Sri Basavarajappa Vs M B Gangadhara

S/O LATE KALAPPA AGED ABOUT 69 YEARS PRESENTLY RESIDING AT DOOR NO.72 BIDAGALU VILLAGE, WARD NO.11 SARAGUR TOWN, SARAGUR TALUK MYSURU DISTRICT–571 121.

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…APPELLANT

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(BY SRI. KUMBAR VASANT FAKEERAPPA, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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M.B.GANGADHARA SINCE DEAD BY HIS LRS.

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SRI. M.G.SRIKANTA SINCE DEAD BY HIS LRS.

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1(a) SMT.LEELAVATHI W/O LATE M.G.SRIKANTA AGED ABOUT 56 YEARS

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1(b) SINDHU

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D/O LATE M.G.SRIKANTA AGED ABOUT 30 YEARS

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1(c) LAKSHMI D/O LATE M.G.SRIKANTA AGED ABOUT 27 YEARS

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HC-KAR

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RESPONDENTS NO.1(a) TO 1(c) ARE RESIDING AT NO.82, D-BLOCK S.B.M. LAYOUT, BHOGADI (CT) MYSURU-570 026.

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SMT. M.G. SHYLAJA D/O LATE GANGADHARA W/O NAGARAJU AGED ABOUT 61 YEARS

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SRI. M.G. NAGESH S/O LATE GANGADHARA AGED ABOUT 58 YEARS

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RESPONDENTS NO.2 AND 3 ARE PRESENTLY RESIDING AT BIDAGALU VILLAGE, WARD NO.11 SARAGUR TOWN, SARAGUR TALUK MYSURU DISTRICT-571 121.

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THE SECRETARY SARAGUR GRAM PANCHYATH SAGARE, H.D.KOTE TALUK MYSURU DISTRICT-571 114.

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…RESPONDENTS

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(BY SRI. G.B.NANDISH GOWDA, ADVOCATE FOR R1(a to c) TO R3; NOTICE TO R4 SERVED AND UNREPRESENTED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.09.2021 PASSED IN R.A.NO.6/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, H.D.KOTE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.04.2017 PASSED IN O.S.NO.8/2002 ON THE FILE OF THE CIVIL JUDGE AND JMFC, HEGGADADEVANAKOTE.

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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 H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission and I have heard learned counsel for the appellant and learned counsel for the respondent Nos.1(a) to (c) to 3.

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This appeal is filed against concurrent finding. The case of plaintiff while seeking the relief of declaration and injunction is to declare the plaintiff as the absolute owner of the suit schedule property bearing Site No.58, situated at Bidagalu Village, H.D.Kote measuring East to West 55 feet, North to South 37½ feet, which is more fully described in the schedule. It is also contended that the suit schedule property originally belongs to late Patel Madappa of Bidagalu Village, who was in possession of the same during his lifetime. Patel Madappa was married, but he had no children and therefore, he executed a Will dated 10.10.1970 in favour of his brother's son, Kalappa, who was looking after his welfare. Based on the said Will, he claimed title in respect of the suit schedule property and also it is stated that Patel Madappa died on 08.11.1974. Hence, Will came into force. Soon after the death of Patel Madappa,

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Kalappa took over possession of the schedule property and continued to be in possession till his death i.e., 08.05.1975. During his lifetime, Kalappa could not get the khatha mutated in his name. After the death of Kalappa, the suit schedule property has been in possession and enjoyment of the legal representatives including the plaintiff, who is his second son and is managing the affairs of his family. The defendant no. 1, who has no right, title and interest over the suit schedule property started interfering with plaintiff’s peaceful possession and enjoyment of the property and when he has applied to the defendant No.2 for change of khatha in his name on 08.11.2001 and is trying to get the same mutated in collusion with defendant No.2. The defendant No.1 is an influential person and if the khatha is changed to his name, the plaintiff would be put to inconvenience.

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In pursuance of the suit summons, defendant Nos.1 and 2 appeared and filed their written statement. The defendant No.1 in the written statement denied the entire plaint averments and also denied that she was in possession and enjoyment of the property and also subsequent to her

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death, her daughters Subamma and Basamma executed a registered sale dated 20.12.1974 in favour of defendant No.1. Thereafter, defendant No.1 has been in possession and enjoyment of the suit schedule property. The defendant No.1 also died and his legal representatives were also brought on record.

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The Trial Court having considered the pleadings of the parties, framed the issues whether the plaintiff proves that he is the absolute owner of the suit schedule property, whether the plaintiff is in lawful possession and whether the plaintiff proves interference and the defendant No.1 took the contention that he is the absolute owner of the suit schedule property by means of registered sale deed dated 20.12.1974 and that he has been in possession and enjoyment of the property. The Trial Court having given an opportunity to both the plaintiff as well as defendants, assessed the evidence available on record, answered issue Nos.1 to 3 as ‘negative’ and issue No.4 as ‘affirmative’, in coming to the conclusion that defendant No.1 had purchased the property on 20.12.1974. The Trial Court also taken note of the admission on the part of P.W.1 that no title

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documents are placed on record and only relying upon the document of Will which is discussed in Paragraph No.13 that there is no document or explanation as to whether the plaintiff went to the Panchayath Office as per Ex.P5 and also observed that on perusal of Ex.P6 on the second page, there has been an interpolation in blue ink with respect to the boundaries of the property and the same is also not accepted and so also in respect of documents Exs.P8 to P10, discussed in detail in paragraph No.14 and in paragraph No.15 discussed about Ex.P16 is the property tax demand register extract for the year 2014-2015 and also taken note of name of the owner noted as Kalappa, S/o. Mariyanna. If at all the khatha was changed in the name of plaintiff as shown in Ex.P11 for the year 20042005, why is the demand register extract for the year 20052006 as per Ex.P13 and property tax demand register extract as per Ex.P16 for the year 2014-2015 are showing the name of Kalappa for the year 2005-2006 and 2014-2015 is also considered by the Trial Court.

