Smt. Shrimathi Vs Sri. N S Rajeeva

SRI N S PRAKASH S/O LATE SHAMAYYA GOWDA AGED ABOUT 46 YEARS R/O NAKUNJI, ANNGALAGODOGE GRAMA SHEDGAR POST, MUTTURU HOBLI THIRTHAHALLI TALUK SHIVAMOGGA – 577415

¶22

SMT N S SHUBHA S/O LATE SHAMAYYA GOWDA AGED ABOUT 46 YEARS R/O NAKUNJI ANNGALAGODOGE GRAMA SHEDGAR POST, MUTTURU HOBLI THIRTHAHALLI TALUK SHIVAMOGGA – 577415

¶23

…RESPONDENTS (BY SRI. K. VIJAYA KUMAR, ADVOCATE FOR R1 TO R3) THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 22.08.2023 PASSED IN RA NO.4/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, THIRTHAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.11.2021 PASSED IN O.S.NO.176/2014 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, THIRTHAHALLI.

¶24

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶25

CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

¶26

3 - NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶27

HC-KAR

¶28

ORAL JUDGMENT

¶29

Heard Sri Amshith Hegde H.S. learned counsel for the appellants and Sri K.Vijaya Kumar, learned counsel for the respondents.

¶30

Defendants in O.S No.176/2014 on the file of the I Addl. Civil Judge and JMFC, Thirthahalli, are the appellants in this Second Appeal challenging the validity of the judgment and decree dated 18.11.2021 passed in the said suit in respect of the immovable properties mentioned hereunder and hereinafter referred to as ‘suit properties’.

¶31

‘A’ SCHEDULE

¶32

Total 27 guntas of garden land in Sy.No.17/4 of Angalagodige village, Mutthuru Hobli, Thirthahalli Taluk, bounded on:

¶33

East by: Sy.No.13, West by: Sy.No.17/3 and Sy.No.17/2, North by: Sy.No.17/2 South by: Sy.No.13 and Sy.No.15.

¶34

‘B’ SCHEDULE

¶35

Total 27 guntas of garden land in which defendants encroached 5½ guntas of garden land in Sy.No.17/4 of Angalagodige village, Mutthuru Hobli, Thirthahalli Taluk, bounded on:

¶36

4 - NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶37

HC-KAR

¶38

East by: Garden land of plaintiffs in Sy.No.17/4, West by: Garden land of defendants in Sy.No.17/3, North by: Garden land of plaintiffs in Sy.No.17/4, South by: Sy.No.13 and Sy.No.15.

¶39

‘C’ SCHEDULE

¶40

Total 21½ guntas of garden land in Sy.No.17/4 of Angalagodige village, Mutthuru Hobli, Thirthahalli Taluk, bounded on:

¶41

East by: Sy.No.13, West by: Sy.No.17/3, Sy.No.17/2 and suit schedule-B property which is encroached by the defendants, North by: Sy.No.17/2 South by: Suit schedule-B property which is encroached by the defendants.

¶42

Judgment and decree passed by the Trial Court is confirmed by the Senior Civil Judge and JMFC, Thirthahalli, in R.A No.4/2022 by the judgment dated 22.08.2023.

¶43

Facts which are utmost necessary for disposal of the present appeal are as under:

¶44

Plaintiffs filed a suit for declaration and possession contending that they are the absolute owners of the land measuring 27 guntas of areca garden in Survey No.17/4 of Angalagodige Village.

¶45

5 -

¶46

NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶47

HC-KAR

¶48

It is contended that defendant No.3, at the instigation of other defendants, encroached 5½ guntas of the property of the plaintiffs on the western and southern sides. There was resistance to hand over the possession despite repeated requests. Therefore, the plaintiffs had to file the suit for declaration and possession.

¶49

Upon the issuance of suit summons, defendants entered appearance and filed written statement contending that property in Survey No.17/4 is in joint possession of both plaintiffs and defendants since time immemorial.

¶50

It is contended that Hiriyanna, S/o Subbanna Gowda, Siddappa, S/o Venkanayya are their common ancestors. One Shamayya Gowda is the father of the plaintiffs. Siddappa, S/o Venkanayya aforesaid is the brother of one Gurappa Gowda, i.e., the husband of defendant No.1.

¶51

All other averments made in the plaint were denied by the defendants and therefore, Trial Court based on the rival contentions raised five issues.

