintiff No.1 is the wife and plaintiffs No.2 to 4 are the children of Narayanappa. Bachappa died about 40 years back intestate. Venkatareddy died issueless. During the lifetime of Bachappa, all the suit properties were in possession of Bachappa and revenue records stood in his name.

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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Subsequently, after his death, Narayanappa and

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Venkatareddy succeeded to the suit properties. Since Venkatareddy died issueless, Narayanappa succeeded to the entire suit schedule properties. Hence the plaintiffs succeeded to the suit schedule properties. They are in lawful possession and enjoyment of the suit schedule properties. Bachappa during his lifetime was at Muthakadahalli village and subsequent to his death, his sons shifted to Byappanahalli of Kolara Taluk and they continued in possession of the suit schedule properties and

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the plaintiffs are doing agricultural operations. The sons of Bachappa and plaintiffs are illiterate. They have not got changed the khatha of the suit schedule properties in their

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names. Khatha of item Nos.2 and 3 of suit schedule properties were mutated in the name of Narayanappa and other items of the suit schedule properties still stands in the name of Bachappa. The defendant No.6 filed an appeal against the plaintiffs before the Assistant Commissioner, Chikkaballapura and said appeal was disposed of on 18.02.2005, and it was remanded back to

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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the Tahsildar, Chintamani for fresh disposal. The defendant No.6 contended that, he had purchased item No.5 under the registered sale deed dated 12.09.1968, and it is contended that if any such sale deed is executed, its not valid and forged and fabricated documents, is not binding on the plaintiffs. The defendants denied the title of the plaintiffs. Hence, cause of action arose for the plaintiffs to file the suit for declaration and permanent injunction.

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Defendants No.2, 3, 5 and 6 filed the written

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statement. Defendant No.1 inspite of service of summons, did not appear before the trial Court and he was placed exparte. It is denied that the plaintiffs are the absolute owners and in possession of the suit schedule properties. It is contended that item No.2 of the suit schedule properties originally belongs to one Minchappa and subsequently after his demise, his son Narayanappa succeeded to it. Subsequent to the acquisition of the properties, Minchappa invested a huge amount to develop

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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and improve the said properties. Narayanappa being the sole legal heir inherited the properties and revenue records stood in his name. It is contended that, Narayanappa had two wives, namely, Smt. Venkatamma and Smt. Krishnamma and both of them partitioned the joint family properties under the registered partition deed. Both being illiterates, have not applied for mutation and continued to be in possession of item No.2 of the suit schedule properties. It is contended that the suit is bad for non-joinder of necessary parties. It is contended that item No.3 of the suit schedule properties originally belonged to one B.Venkatareddy who sold it in favour of Govindagowda for a consideration, to meet his family legal necessity. The revenue records were mutated in the name of Govinda Gowda. Said Govinda Gowda, inturn, sold it to one Chikkavenkatarayappa under registered sale deed dated 27.04.2008. The defendant No.3 is in continuous and uninterrupted possession of the suit schedule properties. Item No.4 of the suit schedule properties originally belonged to Venkatareddy who sold the said

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property in favour of the father of defendant No.5 under the registered sale deed dated 14.07.1967. The father of defendant No.5 was the absolute owner of item No.4 of the suit schedule properties. Item No.5 of the suit schedule properties originally belonged to one Bachappa. Subsequently, after his demise, his son Narayanappa succeeded to it, who inturn sold the property in favour of Patel Govindegowda under the registered sale deed dated 18.10.1967. The said Govindegowda sold the property in favour of defendant No.6 under the registered sale deed dated 12.09.1968. On these grounds, sought for dismissal of the suit.

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The Trial Court, on the basis of the above said pleadings, framed the relevant issues.

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The plaintiffs in order to prove their case, the

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plaintiff No.4 examined himself as PW-1 and got examined one witness as PW-2 and got marked 29 documents as Exs.P1 to P29. In rebuttal, defendant No.2 was examined as DW-1 and got marked 25 documents as Exs.D1 to D25.

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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The trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1 to 3 in the negative, issue No.4 as per the final order. Consequently dismissed the suit of the plaintiffs with costs.

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The plaintiffs, aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.68/2009 on the file of learned Senior Civil Judge and JMFC, Chintamani. The First Appellate Court, after hearing the parties, has framed the points for consideration.

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The First Appellate Court on re-assessing the oral and documentary evidence, answered point No.1 in the affirmative, point No.2 in the negative, point No.3 as per the final order and consequently dismissed the appeal filed by the plaintiffs vide judgment dated 19.02.2013.

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The plaintiffs, aggrieved by the judgments and decrees passed by the courts below, have filed this regular second appeal.

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Heard learned counsel for the plaintiffs.

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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Learned counsel for the plaintiffs submits that, the suit schedule properties were owned and possessed by the ancestors of the plaintiffs namely Bachappa who died leaving behind his two sons namely Narayanappa and Venkatareddy. Venkatareddy died as a bachelor. Hence, Narayanappa had succeeded to the properties of Bachappa. She submits that in order to establish the plaintiffs' case, the plaintiffs have produced the documents but the courts below have not properly appreciated the oral and documentary evidence placed on record. She

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also further submits that item No.1 of the suit schedule property was not seriously disputed by the defendants. The courts below ought to have decreed the suit partly in respect of item No.1 of the suit schedule property. She further submits that the defendants have purchased item Nos.2 to 5 of the suit schedule properties under the registered sale deed, but they have not adduced sufficient evidence to establish that they have purchased from the lawful owners. Hence, on these grounds she prays to admit the appeal.

