Sri M K Lakshminarayana Vs Smt. Chikkagangamma

THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 13.10.2020 PASSED IN R.A.NO.242/2014 ON THE FILE OF THE ADDL.SR. CIVIL JUDGE AND JMFC, MAGADI. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.12.2013 PASSED IN O.S.NO.34/2007 ON THE FILE OF THE PRL. CIVIL JUDGE NA JMFC, MAGADI.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri Y.K. Narayana Sharma, learned counsel for the appellant and Sri R. Bhadrinath, learned counsel for respondent No.2.

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Present Second Appeal is filed by the plaintiff in O.S.No.34/2007, wherein suit of the plaintiff came to be dismissed, confirmed in R.A.No.242/2014.

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Parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking before the trial Court.

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Plaintiff filed the suit for relief of permanent injunction in respect of the following properties (hereinafter referred to as 8suit properties9).

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HC-KAR

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SCHEDULE

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1. Land bearing Sy.No.8/8, measuring 1.03 guntas

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assessed at Rs.2.00 bounded as follows:

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East by : Sarkari Halla West by : Plaintiffs9 land in Sy.No.8/5 North by : Defendants9 land and plaintiff9s land South by : Plaintiff9s land Sy.No.10/1.

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2. Land bearing Sy.No.10/1, measuring 0.30 guntas assessed at Rs.2.00 bounded as follows:

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East by : Sarkari Halla West by : Gowrammas land North by : Plaintiff9s land Sy.No.8/5, and 8/8 South by : Chikkanarasaiah alias chikkanna9s land

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3. Land bearing Sy.No.10/3, measuring 1.03 guntas, assessed at Rs.2.00 bounded as follows: East by : Sarkari Halla and Road West by : Gowrammas land North by : Chikkanarasaiah alias chikkanna9s land South by : Kempakka9s land*

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4. Land bearing Sy.No.10/05 measuring an extent of 0.23 guntas, assessed at Rs.2.00 bounded as follows:

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East by : Halla and Road West by : Road North by : Kempakka9s land

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HC-KAR

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South by : Kempakka9s land

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5. Land bearing Sy.No.12/3, measuring 0.03 guntas, assessed at Rs.1.00 bounded as follows:

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East by : Plaintiff9s land Sy.No.23/6 West by : Plaintiff9s land No.18/6 North by : Plaintiff9s Land Sy.No.12/2 South by : Kempakka and others land

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6. Land bearing Sy.No.17/2, measuring 0.12 guntas assessed at Rs.1.00 bounded as follows:

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East by : defendants and plaintiff9s land West by : Sarkari Gomala North by : Ganganarasaiah and others land South by : Narasimhaiah and others land

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7. Land bearing Sy.No.17/9, measuring 0.19 guntas, assessed at Rs.2.00 bounded as follows: East by : Plaintiff9s land bearing Sy.No.12/22 West by : Ravishankar9s land North by : Ganganarasaiah9s Land South by : Plaintiff land Sy.No.17/10

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8. Land bearing Sy.No.17/10, measuring 0.15 guntas assessed at Rs.2.00 bounded as follows: East by : Ravishankar9s land West by : Ravishankar9s land North by : Plaintiff9s Land Sy.No.17/9

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HC-KAR

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South by : Ravishankar9s land

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9. Land bearing Sy.No.18/2, measuring 0.05 guntas assessed at Rs.1.00 bounded as follows: East by : Chikkanarasimhaiah and others land West by : Plaintiffs land Sy.No.18/1 North by : Government Tank South by : Plaintiff9s land Sy.No.18/4

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10.Land bearing Sy.No.18/6, measuring 0.14 guntas assessed at Rs.2.00 bounded as follows: East by : Plaintiff9s land Sy.No.12/3 West by : Sarkari Gomala North by : Plaintiff9s Land Sy.No.18/4 South by : Ganganarasaiah, Kempakka, Motaiah Chikkanarasaiah9s land.

