Dismissed

Krishnappa v. Sri Busappa

Karnataka HC14 Aug 2024RSA/60/2015

Case brief

AI extract

What is this about?

This regular second appeal challenged the dismissal of a suit for declaration of title and perpetual injunction. The High Court held that since the father had previously sold the properties, the release deed in favor of the plaintiff was void. Confirmed lower courts. Dismissed appeal.

What did the court decide?

The plea for declaration of ownership and perpetual injunction was dismissed. Lower courts' judgments confirmed.

Krishnappa Vs Sri Busappa — Succession and Inheritance | Karnataka HC (2024)

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH 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. 60 OF 2015 (INJ)

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BETWEEN:

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KRISHNAPPA

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SINCE DEAD BY HIS LRS:

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1(a) SMT. RADHAMMA

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W/O LATE KRISHNAPPA

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AGED ABOUT 65 YEARS

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R/AT AVALANAGENAHALLI VILLAGE ARURU POST, MANDIKAL HOBLI CHICKBALLAPUR TALUK AND DISTRICT - 562 104

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1(b) SMT. SUMITHRA K D/O LATE KRISHNAPPA W/O SRIRAMA

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AGED ABOUT 43 YEARS

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R/AT NANDI VILLAGE AND HOBLI CHICKBALLAPUR TALUK AND DISTRICT 577 228

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Digitally signed by VEDAVATHI A K Location: High Court of Karnataka

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1(c) SRI. SHIVASHANKAR REDDY K S/O LATE KRISHNAPPA AGED ABOUT 38 YEARS

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R/AT AVALANAGENAHALLI VILLAGE ARURU POST, MANDIKAL HOBLI

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CHICKBALLAPUR TALUK AND DISTRICT - 562 104

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1(d) SMT. NETHRAVATHI D/O LATE KRISHNAPPA W/O RAJ GOPAL REDDY AGED ABOUT 36 YEARS R/AT DAPARTHI VILLAGE

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KASABA HOBLI, GUDIBANDE TALUK - 561 209.

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…APPELLANTS (BY SRI. ESHWAR, ADVOCATE FOR SRI. SHARATH S. GOWDA., ADVOCATE)

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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AND:

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SRI. BUSAPPA S/O BYRAPPA MAJOR IN AGE

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SEETHARAMAPPA S/O BASAPPA MAJOR IN AGE

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VENKATESH S/O BASAPPA MAJOR IN AGE

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JAYASHANKAR REDDY S/O SEETHARAMAPPA MAJOR IN AGE

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RAGAVENDRA S/O SEETHARAMAPPA MAJOR IN AGE

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ALL ARE RESIDENTS OF ARURU VILLAGE, MANDIKAL HOBLI CHIKKABALLAPUR-562101.

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…RESPONDENTS (BY SRI. S. N. BHAT, ADVOCATE FOR SRI. JAGADISH.J.R., ADVOCATE FOR C/R5; SRI. L. RAJANNA, ADVOCATE FOR R2-R5, VIDE DATED 30/10/19 APPEAL AGAINST DECD R1 STAND ABATED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.09.2014 PASSED IN R.A.NO.30/2008 ON THE FILE OF THE COURT OF THE PRL. DISTRICT JUDGE, CHICKBALLAPUR. DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 23.07.2008 PASSED IN O.S.NO.150/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND C.J.M, CHICKBALLAPUR.

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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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NC: 2024:KHC:32803 RSA No. 60 of 2015

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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 10.09.2014 passed in R.A.No.30/2008 by the learned Principal District and Sessions Judge at Chikkaballapura, confirming the judgment and decree dated 23.07.2008 passed in O.S.No.150/2004 by the learned Senior Civil Judge and CJM, Chikkaballapura.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the legal representative of the deceased plaintiff and respondents are the defendants. The plaintiff filed the suit for declaration for absolute ownership and in possession and enjoyment of the properties described in schedule of the plaint and also sought for the relief of perpetual injunction for restraining the defendants from interfering with his peaceful possession and enjoyment of the plaint schedule properties.

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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The brief facts leading rise to filing of this appeal are as under:

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It is the case of the plaintiff that, the suit schedule properties are the ancestral properties of the plaintiff and in the family partition that took place between his father and his uncles, the said properties were allotted to the share of the father of the plaintiff. Since from the date of partition plaintiff and his father were in possession and enjoyment of the same. In the year 1998, the plaintiff's father executed released deed, releasing the right, title and interest in the suit schedule properties in favor of the plaintiff. Since from the date of execution of release deed, the plaintiff is in possession and enjoyment of the suit schedule properties. It is contended that, the defendants have no right, title or interest over the suit schedule property. On 21.09.2014, the defendants along with their supporters, attempted to enter upon the suit schedule properties and trying to dispossess the plaintiff from the suit schedule properties by cutting and removing

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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the trees standing over the suit properties. The plaintiff requested the defendants not to interfere with the plaintiff's peaceful possession, but the defendants did not pay any heed to the request. Hence, cause of action arose to the plaintiff to file a suit for declaration of title and perpetual injunction.

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The defendant filed written statement denying the ownership and possession over the suit schedule property. It is contented that the father of the plaintiff sold his share to one Channamma i.e., the wife of the defendant No.1 and mother of other defendants by executing the registered sale deed dated 25.05.1967 and since from the date of purchase, Channamma was in possession and enjoyment of the suit schedule properties. After her death, the defendants being the legal heirs are in the possession of the suit schedule properties. It is also contented that, the plaintiff prior to the filing of this suit has filed the suit in OS No.191/98 and the said suit was transferred to the Civil Judge, (Senior Division),

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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Gudibanda on the point of jurisdiction, it was re-numbered as OS No.224/1998. It is contented that the plaintiff has withdrawn the said suit without reserving any liberty to file fresh suit on the same cause of action. It is also contented that the suit filed by the plaintiff for relief of declaration is barred by limitation. Hence, on these grounds prays to dismiss the suit.

