Dismissed

Sri Vokkaligara C Thammaiah v. Sri Vokkaligara Laxmamma

Karnataka HC26 Mar 2024RSA/743/2007

Case brief

AI extract

What is this about?

Defendant's second appeal against concurrent decrees declaring plaintiff absolute owner of 0.34 acres in Sy.no.177/1 and granting permanent injunction. Held concurrent findings rested on full evidence including earlier litigation findings and sale deed, not solely revenue records; substantial question answered in negative.

What did the court decide?

Second appeal dismissed with no order as to costs; judgments and decrees of the courts below confirmed.

Sri Vokkaligara C Thammaiah Vs Sri Vokkaligara Laxmamma — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:13699 RSA No. 743 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 743 OF 2007 (DEC/INJ)

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BETWEEN:

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SRI VOKKALIGARA C.THAMMAIAH, S/O. LATE CHENGAPPA, AGED 71 YEARS, R/O KAIKERI VILLAGE AND POST, PONNAMPET NAD S KODAGU, VIRAJPET TALUK, DIST: KODAGU - 571 218.

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...APPELLANT

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(BY SMT. SONA VAKKUND & SRI M.B. NARAGUND, ADVOCATE)

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AND:

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CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed byCHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2024.04.03 16:03:59 +0530

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1 . SRI VOKKALIGARA LAXMAMMA, D/O LATE THIMMAIAH, AGED: 65 YEARS, REP. BY HER PA HOLDER SRI VOKKALIGARA SATISH KUMAR, S/O. LATE LINGAIAH, KAIKERI VILLAGE AND POST, PONNAMPET NAD, S. KODAGU, VIRAJPET TALUK, DIST: KODAGU - 571 218.

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…RESPONDENTS (BY SRI R KOTHWAL,ADVOCATE FOR RESPONDENT)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 22.10.2005 PASSED IN R. A. NO.4/2004 ON THE FILE OF THE CIVIL JUDGE, (SR. DN.,) VIRAJAPETE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.6.04 PASSED IN OS 7/93 ON THE FILE OF THE PRL.CIVIL JUDGE, (JR. DN.,) VIRAJPET. TRAIL COURT DECREED THE SUIT APPELLATE COURT DISMISSED THE APPEAL SUIT FOR DECLARATION AND PERMANENT INJUCTION.

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THIS REGULAR SECOND APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED FOLLOWING:

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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JUDGMENT

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Challenging judgments and decree dated 22.10.2005 passed in R.A.no.4/2004 passed by Civil Judge, (Sr. Dn.,) Virajapete, dismissing appeal and confirming judgment and decree dated 21.06.2004 passed in O.S.no.7/93 passed by Prl. Civil Judge, (Jr. Dn.,) Virajpet, this appeal is filed.

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Appellant herein was defendant, while

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respondent was plaintiff in O.S.no.7/1993 and will be referred to as such herein. O.S.no.7/1993 was filed for relief of declaration that plaintiff was absolute owner of suit schedule properties and for permanent injunction restraining defendant from interfering with his peaceful possession over suit schedule properties etc. It was submitted privileged sagu bane land bearing Sy.no.177/1 measuring 0.38 acres out of 1.66 acres situated in Kula no.25 at Kaikeri Village, Ponnampet Nad, South Kodagu was suit schedule property (‘suit property’ for short).

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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In plaint, it was stated that plaintiff and

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defendant hailed from family of Vokkaligara Giriappa, who had two sons namely Chennappa and Yengtappa. It was stated that plaintiff was from branch of Chennappa; while defendant was from branch of Yengtappa. It was stated that they owned wetland bearing Sy.no.182 and bane lands bearing Sy.no.177 in Kaikeri Village, Kodagu. And in oral partition, about 70 years ago, bane land was partitioned in proportion to wetland.

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It was further stated that in year 1927, Giriappa, Thammappa and Thimmaiah partitioned bane land bearing Sy.no.177 measuring 1.14 Acres between themselves, wherein extent of 0.38 acres was assigned to Thimmaiah. Thereafter in year 1956, Chennappa and Yengtappa sons of Thammappa sold their share of bane land and wetland to Thimmaiah and jamabandi was mutated accordingly. It was stated, 0.38 acre belonging to Thimmaiah was assigned Sy.no.177/2 and remaining extent of 1.14 acres was assigned Sy.no.177/1.

