Karnataka High Court
Smt. Kumbar Sushmitha W/O. Kumbar ... vs 1A) Dodda Ningappa S/O Late Barmappa on 28 June, 2024
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NC: 2024:KHC-D:8975
RSA No. 101113 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 101113 OF 2022 (DEC/INJ-)
BETWEEN:
SMT. KUMBAR SUSHMITHA
W/O KUMBAR RAMALINGAPPA
AGE: 25 YEARS, OCC: AGRICULTURIST,
R/O G.KODIHALLI VILLAGE, H.B.HALLI TALUK,
BALLARI DIST.
...APPELLANT
(BY SRI ARAVIND D. KULKARNI, ADVOCATE)
AND:
SRI K.BHARMAPPA S/O LATE NAGAPPA
SINCE DEAD LRS
1. DODDA NINGAPPA S/O LATE BARMAPPA
AGE: ABOUT MAJOR,
R/O. G.KODIHALLI VILLAGE,
Digitally signed H.B.HALLI TALUK, BALLARI DIST.
by SAROJA
HANGARAKI
2. SANNA NINGAPPA S/O LATE BARMAPPA
Location: HIGH AGE. ABOUT MAJOR,
COURT OF R/O. G.KYADIGIHALLI VILLAGE,
KARNATAKA
H B HALLI TALUKA, BALLARI DIST.
DHARWAD
BENCH
DHARWAD 3. GUDADARAJA S/O LATE BARMAPPA
AGE: ABOUT MAJOR,
R/O. MYLARA LINGESHWAR NILAYA,
H B HALLI TALUK, BALLARI DIST.
4. KOTRAMMA W/O YAGGAJJA
D/O LATE BARMAPPA, AGE: MAJOR,
R/O. G.KODIHALLI VILLAGE,
H.B. HALLI TALUK, BALLARI DIST.
5. UMADEVI W/O MADDANEPPA
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NC: 2024:KHC-D:8975
RSA No. 101113 of 2022
D/O LATE BARMAPPA, AGE. MAJOR,
R/O. METRI VILLAGE, H.B. HALLI TALUK,
BALLARI DIST.
MAHADEVAKKA D/O LATE BARMAPPA
SINCE DEAD BY LRS
6. NAGARAJA S/O LATE MAHADEVAKKA
C/O DODDA NINGAPPA, AGE. MAJOR,
R/O. MYLARA LINGESHWARA NILAYA,
NEAR POST, OFFICE H.B. HALLI TALUK,
BALLARI DIST.
7. SHIVARAJA S/O LATE MAHADEVAKKA
C/O DODDA NINGAPPA, AGE. MAJOR,
R/O. MYLARA LINGESHWARA NILAYA,
NEAR POST OFFICE, H.B.HALLI TALUK,
BALLARI DIST.
8. RUKMINI D/O LATE MAHADEVAKKA
C/O DODDA NINGAPPA
AGE: MAJOR, R/O MYLARA LINGESHWARA
NILAYA, NEAR POST OFFICE,
H.B.HALLI TALUK, BALLARI DIST.
9. PUSHPA D/O LATE MAHADEVAKKA
C/O DODDA NINGAPPA, AGE. MAJOR,
R/O. MYLARA LINGESHWARA NILAYA,
NEAR POST OFFICE, H.B. HALLI TALUK,
BALLARI DIST.
...RESPONDENTS
(BY SRI SHRIHARSH A. NEELOPANT, ADV. C/R1 AND 3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
THAT THE JUDGMENT AND DECREE IN O.S.NO.36/2011 DATED
19.12.2014 PASSED BY CIVIL JUDGE AND JMFC, H.B.HALLI BE SET
ASIDE AND THE JUDGMENT AND DECREE IN R.A.NO.49/2016 DATED
19.02.2020 PASSED BY SENIOR CIVIL JUDGE AND JMFC, H.B.HALLI
BE SET ASIDE AND SUIT O.S.36/2011 BE DISMISSED AND THAT
ALTERNATIVELY IT IS PRAYED THAT THE HONOURABLE COURT BE
PLEASED TO PASS AN ORDER OF REMAND, AND MATTER BE
REMANDED TO THE TRIAL AOCUT OR TO F.A.C. TO PROPERLY FRAME
ISSUES ON RIGHTS OF APPELLANT AND HOLD THE TRIAL AND
DECIDE THE CASE AFTER TRIAL. IN THE ALTERNATIVE MATTER BE
REMANDED ANY OTHER APPROPRIATE GROUND DEEMED FIT.