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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Perused the records and considered the

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submissions of learned counsel for the plaintiffs .

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The plaintiffs in order to establish their case, plaintiff No.4 was examined as PW.1, he has reiterated the plaint averments in the examination-in-chief and to establish their ownership over the suit schedule properties produced Ex.P1 is the Genealogical tree, Ex.P2 is the copy of the order passed by the Tahsildar which discloses that Sy.No.121 measuring 1 acre 12 guntas is in the name of one Srinivas, and Sy.No.16/3 stands in the name of Bachappa, and Exs.P3 and P4 are the RTC extracts in respect of land bearing Sy.No.61/3 where Ex.P3 stands in

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the name of defendant No.1 and Ex.P4 stands in the name of Bachappa. Ex.P5 is copy of application filed by plaintiff No.4 to the Tahsildar in respect of rectification of khatha, Ex.P6 and 7 are the extracts of ROR and Index of Lands, Ex.P8 to 11 are the RTC extracts, Ex.P12 and 13 are mutation extracts for Sy.No.114/3, Ex.P14 to 17 are the RTC extracts in respect of land bearing Sy.No.114/3,

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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Ex.P18 is index of land, Ex.P19 is RTC extract of Sy.No.120, Ex.P20 is Index of land, Ex.P21 is RTC extract, Ex.P22 is Tahsildar endorsement, Ex.P23 is copy of application filed by plaintiff No.4 to the Tahsildar regarding rectification of khatha with respect to Sy.No.121, Ex.P24 to 27 are RTC extracts, Ex.P28 is Mutation extract, Ex.P29 is index of land.

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Further the plaintiffs also examined PW.2 namely Krishnareddy, who has deposed in the same line of PW.1. In rebuttal, defendant No.2 was examined as DW.1 and he has reiterated the written statement averments in the examination-in-chief and produced documents. From the perusal of the oral evidence of the parties, the plaintiffs have not produced any records to establish that the suit schedule properties were owned and possessed by Bachappa. Insofar as item No.1 of the suit schedule property, the plaintiffs have produced Ex.P4 is the Record of rights for the year 1974-75 , wherein name of Bachappa was shown in column No.9, but column No.12 was left

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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blank and further the plaintiffs have not shown any records to establish that how Bachappa had acquired item No.1 of the suit schedule property. The plaintiffs except producing Ex.P4 in respect of item No.1 of the suit schedule property have not produced any other records. Mere entries in the revenue record does not prove the ownership over item No.1 of the suit schedule property. Insofar as item No.2, it was standing in the name of Narayanappa and there was a family partition between two wives of Narayanappa namely Smt.Venkatamma and

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Smt.Krishnamma. Item No.2 was fallen to the share of Smt.Krishnamma i.e., mother of defendant No.2. Insofar as Item No.3 is concerned the revenue records discloses that khata was mutated in the name of Varadappa, who purchased the property under the registered sale deed. Item No.3 was sold by the original owner Venkatareddy in favour of Govindegowda , who in turn sold the property in favour of Chikka Venkatarayappa. After the demise of Chikka Venkatarayappa, Varadappa succeeded to item No.3 of the suit schedule property and khata was changed

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NC: 2024:KHC:34285 RSA No. 272 of 2014

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in his name under pavathivarsudar and item No.3 was sold in favour of defendant No.3 under registered sale deed dated 11.12.2002 as per Ex.D1.

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Insofar as item No.4 is concerned, originally it belongs to Venkatareddy, who sold the same in favour of one Venkataramanappa under the registered sale deed dated 14.07.1967. DW.1 has produced the registered sale deed marked as Ex.D11. Insofar as item No.5 is concerned i.e., Narayan S/o Bachappa sold item No.5 in favour of Patel Govindegowda under the registered sale deed dated 18.06.1967. The said sale deed is marked as Ex.D18. The trial Court considering the evidence led by

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the parties has held that plaintiffs have failed to prove that they are the owners and in possession of the suit schedule properties and further the plaintiffs have not challenged the registered sale deeds executed by Narayanappa in favour of the purchasers. The plaintiffs without challenging the registered sale deeds executed by Narayanappa cannot maintain a suit for declaration of title.

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From the perusal of the records produced by the parties, it discloses that the defendants are in possession of the suit schedule properties by virtue of the registered sale deeds. The plaintiffs have failed to establish their possession over the suit schedule properties. The revenue records discloses that the defendants are in possession of the suit schedule properties. It is settled principle of law that mere suit for declaration without seeking for a consequential relief of possession, suit is not maintainable as per proviso to Section 34 of Specific Relief Act. The said view is supported by the judgment of the Hon'ble Apex Court in the case of VASANTHA (DEAD) THROUGH LRS. VS.RAJALAKSHMI @ RAJAM (DEAD) THROUGH LRS. REPORTED (2024) 2 SCR 326.

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Both the courts below have concurrently recorded a finding of facts holding that the plaintiffs have failed to establish the title and possession over the suit schedule properties. The trial Court considering the oral and documentary evidence has rightly dismissed the suit. The first Appellate Court on re-assessment of oral and documentary evidence has rightly come to the conclusion

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that the plaintiffs have failed to prove the mode of acquisition and factum of possession over the suit schedule properties as on the date of the suit. I do not find any error committed by the courts below. The plaintiffs have not made out a ground to interfere with the judgments and decrees passed by the courts below and I do not find any substantial question of law that arises for consideration in this appeal. I concur with the judgments and decrees passed by the courts below.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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Judgments and decrees 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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RD,SKS

Smt Lakshmamma v. Sri Appanna

Case brief

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Smt Lakshmamma v. Sri Appanna

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