Karnataka High Court

Sri Sanjeevaiah vs Sri G T Nanjareddy on 1 April, 2022

Bench: R. Nataraj

                            1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 1ST DAY OF APRIL, 2022

                          BEFORE

          THE HON'BLE MR.JUSTICE R. NATARAJ

          R.S.A. NO. 295 OF 2021 (DEC/INJ)

BETWEEN:

1.   Sri Sanjeevaiah,
     S/o. late Venkatarayanappa,
     Aged about 84 years,

     Sri Marigappa,
     S/o. late Venkatarayanappa.
     Since deceased represented by his LR's

2.   Smt.Hombakka,
     W/o.late Sri Marigappa,
     Aged about 60 years,

3.   Smt.Mangalamma,
     D/o. late Sri Marigappa,
     Aged about 40 years,

4.   Smt.Susheelamma,
     D/o.late Sri Marigappa,
     Aged about 38 years,

5.   Sri Srinivas,
     S/o. late Sri Marigappa,
     Aged about 33 years,

6.   Sri Narasimhaiah,
     S/o. late Sri Marigappa,
     Aged about 30 years,

7.   Smt. K.G.Lakshmidevi,
     W/o. late Sri V.Sanjeevaiah,
                              2



      Aged about 44 years,

8.    Sri S. Shreyas,
      S/o. late Sri V.Sanjeevaiah,
      Aged about 24 years,

9.    Sri V.Siddappa,
      S/o. late Sri Venkatappa,
      Aged about 44 years,

10.   Sri Lokeshaiah,
      S/o. late Sri Venkatappa,
      Aged about 41 years,

      Smt.Sanjeevamma,
      Dead by LRs.

      Smt.Venkatamma,
      Dead by LRs.

      Smt.Hanumakka,
      Dead No LRs.

11.   Smt.Narayanamma,
      D/o. late Sri Venktappa,
      Aged about 60 years,

12.   Sri Venkataravanappa,
      S/o. late Sri Venkatappa,
      Aged about 65 years,

13.   Sri Chikkavenkataramanappa,
      S/o. late Venkataramanappa,
      Aged about 72 years,

14.   Sri Thimmaiah,
      S/o. late Venkataramanappa,
      Aged about 58 years,

15.   Sri Govindappa,
      S/o. Venkataramanappa,
      Aged about 56 years,
                                3




16.   Smt.Laksmamma,
      W/o. late Narayanappa,
      Aged about 65 years,

17.   Sri Lakshmana,
      S/o. late Narayanappa,
      Aged about 45 years,

18.   Sri Govindappa @ Govinda,
      S/o. late Narayanappa,
      Aged about 42 years,

19.   Smt.Bhagyamma,
      D/o. late Narayanappa,
      Aged about 40 years,

      Appellants 1 to 19 are
      Residents of Rachanamadu Village,
      Kengeri Hobli,
      Bengaluru South Taluk,
      Bengaluru District.

20.   Smt.Gopamma @ Gopi,
      D/o. late Narayanappa,
      Aged about 38 years,
      R/at No.3, 3rd Main Road,
      New Extension, Byatarayanapura,
      Deepanjalinagara, Ward No.26,
      Mysore Road, Bengaluru - 26.

21.   Smt.Jayanthi,
      D/o. late Narayanappa,
      Aged about 36 years,
      R/at No.47, Maruthi Nilaya,
      Near Anjaneya Temple, Avalahalli,
      Mysore Road, Bengaluru - 26.

22.   Sri M.Venkatarayudu,
      S/o. M.Narasimhan,
      Aged about 56 years,
      R/at No.2584, II Stage,
                                4



       Kumaraswamy Layout,
       Bengaluru - 560 078.
                                                ...Appellants

(By Smt. S.Susheela, Senior Advocate a/w
  Sri K.Abhinav Anand, Advocate)

AND:

Sri G.T.Nanjareddy,
S/o. late Sri Thimma Reddy,
Aged about 64 years,
R/at Thathaguni Post,
Kanakapura Road, 17th KM,
Bengaluru - 560 062.
                                                     ...Respondent

(By Sri N.Guruva Reddy, Advocate for
 Sri Varun Papi Reddy, Advocate)

      This RSA is filed under Section 100 R/w Order XLII Rule
1 of CPC, 1908 against the judgment and decree dated
20.11.2020      passed       in     R.A.No.184/2020      (Old
R.A.No.56/2018) on the file of the Principal District Judge,
Bengaluru Rural District, Bengaluru, dismissing the appeal
and confirming the judgment and decree dated 21.04.2018
passed in O.S.No.6/1999 on the file of the I Additional Civil
Judge, Bengaluru Rural District, Bengaluru.

