Dismissed

Amruthrao @ Amrut S/O Laxman v. Ghalappa S/O Tippanna Laddanour Ors.

Karnataka HC11 Jun 2024RSA/7367/2010

Case brief

AI extract

What is this about?

Plaintiff's suit for declaration of title to 3 acres 34 guntas in Sy.No.29/1/B, injunction and correction of revenue records was partly decreed by the Trial Court but wholly dismissed on cross-appeal at the First Appellate Court. The High Court found no proof of title or identification of land and dismissed the second appeal.

What the court decided

AI extract

Amruthrao @ Amrut S/O Laxman Vs Ghalappa S/O Tippanna… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-K:3785 RSA No. 7367 of 2010

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 11^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE Mrs JUSTICE K S HEMALEKHA

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REGULAR SECOND APPEAL NO. 7367 OF 2010 (DEC/INJ)

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BETWEEN:

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AMRUTHRAO @ AMRUT S/O LAXMAN AGE: 66 YEARS, OCC: AGRICULTURE, R/O. CHANDAPUR, TQ. CHINCHOLI, DIST: GULBARGA-585302.

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…APPELLANT

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(BY SMT. HEMA L. K., ADVOCATE)

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AND:

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GHALAPPA S/O TIPPANNA LADDANOUR SINCE DECEASED BY LR’S.

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Digitally signed by SWETA KULKARNI

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Location: HIGH COURT OF KARNATAKA

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1(i). SMT. SHANTABAI W/O GHALAPPA LADDNOUR AGE: 58 YEARS, OCC: HOUSEHOLD,

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1(ii). SRI PANDARI S/O HALAPPA LADDNOUR AGE: 38 YEARS, OCC: AGRICULTURE,

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BOTH ARE C/O HARIJANWADA, NEAR BIDAR CROSS CHAWK, CHINCHOLI, DIST. GULBARGA.

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YENKAPPA S/O TIPPANNA LADDANOUR AGE: 63 YEARS, OCC: AGRICULTURE, R/O. PROPER TOWN CHINCHOLI DIST. GULBARGA

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NOW AT PRASHANTNAGAR BEHIND POLICE QUARTERS, GULBARGA-585101.

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LAXMAN S/O TIPPANNA LADDANOUR AGE: 57 YEARS, OCC: GOVT. SERVANT WORKING PHYSICAL EDUCATIONAL OFFICER (BEO) EDUCATION DEPARTMENT, R/O. PROPER TOWN CHINCHOLI, DIST. GULBARGA-585302.

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RUKMANNA S/O LAXMAN SINCE DECEASED THROUGH LR’S.

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4a. BALBEER S/O RUKMANNA DERVESH AGE: 62 YEARS, OCC: JR. ENGINEER JESCOM, KEB COLONY, POST CHANDAPUR, TQ. CHINCHOLI-585302.

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4b. NARSAMMA W/O RUKMANNA DERVESH AGE: 62 YEARS, OCC: HOUSEHOLD, R/O. ROOM NO.14/4/53 TDB COLONY, HALLADKERI (K), BIDAR-583102.

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4c. NARAYAN S/O RUKMANNA DERVESH AGE: 47 YEARS, OCC: COOLIE, R/O. ROOM NO.14/4/53 TDB COLONY, HALLADKERI (K), BIDAR-583102.

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4d. SANJEEV S/O RUKMANNA DERVESH AGE: 47 YEARS, OCC:COOLIE, R/O. ROOM NO.14/4/53 TDB COLONY, HALLADKERI (K), BIDAR-583102.

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4e. SMT. SHANTABAI W/O RUKMANNA DERVESH

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AGE: 62 YEARS, OCC: HOUSEHOLD, R/O. PLOT NO. 103, SRI SAI RESIDENCY SHIVASHANKER COLONY, HYDERABAD, FATENAGAR (AP)-586101.

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4f. SRI NARSINGRAO S/O RUKMANNA DERVESH AGE: 42 YEARS, OCC: CONTRACTOR, R/O. ROOM NO.14/4/53 TDB COLONY, HALLADKERI (K), BIDAR AT PRESENT FATENAGAR, HYDERABAD (AP)-586101.

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…RESPONDENTS

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(BY SRI B. K. PATIL, ADV. FOR R1(i) (ii) AND R3; SRI B. HANMANTH REDDY ADV. FOR R2 AND R3; THE COUSNEL FOR R4(a) TO R4(f) DESIGNATEE AS SENIOR COUNSEL)

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THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.06.2010 PASSED IN R.A. NO.25/2008 BY THE LEARNED CIVIL JUDGE (SR.DN.) AT CHINCHOLI REVERSING THE JUDGMENT AND DECREE DATED 09.07.2008 PASSED IN O.S. NO.95/2003 BY THE LEARNED ADDL. CIVIL JUDGE (JR.DN.) CHINCHOLI AND TO DECREE THE SUIT OF THE PLAINTIFF.

