Karnataka High Court
Sri Ningappa vs Sri Chikkanna on 25 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:29334
RSA No. 2503 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2503 OF 2018 (DEC/INJ)
BETWEEN:
1. SRI NINGAPPA
S/O LATE DODDAIAH @ BILIYAPA
AGED ABOUT 58 YEARS,
OCCUPATION: AGRICULTURE
R/O AMMANAGATTA VILLAGE
KASABA HOBLI, GUBBI TALUK
TUMKUR DISTRICT - 572216.
...APPELLANT
(BY SRI. HAREESHA T., ADVOCATE)
AND:
Digitally signed 1. SRI CHIKKANNA
by DEVIKA M S/O LATE KARITHIMMAIAH
Location: HIGH AGED ABOUT 48 YEAR
COURT OF OCCUPATION : AGRICULTURE
KARNATAKA R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
2. SRI EARAIAH
S/O LATE KARITHIMMAIAH
AGED ABOUT 46 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
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NC: 2024:KHC:29334
RSA No. 2503 of 2018
3. SMT. GOWRAMMA
W/O LATE NANJUNDAPPA
AGED ABOUT 73 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
4. SRI GURUBASAVAIAH
S/O LATE NANJUNDAPPA
AGED ABOUT 53 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
5. SMT. GANGAMMA
D/O LATE NANJUNDAPPA
AGED ABOUT 48 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
6. SRI MARIYANNA
S/O LATE NANJUNDAPPA
AGED ABOUT 43 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
7. SRI SIDDARAMAIAH
S/O LATE NANJUNDAPPA
AGED ABOUT 41 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
8. CHANNABASAVAIAH
S/O LATE C. BASAVAIAH
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NC: 2024:KHC:29334
RSA No. 2503 of 2018
AGED ABOUT 63 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
9. SRI JAGADISHAIAH
S/O LATE C BASAVAIAH
AGED ABOUT 53 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
10. SRI KUMARAIAH
S/O LATE C BASAVAIAH
AGED ABOUT 38 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
11. THIMMAIAH
S/O LATE ERAIAH
AGED ABOUT 60 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
12. SRI THIMMAIAH
S/O LATE CHIITTAIAH
AGED ABOUT 75 YEARS
OCCUPATION: AGRICULTURE
R/O AMMANAGATTA VILLAGE
KASABA HOBLI, GUBBI TALUK
TUMKUR DISTRICT - 572216.
13. SMT. AMHIKA
D/O LATE THIMMAIAH
AGED ABOUT 35 YEARS
OCCUPATION : AGRICULTURE
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NC: 2024:KHC:29334
RSA No. 2503 of 2018
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI,
GUBBI TALUK,
TUMKUR DISTRICT - 572216.
14. SMT. LATHA
D/O LATE THIMMAIAH
AGED ABOUT 33 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI,
GUBBI TALUK,
TUMKUR DISTRICT - 572216.
...RESPONDENTS
(BY SRI. B.R.PRABHULINGA MURTHY, ADVOCATE FOR C/R2;
NOTICE TO R13 AND R14 ARE HELD SUFFICIENT,
VIDE COURT ORDER DATED 09.07.2024)
THIS RSA IS FIELD UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.11.2018
PASSED IN R.A.NO.23/2015 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, GUBBI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 18.07.2014 PASSED IN O.S. NO.211/2004 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE, GUBBI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
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NC: 2024:KHC:29334
RSA No. 2503 of 2018
ORAL JUDGMENT
This matter is listed for admission and I have heard the learned counsel for the appellant and learned counsel for the caveator-respondent No.2.
2. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of declaration and injunction at the first instance filed the suit against the defendant Nos.1 and 2. The defendant Nos.1 and 2 are the sons of original mortgagee. It is also the contention that plaintiffs are the sons of Karethimmaiah. The suit schedule property along with other properties had fallen to the share of Karethimmaiah in the said partition. Said Karethimmaiah was the absolute owner in possession of suit schedule property. The plaintiffs have succeeded to the suit schedule property as class I heirs. After the death of said Karethimmaiah, the plaintiffs are in possession and enjoyment of the suit schedule property as absolute owners. One Channegowda had got wife by name Siddananjamma and the defendants are the sons of said Siddananjamma. Said Siddananjamma expired few years back, leaving behind the defendants as her class I legal heirs. -6-
NC: 2024:KHC:29334 RSA No. 2503 of 2018 During the lifetime of above said Karethimmaiah, he executed an usufructuary mortgage deed, in favour of above said Siddananjamma under registered mortgage deed dated 16.08.1949 and put the said Siddananjamma in possession of suit schedule property, the said mortgage was for a period of 5 years. In the year 1959, when the plaintiffs were minors, their father Karethimmaiah redeemed the mortgage executed in favour of said Siddananjamma by paying the mortgage amount to her. In turn, said Siddananjamma returned the original registered mortgage deed executed in her favour to the possession of Karethimmaiah, the father of the plaintiffs. Thereby, the said Siddananjamma redeemed the mortgage made in her favour and put the father of the plaintiffs in possession of suit schedule property. From that day, the father of the plaintiffs was in possession and enjoyment of the suit schedule property as absolute owner thereof. The defendants having no manner of right, title, interest, possession and enjoyment over the suit schedule property, taking advantage of the revenue entries standing in the name of their mother Siddananjamma, made attempts to interfere with peaceful possession and enjoyment of the suit schedule property of the -7- NC: 2024:KHC:29334 RSA No. 2503 of 2018 plaintiffs by denying the title of the plaintiffs. Hence, suit is filed for the relief of declaration and permanent injunction.
