Allowed

Eranna @ Pathaiah v. Siddalingamma W/O Shivappa

Karnataka HC24 Sept 2024RSA/584/2013

Case brief

AI extract

What is this about?

In a Regular Second Appeal regarding a property dispute, the High Court held that lower courts erred by ignoring revenue entries presuming defendant possession under the Karnataka Land Revenue Act and relying solely on a weak admission. The appeal was allowed, impugned judgments set aside, plaintiff suit dismissed, and liberty granted to file a comprehensive suit.

What did the court decide?

The impugned judgment and decree were set aside; the plaintiff's suit was dismissed; liberty granted to the plaintiff to file a comprehensive suit.

Eranna @ Pathaiah Vs Siddalingamma W/O Shivappa — Partition | Karnataka HC (2024)

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NC: 2024:KHC:39606 RSA No. 584 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF SEPTEMBER, 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. 584 OF 2013 (INJ)

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BETWEEN:

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ERANNA @ PATHAIAH, S/O LATE NANJANNA, AGED ABOUT 77 YEARS,

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PRABHUSWAMY, S/O ERANNA, AGED ABOUT 52 YEARS,

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KANTHARAJU, S/O ERANNA, AGED ABOUT 48 YEARS,

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NANJAMARI, S/O ERANNA, AGED ABOUT 41 YEARS,

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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KUMARA, S/O ERANNA, AGED ABOUT 39 YEARS, ALL ARE RESIDENT OF HUCHAGONDANAHALLI, KASABA HOBLI, TIPTUR, TUMAKURU DISTRICT - 577 601.

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(BY SRI. M. VINAYA KEERTHY, ADVOCATE) AND:

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…APPELLANTS

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SIDDALINGAMMA, W/O SHIVAPPA, AGED ABOUT 53 YEARS HUCHAGONDANAHALLI, KASABA HOBLI, TIPTUR, TUMAKURU DISTRICT - 577 601.

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…RESPONDENT

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(BY SRI. UMESH MOOLIMANI, ADVOCATE FOR SRI. S.V. PRAKASH, ADVOCATE)

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NC: 2024:KHC:39606 RSA No. 584 of 2013

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THIS RSA IS FILED U/S. 100 R/W ORDER XLII OF CPC., AGAINST THE JUDGMENT & DECREE DATED 15.1.2013 PASSED IN R.A.NO.22/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., TIPTUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.12.2006 PASSED IN OS.NO.99/2005 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) AND JMFC., TIPTUR.

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THIS APPEAL, COMING ON FOR FINAL HEARING, 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 challenging the judgment and decree dated 15.01.2013, passed in RA.No.22/2007 by the learned Senior Civil Judge and JMFC, Tiptur confirming the judgment and decree dated 22.12.2006 passed in O.S.No.99/2005 by the learned Principle Civil Judge (Junior Division) and JMFC, Tiptur.

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For convenience, parties are referred to as per

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their ranking before the trial Court. The appellants are the defendants, and respondent is the plaintiff.

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

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NC: 2024:KHC:39606 RSA No. 584 of 2013

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Plaintiff filed a suit against the defendants for permanent injunction, contending that she had purchased 16 guntas of land bearing Sy.No.76 in the year 1978. Subsequently, she succeeded to the suit schedule property under partition deed dated 07.06.2004 executed between the plaintiff and her son. The defendants have no right, title or interest over the suit schedule property. The defendants tried to interfere with the peaceful possession and enjoyment of the plaintiff's over the suit schedule property. The plaintiff requested the defendant not to interfere with the plaintiff's peaceful possession and enjoyment, but the defendants have refused to give any heed to the request made by the plaintiff. Hence, a cause of action arose for the plaintiff to file the suit for permanent injunction.

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The defendants filed a Written Statement, and denied the averments made in the plaint and contended that the plaintiff has no right, title, or interest over the suit schedule property. It is contended that the defendants

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had purchased 16 guntas of land bearing Sy.No.76 from their previous owner, under the registered sale deed dated 26.10.1978, who in turn had purchased the land from the father in-law of the plaintiff in the year 1967. The Revenue entries reflected in the name of the defendants in regard to the suit schedule property. It is contended that the plaintiff is not in possession of the suit schedule property. There is no cause of action to file the suit. Hence, prays to dismiss the suit.