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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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The present second appeal by the plaintiff assailing the judgment and decree in R.A.No.25/2008 dated 28.06.2010 on the file of the Civil Judge (Senior Division) at Chincholi, reversing the judgment and decree in O.S. No.95/2003 dated 09.07.2008 on the file of the Additional Civil Judge (Junior Division), Chincholi.

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Parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.

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Suit for declaration of ownership, perpetual injunction, correction of the revenue records, and declaration that the registered sale deed dated 30.12.1983 executed by defendant No.4 in favour of father of defendant Nos.1 to 3 is null and void and not binding upon the plaintiff. The suit on notice was contested by defendant Nos.3 and 4. The Trial Court, on the basis of the pleadings, framed as many as nine issues, which reads as under:

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“Whether the plaintiff proves that he is the absolute owner of land bearing Sy. No.29/1/B measuring 3 acres 34 guntas situated at Bommanalli village bounded as shown in Para No.2 of the plaint?

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Whether the plaintiff proves that he is in possession of the afore mentioned land as on the date of suit?

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Whether plaintiff proves the alleged interference by the defendant No.1 to 3?

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Whether the plaintiff proves that the extent of land as shown in the suit registered sale deed and the boundaries mentioned there in are quite false and incorrect and hence the same is illegal, void and not binding on him?

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Whether the plaintiff proves that the entries made in the revenue records in respect of land Sy. No.29 of Bommanalli village are qu9ite false and same are required to be rectified?

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Whether the defendants No.1 to 3 proves that the Court fee paid by the plaintiff and valuation made by him in the plaint insufficient and not proper?

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Whether the defendant No.1 to 3 prove that this Court has no pecuniary jurisdiction to try this suit?

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To what relief’s the parties are entitled it?

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What order or decree?”

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In order to substantiate the claim, the plaintiff

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examined himself as P.W.1, two witnesses as P.Ws.2 and 3

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and marked documents at Exs.P1 to P.28. On the other hand, defendant No.3 got himself examined as D.W.1, defendant No.4 got examined as DW.6, examined three witnesses, and got marked documents at Exs.D.1 to D.31.

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The Trial Court, on the basis of the pleadings,

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oral and documentary evidence, decreed the suit in part, declaring that the plaintiff is the owner in possession of 2 acres 31 guntas in Sy.No.29/Ee and 28 guntas in Sy.No.29/OO/1 and restrained the defendants by way of a permanent injunction from interfering with the peaceful possession and enjoyment of the property, the relief of declaration of the sale deed to be null and void was rejected, however, it was held that the sale deed is not binding on the plaintiff.

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Aggrieved, the plaintiff preferred appeal before the First Appellate Court in R.A. No.25/2008, and defendant Nos.1 to 3 in O.S. No.95/2003 filed cross appeal under Order XLI Rule 22 CPC against the decree of the suit of the plaintiff in part.

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The First Appellate Court, while re-appreciating

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the entire oral and documentary evidence, independently, dismissed the suit of the plaintiff in entirety by allowing the cross-appeal filed by defendant Nos.1 to 3 and the appeal preferred by the plaintiff was dismissed and the suit in O.S. No.95/2003 was dismissed in entirety.

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The present regular second appeal is by the plaintiff against the dismissal of R.A.No.25/2008 and against the allowing of the cross appeal, no appeal has been preferred by the plaintiff.

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Heard, Smt. Hema Kulkarni, learned counsel for the appellant and Sri B.K. Patil, learned counsel and Sri Hanumant Reddy, learned counsel for the respondents.

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The Trial Court, on appreciation of the entire material placed before it, arrived at the conclusion that the plaintiff is entitled for a decree in part. In the appeal preferred by the plaintiff and the cross appeal preferred by

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the defendants, the First Appellate Court dismissed the suit in its entirety. Against the dismissal of the suit, no cross-appeal is preferred.

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11. Order XLI Rule 22 CPC reads as under:

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“22. Upon hearing respondent may object to decree as if he had preferred separate appeal.—(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

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2[Explanation. —A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]

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(2) Form of objection and provisions applicable thereto. Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

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3[* * * ]

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(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

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(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.”

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From the plain reading of Order XLI Rule 22

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CPC, it is clear that in order to maintain the cross objection, a party may not only support the decree but may also state that the findings against him in respect of any issue ought to have been in his favour. The decree is against defendant Nos.1 to 3, as it was not in his favour. The entire decree was challenged by filing cross-appeal in the appeal filed by the plaintiff. The First Appellate Court allowed the cross-appeal and dismissed the appeal preferred by the plaintiff.

