Basappa Tegirinatele vs Hanumappa Baithal
2021 Latest Caselaw 2564 Kant

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

          DATED THIS THE 02ND DAY OF JULY, 2021

                         BEFORE

     THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

            R.S.A No.3015/2006 (DEC & INJ)

BETWEEN:
BASAPPA TEGIRINATELE
S/O. KRISHNAPPA
AGED ABOUT: 70 YEARS
AGRICULTURIST
R/O YERADONI VILLAGE NEAR KARTGI
TQ: GANGAVATHI
SINCE DECEASED BY LRS

1a) KRISHTAPPA @ KRISHNAPPA
     S/O. LATE BASAPPA
     AGE: 52 YEARS
     OCC: AGRICULTURE
1b) MARADAPPA S/O LATE BASAPPA
     AGE: 38 YEARS, OCC: AGRICULTURE
       BOTH R/O YARADONI VILLAGE NEAR
       KARTGI, TQ: GANGAVATI.         ... APPELLANTS

(BY SRI.SHIVAKUMAR KALLOOR, ADVOCATE)
   (THROUGH V/C)
AND:

1.      HANUMAPPA BAITHAL
        S/O. LATE HANUMAPPA
        AGED ABOUT 55 YEARS,
        OCC: AGRICULTURE
        SINCE DECEASED BY LRS.
                          2




1a)   YAMANAMMA
      W/O LATE HANUMAPPA BAITHAL

      AGE 55 YEARS
      OCC: HOUSEHOLD

1b)   RENUKAMMA
      D/O LATE HANUMAPPA BITHAL
      W/O VIRUPANNA NAIK
      BOTH R/O RAGALPARVI
      TQ: SINDHANUR
      DIST: RAICHUR.

1c)   VENKATESH S/O HANUMAPPA
      AGE: 28 YEARS, OCC: AGRICULTURE
      R/O KALMANGI VILLAGE,
      TQ: SINDHANUR
      DIST: RAICHUR.
2.    HANUMAPPA BAVITHAL
      S/O LATE THIMMAPPA
      AGED ABOUT: 45 YEARS
      OCC: AGRICULTURE NAYER
      R/O. KALMANGI VILLAGE
      TQ: SINDHANUR.
3.    SMT. PAMPAMMA
      W/O LATE BAVITHAL KRISTAPPA
      AGED ABOUT 48 YEARS, OCC: HOUSEHOLD
      & AGRIL.
      R/O KALMANGI VILLAGE
      TQ: SINDHANUR
4.    RAMANNA
      S/O LAGE BAVITHAL KRISTAPPA
      AGED ABOUT: 34 YEARS,
      OCC: AGRICULTURE
      R/O KALMANGI VILLAGE
      TQ: SINDHANUR.
                             3


5.   THIMMAPPA
     S/O LATE KRSTAPPA BAVITHAL
     AGED ABOUT 21 YEARS
     OCC: AGRICULTURE
     R/O KALMANGI VILLAGE
     TQ: SINDHANUR.

                                        ... RESPONDENTS

(BY SMT. HEMA.L.K., ADVOCATE FOR R1 (A) TO
   R1(C) AND R2 TO R5)
     (THROUGH V/C)
                       *****

     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT & DECREE DATED 20.01.2006
PASSED IN R.A.NO.14/2004 ON THE FILE OF THE ADDL.
DISTRICT JUDGE & PRESIDING OFFICER, FAST TRACK
COURT-IV,     RAICHUR,    ALLOWING    THE   APPEAL      AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
15.12.2003 PASSED IN O.S.NO.130/1996 ON THE FILE OF
THE ADDL. CIVIL JUDGE (SR.DN.), RAICHUR.


     THIS REGULAR SECOND APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR
"PRONOUNCEMENT OF JUDGMENT" THIS DAY, THE COURT
DELIVERED THE FOLLOWING;

                         JUDGMENT

The above stated Regular Second Appeal is filed

under Section 100 of CPC by the appellant/defendant

challenging the judgment and decree passed in

R.A.No.14/2004 dated 20.01.2006 passed by the Court of

Addl. District Judge and Presiding Officer, FTC-IV, Raichur

(hereinafter referred to as First Appellate Court) which set

aside the judgment and decree passed in O.S.No.130/1996

dated 15.12.2003 passed by the Court of Addl.Civil Judge

(Sr.Dn), Raichur (hereinafter referred to as Trial Court).

