Karnataka High Court
Shri Krishnappa vs Shri Bhuthanna on 29 July, 2024
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NC: 2024:KHC:29785
RSA No. 1354 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.1354 OF 2012 (INJ)
BETWEEN:
1. SHRI KRISHNAPPA
S/O SHRI RANGAPPA @ KATTE RANGAPPA
AGED ABOUT 66 YEARS
2. SHRI RAMANNA
S/O RANGAPPA @ KATTE RANGAPPA
AGED ABOUT 61 YEARS
BOTH ARE AGRICULTURIST
R/O ATHIMAGGE VILLAGE
MADADAKERE HOBLI,
TQ:HOSADURGA - 577527
...APPELLANTS
(BY SRI. ASHOK R KALYANASHETTY, ADVOCATE)
Digitally signed
by R DEEPA AND:
Location: HIGH
COURT OF 1. SHRI BHUTHANNA
KARNATAKA S/O RANGAPPA @ KATTE RANGAPPA
AGED ABOUT 77 YEARS
OCC: RTD. GANGMAN,
R/O KUMBARA BEEDI,
SRIRAMPURA,
TQ:HOSADURGA TALUK - 577 527
2. SHRI PARANNA
S/O SHRI RANGAPPA @ KATTE RANGAPPA
AGED ABOUT 46 YEARS
OCC:AGRICULTURIST,
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NC: 2024:KHC:29785
RSA No. 1354 of 2012
R/O ATHIMAGGE,
HOSADURGA TALUK - 577 527
...RESPONDENTS
(BY SRI. M G VYKUNTASWAMY, ADVOCATE FOR R1
R2 - SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 31.3.2012 PASSED IN
R.A.NO.55/2006 ON THE FILE OF ITINERARY SENIOR CIVIL
JUDGE, HOSADURGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 4.11.2003
PASSED IN OS.NO.131/2003 ON THE FILE OF PRINCIPAL CIVIL
JUDGE (JR.DN.), HOSADURGA.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This second appeal is filed by the appellants challenging the judgment and decree dated 31.03.2012, passed by the Itinerary Senior Civil Judge, Hosadurga in R.A.No.55/2006, confirming the judgment and decree dated 04.11.2003 passed by the Principal Civil Judge (Jr.Dn.) in O.S.No.131/2003.
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NC: 2024:KHC:29785 RSA No. 1354 of 2012 For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs and the respondents are the defendants.
2. The brief facts leading rise to filing of this appeal are as under:
Plaintiffs filed a suit for declaration of ownership in possession of suit land and permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs. It is the case of the plaintiffs that one Rangappa alias Katte Rangappa was the propositus. He had a wife by name Sankamma and both had children namely Paramma, Bhoothanna - defendant No.1, Gowramma, Krishnappa - plaintiff No.1, Lakshmidevi, Ramanna - plaintiff No.2, Paranna - defendant No.2. The father of the plaintiffs and defendants No.1 and 2 died during the year 1989. The mother of the plaintiffs died about 10 years prior to the death of father of the plaintiffs and the defendants. There -4- NC: 2024:KHC:29785 RSA No. 1354 of 2012 was no ancestral property of deceased Rangappa. A dry land measuring 3 acres 32 guntas bearing Sy.No.184 situated at Attimage Village was granted in favour of the father of plaintiffs and he was enjoying the said property during his lifetime. After his death, plaintiffs and defendants are enjoying the said property jointly. The defendant No.1 went out of the family about 40 years ago and joined service at Srirampura and the father of the plaintiffs got sanctioned 2 acres of land in the name of defendant No.1 at Sadarahalli Village. At that time, he went out of the joint family. As there was no joint family property, the defendant No.1 agreed that he will take Sadarahalli land to his share and further he agreed that the property bearing Sy.No.184 measuring 3 acres 32 guntas of Attimage village should be enjoyed by the father of the plaintiffs, defendant No.2 and plaintiffs only. After the death of their father, the plaintiffs and defendant No.2 should enjoy the suit property jointly. The defendant No.1 sold the land situated at Sadarahalli village. The plaintiff purchased a house at Srirampura village and the same -5- NC: 2024:KHC:29785 RSA No. 1354 of 2012 was registered in the name of wife of defendant No.1. During the month of January 1980, panchayat was conveyed in the presence of the father of plaintiffs and others and in the said panchayat, the defendant No.1 agreed that he will not demand any share in the property Sy.No.184. Defendant No.2 and plaintiffs lived together during the year 1980. The defendant No.2 went out of the family by taking 1/3rd share in the property bearing in Sy.No.184 and the plaintiffs are enjoying the remaining land in the said survey number jointly. After the death of father of the plaintiffs, the plaintiffs continued in the joint family and they purchased the suit schedule property under registered sale