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NC: 2024:KHC-D:8975
RSA No. 101113 of 2022
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed by the defendant under Section 100 of Code of Civil and Procedure, 19081 challenging the judgment and decree dated 19.02.2020 passed in R.A No.49/2016 by the Senior Civil Judge and JMFC, Hagaribommanahalli2 and the judgment and decree dated 19.12.2014 passed in O.S No.36/2011 by the Court of the Civil Judge and JMFC3, H.B.Halli, whereunder, the suit for declaration and injunction has been decreed by the Trial Court which has been upheld by the First Appellate Court.
2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.
3. It is the case of the plaintiff that he is the owner in possession and an enjoyment of the suit property 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' -4- NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 bearing survey No.150/A measuring 3 acres 13 cents and also another property bearing survey No.153 measuring 62 cents, having purchased the same vide registered Sale Deed dated 30.06.1969 for a total sale consideration of ₹1,500/-. That subsequent to the date of purchase, the plaintiff has been in possession and enjoyment of the suit property without any let or hindrance from anyone. That the defendant's mother-in-law by name Gangavva is the owner of the land measuring 17 cents in survey No.150/A, which is adjacent to the suit property land. That the defendant who has no manner of right, title or interest in the suit property, created a false partition deed and on the strength of the same mutated her name in respect of the entire land in survey No.150/A behind the back of the plaintiff.
4. It is further case of the plaintiff that the defendant has right only over 17 cents land belonging to her mother-in-law and not over the entire survey number. That taking advantage of illegal entries in the mutation, -5- NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 the defendant is attempting to dig a borewell in the suit property belonging to the plaintiff. Hence, the plaintiff filed a suit for declaration of title and for permanent injunction against the defendant.
5. The defendant entered appearance through her counsel and filed written statement wherein the plaint averments have been denied. It is contended that the suit Survey No.150 which totally measures an extent of 7.26 acres originally belongs to one Sri.Kumbara Mahadevappa and Sri.Ramalingappa. That the said Ramalingappa had no male issues and he hence took Bharamappa, the husband of his last daughter Gangavva as illatum son-in-law and consequently the said Bharamappa managed the properties of Sri.Ramalingappa.
6. It is further the contention of the defendant that her mother-in-law Late Smt.Ganagavva was in peaceful possession and enjoyment of the suit property till her death and after her death the name of the defendant was mutated in the revenue records and as such the -6- NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 defendant is in peaceful possession and enjoyment of the suit property. That taking undue advantage of the similar names, the plaintiff is trying to dispossess the defendant from the said land. It is further contended that the mother-in-law of the defendant Late Smt.Gangavva received the suit property and other properties from her mother late Basavanyamma through registered Gift Deed dated 24.12.1974. That since the suit property originally belongs to her mother-in-law, the plaintiff is not in possession of the same. Hence, the defendant sought for dismissal of the suit.
7. The Trial Court, based on the pleadings of the parties, framed the following issues:
"1. Whether plaintiff proves that he is the owner in possession of the suit schedule property?
2. Whether the plaintiff proves the alleged interference?
3. Whether the plaintiff is entitled to the relief of permanent injunction?-7-
NC: 2024:KHC-D:8975 RSA No. 101113 of 2022
4. Whether the plaintiff is entitled to the relief sought?
5. What order or decree?"
8. The Special Power of Attorney Holder of plaintiff has been examined as PW.1 and three witnesses as PW.2 to PW.4. Ex.P.1 to Ex.P.13 have been marked in evidence. The Special Power of Attorney Holder of defendant has been examined himself as DW.1 and two witnesses as DW.2 and DW.3. Ex.D.1 to Ex.D.7 have been marked in evidence.
9. The Trial Court by its judgment and decree dated 19.12.2014 decreed the suit and passed the following order:
" Suit of the Plaintiff is decreed with cost. It is hereby declared that the plaintiff is the absolute owner in possession of the suit schedule property.
Defendant and all persons claiming through her are hereby restrained by way of permanent injunction from digging bore well in the suit land, from interfering in any manner with the plaintiffs -8- NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 peaceful possession and enjoyment of the suit schedule property and from dispossessing him from the same.
Draw decree accordingly."
