Dismissed

Sri. N. Chalapathi v. Sri. Jayaramareddy

Karnataka HC5 Sept 2024RSA/461/2024

Case brief

AI extract

What is this about?

Plaintiffs in a representative suit for declaration, possession and injunction against land claimed as Government kharab land appealed against the first appellate court's setting aside of an observation that the Government may recover it from the defendant. Holding no substantial question of law and noting plaintiffs never filed a first appeal, the High Court dismissed the second appeal at admissi

What the court decided

AI extract

Sri. N. Chalapathi Vs Sri. Jayaramareddy — Property and Title | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 05^TH DAY OF SEPTEMBER, 2024

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE E.S. INDIRESH

¶6

REGULAR SECOND APPEAL NO.461 OF 2024 (DEC/INJ)

¶7

BETWEEN:

¶8

SRI. N. CHALAPATHI S/O LATE NARAYANAPPA AGED ABOUT 63 YEARS.

¶9

SRI. RAMAKRISHNA REDDY S/O JAYARAMA REDDY AGED ABOUT 64 YEARS.

¶10

SRI. SHIVAPPA S/O GANTAPPA AGED ABOUT 61 YEARS.

¶11

VENKATESHAPPA SINCE DEAD BY LR'S.

¶12

Digitally signed by SHARMA ANAND CHAYA Location: High

¶13

Court of Karnataka

¶14

4(a). SMT. MUNIYAMMA W/O LATE VENKATESHAPPA AGED ABOUT 60 YEARS.

¶15

4(b). SRI. CHANDRAPPA S/O LATE VENKATESHAPPA AGED ABOUT 40 YEARS.

¶16

SRI. R.K. SUBRAMANI S/O KONAPPA, AGED ABOUT 50 YEARS.

¶17

SRI. RAMAKRISHNAPPA S/O LATE GOVINDAPPA AGED ABOUT 66 YEARS.

¶18

¶19

NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶20

ALL ARE RESIDING AT: RAYASANDRA VILLAGE, VENGASANDRA POST, KYASAMBALLI HOBLI, K.G.F. TALUK - 563116.

¶21

…APPELLANTS

¶22

(BY SRI. PRADEEP H.S., ADVOCATE)

¶23

AND:

¶24

SRI. JAYARAMAREDDY S/O LATE OBALA REDDY, AGED ABOUT 56 YEARS, R/AT RAYASANDRA VILLAGE, KYASAMBALLI HOBLI, KGF TALUK - 563116.

¶25

…RESPONDENT

¶26

(BY SRI. VIJAYA KUMAR K., ADVOCATE)

¶27

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGEMENT AND DECREE DATED 14^TH DECEMBER, 2023 PASSED IN REGULAR APPEAL NO.113 OF 2021 ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR (SITTING AT K.G.F), ALLOWING THE APPEAL AND SETTING ASIDE THE PARAGRAPH 16 OF THE JUDGEMENT AND DECREE DATED 26^TH MAY, 2021 PASSED IN ORIGINAL SUIT NO.394 OF 2013 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC., KGF.

¶28

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH

¶29

¶30

NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶31

ORAL JUDGMENT

¶32

This Regular Second Appeal is filed by the plaintiffs, challenging the judgment and decree dated 14^th December, 2023 passed in Regular Appeal No.113 of 2021 on the file of the III Additional District and Sessions Judge, Kolar (sitting at K.G.F) (for short, hereinafter referred to as 'First Appellate Court'), allowing the appeal and setting aside the paragraph No.16 of judgment and decree dated 26^th May, 2021 passed in Original Suit No.394 of 2013 on the file of the II Additional Civil Judge and JMFC., K.G.F. (for short, hereinafter referred to a 'Trial Court').

¶33

For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court.

¶34

The Original Suit No.394 of 2013 is filed by the plaintiffs in a representative character, seeking relief of declaration of title, recovery of possession and mandatory injunction in respect of the suit schedule property. It is averred in the plaint that the suit schedule property bearing Survey No.85/4 of Rayasandra Village, Kyasamballi Hobli, Bangarpet

¶35

4 - NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶36

Taluk is a Kharab land and villagers have installed idols long ago and have constructed the Temple in the land in question. Therefore, it is the case of the plaintiffs that the land bearing Survey No.85/4 of Rayasandra Village is a Government land and as such, the defendant has no right, title and interest over the suit schedule property. Hence, the plaintiffs have presented the above suit.