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The Trial Court, on the basis of the above said pleadings, framed the following issues:

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(1) "Whether the plaintiff proves that he is the owner of suit property?

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(2) Whether plaintiff proves that he is in lawful possession and enjoyment of suit property as on the date of the suit?

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(3) Whether plaintiff proves the alleged interference?

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(4) Whether the suit is barred by time?

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(5) Whether the suit is hit by the principles of res- judicata?

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(6) Whether court fee paid is insufficient?

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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(7) Whether plaintiff is entitled to the relief of declaration and permanent injunction as prayed?

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(8) 8. What decree or order?"

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The plaintiff in order to substantiate his case examined himself as PW-1 and got examined one witness as PW-2 and got marked 21 documents as Exs.P1 to P21. In rebuttal, defendant No.2 was examined as DW-1 and defendants examined two witnesses as DW-2 & DW-3 and got marked 9 documents as Exs.D1 to D9. The trial Court after assessing the oral and documentary evidence of the parties answered issue Nos. 1 to 3 and 5-7 in the negative, issue No.4 in the affirmative and issue No.8 as per the final order and dismissed the suit of the plaintiff by judgment dated 23.7.2008.

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The plaintiff aggrieved by the judgment and decree passed in O.S.No.150/2004 preferred appeal in R.A.No.30/2008 on the file of learned Principal District and Sessions Judge, Chikkaballapura.

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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The first appellate court after hearing the

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learned counsel for the parties and on re-assessment of oral and documentary evidence, dismissed the appeal vide judgment dated 10.09.2014. The plaintiff aggrieved by the impugned judgments filed this regular second appeal.

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Heard the learned counsel for the plaintiff. Learned counsel for the plaintiff submits that the plaintiff is the absolute owner of the suit schedule properties and had acquired the said properties by virtue of released deed executed by his father in favor of the plaintiff. The trial court failed to consider the release deed at Ex.P.7 and committed an error in dismissing the suit of the plaintiff for the relief of declaration. Further submits that the plaintiff is in possession of the suit schedule properties and in order to establish his possession over the suit schedule properties, the plaintiff has produced the RTC extracts in respect of the suit schedule properties marked as Exs.P.1 to P6. Further the plaintiff has also examined one witness as PW2 and deposed about the possession of the plaintiff

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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over the suit schedule properties. The trial court did not consider the overall evidence produced by the plaintiff. Hence, the trial court committed an error in dismissing the suit of the plaintiff. Further he submits that the first appellate court has not properly re-assessed the oral and documentary evidence and simply confirmed the judgment and decree passed by the trial court. Hence, the impugned judgments passed by the courts below are arbitrary, erroneous and hence prayed to allow the appeal.

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Perused the records and considered the submissions of learned counsel for the parties.

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It is not in dispute that the suit schedule properties were owned and possessed by the family of the plaintiff and thereafter there was a partition effected between the plaintiff's father and his siblings and in the said partition, the suit schedule properties had fallen to the share of plaintiff's father. Further, the father of the plaintiff executed a registered sale deed in favor of one Chennamma who is the wife of defendant No.1 and the

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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defendants have produced the certified copy of the registered sale deed and the said sale deed discloses that the suit schedule properties were sold by the father of the plaintiff in favour of Chennamma i.e., wife of the defendant No.1 and mother of other defendants. From the perusal of the Ex.P.1, there is a recital that the father of the plaintiff had delivered the possession of the suit schedule properties in favor of Smt.Chennamma i.e, wife of defendant No.1. and she died leaving behind the defendants and after her death the suit schedule properties were devolved upon the defendants and the records transferred in the name of the defendants.

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It is a case of the plaintiff that, the plaintiff had

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acquired the suit schedule properties by virtue of released deed, the plaintiff has produced Ex.P.7 which discloses that the father of the plaintiff has released his rights in respect of suit schedule properties in favor of plaintiff. As on the date of execution of release deed, the father of the plaintiff was not the absolute owner of the suit schedule

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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properties, as he had already created interest in favor of Chennamma since the plaintiff has not acquired any title by virtue of Ex.P.7. The trial court was justified in holding that the plaintiff has failed to establish that he has acquired title by virtue of Ex.P.7 and also that the father of the plaintiff was not having any right title or interest over the suit schedule properties as on the date of the execution of Ex.P.7. The trial court was justified in dismissing the suit of the plaintiff, the first appellate court on reassessment of oral and documentary evidence has rightly confirmed the judgment and decree passed by the trial court. I do not find any error in the impugned judgments and any substantial question of law that arises for consideration in this appeal.

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In view of the above discussion, I proceed to pass the following:

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ORDER

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The appeal is hereby dismissed.

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NC: 2024:KHC:32803 RSA No. 60 of 2015

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The judgment and decree dated 10.09.2014 passed in R.A.No.30/2008 passed by the learned Principal and District and Sessions Judge at Chikkaballapura and the judgment and decree dated 23.07.2008 passed in O.S.No.150/2004 by the learned Senior Civil Judge and CJM, Chikkaballapura, are hereby confirmed.

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No order as to the cost

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Sd/(ASHOK S.KINAGI) JUDGE

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AKV List No.: 1 Sl No.: 7 CT:SK

Krishnappa v. Sri Busappa

Case brief

What is this about?

What did the court decide?

Krishnappa v. Sri Busappa

Case brief

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