10. Being aggrieved, the defendant preferred R.A No.49/2016. The plaintiff entered appearance in the said appeal and contested the same. During the pendency of the appeal, the original plaintiff died and his legal representatives have been brought on record and they contested the appeal filed by the defendant.
11. The First Appellate Court framed the following points for consideration:
"i. Whether the appellant/defendant has proved her right, title and interest as well as possession over the suit schedule property?
ii. Whether the impugned judgment and decree is capricious, perverse and calls the interference by this Court?
iii. Whether the appellant/defendant made out grounds to permit her to produce the additional evidence before this court, as sought for? -9-
NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 iv. What order?"
12. During pendency of the first appeal, the appellant filed an application under Order XLI Rule 27 of the CPC. The First Appellate Court by its judgment dated 19.02.2020, dismissed the application filed under Order XLI Rule 27 of CPC as well as the appeal filed by the defendant and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.
13. Learned counsel for the appellant vehemently contends that both the Courts erred in holding that the plaintiff is the owner of the suit property despite non- production of the original Title Deed. That despite the defendant producing the registered Gift Deed (Ex.D.4) showing her title, both the Courts erred in holding that the plaintiff is the owner of the suit property. Hence, he seeks for allowing of the above appeal and granting of the reliefs sought for.
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022
14. Per contra, learned counsel for respondents seeks for dismissal of the above appeal and contends that both the Courts have concurrently held that the plaintiff is the owner of the suit property and in possession. Hence, it is contended that the concurrent findings recorded by the Trial Court and the First Appellate Court are not liable to be interfered with by this Court in the preset second appeal.
15. The submissions of both the learned counsels have been considered and material on record has been perused.
16. The Trial Court while considering Issue No.1 has recorded the following findings:
i. The Special Power of Attorney Holder and son of the plaintiff has been examined as PW.1 and to prove that the plaintiff is the owner and in possession of the suit property, the plaintiff has mainly relied upon the registered Sale Deed dated 30.06.1969 (Ex.P.1), wherein the suit
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 property measuring 3 acres 13 cents was sold to the plaintiff by Ramalingappa and Ningappa for a valuable consideration of ₹1,500/-; ii. PW.2 to PW.4 are the witnesses who have supported the case of the plaintiff and have further stated that the plaintiff has been in peaceful possession of the suit property ever since the date of purchase and defendant tried to dig a borewell in the suit property belonging to the plaintiff and threatened to dispossess the plaintiff from the same. Though the said witnesses have been cross-examined, nothing contrary has been elicited so as to dent the case of the plaintiff;
iii. The Special Power of Attorney Holder of the defendant has been examined as DW.1 and has marked a registered Gift Deed dated 24.12.1974 (Ex.D.4). However, the defendant has not placed any evidence either oral or
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 documentary to show that the Gift Deed dated 24.12.1974 has been executed by Smt.Basavanyamma in favour of her daughter Smt.Gangavva who is the mother-in-law of the defendant;
iv. The defendant has not placed any evidence, either oral or documentary on record to show that the Smt.Gangavva is her mother-in-law and late Basavanyamma is mother of Gangavva;
v. The defendant relied on the RTC wherein her name is entered in respect of the entire 3 acres 13 cents. However, nothing is placed on record on the basis of which her name was entered in the RTC;
vi. The plaintiff has produced MR No.112/08-09 wherein 3 acres 13 cents in the suit survey number is mutated in the name of the
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 defendant pursuant to the partition dated 03.02.2009;
vii. Certain doubt arises with regard to genuineness of Ex.P.6 mutation entry and also the entry of the defendant's name in the RTC pertaining to the suit survey number;
viii. It is beyond imagination as to why defendant's name entered in the RTC in respect of 3 acres 13 cents ignoring Ex.P.1 registered Sale Deed executed by Ramalingappa and Ningappa in favour of the plaintiff in respect of 3 acres 13 cents;
ix. The alienation made in favour of the plaintiff seems to be not in dispute as both DW.1 and DW.2 clearly admitted during their cross- examination that Ramalingappa and Ningappa executed the registered sale deed in favour of the plaintiff in respect of the suit property;
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022
17. Taking note of the evidence on record Trial Court has recorded a finding that the plaintiff has sufficiently proved that he is in possession of the suit property. The Trial Court while considering issue No.2 has answered the same in the affirmative by holding that the defendant has interfered with the possession of the plaintiff over the suit property.