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The Apex Court, in the case of Municipal Corpn. of Delhi vs. International Security &

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Intelligence Agency Ltd.,¹ , has held that a crossobjection is like an appeal and is an exercise of the substantive right of appeal conferred by statute and the available grounds of challenge against the judgment, decree or order impugned remain the same, whether it is an appeal or a cross-objection. Thus, it is clear that crossobjection can be filed by a party when the impugned decree is partially in his favour and partially in favour of the appellant or in favor of the other party. However, when the entire decree in toto is against the party, he has the option to file an appeal, and he cannot maintain a crossobjection in an appeal filed by a co-defendant. Against the dismissal of the appeal and allowing of a cross-appeal, there should be two separate appeals, the cross appeal having challenged the decreetal of the suit in part against the party and allowing of the cross appeal by the First Appellate Court and dismissing the suit, the plaintiffappellant herein before this Court ought to have challenged the allowing of the cross appeal. The plaintiff before this

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1 (2004) 3 SCC 250

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Court has challenged the dismissal of his appeal and not allowing of the cross appeal. However, the substantial questions of law framed by the appellant in the appeal memo are as under:

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“i. Whether the Lower Appellate Court is right in law in dismissing the suit of the Plaintiff in the appeal filed confining his claim with respect of the refusal to grant the decree for declaration for 03 acres 34 guntas instead of 03 acres 19 guntas in Sy.No.29?

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ii Whether the Lower Appellate Court is right in law in dismissing the suit of the Plaintiff when neither in the appeal filed by the Plaintiff the question of Identity of the property is involved nor in the crossappeal filed by defendant No. 1 to 3?

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iii. Whether the Lower Appellate Court is right in law in dismissing the suit of the Plaintiff since identity of the property is not proved when the specific case of the appellant is that he is the owner in possession of 03 acres 34 guntas in Sy. No.29. The defendants disputed only the claim made by the appellant in excess of 03 acres 19 guntas and when there is no dispute regarding the identity of property?

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iv. Whether the Lower Appellate Court has not committed an error of law in dismissing the suit of the Plaintiff when the defendants clearly admitted that the Plaintiff is the owner in possession to extent

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of 03 acres 19 guntas in Sy.No.29 comprised in Sy.No.29/Ec and Sy.No.29/00/1 as per ExP1 and ExP2?”

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What can be gathered from the substantial questions raised by the appellant is that, the appellant is aggrieved by the dismissal of the suit in entirety. The appellant is aggrieved by the reversing the judgment and decree of the Trial Court and dismissing the suit in entirety.

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On facts, suit for relief of declaration to declare that the plaintiff is the owner in possession of the suit property, for permanent injunction restraining the defendants or from their family members from interfering over the suit properties and direct the revenue authorities for correction of revenue records and declare that the registered sale deed dated 30.12.1983 executed by defendant No.4 in favour of father of defendant Nos.1 to 3 is null and void and not binding on the plaintiff. The description of the suit property is land bearing Sy.

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No.29/1/B measuring 3 acres 34 guntas with the boundaries as stated below:

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East: Portion of land Sy.No.29 belonging to late Bhimsen. West: Land of Bhimsen Makasi and Jabshetti family. North: Land Sy. No. 28 belonging to Peeroji. Sourt: Portion of land Sy.No.29 fallen to share of defendant No.4 and portion of land Sy.No.29 belonging to Nagappa.

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It is stated that the suit land is entered as 29/Ee

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measuring 2 acres 31 guntas and another Sy. No.29/OO/1 measuring 28 guntas, but in actually, there are no two portions of land belonging to the plaintiff, but a single land measuring 3 acres 34 guntas. Further, it is stated that defendant No.4 is the owner of only 2 acres 31 guntas and defendant No.4 has sold out his portion measuring 2 acres 31 guntas.

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The plaintiff contended that he is the absolute owner of 3 acres 34 guntas of Sy. No.29/1B, the sale by

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defendant No.4 in favour of father of defendant Nos.1 to 3 is null and void and it is found that it is mentioned in the sale deed that an area of 3 acres of land in Sy. No.29 was sold by defendant No.4 and not the entire land. The plaintiff had to establish that he is the owner of the suit land measuring 3 acres 34 guntas.

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It is the case of the plaintiff that the suit property came to be allotted to him in the partition effected. In order to substantiate the partition and the property being fallen to the share of the plaintiff, no evidence is forthcoming. The Trial Court came to the conclusion that 3 acres 19 guntas were available to the plaintiff in Sy. No.29 and proceeded to observe that, as per the sale deed executed by defendant No.4, defendant No.4 sold 3 acres only in favour of father of defendant Nos.1 to 3. Such reasoning arrived at by the Trial Court is in the absence of any claim put forth by defendant No.4. The location, identification and description of the suit property under the possession of the plaintiff is not evidenced by

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any document. The plaintiff was unable to demonstrate the right arrived over the suit property. The measurement of the suit land to the extent of 3 acres 34 guntas is not available, even as per the contention of the plaintiff. Reliance placed for seeking a declaration is on the basis of the partition effected and to declare that he is the owner of the suit property. Other than the oral evidence of the plaintiff, which is self-serving, and the witnesses examined who are interested, there are no materials to prove the title and possession of the plaintiff in respect of the suit property and also to prove the identification of the land.

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The cross appeal preferred is against the declaration of the title declaring the plaintiff as owner of 3 acres 19 guntas when admittedly defendant No.4 has sold his entire portion through a registered sale deed, the allowing of cross appeal of defendant Nos.1 to 3 has attained finality and this Court finds no reason to interfere with the order passed by the First Appellate Court and accordingly, this Court pass the following:

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