      This RSA coming on for Admission this day, the Court
delivered the following:

                            JUDGMENT

This appeal is filed by the defendants in

O.S.No.06/1999 challenging the concurrent judgment and

decree passed by the Trial Court and First Appellate Court

declaring the plaintiff as the owner of the suit property and

granting perpetual injunction restraining the defendants

from interfering with the peaceful possession of the

plaintiff.

2. The parties shall henceforth be referred to as

they were arrayed before the Trial Court.

3. The suit in O.S.No.6/1999 was filed for

declaration of title of the plaintiff and for consequential

relief of injunction restraining the defendants from

interfering with the possession of the plaintiff in the suit

schedule property, which was the land bearing Sy.No.1/2

of Rachanamadu Village, Kengeri Hobli, Bangalore South

Taluk, measuring 2-14 acres.

4. The case of the plaintiff was that he purchased

the suit property from Smt.C.Yamuna Devi in terms of a

Sale Deed dated 20.06.1991 and he was placed in

possession and enjoyment of the same. He claimed that

though the defendants had no manner of right, title and

interest over the suit property but were troubling the

plaintiff under the pretext of a proceedings in

O.S.No.363/1994 filed by them in respect of different

extent and boundaries. The plaintiff alleged that under the

guise of decree passed in their favour in O.S.No.363/1994,

the defendants had trespassed into the suit property and

prevented the plaintiff from carrying on agricultural

operations.

5. The defendants No.1, 3 to 8 contested the suit

and claimed that the plaintiff had not purchased the suit

property from Smt. C.Yamuna Devi on 20.06.1991 as she

had no right, title or interest over the suit property. They

alleged that the plaintiff was not in possession of any

extent of land described in the suit schedule. They

contended that the plaintiff was the defendant in

O.S.No.363/1994, where he deposed that he was not in

possession of the land in Sy.No.1/2. They claimed that the

suit in O.S.No.363/1994 was decreed on 26.10.1998 on

merits. They claimed that the suit property was acquired

by late Hanumaiah and his father along with his younger

brother Venkataramanappa and later their descendants

were in joint possession and enjoyment of the same. They

alleged that the second son of Hanumaiah i.e.,

Narayanappa and his two sons viz., Lakshmana and

Govindaraju and the second, fourth and fifth sons of late

Venkataramanappa viz., Sanna Venkatappa, Thimmaiah

and Govindappa were not arrayed as parties to the suit.

Therefore, the suit was liable to be dismissed for non-

joinder of necessary parties. They also contended that the

plaintiff challenged the judgment and decree passed in

O.S.No.363/1994 before the appellate Court in

R.A.No.192/1998.

6. The defendants No.6 and 12 reiterated the

averments of the written statement filed by defendants

No.1, 3 to 8.

7. The defendant No.13 contested the suit and

claimed that his vendors were the descendants of

Venkataramanappa, an inhabitant of Rachanamadu village,

Kengeri Hobli, Bengaluru South Taluk and his only son was

one Sanjeevaiah and he had two sons by name Hanumaiah

and Venkataramanappa. He claimed that the suit property

was possessed by late Hanumaiah and his sons

Venkatappa and Narayanappa, who alone were entitled to

the property measuring 2 acres 5 guntas in Sy.No.1/2 of

Rachanamadu village which totally measured 10 acres 27

guntas. He claimed that the extent of land in Sy.No.1/1

was 7 acres 16 guntas including 17 guntas kharab and the

extent of land in Sy.No.1/2 was 2 acres 14 guntas

including 33 guntas of kharab. There was no land

available as described in the schedule to the suit. He

further alleged that the sale deed dated 20.06.1991

allegedly executed by Smt.C.Yamuna Devi in favour of the

plaintiff was fabricated document which did not relate to

any land. He also claimed that the suit filed by the

defendants against the plaintiff in O.S.No.363/1994 was

decreed and the appeal filed by the plaintiff in

R.A.No.192/1998 was dismissed. He referred to the

decree passed in O.S.No.6419/1980 filed by Smt.