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The Trial Court based on the pleadings of the parties, framed the following issues:

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i. “Whether the plaintiff proves the lawful possession over the suit schedule property on the date of suit?

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ii. Whether the plaintiff proves that the interference of the defendants over the suit schedule property?

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iii. Whether the plaintiff is entitled for the relief of perpetual injunction?

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iv. What order or decree?”

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The plaintiff in order to establish his case,

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examined husband of plaintiff as PW.1 and examined two

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witnesses as PWs.2 and 3 and got marked 3 documents as Ex.P.1 to Ex.P.3. Defendant No.1 was examined as DW.1, and examined two witnesses as DWs.2 and 3, and got marked 9 documents as Ex.D.1 to Ex.D.9. The Trial on appreciation of oral and documentary evidence, answered issue Nos.1 to 3 in the affirmative and issue No.4 as per the final order. The suit of the plaintiff was decreed with costs. A decree for permanent injunction was granted against the defendants, their men, agents etc., from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property vide judgment dated 22.12.2006. The defendants aggrieved by the judgment and decree passed in OS.No.99/2005 preferred a Regular Appeal in RA.No.22/2007 on the file of learned Senior Civil Judge and JMFC, Tiptur. The Appellate Court framed the following points for consideration:

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i. “Whether the plaintiff proves the lawful possession over the suit schedule property on the date of suit?

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ii. Whether the plaintiff proves that the interference of the defendants over the suit schedule property?

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iii. Whether the plaintiff is entitled for the relief of perpetual injunction?

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iv. What order or decree?”

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The appellate Court on re-assessment of oral and

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documentary evidence, answered point No.1 as per the trial Court findings and point No.2 as per the final order. The Appellate Court dismissed the appeal with costs and confirmed the judgment and decree passed by the trial Court. The defendants aggrieved by the impugned judgments, filed this Regular Second Appeal.

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Heard learned counsel for the plaintiff and learned counsel for the defendants.

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Learned counsel for the defendants submits that, the defendants are in possession of the suit schedule property and the property was purchased under the registered sale deed by them, from their previous owner on 26.10.1978 and their vendor had purchased the schedule property from the father in-law of the plaintiff in the year 1967 and he submits that the revenue records

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are in the name of the defendants and the Courts below have committed an error in not drawing a presumption under Section 133 of the Karnataka Land Revenue Act, 1961 (for short 'KLR Act, 1961'). He also submits that the Courts below based on the alleged admission of PW.1 has recorded findings that, the plaintiff is in possession of the suit schedule property, without considering the title deeds produced by the defendants. Hence, the impugned judgments passed by the Courts below are arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the plaintiff submits that the plaintiff is the owner and in possession of the suit schedule property and DW.1 admitted in the course of cross-examination regarding the possession of plaintiff over the suit schedule property. He submits that both the Courts below justified in passing the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal.

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This Court vide order dated 06.06.2018,

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admitted the appeal to consider the following substantial questions of law, which reads as under :-

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"i) Whether the Courts below erred in not giving credence to the title deed produced by the appellants herein, more specifically, the sale deed in favour of the first appellant herein?

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ii) Whether the Courts below were justified in reading the stay admissions made by the appellants herein during the cross-examination which goes contrary to the documentary evidence?."

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Substantial questions No.1 and 2 are interlinked.

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Hence, they are taken together for common discussion in order to avoid repetition of facts.

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The plaintiff examined himself as PW.1. He re-reiterated the plaint averments in the examination in chief and in order to establish her possession over the suit schedule property, produce document at Ex.P.1, which is the registered partition deed dated 07.06.2004, which discloses that there was a partition effected between the plaintiff and her son. In the said partition, the suit

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NC: 2024:KHC:39606 RSA No. 584 of 2013

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schedule property fell to her share and by virtue of partition, she became the absolute owner of the suit schedule property. Ex.P.2 is the mutation extract, which discloses that, land in Sy.No.76 was mutated in the name of defendants. Ex.P.3 is the RTC extract in respect of suit land, which discloses that the defendants are in possession of the suit schedule property. Further, during the course of cross-examination, though, suggested to PW.1 and the father in-law of plaintiff had executed a registered sale deed in favour of defendants' vendor under the registered