2. The suit filed by the plaintiff for declaration

AND permanent injunction is dismissed and further

ordered and decreed that the appellant/defendant is

declared as absolute owner and in possession of the

scheduled land to the extent of 15 acres and 06 guntas.

Against this, the plaintiffs have preferred Regular Appeal

before the First Appellate Court and the First Appellate

Court has decreed the suit of the plaintiffs and declared

that the respondents/plaintiffs are owners and in

possession of land to an extent of 30 acres and 13 guntas.

Therefore, the defendant has preferred the present appeal.

Brief Facts:

Pleadings of the plaintiffs:

3. The respondents/plaintiffs have filed the suit

for decree of declaration of ownership and permanent

injunction in respect of the suit land bearing Sy.No.239

totally measuring 30 acres and 13 guntas at Taluk

Sindhanur, District Raichur and have consequently

rectification of record of rights in the name of the

respondents/plaintiffs. As admitted by both the appellants

and respondents, the family pedigree is extracted below

for the sake of convenience:

Thimappa

Krishtappa Hanumappa (Father of Defendant) (Father of Plaintiff No.1) (dead) (dead)

Basappa (Defendant) Ayyamma (dead) Thimmappa Hanumappa Kristappa Gouramma (dead) (dead) (Pltf.No.1) (dead)

Hanumappa (Pltf.No.2)

Pampamma Ramanna Thimmanna (wife)(Pltf.No.3) (Son)(Pltf.No.4) (Son)(Pltf.No.5)

4. It is stated that the original propositus

Sri. Thimmappa has two sons namely Krishtappa and

Hanumappa. It is stated that the above Krishtappa died

bachelor. Therefore, another son Hanumappa had been

bequeathed the entire suit schedule property of 30 acres

and 13 guntas. The said Hanumappa, S/o. Thimmappa

had three sons namely Thimmappa who is called as junior

Thimmappa (father of plaintiff No.2), Hanumappa (Plaintiff

No.1) and Krishtappa (husband of PW.3) (hereinafter this

Krishnappa is referred as junior Krishnappa) has two sons

Plaintiff Nos.4 and 5. It is stated that the plaintiff No.2 is

son of Thimmappa.

5. It is stated that the Krishtappa (senior) son of

Thimmappa died bachelor. Therefore, the plaintiffs being

the legal heirs of Hanumappa S/o. Thimmappa (senior)

had got divided the suit schedule properties about fifteen

years back in three equal parts by allotting themselves and

accordingly they have been enjoying the suit property as

per their share.

      6.    It     is    further     stated      that     the

appellant/defendant is stranger to       the suit schedule

properties. The appellant/defendant is permanent resident

of Yeradoni Village Taluk Gangavati and he had never

stayed and lived at Kalmangi Village where the suit

schedule lands are situated. Therefore, the

appellant/defendant is no way concerned with the suit

schedule property. It is stated that the

appellant/defendant even stranger to the family of the

respondents/plaintiffs but behind back of the

respondents/plaintiffs and without knowledge of them has

got mutated the lands in his name in the record of rights

and the said mutation is illegal mutation. Further, stated

that on the basis of entries in the revenue records, the

appellant/defendant started interfering with the possession

of suit schedule properties of the respondents/plaintiffs.

Therefore, the respondents/plaintiffs have filed a suit for

declaration and permanent injunction against the appellant

(defendant herein) for seeking declaration and ownership

to the entire extent of suit schedule properties measuring

30 acres 13 guntas and consequently relief for permanent

injunction.