3. The defendants appeared and filed the written statement. It is their specific case that the plaintiffs without being in actual possession have filed the suit for title and possession, which is not maintainable. It is also contended that during the lifetime of Karethimmaia, he had executed a registered mortgage deed in respect of suit property on 16.08.1949, since the said date, said Siddananjamma along with her sons i.e., defendants are in physical possession and enjoyment of the suit schedule property by planting areca nut and coconut trees. The said Siddananjamma passed away few years back and the defendants being the legal heirs are in possession and enjoyment of the suit schedule property.
4. The Trial Court, having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence. The Trial Court having considered the material on record, comes to the conclusion that the plaintiffs' father got redeemed the suit property from Siddananjamma and plaintiffs are in lawful possession of the suit schedule property and -8- NC: 2024:KHC:29334 RSA No. 2503 of 2018 defendants are restrained from interfering with peaceful possession and enjoyment of the suit schedule property by decreeing the suit.
5. It is also brought to notice of this Court that the defendant Nos.3 to 6 filed an application to implead themselves as parties and they have been impleaded as parties to the proceedings and they did not file any written statement and contested the matter. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed by the defendant No.4 before the First Appellate Court in R.A.No.23/2015. The First Appellate Court also having considered the material on record, confirmed the judgment of the Trial Court. The appellant also filed I.A.No.VIto implead the subsequent purchaser as party to the suit and also filedI.A.No.VIIto produce documents for deciding the appeal. The First Appellate Court, having considered the material on record, comes to the conclusion that the Trial Court had provided an opportunity to defendant No.4 to putforth his case and the Trial Court is justified in decreeing the suit of the plaintiffs for the relief of declaration and permanent injunction and answered point Nos.3 and 4 as 'negative' and in respect of the two applications -9- NC: 2024:KHC:29334 RSA No. 2503 of 2018 filed, comes to the conclusion that the judgment and decree of the Trial Court is not illegal and contrary to law and it does not require any interference and confirmed the judgment of the Trial Court. Hence, the present second appeal is filed before this Court
6. The main contention of the learned counsel for the appellant before this Court is that though defendant Nos.3 to 6 have been impleaded as parties to the proceedings on 13.06.2013, they could not file the written statement and contest the matter before the Trial Court on the ground that their mother was not keeping well and they were taking care of their mother. It is contended that the Trial Court committed grave error when the application dated 13.06.2013 filed by the proposed respondents 3 to 6 before the Trial Court was allowed and ought to have issued summons to defendant Nos.3 to 6 to serve copy of the pleadings, inspite of it, the Trial Court has served the copies of pleadings directly to the learned counsel for the defendants and posted the case for filing written statement of defendant Nos.3 to 6. Due to non-serving of the copies of the pleadings of the case, the defendant Nos.3 to 6 could not file their written statement. The Trial Court taking
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NC: 2024:KHC:29334 RSA No. 2503 of 2018 advantage of the same, recorded on its file that the written statement of defendant Nos.3 to 6 is not filed which leads to miscarriage of justice. It is also contended that suit schedule property was purchased by their grand-father Chittaiah under the sale deed dated 10.06.1957. Further, it is the contention that defendant Nos.3 to 6 are having equal rights over the suit schedule property and the Trial Court ought to have taken note of the said fact into consideration while disposing of the matter and the First Appellate Court failed to consider the grounds which have been urged while filing an application under Order 41 Rule 27 of CPC seeking permission to produce the document of the year 1957, redemption of mortgage deed executed by Siddananjamma in favour of father of the defendants i.e., Chittaiah and also other documents along with the application, but the said application is rejected and the said documents sought to be produced before the First Appellate Court clinches the issue between the parties and ought not to have dismissed the suit and no further opportunity was given to the defendant Nos.3 to 6 by the Trial Court and the order passed by the First Appellate Court in dismissing I.A.No.VII is erroneous. Hence,
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NC: 2024:KHC:29334 RSA No. 2503 of 2018 this Court has to admit the appeal and frame substantial question of law.
7. Learned counsel for the caveator-respondent No.2. would contend that even though the defendant Nos.3 to 6 came on record in 2013, inspite of the Trial Court granting opportunity to putforth their case, not placed the documents before the Trial Court and the Trial Court rightly dismissed the suit. The First Appellate Court confirmed the same and rejected the application and while answering point No.4, the First Appellate Court comes to the conclusion that when an opportunity was given, no documents were produced by the appellant and no defence was putforth and even after exercising due diligence, was not able to produce the documents before the Trial Court and not made out any case and rejected the application.