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11.Land bearing Sy.No.23/6, measuring 1.25 guntas assessed at Rs.2.00 bounded as follows:

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East by : Dhanlakshmamma9s land West by : Narasegowda alias Kenchaiah9s lands and others land North by : Government Tank and others land South by : Plaintiff9s land Sy.No.12/22

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12.Land bearing Sy.No.26/1, measuring 0.32 guntas assessed at Rs.2.00 bounded as follows: East by : Plaintiff9s land Sy.No.26/2

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HC-KAR

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West by : Lakshminarasimhaiah @ Shamannas Land And others land North by : Karagaiah9s land and others Land South by : Narasimhaiah9s land 13. Land bearing Sy.No.26/3, measuring 0.13 guntas assessed at Rs.1.00, bounded as follows:

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East by : Narasimhamurthy and others land West by : Plaintiff9s land Sy.No.26/2 North by : Plaintiff9s land Sy.No.26/2 South by : Mannamma and others land

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14.Land bearing Sy.No.26/12, measuring 1.12 guntas assessed at Rs.2.00 bounded as follows:

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East by : Narasimhaiah alias Sampadappa9s land West by : Ramaiah9s land and sarkari Bande Sy.No.20 North by : Karagaiah and others land South by : Narasimhaiah9s land

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15.Land bearing Sy.No.45/3, measuring 1.08 guntas, assessed at Rs.2.00 bounded as follows: East by :Lakshminarasimhaiah @ Shamanna9s land West by :Plaintiff9s property North by :Rangaiah9s land, and Mannammas land South by :Kenchaiah9s land

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HC-KAR

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Items 1 to 15 are situated at Madapatna Village, Thavarekere hobli, Bangalore South Taluk.=

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Facts in the brief for disposal of the present appeal are as under:

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5.1. Plaintiff laid the claim by contending that defendant Nos.1 and 2 are the wife and daughter of Narasappa. Said Narasappa and Kempanarasaiah were the children of one Kariyanna.

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5.2. Plaintiff contended that there was an oral partition between Narsappa and Kempanarasaiah. Kempanarasaiah is the grandfather of the plaintiff. Kempanarasaiah had a son by name Kariyanna and plaintiff is the son of said Kariyanna. Suit properties according to the plaintiff had fallen to the share of the grandfather of the plaintiff Kempanarasaiah in the oral partition between Kempanarasaiah and Narasappa, who is the husband of defendant No.1 and father of defendant No.2. After the said oral partition, parties enjoyed their respective shares in the properties without there being any hindrance.

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5.3. Plaintiff further contended that he being the eldest member of the family was managing the suit properties and

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having actual possession of the same. When the matter stood thus, daughter of Narsappa, who is the defendant No.2 initiated revenue proceedings as against the plaintiff9s father in respect of suit properties. When the father of the plaintiff died, taking advantage of the same, defendant No.2 got created certain revenue documents in collusion with some persons with a malafide intention of knocking of the suit properties.

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5.4. It is further contended that defendants having no manner of right whatsoever created a registered settlement deed dated 22.08.1962 with respect to some of the suit items and on the basis of said settlement deed, defendants laid their claim in respect of suit properties.

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Pursuant to the suit summons, defendants entered

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their appearance and filed detailed written statement and denied the plaint averments except admitting the relationship among the parties.

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It is the specific contention of the defendants that defendants have succeeded to the estate of Narasappa and defendant No.1 executed registered settlement deed dated 22.08.1962 in favour of defendant No.2. Therefore, defendant

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No.2 is the owner of the suit properties and sought for dismissal of the suit.

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Learned Trial Judge after raising the necessary issues recorded the evidence of the parties and on hearing the arguments of the parties dismissed the suit of the plaintiffs.

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Being aggrieved by dismissal of the suit, an appeal came to be filed by the plaintiffs in RA No.242/2014 before the First Appellate Court.

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Learned Judge in the First Appellate Court, after securing the records heard the arguments of the parties in detail and on re-appreciation of the material on record dismissed the appeal and upheld the order of dismissal of the suit.

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Being further aggrieved by the same, the plaintiff approached this Court in the second appeal.

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A coordinate bench of this Court by order dated 17.08.2023 admitted the appeal on the following substantial questions of law:

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1. <Whether the Courts below have ignored the admission given by DW1 in his cross examination

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regarding the possession and enjoyment of the suit schedule properties by the plaintiffs?

