T K Dundiganapathi Vs T K Hariayappa

THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED: 1.9.2014 PASSED IN R.A.No.44/2011 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE & JMFC., TUMKUR, DISMISSING THE APPEAL AND UPHOLDING THE JUDGEMENT AND DECREE DATED: 29.6.2011 PASSED IN OS.No.456/2004 ON THE FILE OF THE PRL. CIVIL JUDGE & I JMFC., TUMKUR.

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

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CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

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ORAL JUDGMENT

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This appeal is preferred by the plaintiffs

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assailing the judgment and decree dated 01.09.2014 passed in R.A. No. 44/2011 on the file of II Additional Senior Civil Judge and JMFC, Tumkuru, dismissing the appeal and confirming the judgment and decree dated 29.06.2011 passed in O.S. No. 456/2004 on the file of

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HC-KAR

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Principal Civil Judge and I JMFC, Tumkuru, dismissing the suit.

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For the sake of convenience, parties are referred to as their ranking before the Trial Court.

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Relevant facts for adjudication of this appeal are that, the original predecessor Doddakarnikar @ Lakshminarasappa had three children, namely, T.K. Lakshminarasaiah, T.K. Krishnamurthy and T.K. Thammannaiah. Plaintiffs are the children of T.K. Lakshminarasaiah. Defendant Nos. 1 and 2 are the children of T.K. Thammannaiah. It is stated in the plaint that land bearing survey No. 289 at Tumakuru, Amanikere, measuring 3 acres 32 guntas was ancestral property of plaintiffs and defendants. It is stated that plaintiffs are in possession of the schedule property. On 02.06.1947, father of the plaintiffs - T.K.

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Lakshminarasaiah had executed a Release Deed in respect of joint family properties in favour of his brothers, Sri. T.K. Krishnamurthy and Sri. T.K. Thammannaiah - the father of

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HC-KAR

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defendants. It is further stated in the plaint that father of plaintiffs had retained 1 acre 28 guntas including 16 guntas of Kharab land in the said survey number. It is also stated that revenue entries were changed thereafter wherein kharab land of 16 guntas was changed to the father of the plaintiffs. It is also stated in the plaint that after deducting 1 acre 28 guntas including kharab of 16 guntas, retained by the father of the plaintiffs, remaining land in survey No. 289 measuring 2 acres 4 guntas including kharab of 5 guntas was retained by T.K. Krishnamurthy and T.K. Thammannaiah who were the brothers of the father of the plaintiffs. It is also stated in

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the plaint that suit schedule property consists of a building with 10 portions which were let out to the tenants on rent. It is also stated that defendants, in collusion with office bearers of City Municipality, Tumkuru, have

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concocted the khatha in respect of schedule property and as such, plaintiffs preferred O.S. No. 456/2004, seeking

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HC-KAR

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relief of declaration with consequential relief of permanent

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injunction against the defendants.

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After service of notice, defendants entered appearance and filed detailed written statement and contended that the claim made by the plaintiffs is based on the Release Deed wherein plaintiff’s father had retained 1 acre 10 guntas of land and not 1 acre 28 guntas as averred in the plaint and accordingly sought for dismissal of the suit.

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Based on the pleadings on record the Trial Court framed issues and additional issues. In order to establish their case the plaintiffs have examined one witness as P.W.1 and got marked 37 documents as Ex.P.1 to Ex.P.37. The defendants have examined two witnesses as D.W.1 and D.W.2 and got marked 20 documents as Ex.D.1 to Ex.D.20. The Trial Court, after considering the

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material on record, by its judgment and decree dated 29.06.2011 dismissed the suit of the plaintiffs. Feeling aggrieved by the same, the plaintiffs had preferred an

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NC: 2026:KHC:15927 RSA No. 1710 of 2014

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HC-KAR

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appeal in R.A. No. 44/2011 before the First Appellate

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Court and the said appeal was resisted by the defendants. After re-appreciating the material on record, the First Appellate Court by judgment and decree dated 01.09.2014 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in O.S. No. 456/2004. Feeling aggrieved by the same, the plaintiffs have preferred this appeal.

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This Court vide order dated 27.06.2016

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formulated the following substantial question of law.

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i) Whether the Courts below justified in dismissing the suit of the plaintiffs for declaration and injunction ignoring the material document Ex.P1 dated 2.4.1947, release deed in respect of the suit schedule property?

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ii) Whether the Courts below justified in dismissing the suit of the plaintiffs without considering Exs.P10 to 37, RTC extracts issued by the Revenue authorities on the basis of Ex.P1 which clearly indicate the title and interest of the plaintiff over the suit schedule property?