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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It was stated, plaintiff was absolute owner of

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land bearing Sy.no.177/1 measuring 0.38 acre. And after 1927, plaintiff’s father Thimmaiah had put up fence and growing Coconut, Arecanut, Lime, Cardamom and plantains and had also put up a thatched cattle shed and dug drinking water well. It was stated Thimmaiah was in exclusive possession and enjoyment till his death on 07.04.1983. Thereafter plaintiff – his only daughter had succeeded. It was stated Sy.no.177/1 attached to plaintiff’s wet land bearing Sy.no.182/1 measuring 4.09 Acres and her name was entered in column 6 of jamabandi. But, defendant in collusion with revenue officials got it deleted and after realising it in year 1986, she filed application to Tahsildar.

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During said proceedings, survey was ordered

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for demarcation of Sy.nos.177/1 and 177/2 to find out extent in possession of plaintiff. And surveyor submitted report that plaintiff was in possession of 0.38 acre in Sy.no.177/1. But, Tahsildar rejected her application and

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5 - NC: 2024:KHC:13699 RSA No. 743 of 2007

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relegated her to approach Civil Court. Her appeal before Assistant Commissioner was also unsuccessful and when defendant attempted to trespass and destroy plaintiff’s cultivation on 24.12.1992, cause of action for filing suit accrued.

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In said suit, defendant filed written statement admitting relationship of plaintiff to Chennappa, but denied Chennappa and Yengtappa owning wetland and bane land as claimed. There was general denial of plaint averments except relationship and plaintiff approaching Tahsildar. It was stated that plaintiff had no claim over any portion of Sy.no.177/1 measuring 1.66 acres. It was stated plaintiff’s claim was based on a Will stated to be executed by her father Thimmaiah, but, Sy.no.177/1 was not subject matter of Will.

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Original Sy.no.177 measuring 2.04 acres was sub-divided with Sy.no.177/1 measuring 1.66 acres belonging to defendant’s father Chennappa and

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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Sy.no.177/2 measuring 0.38 acres belonging to plaintiff’s father Thimmaiah. It was stated that as there was no proper demarcation, Tahsildar had ordered survey. But plaintiff and her husband sought to manipulate survey.

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It was stated that plaintiff’s father did not have right or claim in respect of Sy.no.20/4 measuring 1.36 acres of Kaikere Village at time of his Will as himself, Giriappa and Venkatappa had already relinquished it in year 1953, in favour of defendant’s father as consideration for Chennappa giving up portion of his land for formation of Village road needed. Despite relinquishment plaintiff’s father had mischievously included Sy.no.20/4 in his Will, which was sought to be misused by plaintiff. He claimed that Sy.no.177/1, measuring 1.66 acres exclusively belonged to defendant’s father, who was cultivating coffee in it and same was also registered under C.R.C. It was stated that, after death of his father defendant had got his name mutated in C.R.C.

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It was alternatively contended, even if plaintiff

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had any semblance of right in respect of Sy.no.177/1, same did not survive as defendant and his father had been in open, hostile and un-interrupted possession over it for more than 30 years to knowledge of plaintiff and her predecessors with animus and therefore perfected title by adverse possession. Therefore suit was not tenable.

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Based on pleadings trial Court framed following: ISSUES:

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Whether the plaintiff proves, he is the absolute owner of the suit schedule property?

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Whether the plaintiff proves that, he is in lawful possession of the suit schedule property as on the date of suit?

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Whether the plaintiff further proves that, defendant has illegally interfered with enjoyment of the suit schedule property?

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Whether the defendant proves that, 1.66 acres in Sy.No.177/1 of Hathur village exclusive belong to him?

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Whether the defendant proves that, suit property is not properly valued and proper court fee is paid?

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Whether the defendant proves that, this Court has no pecuniary jurisdiction to try this suit?

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What relief or what order?

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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In order to establish her case plaintiff examined

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three witnesses as PWs.1 to 3 and got marked Exs.P1 to P21. Defendant examined himself and another as DWs.1 and 2 and got marked Exs.D1 to D5.

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On consideration, trial Court issues no.1 to 3 in affirmative, issues no.4 to 6 in negative and issue no.7 by decreeing suit holding plaintiff as absolute owner of Sy.no.177/1, measuring 0.34 acres out of 1.66 acres and restraining defendant from interference.

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Aggrieved, thereby defendant filed appeal in R.A.no.4/2004 on various grounds including that judgment and decree passed by trial Court was without proper consideration of evidence on record. It erred in holding that defendant had failed to establish possession in respect of Sy.no.177/1 measuring 1.66 acres. There was also error committed while relying on decision of this Court in R.S.A.no765/1995 which was distinguishable on facts.