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2. Whether the First Appellate Court committed an error in dismissing the application filed under Order 6 Rule 17 of CPC for amendment as sought ?=

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Pursuant to the said substantial questions of law, reiterating the grounds urged in the appeal memorandum, Sri Y.K.Narayana Sharma, learned counsel for the appellant vehemently contended that both the Courts failed in their duty in ignoring the categorical admission made by D.W.1 repeatedly in her cross examination about the possession of the suit property by the plaintiff. Thus, dismissal of the suit for injunction has resulted in grave miscarriage of justice and sought for allowing the appeal by answering the substantial questions of law in his favour.

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Insofar as second substantial question of law is concerned, Sri Y.K. Narayana Sharma submits that he would not press the second substantial question of law with regard to dismissal of the application under Order VI Rule 17 filed by the appellant before the First Appellate Court.

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HC-KAR

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Having placed his submission on record, this Court heard the arguments of Sri Bhadrinath, learned counsel for respondent No.2 in respect of First substantial question of law.

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Sri Bhadrinath would contend that D.W.1 was aged 72 years. Alleged admission of D.W.1 in her cross examination is a stray admission and when entire cross examination of D.W.1 read as a whole, defendants have not admitted the case of the plaintiff that plaintiff is in possession of the suit property. Therefore, only on the stray admission of D.W.1, appeal cannot be allowed by upsetting the findings recorded by both the Courts and sought for dismissal of the appeal.

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Having heard the arguments of parties this court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that the admission of D.W.1 in her cross examination is not a stray admission as is sought to be portrayed by the counsel for defendant No.2.

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In her cross examination, she categorically admits that <£ÀªÀÄä vÀAzÉ ºÁUÀÆ aPÀÌ¥Àà CªÀgÀ £ÀqÀÄªÉ «¨sÁUÀ DVvÀÄÛ. £ÀªÀÄä vÀAzÉ »¸ÉìUÉ §AzÀAvÀºÀ D¹ÛAiÀÄ£ÀÄß £ÀªÀÄä vÁ¬Ä C£ÀÄ¨sÀ«¸ÀÄwÛzÁÝgÉ. £ÀªÀÄä aPÀÌ¥Àà CªÀgÀ

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HC-KAR

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§AzÀAvÀºÀ D¹ÛAiÀÄ£ÀÄß ªÁ¢AiÀÄgÀÄ C£ÀÄ¨sÀ«¸ÀÄwÛzÁÝgÉ. £ÀªÀÄä vÀAzÉ ºÁUÀÆ £ÀªÀÄä

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aPÀÌ¥Àà£À £ÀqÀÄªÉ AiÀiÁªÀ jÃw «¨sÁUÀ DVzÉ JAzÀÄ UÉÆwÛ®è. ¨ÉÃgÉ ¨ÉÃgÉ ªÁ¸À ªÀiÁqÀÄwÛzÁÝgÉ.”

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Again in her cross examination, she has stated that <zÁªÁ D¹ÛUÀ¼À£ÀÄß £ÀªÀÄä aPÀÌ¥Àà C£ÀÄ¨sÀ«¸ÀÄwÛzÀÄÝ, D £ÀAvÀgÀ FUÀ ªÁ¢ C£ÀÄ¨sÀ«¸ÀÄwÛzÁÝgÉ CAzÀgÉ ¤d.”

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As could be seen from the aforesaid admission, when the partition took place between her father and her uncle, the properties were being enjoyed as per the partition.

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It is specific admission of D.W.1 that the property that has fallen to the share of the plaintiff was being enjoyed by her junior uncle earlier and after his demise, the plaintiff was enjoying their share.

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Likewise, she has also admitted that property that has fallen to the share of her father is being enjoyed by her mother and now enjoyed by the defendant No.2 in view of the settlement deed. Written statement also contains such admission.

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HC-KAR

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Therefore, this Court is of the considered opinion

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that in a suit for injunction when the lawful possession being admitted by the defendants and when there is a cause of action

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to the suit with regard to the interference, both the Courts ignoring the admission and dismissing the suit of the plaintiff has resulted in grave miscarriage of justice which needs to be corrected by this Court by exercising the power vested in it under Section 100 of Code of Civil Procedure.

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