18. The First Appellate Court while considering the points framed for consideration, has recorded the following findings:
i. The contention of the plaintiff is that the suit property originally to Ramalingappa and Ningappa and jointly they have sold it in favour of the plaintiff under the registered Sale Deed dated 30.06.1969. The contention of the defendant that the entire 7.26 acres in suit survey number belongs to one Kumbara Mahadevappa and Ramalingappa. That as Ramalingappa has no male issues, he has taken
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 his daughter's husband as illatum son-in-law and has looked after the family properties but the defendant has not specifically whispered in respect of which extent in the suit survey number Ramalingappa was the owner; ii. DW.1 admits that the suit property originally belongs to Ramalingappa and Ningappa, the sons of the Sanna Thammappa and in 1969 they have sold the said property in favour of the plaintiff;
iii. The plaintiff has purchased the suit property from its earlier owner under the registered sale deed wherein right, title and interest has been validly transferred in favour of the plaintiff; iv. The documentary evidence placed by the plaintiff clearly discloses the right, title and interest as well as the possession over the suit property;
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 v. DW.1 has deposed in his affidavit that during the lifetime of Ramalingappa, he executed a Will in favour of his minor daughter Gangavva in the year 1970 represented by her natural mother Basavanyavva. That later on the said Basavanyavva executed registered gift deed in favour of her daughter Gangavva about 40 years ago. If at all, as deposed by DW.2, if Ramalingappa has executed a Will in favour of his minor daughter, no right will remain with his wife Basavanyavva to execute the gift deed; vi. Further, no evidence is placed on record by the defendant to show that the Will is executed by Ramalingappa;
vii. No iota of evidence by the defendant to show on what capacity or what right Basavanyavva had to execute the gift deed in respect of 2 acres of property;
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 viii. On meticulous verification of the entire evidence placed on by the defendant, there is absolutely no passing of right, title or interest in the suit property by the defendant properly; ix. The plaintiff had purchased the suit property under the registered sale deed and nothing will remain with Ramalingappa and his brother Ningappa to succeed in property as the legal heirs. But all of a sudden, as per the partition deed dated 03.02.2009, the Khata of the suit property has been effected in the name of the defendant. Since from the time of alienation, the suit property remains with the family of the plaintiff, the defendant never became the absolute owner by virtue of the partition.
19. The appellant before the First Appellate Court had sought to produce additional documents. The First Appellate Court has noticed in its order that the documents that the appellant wanted to produce were RTC
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022 extract, MR extract as well as unregistered partition deed dated 03.02.2009 and unregistered partition agreement dated 19.06.2008. However, upon appreciation of the oral and documentary evidence on record, the First Appellate Court noticed that although the appellant/defendant contended that the Basavanyavva executed the gift deed (Ex.D.4) to an extent of 3 acres in Sy.No.150, on going through the said document, it is held that the gift deed (Ex.D.4) has been executed in respect of 2 acres in Sy.No.150. Hence, it is noticed that when no 3 acres of land was gifted by Basavanyavva through gift deed, the question of allotment of 3 acres 13 cents in favour of the defendant in the said survey number does not arise. The First Appellate Court upon going through the documents sought to be produced has recorded a finding that even if the additional documents were taken into consideration they will not throw any light on the fact in issue between the parties and hence it was held that the additional documents are not required to adjudicate the matter.
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022
20. It is clear and forthcoming from the aforementioned that both the Courts have recorded concurrent findings that the plaintiff is the owner of the suit property having acquired the same vide registered Sale Deed dated 30.06.1969 (Ex.P.1). Further, as noticed above, both the Courts have adequately appreciated and reappreciated the defence put forth by the defendant that he has acquired valid right, title and interest in the suit property and have negatived the said contention of the defendant and held that the plaintiff has demonstrated that he is the absolute owner in possession and enjoyment of the suit property.
21. The appellant has failed in demonstrating that the said concurrent findings of fact recorded by both the Courts are in any manner contrary to any specific oral or documentary evidence on record. Hence, the appellant has failed in demonstrating that any substantial question of law arises for consideration in the above appeal.
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NC: 2024:KHC-D:8975 RSA No. 101113 of 2022
22. In view of the aforementioned, the above appeal is dismissed as being devoid of merit at the stage of admission itself.
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JUDGE Pmp upto para 15 Sh, CT:GSM List No.: 1 Sl No.: 42