¶52

6 - NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶53

HC-KAR

¶54

After recording the evidence of the parties, learned Trial Judge heard the arguments of both sides and decreed the suit of the plaintiffs and directed the defendants to vacate and hand over ‘B’ schedule property to the plaintiffs within a period of three months from the date of the judgment.

¶55

Being aggrieved by the same, defendants filed an appeal in R.A No.4/2022 on the file of the Senior Civil Judge and JMFC, Thirthahalli.

¶56

Learned Judge in the First Appellate Court after securing the records, heard the arguments of both sides and noted that there was no challenge to the survey sketch prepared by the surveyor marked at Ex.P-6, upheld the finding recorded by the learned Trial Judge that plaintiffs are successful in establishing the title over the suit property and by the judgment dated 22.08.2023 dismissed the appeal of the defendants.

¶57

Being further aggrieved by the same, defendants have filed the present Second Appeal on the following grounds and substantial questions of law.

¶58

Both the Trail and 1^st Appellate judge has not construed the documents, pleadings and evidence properly. There

¶59

7 -

¶60

NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶61

HC-KAR

¶62

is hardly any discussion about the oral and documentary evidence adduced by the defendant/appellant in the case.

¶63

Both the Trail and 1^st Appellate judge has totally ignored the pleadings and bypassed the evidence let-in in the case when there has been plaintiff's clear and candid admission as to the facts during the course of cross examination; regarding the relationship of plaintiff and defendants which are totally destructive to his case and attributed that the suit is false and frivolous in character and nature, apart from his clandestine acts with sinister motive to harass the defendants/ appellant.

¶64

Both the Trail and 1^st Appellate court erred in not appreciating the oral and documentary evidence before coming to the conclusion in the judgment. The appreciation of the trail judge and 1st Appellate judge are not on sound and settled principles of law and facts. There has been unfounded and Imperfect conclusion about suit schedule property which is joint family property resulted in miscarriage of justice.

¶65

Both the Trail and 1^st Appellate judge has misunderstood and misinterpreted the whole case, which resulted in miscarriage of justice.

¶66

Both the Trail and 1^st Appellate court has not considered that the sult for declaration suit is not maintainable without flow of title to the alleged property when Plaintiff

¶67

8 -

¶68

NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶69

HC-KAR

¶70

/ Respondents purposefully not produced and deposed falsely before this Hon'ble Court as he has produced the alleged partition deed. Plaintiff deposed Evidence is itself which is contrary to that facts and his own pleading, Plaintiff admission quoted bellow.

¶71

ಅಂಗಳ�� ಮದ ಸ ನಂ 17:4 ನಮ� ತಂ��ಂದ ನಮ� ಬಂ��ತ�� . ನನ� ತಂ� ಮ�� ಅವರ ಅಣ�ಂ�ರ ನ�� ಆದ � ! ಪ�#ರ ಸ . ನಂ 17:4 ರ ಜ%ೕ' ನನ� ತಂ�� ಬಂ��ತ�� () ಬರವ*� +,ಂತರ ಆ-�ತ�� . ಸದಲ �/0ಪತ�ವ'� 12 3ಲಯ56 ಸ789�ತ�: .

¶72

The courts below ought to have noticed that the Plaintiff /Respondents has admitted the fact regarding joint possession of property as per Ex P4 and Ex D1. which is evident from his admission quoted below

¶73

;< 4 ರ78 ಸ ನಂ 7/4 ರ ಅ9�= �>ಯಣ� ?@ AಬB ಣ� ಮ�� 9ದCಪ! ?@ �ಂಕಣ� ಎ'�ವವರ Fಸ� ನGH-�ಎಂದIಸ> .

¶74

The courts below ought to have noticed that the Plaintiff /Respondent has not produced single document of title to substantiate their claim on suit schedule property. The Plaintiff / Respondents brought this suit only on the basis of revenue records and not supported by any other material documents therewith which require for legal scrutiny of a legal character of suit schedule property to arrive at the legal proof exclusive holdings which has

¶75

9 -

¶76

NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶77

HC-KAR

¶78

reference that which are in consisted and contraries pleading.

¶79

The learned both the Judges totally ignored the discrepancies regarding the measurement of the suit property in ExP-16 to ExP-18 regarding the Kharab portion measurement of the suit land and there by courts failed to cast a cloud on very fact of the grant and enjoyment Kharab portion of land which is included in the suit schedule measurement. As such, there is directly, horizontally, vertically, destructive evidence and an imaginary claim were made by the plaintiff over suit schedule property. There is clear go-bye to the pleading and evidence and documents produced by the Plaintiff. The measurement of the suit schedule property is itself in dispute as per the documents produced by the Plaintiffs themselves.