¶37

On service of notice, defendant entered appearance and filed detailed written statement and took up a contention that the suit schedule property has been granted in favour of the father of the defendant-Obala Reddy under Section 9 of Mysore Religious and Charitable Inam Abolition Act. It is also stated that, originally the land bearing Survey No.9/2 measuring 20 guntas and Survey No.10/4 measuring 18 guntas situate adjacent to each other and the above two survey numbers are renumbered as new Survey No.85/4 and as such, it is the case of the defendant that the suit is not maintainable as the defendant is in cultivation of the land bearing Survey No.85/4. Accordingly, he sought for dismissal of suit.

¶38

¶39

NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶40

On the basis of pleadings on record, the Trial Court framed issues for its consideration.

¶41

In order to prove their case, plaintiffs have examined eight witnesses as PW1 to PW8 and got marked 15 documents as Exhibits P1 to P15. On the other hand, defendant examined himself as DW1 and got marked 17 documents as Exhibits D1 to D17.

¶42

The Trial Court, after considering the material on record, by judgment and decree dated 26^th May, 2021, dismissed the suit, however at Paragraph 16, the Trial Court observed that the Government may recover the suit schedule property from the defendant in accordance with law, if the same is needed by the Government. Being aggrieved by the Paragraph 16 of the judgment and decree passed by the Trial Court, the defendant has preferred Regular Appeal No.113 of 2021 before the First Appellate Court and the appeal was resisted by the plaintiffs. The First Appellate Court, after considering the material on record, by its judgment and decree dated 14^th December, 2023, allowed the appeal and set-aside the observation made by the Trial Court at Paragraph 16 in

¶43

¶44

NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶45

judgment and decree dated 26^th May, 2021. Being aggrieved by the same, plaintiffs preferred this Regular Second Appeal.

¶46

Heard Sri. Pradeep H.S., learned counsel appearing for appellants and Sri. Vijaya Kumar K., learned counsel appearing for the respondent.

¶47

Sri. Pradeep H.S., learned counsel appearing for appellants submitted that the suit schedule property belongs to Government and as such, the defendant has no right over the same. He also argued that the Trial Court has not properly appreciated Exhibits D6 and D7 produced by the defendant to claim ownership in respect of suit schedule property. He also submitted that the defendant has committed fraud in grabbing

¶48

the suit schedule property and therefore, the interference be called for in this appeal. In this regard, he refers the judgment of Hon'ble Apex court in the case of RAM KUMAR vs. STATE

¶49

OF UTTAR PRADESH AND OTHERS reported in 2022 LiveLaw (SC) 806 and in the case of SURESH LATARUJI RAMTEKE vs.

¶50

SAU. SUMANBAI PANDURANG PETKAR AND OTHERS

¶51

reported in 2023 LiveLaw (SC) 821 and submitted that both the

¶52

7 - NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶53

Courts below have not properly considered the material on record.

¶54

Per contra, Sri. Vijaya Kumar K., learned counsel appearing for the respondent invited the attention of the Court to the finding recorded by the Trial Court and submitted that the Trial Court has dismissed the suit, however, at Paragraph 16 of the judgment and decree, the Trial Court committed an error in making observation that the Government may recover the suit schedule property from the defendant in accordance with law. In this regard, the defendant has preferred appeal before the First Appellate Court under Section 96 of the Code of Civil Procedure and same has been allowed. He emphasised that the plaintiffs without filing first appeal under Section 96 of the Code of Civil Procedure, challenged the dismissal of suit and therefore,, plaintiffs cannot be permitted to urge grounds on the merits of the case in second appeal under Section 100 of Code of Civil Procedure. Accordingly, he places reliance on judgment of Hon'ble Apex Court in the case of SURESH LATARUJI RAMTEKE (supra) and argued that, even if observation has been made by the court below on finding the fact, unless there is culpable erroneous finding, same cannot be

¶55

8 - NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶56

interfered with under Section 100 of the Code of Civil Procedure and as such, sought for dismissal of the appeal.