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HC-KAR

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iii) Whether the Courts below justified in dismissing the suit of the plaintiffs in the facts and circumstances of the case?

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I have heard the learned counsel appearing for

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the appellants and learned counsel appearing for the respondents.

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Sri. Arun Gadag, learned counsel appearing for the appellants contended that both the Courts below have failed to consider the fact that the description made in the Release Deed dated 02.06.1947 as to the property retained by the father of the plaintiffs is to an extent of 1 acre 28 guntas and the said aspect was ignored by both the Courts below and therefore sought to allow the appeal. It is also argued by the learned counsel appearing for the appellants that both the Courts below erred in arriving at a conclusion that allotment of 16 guntas of Kharab in favour

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of father the plaintiffs is not mentioned in the Release Deed dated 02.06.1947 and the said finding requires to be set aside. Finally it is argued by the learned counsel

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HC-KAR

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appearing for the plaintiffs that though the plaintiffs have produced the RTC extract evidencing the extent of land belonging to the father the plaintiffs, however, the said aspect was ignored by both the Courts below. Learned counsel appearing for the appellants, in order to buttress his arguments, places reliance on the decision of the Hon’ble Supreme Court in the case of Subhaga and others Vs. Sobha and others reported in JT 2006 (6) SC 178 and contended that in order to identify location of the property in question, the boundaries shall prevail as to determination of title and to identify the property in question and accordingly sought for allowing the appeal.

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Per contra, Sri. K.N. Nitish learned counsel appearing for the respondents sought to justify the impugned judgments.

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In the light of the submissions made by the learned counsel appearing for the parties, it is not in dispute as to the relationship between the parties. Father of the plaintiffs – Sri. T.K. Lakshminarasaiah was brother

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HC-KAR

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of Sri. T.K. Krishnamurthy and Sri. T.K. Thammannaiah. Plaintiffs are the children of Sri. T.K. Lakshminarasaiah and defendant Nos. 1 and 2 are the children of Sri. T.K. Thammannaiah. The controversy between the parties is as to the extent of land retained by the father of the plaintiffs in land bearing survey No. 289. It is also not in dispute that the total extent of land in survey No. 289 situate at Tumakuru, Amanikere was 3 acres 32 guntas. It is also not in dispute that as per Ex.P.1 – Release Deed dated 02.06.1947, father of the plaintiffs had retained 1 acres 10 guntas of land out of total extent of 3 acres 32 guntas. Careful consideration of the schedule mentioned in the Release Deed dated 02.06.1947 – Ex.P.1 makes it clear that father of plaintiffs had retained an extent of 1 acre 10 guntas of land and not 1 acre 28 guntas as claimed by the plaintiffs in the suit. In that view of the matter, taking into consideration that the suit is one filed seeking relief of declaration and the basis for the plaintiffs to claim 1 acre 28 guntas is the Release Deed dated 02.06.1947 – Ex.P.1,

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HC-KAR

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I am of the view that both the Courts below after appreciating the material on record have rightly come to the conclusion that the father of the plaintiffs had retained 1 acre 10 guntas and not 1 acre 28 guntas. Therefore, the finding recorded by both the Courts below requires to be confirmed.

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It is pertinent to mention here that, insofar as the argument advanced by the learned counsel appearing for the appellants as to the description of the property is concerned, the recitals of Ex.P.1 makes it clear that the land in question which was retained by the father of the plaintiffs was to an extent of 1 acre 10 guntas only and remaining land was allotted in favour of his brothers Sri. T.K. Krishnamurthy and Sri. T.K. Thammannaiah – father of defendant Nos.1 and 2. Though the learned counsel appearing for the appellants submitted that the description of the property mentioned in Ex.P.1 has to be looked into, on careful consideration of the recitals made therein makes it clear that building, wall and trees which are

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HC-KAR

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situated on the land bearing survey No. 289 to an extent

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of 1 acre 10 guntas was allotted in favour of the father of the plaintiffs.

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In that view of the matter, both the Courts

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below have rightly held that father of the plaintiffs had retained 1 acre 10 guntas of land based on Ex.P.1 and therefore the judgment referred to by the learned counsel for the appellant cannot be accepted. As such, I am of the view that no interference is called for in this appeal. The substantial questions of law framed above favours defendant Nos. 1 and 2.

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Accordingly, appeal is dismissed.

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Sd/(E.S.INDIRESH) JUDGE

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LRS

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List No.: 1 Sl No.: 47

T K Dundiganapathi v. T K Hariayappa

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T K Dundiganapathi v. T K Hariayappa

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