¶80

The learned both the Judges has totally ignored the pleading and gone on discussing about neither irrelevant matters which were neither pleaded nor the subject matter of any Issue arising in the case. The plaintiff had taken mutually contradictory stands at each and every stage of cross examination and also deposed totally contrary to their pleading.

¶81

Both the Trail and 1^st Appellate court has failed to consider the suit claim of the plaintiff is not supported by the original title documents in the absence of clear title. The courts also fails to consider plaintiff failed to show the severance of statues as to the joint possession

¶82

10 -

¶83

NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶84

HC-KAR

¶85

of suit schedule property as per Ex P-4 produced by the plaintiff.

¶86

Both the Trail and 1^st Appellate court failed to consider the entries in RRV which is produced as Ex D-1 which clearly substantiate the claim of the defendants that the suit property is joint family property and severance of status has not been done according to law.

¶87

Both the Trail and 1^st Appellate court failed to consider that plaintiff has failed to adduce evidence whatsoever apart from revenue records, to establish the suit property was their absolute property. The trail and 1st Appellate court judges also failed to assess the fact that the entries in revenue records do not confer title to a property, nor do they have any presumptive value on title.

¶88

Both the Trail and 1^st Appellate court has failed consider that the plaintiff is not the absolute owner, nor derived any right title and interest therein. It has failed to consider that the suit schedule property is joint family property, since no partition deed or partition had taken place between the ancestors of plaintiff and defendants and exclusivity of rights has not been determined.

¶89

Both the Trail and 1^st Appellate court has failed to consider and assess at the time of filing the suit the

¶90

11 -

¶91

NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶92

HC-KAR

¶93

plaintiff has not entitled to any legal character or any right to suit schedule property.

¶94

Both the Trail and 1^st Appellate court has filed to consider the evidence of the defendant No.1 and documents relied upon him to disprove the case of the plaintiff.

¶95

Both the Trail and 1^st Appellate court below has made much of a molehill that the defendants have not proved their case and has thus raised erroneously adverse inference against the defendant for not producing the material documents before it the courts below ought to have properly read their denial in the proper and right perspective taking into account the entire tenor of the defence raised by the defendants they have clearly stated that the suit schedule property is joint family property and plaintiff is to show severance of status of their legal rights or rights in property which defendants claims to be in possession which is significant from the admission made by the plaintiff his cross examination.

¶96

The courts below ought to have noticed that plaintiff has not produced any documents of title before the courts below except the revenue records to show that he has been in possession of the suit property since years.

¶97

The documents which are filed by plaintiff of alleged suit schedule property, the boundaries stated, measurements and the identity stated in plaint and the

¶98

12 -

¶99

NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶100

HC-KAR

¶101

concocted sketch and evidence are pure figment of imagination and claimed imaginary based on surmises and conjectures.

¶102

The courts below has wrongly shifted the burden of proving the case on the shoulder of the defendants / appellant whereas Plaintiff /respondents has utterly failed to prove their exclusivity ownership of the absolute suit schedule property which is admittedly the joint family property of plaintiff and defendants.

¶103

The certified copies of Judgment and decree is also furnished along with the memo of appeal.

¶104

The decree appealed from proceeds on any ground common to all the defendants in trail court, the defendant/appellant who was 3rd defendant in trail court appealed for the reversal for whole judgment and decree.

¶105

While considering the facts and circumstance of the case and the conclusion and appreciation arrived by the court at the appellate stage, it is prayed the Hon'ble court be pleased to once again dwell upon the case regarding whether there are infirmities, illegalities, perversities, absurdities, bad in law or suffer from any error, are there any merits and demerits in the matter. Furthermore inconsistency, absurdities, un-neutrality should not be found while the appreciation at the

¶106

13 -

¶107

NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶108

HC-KAR

¶109

appellant stage. This matter requires for re-appreciation or for taking in reconsideration of pleading, evidence, cross-examination, cause of action, relief and the jurisdiction in the matter. From any angle, the judgment and decree passed by the Hon'ble Trail Court and 1st Appellate Court is erroneous and unjust, opposed to law and facts.

¶110

SUBSTANTIAL QUESTIONS OF LAW

¶111

“(i) Whether both the courts have committed an error in not appreciating the documentary and oral evidence properly?

¶112

(ii) Whether both the courts below erred in saying that the defendants have admitted indirectly the title of the plaintiff over the suit schedule property?