Pleadings of the defendant:

7. The appellant/defendant had filed written

statement before the Trial Court and admitted that the

family pedigree described in the plaint is true except the

pleading that Krishtappa (senior) died bachelor. The

family pedigree flows from Thimmappa as described above

is admitted by the appellant/defendant. But it is the

contention of the appellant/defendant that Krishtappa

(senior) had wife by name Balamma and he is the son of

said Krishtappa and Balamma. Therefore, the

appellant/defendant had denied the averments in the

plaint that Krishtappa died bachelor. It is contended that

the appellant/defendant is the son of Krishtappa and

Balamma is his mother. It is further stated that after the

death of his father Krishtappa, his mother Balamma left

the Kalmangi village due to harassment given by the

family members of the plaintiffs. Therefore, she left the

Kalamangi village and started living in her parent house at

Yeradoni village.

8. Further the appellant/defendant had filed a

counter claim under order VIII Rule 1 read with Rule 6(a)

and 6(b) of CPC that he is the son of Krishtappa (senior)

and Balamma and denied the fact that Krishtappa died

bachelor. Therefore, it is contended in the counter claim

that the appellant/defendant is entitled for half share in

the suit schedule properties and accordingly got entered

his name in revenue records i.e. 15 acres 06 guntas which

extent is half of the total land. Further, it is contended

that the respondents/plaintiffs have got mutated their

names to the entire extent of land and after coming to

know this fact, they have filed application before the

revenue authorities and also the Assistant Commissioner,

Lingasugur (hereinafter referred to as Assistant

Commissioner for the sake of convenience) in an appeal

under Section 136(2) of Karnataka Land Revenue Act,

1964 had restored the name of the appellant/defendant in

the revenue records by accepting the contention of the

appellant/defendant that Krishtappa (senior) did not die as

bachelor and admitted themselves by the

respondents/plaintiffs in the objection filed before the

Assistant Commissioner stating that Balamma is the wife

of Krishtappa and the appellant/defendant is the son of

said Krishtappa and Balamma. Therefore, with these

pleadings, the appellant/defendant has preferred the

counter claim in his written statement apart from denying

the averments in the plaint so far as Krishtappa died

bachelor.

9. Based on the pleadings of both the parties, the

Trial Court has framed the following issues:

1. Whether plaintiffs prove that Hanumappa S/o Hanumappa has only succeeded to suit property as alleged in para No.7 of the plaint?

2. Whether plaintiffs prove that partition as alleged in para No.4 and 5 has taken place between them only?

3. Whether defendant proves that he is the son of Kristappa S/o Thimmappa as alleged?

4. Whether defendant proves that his father had wife namely, Balamma and he is the only male issue to his father and there were two female issues to his father as alleged in para No.6 of the written statement and as shown in pedigree stated in counter claim?

5. Whether plaintiffs prove that they are enjoying suit property in three equal parties from the last 15 years to the date of filing of the suit as alleged in para No.4 and 5 of the plaint and now also they are in enjoyment of suit property?

6. Whether defendant proves that partition between himself and plaintiff No.1 and

Krishtappa has taken place in the year 1970 as alleged in para No.4 of the written statement and further proves that he got his half share in the suit property?

7. Whether defendant proves that he is in possession of the suit property to the extent of half i.e. 15 acres 06 guntas lying to the west of plaintiffs share, from the year 1970?

8. Whether plaintiffs prove their exclusive ownership and possession in respect of suit property as alleged?

9. Whether plaintiffs prove alleged interference and obstruction by the defendant?

10. Whether defendant proves his exclusive possession over the property to the extent of half ie. 15 acres 06 guntas lying towards west of the plaintiffs share and towards east as alleged as on the date of suit?

11. Whether defendant proves alleged intereference and obstruction by the plaintiffs?

12. Whether plaintiffs are entitled to the reliefs sought for?

13. Whether defendant is entitled the reliefs sought for in his counter claim made in the written statement?

14. What order and decree?

10. The respondents/plaintiffs have adduced oral

and documentary evidence as PW.1 to PW.4 and got

marked documents as Ex.P1 to Ex.P8 and on the other

hand, the respondents examined as DW.1 to DW.5 and got

marked documents as Ex.D1 to Ex.D.35. The Trial Court

has dismissed the suit of the respondents/plaintiffs and

has decreed the counter claim of the appellant/defendant

and declared the appellant/defendant as absolute owner

and actual possession of the suit lands to the extent of 15

acres 06 guntas and accordingly issued permanent

injunction.