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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Based on contentions urged, appellate Court

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framed following:

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POINTS:

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On consideration, it answered points no.1 to 3

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in negative and dismissed appeal. Aggrieved, defendant in second appeal.

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Smt. Kshama Naragund, advocate appearing for Smt.Sona Vakkund, learned counsel for appellant, submitted that defendant’s appeal against concurrent judgment and decree of declaration of title and permanent injunction against interference. It was submitted that suit land was originally part of privileged sagubane land bearing Sy.no.177 totally measuring 2.04 acres. As per plaintiff in partition between Chennappa and Yengtappa,

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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extent of 1.14 acres fell to share of Chennappa, which would mean remaining extent of 0.9 acres would fall to share of Yengtappa.

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As per plaintiff, in partition amongst children of Chennappa in 1927, 0.38 acre fell to share of plaintiff’s father Thimmappa and later in 1956, Chennappa and Venkatappa sons of Thammappa sold their share of bane and wet lands to plaintiff’s father. And further his extent was assigned Sy.no.177/2 and remaining extent of 1.66 acres assigned Sy.no.177/1. It was submitted that plaintiff’s father died on 07.04.1983.

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It was submitted, both Courts erred in relying upon Ex.P.10 to 12 relating to O.S.no.145/1983 filed by defendant against Vokkaligara Thimmaiah and Puttaswamy, sons of Giriyappa. It was submitted plaintiff had not pleaded that her title was incidentally decided in said suit. In fact, plaintiff was not party to it. It was submitted finding in said suit was only about failure of defendant to prove his lawful possession in respect of

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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extent of 1.66 acres in Sy.no.171/1 of Kaikeri village, and not about title. In any case, such reliance was contrary to settled legal principle that no amount of evidence without pleading would be relevant.

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It was further contended that plaintiff’s claim was based on earlier partition stated to have been effected between Channappa and Yengatappa – children of Giriyappa, about 70 years prior to suit and subsequent partition between children of Channappa in year 1956. However, there was no effort by plaintiff to substantiate said partitions with reliable evidence.

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It was further submitted that Exs.P.19 and 20 were survey report and sketch, to which defendant was not a party. Admittedly, revenue records cannot be documents of title. Therefore, when Exs.P.19 and 20 were not conclusive proof, declaration of title based on same cannot be sustained.

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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It was submitted, Ex.P.21, though indicated

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issuance of notice of survey, it did not establish that same was served on defendant. Said fact would also be material factor in considering evidentiary value of Exs.P.19 and 20.

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It was submitted that above appeal was admitted on 31.01.2012 to consider following substantial question of law:

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"Whether the Courts below had erred in law in declaring the title of the respondent/plaintiff relating to the plaint schedule property by relying on the evidence of the Surveyor-PW3 and EXs.P.19 & 20 being the survey report and the sketch?"

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Based on above grounds, learned counsel

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sought for answering substantial question of law in affirmative and consequently, dismiss plaintiff’s suit by setting-aside judgment and decrees passed by trial Court and first appellate Court.

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Despite grant of opportunity, none appeared for respondent/plaintiff.

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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Heard learned counsel, perused impugned

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judgment and decree and records.

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From above, it is seen that this appeal is by defendant challenging concurrent findings in suit for declaration of title and permanent injunction. As per substantial question of law framed, challenge is mainly based on reliance by trial Court and first appellate Court on Exs.P.19 and 20 for granting relief to plaintiff.

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Admittedly, Ex.P.19 is copy of survey report; while Ex.P.20 is survey sketch. While passing impugned judgment and decree, it is observed by trial Court that as per plaintiff, there was partition of wetland bearing Sy.no.182, between plaintiff’s grandfather – Chennappa and defendant’s grandfather – Yengatappa, about 70 years prior to suit and that there was proportionate partition of attached bane land. It also referred to subsequent partition of 1.14 acres in RS no.177 amongst children of Channappa, wherein 0.38 fell to share of plaintiff’s father,

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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which according to plaintiff was assigned Sy.no.177/2 and remaining extent of 1.66 acres was assigned Sy.no.177/1.

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It also referred to proceedings in

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O.S.no.145/1983, filed by defendant against Vokkaligara Thimmaiah and Puttaswamy, who were children of Giriyappa – brother of plaintiff’s father. It observed that plaintiff claims to have succeeded to properties of Thimmaiah, her father. It observed that plaintiff had in fact filed application for impleading herself in said suit which was rejected. It referred to specific finding by this Court in RSA no.765/1995 that defendant failed to establish his exclusive possession over 1.66 acres in Sy.no.177 and that said finding could be relied upon in present suit as per ratio in AIR 1998 SC 1132.