¶113

(iii) Whether both the courts below erred in saying that the plaintiffs holding the long standing revenue entries since 1956 along with possession?

¶114

(iv) Whether both the courts below have given a finding on the wrong appreciation of documentary evidence?”

¶115

Sri Amshith Hegde, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that, at an undisputed point of time the suit properties were held by the joint family and parties are in

¶116

14 -

¶117

NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶118

HC-KAR

¶119

occupation of the suit properties jointly since time immemorial. Therefore, plaintiffs claiming exclusive right over the ‘B’ schedule property is highly untenable which has not been properly appreciated by the learned Trial Judge as well as the learned Judge in the First Appellate Court resulting in miscarriage of justice and sought for admitting the appeal for further consideration.

¶120

He would further contend that mere non challenge to Ex.P-6 itself has been blown out of proportion in holding that plaintiffs have successfully established right, title and interest over ‘B’ schedule property resulting in miscarriage of justice and sought for admitting the appeal.

¶121

He would also contend that the plaintiffs have not shown any title or interest over the suit properties and, survey sketch is not the title document and therefore sought for admitting the appeal for further consideration of substantial questions of law referred to supra.

¶122

Per contra , Sri Vijaya Kumar, learned counsel for the respondents supports the impugned judgments.

¶123

15 - NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶124

HC-KAR

¶125

In the light of the rival contentions of the parties, this Court bestowed its best attention to the material on record meticulously.

¶126

On such perusal of the material on record, it is crystal clear that when there was a dispute as to the enjoyment of the property after the common ancestors passed away. An application was filed to the survey authorities and surveyor after issuing the notice to the disputing parties, conducted a survey on 06.08.2011. The entire ‘A’ schedule property was subject matter of the said survey and a report came to be filed. A sketch was also prepared vide Ex.P-6.

¶127

Pertinently the defendants who were present at the time of survey and preparation of Ex.P-6 did not chose to contest the same in accordance with law.

¶128

At the time of survey, it is noticed by the plaintiffs that defendants are in occupation of 5½ guntas of land on the western and southern side of the ‘A’ schedule property. They made a demand for handing over the possession of the same.

¶129

16 - NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶130

HC-KAR

¶131

When their request was not heeded to, left with no alternative, plaintiffs filed a suit for declaration and possession.

¶132

There is a clear mention in the Schedule that 27 guntas of the land in Sy. No.17/4 of Angalagodige Village is the property of the plaintiffs of which 5½ guntas is the subject matter of the suit which is shown separately as ‘B’ schedule property based on the survey sketch marked at Ex.P-6.

¶133

In the cross-examination of the defendants there is a clear admission that they did not object for the survey of the land on 06.08.2011 and they have not challenged the survey sketch marked at Ex.P-6 among the plaintiffs and defendants.

¶134

The title to the land is through the common ancestors. As such, when there is a dispute in that regard, even though learned Trial Judge has come to the right conclusion that plaintiffs are in possession of the ‘A’ schedule property and, ‘B’ schedule property forms part of ‘A’ schedule property, did not write in so many words as to why he is preferring the title of the plaintiffs over the contra title set up by the defendants.

¶135

17 -

¶136

NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶137

HC-KAR

¶138

But the learned Judge in the First Appellate Court, following the principles of law enunciated by the Hon'ble Apex Court in the case of R.V.E.Venkatachala Gounder vs. Arulmigu Visweswaraswami and V. P. Temple and another reported in ILR 2023 SCC 4548 , held that if the plaintiffs are able to create a higher degree of probability in a civil suit, they should succeed. Accordingly, upheld the judgment and decree passed by the Trial Court with cogent and convincing reasons.

¶139

In fact, the discussion made by the First Appellate Court as to each and every ground raised in the appeal memorandum is with cogent and convincing reasons.

¶140

Before this Court, as a last attempt, learned counsel for the appellants wanted to place on record the order passed by the Assistant Commissioner.

¶141

Having regard to the scope of Section 100 of the Code of Civil Procedure which governs the present Second Appeal, said document cannot be considered for the first time before this Court.

¶142

18 - NC: 2025:KHC:33157 RSA No. 2115 of 2023

¶143

HC-KAR

¶144

Moreover, revenue documents or the orders passed by the revenue authorities should not normally impair the rights of the parties in a civil suit.

¶145

Taking note of these aspects of the matter, this Court is of the considered opinion that the grounds urged in the appeal memorandum are hardly sufficient to help the further consideration of the substantial questions of law raised in the appeal.

¶146