Findings of the Trial Court:

11. The Trial Court had come to the conclusion

based on the documentary evidence that the

respondents/plaintiffs have filed objection in the revenue

appeal filed before the Assistant Commissioner wherein

they have pleaded that Krishtappa (senior) had son by

name Basappa and therefore he was not a bachelor.

Therefore, the contention of the respondents/plaintiffs that

Krishtappa died bachelor is proved to be false and also

further based on the revenue entries including mutation

records, it is evident that in the year 1970-71, the name of

the appellant had entered in the revenue records being the

son of Krishtappa. Therefore, on these findings, the Trial

Court has dismissed the suit of the respondents/plaintiffs

and decreed the counter claim filed by the defendants.

Findings of the First Appellate Court:

12. Being aggrieved by the judgment and decree

of dismissing of the suit of the respondents/plaintiffs and

decreeing the counter claim of the appellant/defendant,

the respondents/plaintiffs have preferred the regular

appeal before the First Appellate Court. The First Appellate

Court has set aside the judgment and decree of the Trial

Court and decreed the suit of the respondents/plaintiffs

that the respondents/plaintiffs are owners and in

possession of the entire extent of 30 acres 15 guntas land

and dismissed the counter claim of the

appellant/defendant. The First Appellate Court has

assigned reasons that the appellant/defendant has not

produced evidence to prove the relationship of him with

the Krishtappa (Senior) by producing any independent

witnesses. The First Appellate Court has rejected the

documentary evidence of the appellant/defendant and

Ex.P.26 which is filed before the Assistant Commissioner in

RRT Appeal No. 23/1990-91. Ex.D27 which is certified

copy of the proceedings of Assistant Commissioner on the

ground that they do not contain signatures. Therefore, the

First Appellate Court had discarded these documentary

evidences in which the respondents/plaintiffs have

admitted the relationship with the appellant/defendant

with the said Krishtappa. Therefore, on these grounds, the

First Appellate Court has dismissed the counter claim of

the appellant and decreed the suit of the respondents. As

there is divergent findings between the Courts below, the

defendant has preferred the present regular second

appeal.

Analysis with law:

13. As per Section 100 of CPC, the second appeal

has to be considered only on substantial questions of law.

Considering the substantial questions of law in the second

appeal does not only meant that it should be having a

general importance but also the said substantial questions

of law if exchanged between the parties themselves, then

the second appeal can be considered. In this regard,

where there is a divergent finding between the Courts

below, certain amount of consideration of evidence

adduced by both the parties are also considered in order to

determine the issue of evidence involved in the appeal as

per Section 103 of CPC. Therefore, there is totally no bar

in the second appeal under Section 100 of CPC of

consideration of the evidence adduced before the Trial

Court.

14. This Court on 25.07.2017 has framed the

following substantial question of law:

"Whether the first appellate Court was right in concluding that the defendant - Basappa, had not proved that he was the son of Krishtappa, and grand son of Hanumappa, and therefore was not entitled to any share in the suit properties and thereby declaring plaintiffs to be the owners in possession of the entire extent of suit properties?"

15. Heard the arguments from the learned counsel

appearing for the parties. Learned counsel for the

appellant argued that the appellant is the son of

Krishtappa (senior) since Krishtappa died not as a bachelor

but he was having a wife by name Balamma and the

appellant is the son of the said Krishtappa and Balamma.

He further submitted that after the death of Krishtappa,

his wife Balamma had faced humiliation in the family of the

respondents as there is no good terms in the family.

Therefore, the appellant's mother Balamma along with the

appellant had gone to Yeradoni Village and started to

reside in her parents' house. Therefore, by taking

advantage of this fact, the plaintiffs behind back of the

appellant/defendant had got mutated their names in the

revenue records to the extent of 30 acres and 13 guntas.