¶57

In the light of the submission made by learned counsel appearing for the parties and on careful examination of finding recorded by the Trial Court, the same would indicate that the plaintiffs claim to be villagers of Rayasandra Village, Kyasamballi Hobli, K.G.F. Taluk, have filed Original Suit No.394 of 2013 in a representative character, seeking relief of declaration and recovery of possession in respect of land bearing Survey No.85/4 of Rayasandra Village, Kyasamballi Hobli, K.G.F Taluk. It is the case of the plaintiffs that the suit schedule property is Kharab land belonging to Government and a Temple has been constructed in the schedule property. On the other hand, the defendant has produced the documents to establish that the land in question has been granted in favour of his father-Obala Reddy as per order passed by the Special Commissioner for Inam Abolition in case No.691/1962-63 dated 19^th June, 1962. The said aspect is reflected in Exhibit D6. The defendant has also produced Exhibit D5 wherein, originally land bearing Survey No.9/2 and Survey No.10 were granted by Special Deputy Commissioner for Inam Abolition, Kolar to Obala

¶58

¶59

NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶60

Reddy with a direction to pay premium to the Government and pursuant to the same, the lands have been granted to the father of the defendant, which is evident from Exhibit D16.

¶61

It is also forthcoming from the Exhibit D7-Report made by Tahsildar that the defendant is in possession of the said property after the death of his father and further, the Exhibit D6-Letter dated 06.04.2013 would establish that the grant is made in favour of the father of the Defendant. In that view of the matter, the Trial Court, rightly dismissed the suit filed by the plaintiffs however, has committed an error in making observation at Paragraph 16 of the judgment and decree dated 26^th May, 2021. The said finding recorded at paragraph 16 was challenged by the defendant in Regular Appeal No.113 of 2021. Undisputably, though the plaintiffs have suffered decree, have not preferred appeal under Section 96 of Civil Procedure Code nor filed Cross Appeal in Regular Appeal No.113 of 2021. Therefore, the finding of fact made by the Trial Court in Original Suit No.394 of 2013 has reached finality. In that view of the matter, in the absence of the decree made by the First Appellate Court, reversing the judgment and decree in Original Suit No.394 of 2013,

¶62

10 -

¶63

NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶64

plaintiff/appellants have no locus standi to argue the case on merits.

¶65

On perusal of the finding recorded by the First Appellate Court at Paragraphs 38 and 39 would indicate that the First Appellate Court had appropriately re-appreciated the material on record and rightly set-aside the Paragraph 16 of the judgment and decree dated 26^th May, 2021 passed in Original Suit No.394 of 2013 in respect of recovering the suit schedule property from the defendant and therefore, the judgment referred to by learned counsel appearing for appellants are not applicable to the facts of the case on hand. It is also well established principle in law that the weakness of the defendant cannot be considered in a suit for declaration ( See AIR 1998 SC 2352 ). In a suit for declaration, it is the duty of the plaintiff to establish his right over the property in question and though the plaintiffs in the present case have filed suit in a representative character, it is their duty to establish that the suit schedule property has not been granted in favour of father of the defendant. Hence, I do not find any perversity or illegality in the judgment and decree passed by the Trial Court. As the appellants were failed to make out a case for

¶66

11 -

¶67

NC: 2024:KHC:36443 RSA NO.461 OF 2024

¶68

framing of substantial question of law as required under Section 100 of the Code of Civil Procedure, this appeal deserves to be dismissed at the stage of admission itself.

¶69

As the appellant/plaintiffs have not preferred First Appeal under Section 96 of the Code of Civil Procedure as well as taking into account the finding made by the First Appellate Court in respect of Paragraph 16 of the judgment and decree dated 26^th May, 2021 in Original Suit No.394 of 2013, the application IA.1 of 2024 filed by the appellants under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure cannot be accepted. In the result, I pass the following:

¶70

O R D E R

¶71

Regular Second Appeal is dismissed.

¶72

Consequently, application IA.1 of 2024 filed by

¶73

the appellants under Order XLI Rule 27 of the Code of Civil Procedure read with Section 151 of the Code

¶74

of Civil Procedure is dismissed.

¶75

SD/- (E.S.INDIRESH) JUDGE