8. Having heard the learned counsel for the appellant and learned counsel for the caveator-respondent No.2, it is not in dispute that the property belongs to Karethimmaiah. It is also not in dispute that mortgage deed was executed in favour of Smt. Siddananjamma. It is the claim of the plaintiffs before
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NC: 2024:KHC:29334 RSA No. 2503 of 2018 the Trial Court that mortgage was redeemed in favour of Karethimmaiah in the year 1959. On the other hand, it is the contention of the appellant before this Court and also before the First Appellate Court that wife of Karethimmaiah had executed the sale deed in the year 1957 in favour of Chittaiah with a condition to get it redeem the mortgage from Siddnanjamma and the amount of Rs.500/- was left with the purchaser to get it redeem the same. Accordingly, Siddananjamma on receiving the amount of Rs.500/- had executed the redemption deed in favour Chittaiah.
9. Learned counsel also would submit that redemption was executed by Siddananjamma in favour of Chittaiah, who is the purchaser in terms of Ex.P4. The Trial Court having considered the material on record, did not consider this document and did not consider the recital of this document and the recital in the said document is in favour of Chittaiah and not in favour of Karethimmaiah. But, the Trial Court comes to the conclusion in Paragraph No.14 of the judgment that mortgage deed was redeemed in favour of the father of the plaintiffs. Hence, the father of the plaintiffs becomes the absolute owner of the property. This reasoning given by the Trial Court is
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NC: 2024:KHC:29334 RSA No. 2503 of 2018 erroneous and did not look into the document of Ex.P4 and the said redemption deed is executed in favour of Chittaiah and not in favour of original owner Karethimmaiah, but proceeded in an erroneous approach that redemption deed was executed in favour of the father of the plaintiffs and the conclusion arrived by the Trial Court that the father of the plaintiffs is the absolute owner of the property in terms of Ex.P4 is erroneous and did not look into the recital of the document and the document is registered in favour of Chittaiah in the year 1959, but he had purchased the property in the year 1957 itself and subsequent to purchase, got redeemed the property. No doubt, the appellant herein has not filed any written statement and not produced any document before the Trial Court, even the judgmentof the Trial Court is erroneous and there is an error apparent on the face of records in relying upon the document of Ex.P4.
10. Apart from that the document of mortgage deed and sale deed are produced before the First Appellate Court seeking an opportunity to produce the evidence that already sale was made in the year 1957 itself and subsequent redemption document was executed in favour of the appellant
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NC: 2024:KHC:29334 RSA No. 2503 of 2018 herein and the First Appellate Court while considering the document, ought to have considered the application filed under Order 41 Rule 27 of CPC with regard to the germane issues involved between the parties and there is lapse on the part of the appellant in not filing the written statement as well as producing of these documents before the Trial Court. Even the Trial Court did not look into the document of Ex.P4 and the said document produced before the Trial Court shows that the redemption was executed in favour of Chittaiah. The First Appellate Court also not looked into the additional document produced before it and committed an error in dismissing I.A.No.VII in coming to the conclusion that the appellant has not made out any ground to invoke Order 41 Rule 27 of CPC. Hence, it requires reconsideration and the order passed by the First Appellate Court requires to be set aside regarding rejection of I.A.No.VII and consequent dismissal of the appeal requires to be set aside and matter requires to be remanded to the First Appellate Court to consider the additional evidence and also allow the parties to file written statement and lead additional evidence before the First Appellate Court and in view of lapse on the part of the appellant.
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NC: 2024:KHC:29334 RSA No. 2503 of 2018
11. In view of the discussion made above, I pass the following:
ORDER
(i) The regular second appeal is allowed. The judgment and decree of the Trial Court and First Appellate Court are hereby set aside and the matter is remanded to the First Appellate Court for fresh consideration on payment of cost of Rs.1,00,000/-.
(ii) The parties and their respective counsels are directed to appear before the First Appellate Court on 27.08.2024 without expecting any notice from the First Appellate Court.
(iii) The appellant is directed to file written statement without one month from 27.08.2024 and thereafter, the First Appellate Court to frame issues and allow the parties to lead their evidence to substantiate their case.
(iv) The suit is of the year 2004 and already 20 years has elapsed. Hence, the First Appellate Court is directed to dispose of the matter within six months from 27.08.2024.
(v) The parties and their respective counsels are directed to assist the First Appellate Court in disposal of the case within the stipulated period of six months.
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NC: 2024:KHC:29334 RSA No. 2503 of 2018
(vi) The appellant is directed to deposit the cost of Rs.1,00,000/- before the First Appellate Court on or before 27.08.2024. Out of the amount of Rs.1,00,000/-, an amount of Rs.50,000/- is payable to the plaintiffs and the remaining amount of Rs.50,000/- shall vest with State.
(vii) The Registry is directed to communicate this order to the First Appellate Court to enable the First Appellate Court to fix the date of hearing on 27.08.2024.
Sd/-
(H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 79