Further, it is stated that even though the defendant was

residing in Yeradoni Village but was coming to the

Kalmangi village and he is looking after the land to the

extent of 15 acres 06 guntas which was inherited through

his father's share. Therefore, the relationship of the

appellant/defendant to the said Krishtappa is admitted by

the respondents/plaintiffs in their objections filed to the

appeal which was pending before the Assistant

Commissioner and they themselves in their counter before

the Assistant Commissioner admitted that the son of

Krishtappa by name Basappa died and the present

appellant who is also having the name of Basappa as a

fake person and wrongly claiming the suit schedule land

just to grab the land. Therefore, it is argued by the

counsel for the appellant that the respondents/plaintiffs at

one stretch pleaded in the plaint that Krishtappa died

bachelor but in the counter filed before the Assistant

Commissioner had admitted that the disputed suit land

absolutely belongs to Basappa, the son of Krishtappa but

the said Basappa is no more. Therefore it is contended

that the present stated Basappa in the counter before the

Assistant Commissioner is none other than appellant

herein but the respondent/plaintiff have falsely stated that

the son of Krishtappa by name Basappa died. Therefore,

there is a contradictory pleading in the plaint of the

plaintiffs in the suit as well as in the counter filed before

the Assistant Commissioner negates the case of the

plaintiff and which is considered by the First Appellate

Court and accordingly dismissed the suit of the plaintiff

and allowed the counter claim of the appellants by

declaring that the appellant is the son and in possession of

the land to the extent of 15 acres 06 guntas but the First

Appellate Court has wrongly set aside the judgment and

decree of the Trial Court. Therefore, prays to allow the

appeal and confirm the judgment and decree passed by

the Trial Court.

16. On the other hand, learned counsel for the

plaintiffs submitted that the appellant has failed to prove

the relationship with Krishtappa (senior) and thus rightly

considered by the First Appellate Court. Further, it is

submitted that in order to prove the relationship, the

appellant has examined himself as DW.1 and his son as

DW.2 and one witness as DW.3 has not deposed anything

about the relationship with the said Krishtappa. As per the

Section 50, 51 and 52 of Indian Evidence Act, 1872, the

appellant has not proved his relationship. The First

Appellate Court rightly delivered the judgment and decree.

17. Further he submitted that the averments made

in the counter by the respondent filed before the Assistant

Commissioner in RRT Appeal cannot be considered for the

reason that those are secondary evidence but not primary

evidence. By these averments, the relationship of the

appellant has not proved that Krishtappa and the appellant

is stranger person and is no way concerned with the family

of the respondents/plaintiffs which is rightly considered by

the First Appellate Court.

18. Learned counsel for the appellant/defendant

relied on the judgments of the Hon'ble Supreme Court

which are as stated below:

1. HCR 2016 KANT 407 Kadamma & Others Vs. Chikkamma & Others.

2. HCR 2015 SC 384 Shashidhar & others Vs. Smt. Ashwini Uma Mathad & another.

3. 2003 SAR (Civil) 234 Kuldeep Chand Vs. Advocate General to Government of Himachal Pradesh

4. AIR 2002 Supreme Court 504 Karevva & others Vs. Hussain Sab Khansab

5. AIR 2002 Kerala 133 Raman Pillai Krishna Pillai Vs. Kumaran Parmeshwaran

6. 2017 AIAR (SC) Justice Hon'ble Abdul Nazeer Already furnished before this Hon'ble Court.

19. The learned counsel for the respondents -

plaintiffs relied on the judgment of the Hon'ble Apex Court

as below in the case of Dolgobinda Paricha vs. Nimai

Charan Misra and Others reported in AIR 1959 SC

914.

20. Further, the learned counsel for the

respondents/plaintiffs submitted that even as per Section

35(2) of the Evidence Act, 1872 the appellant has not

proved relationship with the said Krishtappa. Therefore,

with the aforesaid submissions, the learned counsel for the

respondents/plaintiffs submitted that there are no

substantial questions of law involved in the present case

for consideration of the same and the appeal is devoid of

merits as the First Appellate Court has rightly delivered the

judgment and decree, therefore, prays to dismiss the

second appeal.