deed dated 18.07.1980 from one Dyamaiah, S/o Galirangaiah for valuable consideration. Ever since the date of purchase, the plaintiffs are enjoying the suit schedule property in their own right as absolute owners by paying the land revenue to the Government. The defendants absolutely have no manner of right, title, interest or possession over the suit schedule property. The defendant No.2 filed a suit against defendant No.1 and -6- NC: 2024:KHC:29785 RSA No. 1354 of 2012 plaintiffs in O.S.No.95/2002 seeking for partition in the suit schedule property and other properties. After the service of summons, panchayat was conveyed in the village. In the said panchayat, defendants No.1 and 2 agreed that they will not claim any right over the suit schedule property and defendants took signatures of the plaintiffs saying that they will file some application and the defendant No.1 agreed that he has no right over the suit schedule property. The plaintiffs recently came to know that defendants No.1 and 2 in order to defeat and defraud the right of the plaintiffs over the suit schedule property, concocted some false facts and without the knowledge of the plaintiffs, obtained a preliminary decree, by decreeing the suit having 1/4th share in the suit schedule property and other properties, except the house. It is contended that the decree passed is bogus and is behind the back of the plaintiffs and is a collusive decree. It is contended that the acts of the defendants is illegal and highhanded. The defendants are denying the right, title, interest and possession of the plaintiffs over the suit schedule property. -7-
NC: 2024:KHC:29785 RSA No. 1354 of 2012 Hence cause of action arose for the plaintiffs to file the suit for declaration and permanent injunction.
3. Defendant No.1 filed written statement admitting that the father of the plaintiffs and the defendants died during the year 1989 and mother of the plaintiffs died 10 years prior to the death of father of the plaintiffs and defendants and denied the entire averments made in the plaint and it is contended that the suit of the plaintiffs is not maintainable in law as the matter is already decided in O.S.No.95/2002 by the learned Principal Civil Judge (Jr.Dn.), Hosadurga as the suit schedule property is the joint family property of the plaintiffs and defendants. It is contended that the defendant No.1 is the first son to his father Rangappa. Plaintiffs and defendants No.1 and 2 constituted a Hindu undivided joint family. It is contended that the defendant No.1 with great difficulty, got a job of gangman for a meager salary and started to live in Srirampura village by doing his work along with his family and living with great -8- NC: 2024:KHC:29785 RSA No. 1354 of 2012 difficulty. It is contended that the wife of defendant No.1, namely, Gowramma had purchased a house in her name situated at Srirampura village and as such the said house is her self-acquired property. The plaintiffs and defendant No.2 in order to grab the property of the wife of defendant No.1, and share of defendant No.1, filed a suit in O.S.No.95/2002 on the file of Principal Civil Judge (Jr.Dn.) Hosadurga. The defendant No.1 appeared in the said suit and filed written statement and the said suit was decreed holding that the plaintiff in the said suit is entitled for partition and separate possession of his 1/4th share in item No.1 and 2 of suit schedule properties by metes and bounds. The suit schedule item No.2 property in O.S.No. 95/2002 is the suit schedule property in the present suit. It is contended that the suit is filed only with an intention to harass the defendants and hence prayed to dismiss the suit against the defendant No.1.
4. Defendant No.2 filed separate written statement reiterating the written statement averments -9- NC: 2024:KHC:29785 RSA No. 1354 of 2012 filed by defendant No.1. It is contended that the suit schedule property is the self-acquired property of the plaintiffs as they have purchased the suit schedule property under registered sale deed independently and they are also in possession and enjoyment of the suit schedule property independently and exclusively ever since the date of sale deed. It is contended that the defendant No.2 has absolutely no right over the property and hence prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said pleadings, framed the following issues:
(1) Whether the plaintiffs prove that they are the owners of suit property?