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sale deed dated 24.04.1967 and the vendor of the defendants executed registered sale deed in favour of defendant No.1. PW.1 pleads ignorance about the said fact and he admit that the revenue records stood in the name of defendant No.1 since 1965. It is suggested to PW.1 that the defendant is in possession of the suit schedule property. The said fact has been denied. To establish the possession of the plaintiff, the plaintiff examined two witnesses who deposed that the plaintiff is in the possession of the suit schedule property and

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defendants are not in possession of suit schedule property. During the course of cross-examination, PW.2 pleads ignorance about the sale transaction that took place in the years 1967 and 1969. In rebuttal, defendant No.1 was examined as DW.1 and he reiterated the written statement averments in the examination in-chief. To establish the defence, the defendants have produced the original registered sale deed marked as Ex.D.1, which discloses that the said land was purchased by the defendants from their previous owner. Exs.D.2 and D.3 are the RTC extracts in respect of suit schedule property, which discloses that the suit schedule property is in possession of defendant No.1. Ex.D.7 is the mutation records, which discloses that the properties were transferred in the name of defendant No.1 and Exs.D.8 and D.9 are the Nala Bandh Durasth, which discloses that the said property was owned and possessed by the defendants' vendor's vendor, who have purchased the property in the 1967. Further, defendants also examined two witnesses as DWs.2 and 3

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NC: 2024:KHC:39606 RSA No. 584 of 2013

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who deposed that the defendants are in possession and enjoyment of the suit schedule property.

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From the perusal of the material placed on record, it disclose that though the plaintiff claims to be in possession of the suit schedule property, but the plaintiff has not produced a single scrap of paper to show that the plaintiff is in possession of the suit schedule property. On the contrary, the plaintiff herself has produced Exs.P.2 and P.3, which discloses that defendant No.1 is in possession of the suit schedule property. The plaintiff has not challenged the revenue entries in the name of defendant No.1. There is a presumption under Section 133 of the KLR Act in regard to the entries in the revenue records.

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The Courts below have committed an error in not drawing the presumption under Section 133 of KLR Act. Further, the defendants have produced Ex.D.1, which discloses that the defendants have purchased the property from their previous owner under the registered sale deed dated 26.10.1978 and the vendor of the defendants have

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NC: 2024:KHC:39606 RSA No. 584 of 2013

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purchased the said property from the father in-law of the plaintiff and the said fact has not been denied by the plaintiff. The trial Court has failed to consider Ex.D.1 and revenue records produced by the defendants to establish their possession over the suit schedule property. The trial

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Court placing reliance on the said admission of DW.1, has recorded its findings that, the plaintiff is in possession of the suit schedule property. In a civil suit, the Court is required to consider the entire pleadings and evidence. The Hon'ble Division Bench of this Court in the case of

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PUTTANNA SHETTY (DECEASED) BY L.Rs V. Smt. PADMA SHETTY (DECEASED) BY L.Rs AND OTHERS

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reported in 2007(3) Kar.L.J. 28(DB) held that the admission particularly in a civil matter dealing with a properties has to be clear and it has to be enlightened in the light of the pleadings and the other evidence available on record. One stray sentence cannot be picked up for holdings against the plaintiff like property matter has been done in the case on hand.

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Admittedly, in the instant case, both the Courts below, by placing reliance on the stray admission of DW.1,

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has held that the plaintiff is in possession of the suit schedule property. Further, the Courts below failed to consider the well established principles of law that the plaintiff has to establish its case independently, but cannot depend on the weakness of the defendants' case. Admittedly, both the Courts below, placing reliance on the weakness of the defendants have passed the impugned judgments. The impugned judgments passed by the Courts below are contrary to the law laid down by the Hon'ble Apex Court n the case of T.K.Mohammed Abubucker (D) Thr. L.Rs and Ors. V. P.S.M.Ahamed Abdul Khader and Ors reported in AIR 2009 SC 2966.

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The judgment and decre passed by the Courts below are arbitrary and erroneous. Hence, in view of the above discussion, I answer the substantial question of law No.1 in the affirmative and substantial question of law No.2 is in negative.

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