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It referred to deposition of PW.1 that out of 2.04 acres of land in Sy.no.177 and that 1.14 acres fell to share of plaintiff’s grandfather and brothers and which was partitioned between them equally at 0.38 acres each, and as per Ex.P.2 – sale deed, there was transfer of share of

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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Thammappa to plaintiff’s grandfather. From observations of this Court in Ex.P.12 – judgment in RSA no.765/1995, wherein there is reference to recitals in sale deeds produced by plaintiff therein (defendant in present suit) about partition between Channappa and Yengatappa.

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In para no.27 of its judgment and decree, trial Court has noted that according to plaintiff, extent of 0.38 acres in Sy.no.177/1 was suit schedule property, which was identified by PW.3 – Surveyor in his report at Ex.P.19. From recitals in Ex.P.19, and deposition of PW.3, it deduced that plaintiff was in possession of 0.38 acres of land in Sy.no.177/2 purchased by her grandfather from children of Thammappa under Ex.P.2 – sale deed and apart from same, plaintiff was in possession of 0.34 acres as per Exs.P.19 and P.20, survey report and sketch respectively. It therefore proceeded to answer issues no.1

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& 4 in affirmative and proceeded to decree suit.

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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Reasons assigned by first Appellate Court while confirming judgment and decree passed by trial Court are that this Court in RSA no.765/1995 had given categorical finding that Thammaiah (present defendant) was not in possession of 1.66 acres of land in Sy.no.177/1 and hence, it could not be held that finding of trial Court on issue no.4 was erroneous. It observed that PW.3 had identified houses of Thimmaiah and Puttaswamy, as situated in Sy.no.177/1. It further observed that DW.1 admitted that he was not in possession of property which was subject matter of RSA no.765/1995. Further DW.2 also admitted that present suit property was situated within Sy.no.177/1 and which was fenced. It holds that Ex.D.3 – CRC dated 24.10.1975, Ex.D.4 – village map extract and Ex.D.5 – mahazar would not be sufficient to substantiate case of defendant and to overturn finding of trial Court. On said findings, it dismissed appeal and confirmed findings of trial Court.

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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Bare perusal of judgment and decree passed by trial Court as well as first appellate Court would indicate that they are based on conclusions arrived at after appreciation of entire oral and documentary evidence.

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There can be no dispute about legal position that mere entries in revenue records would not substantiate title. But, in instant case, said entries are corroborated by admissions and findings in earlier litigation to which defendant was a party. Said findings, have attained finality and even defendant examined as DW.1 unequivocally admitted. There does not appear to be serious dispute about pedigree of plaintiff and defendant. There is also no dispute about suit property being a part of Sy.no.177 totally measuring 2.04 acres. Though, plaintiff was unable to establish details of partition stated to have taken place between Chennappa and Yengtappa, there is material to establish subsequent partition between children of Chennappa, wherein plaintiff’s father was allotted extent of 0.38 acres towards his share. Ex.P.2 –

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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registered sale deed establishes transfer of 0.38 acres by children of Thammappa in favour of plaintiff’s father and which was assigned Sy.no.177/2. PW.2 has admitted that present suit property was part of subject matter property in RSA no.765/1995.

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Both Courts have referred to said evidence and that judgment and decree is not solely on basis of Ex.P19 and 20, Survey Report and Sketch, to hold that there was sufficient justification for granting declaration. Though, learned counsel for appellant/ defendants strained herself to contend that there was failure to establish earlier partition and that declaration of title was based only on revenue records, perusal of impugned judgment and decree would indicate otherwise. Hon’ble Supreme Court Hardial Singh Vs. Balbir Singh¹ has held that there cannot be interference with concurrent findings by High Courts in exercise of powers under Section 100 of CPC 1908, even to correct gross errors.

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12022 SCC OnLine SC 311,

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NC: 2024:KHC:13699 RSA No. 743 of 2007

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Hence, substantial question of law is answered

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in negative. Consequently following :

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O R D E R

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Appeal is dismissed.

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No order as to costs.

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Sd/-

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JUDGE

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Psg*

Sri Vokkaligara C Thammaiah v. Sri Vokkaligara Laxmamma

Case brief

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Sri Vokkaligara C Thammaiah v. Sri Vokkaligara Laxmamma

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