(2) Whether the plaintiffs prove that they are in possession of suit property?
(3) Whether the plaintiffs prove that the
preliminary decree passed in
O.S.No.95/2002 is not binding on the right of plaintiffs?
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NC: 2024:KHC:29785 RSA No. 1354 of 2012 (4) Whether the suit of the plaintiffs is not maintainable in law?
(5) Whether the plaintiffs are entitled for decree as prayed for?
(6) What order or decree?
6. In order to prove the case of the plaintiffs, the plaintiff No.1 examined himself as PW-1 and plaintiff No.2 was examined as PW-2 and examined one witness as PW- 3 and got marked 4 documents as Exs.P1 to P4. In rebuttal, defendant No.1 was examined as DW-1 and defendant No.2 was examined as DW-3 and got examined one witness as DW-2 and got marked 2 documents as Exs.D1 and D2. The trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1 to 5 in the negative and dismissed the suit of the plaintiffs with cost.
7. The plaintiffs aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.55/2006 on the file of the Itinerary Senior Civil
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NC: 2024:KHC:29785 RSA No. 1354 of 2012 Judge, Hosadurga. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
(1) Whether the appellants proved that, they are the absolute owners and possessors of suit schedule property and judgment and decree passed in O.S.No.95/2002 is collusive and not binding on them?
(2) Whether the judgment and decree of the trial Court is illegal, perverse, erroneous and called for interference of this Court? (3) What order?
8. The First Appellate Court, on re-assessing the oral and documentary evidence, answered point No.1 and 2 in the negative and point No.3 as per the final order and consequently dismissed the appeal filed by the plaintiffs with cost, confirming the judgment and decree passed by the trial Court. The plaintiffs, aggrieved by the judgment and decree passed by the courts below, have filed this second appeal.
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NC: 2024:KHC:29785 RSA No. 1354 of 2012
9. This court admitted the appeal on 05.08.2019, to consider the following substantial questions of law :
(1) Whether the court below is right in decreeing the suit inspite of defendant No.2, who is the plaintiff in O.S.No.95/2002 has admitted the ownership of the appellants in the written statement filed in O.S.No.131/2003?
The decree mentioned in substantial question No.1 is typographical error, it has to be read as dismissing the suit.
(2) Whether the court below is right in rejecting the suit for injunction when the possession of the appellants is not disputed by the parties?
10. Heard learned counsel for the parties.
11. Learned counsel for the plaintiffs submits that the suit land was purchased by the plaintiffs under the registered sale deed and record of rights stands in the name of plaintiffs. Hence the suit property is in exclusive possession of the plaintiffs. Hence he submits that the suit property is the self acquired property of the plaintiffs and he submits that by mistake the suit property was
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NC: 2024:KHC:29785 RSA No. 1354 of 2012 included in O.S.No.95/2002 and the said aspect was not considered by the courts below and passed the impugned judgments. He submits that the impugned judgments are arbitrary and erroneous. Hence, on these grounds, prays to allow the appeal.
12. Learned counsel for the defendants supports the impugned judgments and prays to dismiss the appeal.
13. Perused the records and considered the submissions of learned counsel for the parties.
14. Substantial question of law No.1: The plaintiffs in order to substantiate their case plaintiff No.1 was examined as PW.1 and he has reiterated the plaint averments in the examination in chief and further in order to prove that the suit schedule property was purchased under the registered sale deed marked as Ex.P1. Ex.P2 is the RTC extract. Ex.P3 is the certified copy of the preliminary decree passed in O.S.No.95/2002. Ex.P4 is the patta receipt.