21. In the present case, upon considering the

substantial question of law framed by this Court stated

above, the crux of the matter involved is whether the

appellant is the son of Krishtappa and whether this fact is

proved by the appellant by adducing evidence before the

Trial Court. As there is divergent finding between the

Courts below on the issue of fact involved, therefore, there

is a need to consider the relevant facts adduced by both

the parties in the background of pleadings canvassed by

them.

22. The Trial Court has relied on the documentary

evidence Ex.D25 and Ex.D26 which are the counter filed by

the respondents/plaintiffs in RRT appeal before the

Assistant Commissioner and the Trial Court has opined

that in this counter, the respondents/plaintiffs have

admitted that Basappa was the son of Krishtappa.

Therefore, the contention of the plaintiffs that Krishtappa

died as bachelor and accepting the said documentary

evidence, dismissed the suit of the respondents/plaintiffs

and decreed the counter claim of the appellant/defendant.

But on the other hand, the First Appellate Court has

discarded the above said documentary evidence but has

observed that as per Sections 50, 51 and 52 of Evidence

Act, the appellant/defendant has not led any evidence

proving his relationship with Krishtappa by adducing any

independent witness and with these reasons, reversed the

judgment and decree of the Trial Court and decreed the

suit of the respondents/plaintiffs.

23. Therefore, the crux of the matter involved in

the present case and also the substantial questions of law

has to be answered in this regard the facts are to be

considered on the aspect (1) whether the

respondents/plaintiffs proves that Krishtappa died bachelor

as they have pleaded in the plaint and also give evidence

in the suit? (2) whether the appellant/defendant proves

that he is the son of Krishtappa, but the Krishtappa did

not die as bachelor. Therefore, on these factual aspects,

the above framed substantial question of law is liable to be

answered.

24. It is the strong contention of the

respondents/plaintiffs that the appellant/defendant is a

stranger but not the son of Krishtappa. The family

pedigree stated by the respondents/plaintiffs and the

pedigree stated by the appellant/defendant are not

disputed.

25. The only issue of fact emerged in the present

case is whether the appellant/defendant is the son of

Krishtappa (son of Thimmappa) or not? It is strong

contention of the respondents/plaintiffs that the said

Krishtappa is the son of Thimmpappa died bachelor.

Therefore, on these pleadings that Krishtappa, s/o

Thimmappa is a bachelor. Therefore, it is contended that

the appellant/defendant is not the son of the said

Krishtappa but he is a stranger to the family. Negating

this contention, the appellant/defendant is contending that

the said Krishtappa son of Thimmppa did not died as

bachelor but he was having a wife by name Balamma and

he is the son of Krishtappa and Balamma. Upon this

controversy involved, the Trial Court in its judgment while

appreciating the documentary evidence i.e. Ex.D.25 had

observed that the appellant/defendant Basappa had filed

RRT appeal against the respondents/plaintiffs herein before

the Assistant Commissioner and in the said RRT

proceedings, where the respondents/plaintiffs had filed

objection as per Ex.D26, it is stated that the disputed

survey number of Kalmangi village actually belongs to

Krishtappa who is none other than uncle of the plaintiff

and the said uncle is no more and he died and the present

appellant/defendant Basappa is fake and misrepresenting

the litigation. Therefore, it was observed that the said

Krishnappa had son by name Basappa and he was not a

bachelor. Therefore, the Trial Court has observed that

Krishtappa did not die as bachelor but having wife by

name Balamma and the next question is whether this

appellant/defendant Basappa is the son of Krishtappa or

not is the question to be determined. Therefore, the Trial

Court had appreciated other evidences which are record of

rights in which the name of the Krishtappa and thereafter

his son Basappa's name was found and held that the

present appeal/defendant is the son of said Krishtappa and

accordingly dismissed the suit of the respondents/plaintiffs

and counter claim of the appellant/defendant is allowed by

declaring the appellant/defendant is the owner and in

possession to the extent of half share of land i.e. 15 acres

06 guntas. Therefore, when the respondents/plaintiffs

have contended that Krishtappa died bachelor but this

contention is found to be contrary to the objection filed by

the respondents/plaintiffs No.2 and 3 before the Assistant

Commissioner i.e.Ex.D25. Respondents/plaintiffs have

categorically objected that the suit land belongs to

Basappa, s/o Krishtappa. Ex.D26 is the certified copy of

the counter in the above said RRT appeal and these

documents are not disputed by the respondents/plaintiffs.