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The Trial Court also in detail discussed the material available on record and in paragraph No.19 discussed with

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regard to the evidence of P.W.2, in so far as execution of the Will is concerned is of no much consequence for mainly two reasons. Firstly, because the defendants have not disputed the execution of the Will, rather it is their contention that Patel Madappa could not have bequeathed the suit schedule property as he did not have any title over the same and it was not a property capable of being disposed by him by Will. Secondly for the reason that in the cross-examination, P.W.2 stated that his father informed him about the bequest of suit schedule property under the Will, but stated that his father did not inform him about the bequest of other properties under the Will. Hence, an observation is made that the said admission itself shows that evidence of P.W.2 cannot be relied upon because there is no special reason why father of P.W.2 would inform him only about the suit schedule property and not about the other properties under the Will.

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The Trial Court having considered both oral and documentary evidence in paragraph No.22 comes to the conclusion that under the purported Will dated 10.10.1970 though the father was absolute owner in possession of the suit

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schedule property and that he was capable of disposing the suit schedule property by testamentary disposition within the meaning of Section 30 of Hindu Succession Act and the provisions of the Indian Succession Act. In the absence of such proof that Patel Madappa had title to the schedule property and in the absence of any title, question of granting the relief of declaration does not arise and the same is dismissed.

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Being aggrieved by dismissal of the suit, the First Appellate Court also having considered the grounds urged in the appeal memo, a short point for consideration was framed whether the impugned judgment and decree passed by the Trial Court is perverse, opposed to the facts and law and having taken note of the same, while answering in paragraph No.14, the case of the plaintiff and also the defence of the defendants was also taken note of and particularly in paragraph No.17 in detail dealt with the matter regarding title is concerned, even with regard to the application filed under Order 41 Rule 27 CPC also, an observation is made that the plaintiff failed to produce the documents showing his uncle ownership qua the suit property despite having the knowledge that defendant No.1 (a)

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to (c) have denied the title and learned Trial Court held that plaintiff has failed to prove the title of his uncle over the suit property and in detail discussion was made that with regard to the title is concerned and nothing is placed on record and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding, the present second appeal is filed.

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The counsel appearing for the appellant would vehemently contend that whether the schedule property is an ancestral property, khatha of the property and enjoyment of the property was continuous and also the title deeds are necessary to establish title over the suit schedule property ought to have been considered by the Trial Court and also First Appellate Court. The counsel would vehemently contend that both the Courts have committed an error and when P.W.2 is examined in discharging the burden to prove Ex.P1 which is against the procedure of law of evidence, nothing is considered and the attesting witnesses were not alive and hence only

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examined one of the son of the attesting witnesses and the same also not considered by the First Appellate Court.

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Per contra, learned counsel appearing for respondent Nos.1(a) to (c) to 3 would vehemently contend that when the suit is filed for the relief of declaration and permanent injunction, the plaintiff must establish title and unless title is established before the Court, question of granting the relief of declaration does not arise. The counsel also vehemently contend that while granting the relief of declaration, the Court cannot consider the weakness of the defendants and plaintiff has to stand on his own legs and no such material is placed before the Court. Hence, the Trial Court rightly dismissed the suit and First Appellate Court also confirmed the same.

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Having heard learned counsel appearing for the appellant and learned counsel appearing for respondent Nos.1(a) to (c) to 3 and considering the material on record, the suit is filed for the relief of declaration, that too in respect of only one item of the suit schedule property i.e., Site bearing No.58 and in order to prove the claim based on the Will, the plaintiff mainly relies upon the document of Ex.P1 registered Will and also the document Ex.P13-demand register and also relies upon the document of tax paid receipt, assessment

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extract and also tax register at Ex.P20. On the other hand, defendant No.1 also contend that property was purchased in the year 1974 and to that effect also produced the document Ex.D1 and tax paid receipts. No doubt, counsel appearing for the appellant would contend that RTCs-Exs.P23 and P24 are very clear that the property belongs to the family, however, the RTC establishes possession under whom the property is under cultivation. But, in order to come to a conclusion of title is concerned, there must be a document of title deed and the same is not placed on record. When such being the case and when the title document is not placed, question of granting the relief of declaration does not arise.

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No doubt, there is a force in the contention of learned counsel appearing for respondent Nos.1(a) to (c) to 3 that when the plaintiff approaches the Court for the relief of declaration, he must establish his case to prove his title and not depend on the weaknesses of the defendants whether he has got title or not. On the other hand, the Trial Court also taken note of sale deed while answering issue No.4 that property was purchased and sale deed is also placed on record and based on

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the title deed comes to the conclusion that issue No.4 is proved by the defendant. When such reasoning is given, I do not find perversity in appreciating both oral and documentary evidence and taken note of both question of fact and question of law and with regard to devolving of the property also, the Trial Court has taken note of question of law that no title deeds are placed on record. When such being the case, I do not find any ground to admit and frame substantial question of law.

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