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NC: 2024:KHC:29785 RSA No. 1354 of 2012
15. In the course of cross examination, PW.1 admitted that plaintiff No.2 and defendant No.2 were attending the proceedings of O.S.No.95/2002. Though the plaintiffs have taken a defence that the defendants have taken signature on the blank paper, as PW.1 has admitted that plaintiffs and defendant No.2 were attending the proceedings of O.S.No.95/2002 and the contention of the plaintiffs that the signature obtained on the blank paper stands disproved. He admits that the suit schedule property is the joint family property of the plaintiffs and defendants. He also admits that said suit schedule property was the subject matter of suit in O.S.No.95/2002. He admits that the plaintiffs and defendants were the parties in the said suit and the said suit was decreed vide judgment dated 10.10.2002. From the perusal of Ex.P3, i.e, certified copy of preliminary decree passed in O.S.No.95/2002 discloses that the plaintiffs therein is entitled for partition and separate possession of his 1/4th share in the suit schedule item Nos.1 and 2 by metes and bounds. If the defendants
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NC: 2024:KHC:29785 RSA No. 1354 of 2012 failed to give 1/4th share by partition and separate possession in the suit schedule properties and item Nos.1 and 2 by metes and bounds to the plaintiffs and the plaintiffs are entitled to proceed in accordance with law to get the separate possession of item Nos.1 and 2 of the suit properties. Further, item No.2 is the suit schedule property in the present suit. Further, plaintiff No.2 was examined as PW.2 and he has deposed in the same line of PW.1.
16. In rebuttal, the defendant No.1 was examined as DW.1 and he has reiterated the written statement averments in the examination-in-chief and in order to prove his defence he has produced the written statement filed in O.S.No.95/2002 marked as Ex.D1 and Ex.D2 is the death certificate. The death certificate of Rangappa, who died on 14.10.1989 leaving behind the plaintiffs and the defendants. From the perusal of the judgment passed in O.S.No.95/2002, that 1/4th share is granted in Sy.No.184
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NC: 2024:KHC:29785 RSA No. 1354 of 2012 and Sy.No.31/P. The judgment and preliminary decree passed in O.S.No.95/2002 has attained finality.
17. The plaintiffs without challenging the judgment and preliminary decree passed in the suit O.S.No.95/2002 filed this instant suit. The defendant No.2 has filed the written statement admitting that the suit schedule property is the self acquired property of the plaintiffs. Defendant No.2 having colluded with the plaintiffs filed the written statement admitting the ownership of the plaintiffs in order to overcome the preliminary decree passed in O.S.No.95/2002. Merely the defendant No.2 admitted the ownership of the plaintiffs in the written statement is not a ground to decree the suit of the plaintiffs. The trial Court on considering the preliminary decree passed in O.S.No.95/2002 has rightly held that the plaintiffs have failed to prove that they are the absolute owners of the suit schedule property and rightly dismissed the suit. The first Appellate Court on re-appreciation of evidence dismissed the appeal. Both the courts below have
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NC: 2024:KHC:29785 RSA No. 1354 of 2012 concurrently recorded the finding of fact that the plaintiffs have failed to establish their ownership over the suit schedule property and also judgment and preliminary decree passed in O.S.No.95/2002 is a collusive decree.
18. As observed above, plaintiff Nos.1 and 2 have participated in the above said suit and the said suit was disposed of vide judgment dated 10.10.2002. The plaintiffs have not challenged the judgment and preliminary decree by filing an appeal, on the contrary, has filed this suit seeking for a relief of declaration that judgment and preliminary decree is a collusive. If at all, if the defendant No.2 played a fraud and obtained a preliminary decree the plaintiffs ought to have approached the same Court for recalling the judgment and preliminary decree. The plaintiffs have not exhausted the efficacious remedy available to them. Hence, the suit filed by the plaintiffs is not maintainable. In view of the above discussion, substantial question No.1 is answered in the affirmative.
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NC: 2024:KHC:29785 RSA No. 1354 of 2012
19. Substantial question No.2: As this Court has held that the plaintiffs have failed to establish that they are the absolute owners and in possession of the suit property and no documents produced to establish that the plaintiffs are in possession and enjoyment of the suit schedule property. Though the plaintiffs have contended that they are in possession of the suit schedule property, but defendant No.1 filed the written statement denying the possession of the plaintiffs over the suit schedule property. In order to substantiate the case of the plaintiffs, the plaintiffs have not examined adjacent owners of the suit land to establish their possession over the suit schedule property. In the absence of records the trial Court is justified in dismissing the suit for injunction. Hence, in view of above discussion, I answer substantial question No.2 in the affirmative.
20. In view of the above discussion, I proceed to pass the following:
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NC: 2024:KHC:29785 RSA No. 1354 of 2012 ORDER The appeal is dismissed confirming the judgments and decree passed by the courts below.
No order as to the costs.
SD/-
(ASHOK S. KINAGI) JUDGE RD, SKS