In fact the respondents/plaintiffs admitted that there was

appeal pending before the Assistant Commissioner and

they have participated in the said proceedings before the

said Assistant Commissioner. Ex.D26 can be considered as

secondary evidence as per Section 63 of the Indian

Evidence Act. Therefore, it is proved that the said

Krishtappa, s/o Thimmappa did not die as bachelor but he

was having wife by name Balamma and son by name

Basappa. Then, the question arise that whether the

appellant/defendant is the son of Krishtappa or not?

26. The First Appellate Court had observed that

the appellant/defendant did not examine any other

independent witnesses to prove his relationship with

Krishtappa, s/o Thimmappa. The First Appellate Court has

discarded the documentary evidence at Ex.D25 and

Ex.D26 on the ground that the said counter is not signed

by the respondents/plaintiffs of the said appeal and also

there is no name of the advocate in the counter but singed

the counter on behalf of the respondents/plaintiffs as per

Ex.D26.

27. Upon perusing Ex.D.26 counter, on behalf of

respondent Nos.1 and 2 in that case, no doubt the name of

the advocate is not found but signature is found.

Normally, it is common experience that in some instances,

the advocate files counter on behalf of their parties did not

write their names but only put their signatures. Therefore,

just because the name of the advocate is not found in the

counter but where signature is found, that cannot be a

ground in discarding the said documentary evidence and

this observation made by the First Appellate Court is one

of superficial in nature.

28. Further, the First Appellate Court has discarded

the evidence of Ex.D15, Ex.D25 and Ex.D.27 and entries

made in the record of rights and did not establish the

paternity of the appellant/defendant i.e. the son of

Krishtappa and accordingly, reversed the judgment and

decree passed by the Trial Court.

29. Upon perusing the record of rights placed by

the respondents/plaintiffs themselves from the year 1969-

1970 as per mutation entry i.e. Ex.P2, the name of

Basappa s/o Krishtappa to the extent of 15 acres 06

guntas is entered and this name is continued further to the

extent of 15 acres 06 guntas, the name of plaintiff No.1 is

reflected, then out of the said 15 guntas 06 guntas, it was

further divided into in the name of their children. Ex.D7 is

the record of rights as that of the Ex.P2 documents. The

name of Basappa, s/o Krishtappa is continued from the

year 1983-84 by virtue of M.R. register order as it was

done by the Revenue Officer dated 30.06.1984 that

Basappa is the son of Krishtappa died and thereafter his

uncle name was entered Ex.D15. Therefore, the cause of

action arose for the appellant to prove that the appeal

before the Assistant Commissioner invoking the provisions

of 136(2) of Karnataka Land Revenue Act, 1964 in the said

appeal proceedings, the plaintiff Nos. 2 and 3 have

participated and filed objection and in the said objection,

the respondents/plaintiffs admitted that the disputed

survey number of land actually belongs to Basappa

who was none other than his uncle's son of plaintiff Nos.1

but it is contended in the said counter that the Basappa

died and the present appellant Basappa is a fake person

and a stranger to the family. But upon analysis of the

evidence on record, the contention urged by the

appellant/defendant that he is the son of Krishtappa and

Balamma is not controverting by placing evidence by

respondents/plaintiffs. Furthermore, the contention of the

respondents/plaintiffs is found to be false that the said

Krishtappa son of Thimmappa died bachelor. By virtue of

Ex.D26 i.e., counter, the rejection of documentary

evidence by the First Appellate Court is on flimsy grounds

and discarding the evidence of Ex.D26 is improper as the

reason assigned is not sufficient in nature. Further, PW.1

in his cross examination admitted that the suit land to the

entire extent i.e., 30 acres 13 guntas came from the

original propositus Thimmappa and it was inherited to his

two sons Thimmappa (junior) and Hanumappa and this

could be found from the Kasara pahani patrika Ex.D1

which is of the year 1954-55. Therefore, in this regard

the ruling relied on by the respondents/plaintiffs in the

case of Dolgobinda Paricha Vs. Nimai Charan Misra

and others reported in 1959 AIR 914 is not applicable

to the present case as the facts and circumstances therein

are different from the present case. The counsel for the

respondents/plaintiffs argued that that relationship of the

parties is not proved as per Section 32(5) of the Indian

Evidence Act.

30. The appellant/defendant had relied on the

counter filed by the respondent in the RRT appeal and

wherein the respondents/plaintiffs have admitted that the

suit land belongs to Basappa s/o. Krishtappa and when this

being the position of law, the burden cast on the

respondents/plaintiffs as to how the respondents/plaintiffs

is related to Krishtappa by placing the evidence if the

respondents/plaintiffs are so assertive in their contention.

If the appellant/defendant is stranger to the family, then

the appellant/defendant would not have dared to present

the appeal before the Assistant Commissioner stating his

concern with the land as it is inherited by his father

Krishtappa. Therefore, the counter filed by the

respondents/plaintiffs before the Assistant Commissioner is

a relevant document as per Section 32(5) of the Indian

Evidence Act to prove that the appellant/defendant is the

son of Krishtappa (senior).

31. Therefore, upon considering the evidence on

records, where it is specifically urged by the

respondents/plaintiffs that Krishtappa s/o Thimmappa died

bachelor but it goes contrary to their own documents

which is counter filed before the Assistant Commissioner.

The respondents/plaintiffs could have produced the death

certificate of Basappa if really the said Basappa son of

Krishtappa died or could have led evidence of other

witnesses stating that Basappa s/o Krishtappa died. This

evidence cannot be found on the part of the

respondents/plaintiffs. Whereas, the assertion made by

the respondents/plaintiffs is that Basappa is the son of

Krishtappa is proved for the reasons discussed above.

Therefore, in this regard the evidence appreciated by the

First Appellate Court is found to be not proper whereas,

the Trial Court has properly appreciated the evidence on

record. Therefore, the judgment and decree passed by the

First Appellate Court is liable to be set aside by restoring

the judgment and decree passed by the Trial Court.

32. The judgment relied on by the counsel

respondents in the case of Dolgobinda Paricha vs.

Nimai Charan Misra and Others reported in AIR 1959

SC 914 stated supra is not applicable to the present case

as the factual matrix and evidences involved in the above

cited case is different from present case. The above stated

judgment deals with the provisions of enunciated under

Section-32(5) of the Evidence Act in regard to proving of

relationship of parties. Section-32(5) of the Evidence Act

deals with proving of existence of relationship by a

statement made by a person who had special knowledge

and that statement shall be made before raising of dispute,

but in the present case, the proving of relationship is on

the basis of 'promissory estoppel' made by the

respondents/plaintiffs in the counter filed before the

Assistant Commissioner and thus filing of counter before

the Assistant Commissioner is not disputed by the

respondents/plaintiffs. Therefore under these differences

between the factual matrix and evidences in the above

cited case and in the present case the above cited

judgment is not helpful to the respondent-plaintiff.

33. Therefore, the findings arrived at by the Trial

Court are found to be proper, correct and justifiable.

Therefore, the judgment and decree of the Trial Court in

dismissing the suit of the respondents/plaintiffs and

decreeing the counter claim of the appellant/defendant is

correct and justifiable one. In the result, the judgment

and decree passed by the First Appellate Court is liable to

be set aside.

Hence, I proceed to pass the following:

ORDER

1. Regular Second Appeal is allowed.

2. The judgment and decree passed in R.A.No.14/2004 dated 20.01.2006 passed by the Court of Addl. District Judge and Presiding Officer, FTC-IV, Raichur is hereby set aside.

3. Consequently, the judgment and decree passed in O.S.No.130/1996 dated 15.12.2003 passed by the Court of Addl.Civil Judge (Sr.Dn), Raichur is restored and confirmed.

4. No order as to costs.

5. Draw decree accordingly.

Sd/-

JUDGE

SSD