C.Yamuna Devi against Marigappa and Muniyappa and

claimed that C.Yamuna Devi had not recovered the

possession of the property. He also alleged that C.Yamuna

Devi therefore could not handed over the possession of the

property to the plaintiff as she never evicted Marigappa

and Muniyappa from the suit property. Therefore, he

contended that the suit was not maintainable for the relief

of declaration and injunction. He claimed that the plaintiff

already suffered an order of injunction in respect of 2 acres

5 guntas of land in Sy.No.1/2 in O.S.No.363/1994 out of

the total extent of 2 acres 14 guntas of land and therefore,

the plaintiff had no manner of right, title and interest over

the suit property.

8. Based on these rival contentions, the Trial

Court framed the following issues and additional issues:

ISSUES

1. "Whether the plaintiff proves that he is in lawful possession of the suit schedule property?

2. Whether the plaintiff proves that the alleged defendants interfered/obstructed while peaceful enjoyment of suit property as on the date of the suit?

3. What order or decree?

Additional Issues

1. Whether the plaintiff proves that his vendor Yamunadevi owner in possession of the suit schedule property and he has purchased the same under register sale deed?

2. Whether the plaintiff is entitled for declaration as sought for?

3. Whether defendant No.13 proves the suit is bad for non joinder and mis-joinder of necessary parties?

4. Whether the defendant No.13 proves that he is the owner in possession of the Sy.No.1/2, 2 acres 5 guntas including karab of 24 guntas?"

9. In order to substantiate his case, the plaintiff

was examined as P.W.1 and marked documents as Exs.P1

to P42. He also examined two other witnesses as PWs 2

and 3. On the other hand, the defendant No.6 was

examined as DW.1 and marked documents from Exs.D1 to

D19, while defendant No.13 was examined as D.W.2.

10. Based on the oral and documentary evidence,

the Trial Court held that the plaintiff had acquired title to

the suit property in terms of Ex.P.5. It also held that the

decree in O.S.No.363/1994 related to a different property

other than the suit schedule property. It further held that

the plaintiff was in possession of the suit property which

was evident from the revenue records which were

unchallenged by the defendants. Insofar as the additional

issues No.3 and 4 are concerned, the Trial court relied

upon Ex.P.35 which is order passed in R.A.No.1812/2008,

wherein, it was held that "since the description of the suit

properties in the two suits are entirely different both as

regards extent of land as well as the boundary, particularly

towards east, the Courts below could not have held that

the properties which are subject matter of the present suit

and the one in O.S.No.363/1994 were one and the same.

The trial Court therefore held that both the properties

claimed by the plaintiff and the defendants are different

and the defendants were in possession of 2 acres, 5

guntas, while the plaintiff was in possession of 2 acres 14

guntas of land in Sy.No.1/2 of Rachanamadu village,

Kengeri Hobli, Bengaluru South Taluk and thus, decreed

the suit.

11. Being aggrieved by the aforesaid judgment and

decree, the defendants filed R.A.No.184/2020 primarily

contending that the suit property did not exist as

Sy.No.1/2 itself measured 2 acres 14 guntas and thus, the

title of the defendants insofar as 2 acres 5 guntas was

confirmed by the judgment and decree passed in

O.S.No.363/1994. The First Appellate Court secured the

records of the Trial Court, heard the learned counsel for

the parties and framed the following points for

consideration;

1. "Whether the plaintiff/respondent has proved that he has purchased the suit schedule property bearing Sy.No.1/2, measuring 2 acres 14 guntas of Rachanamadu village from Smt.Yamunadevi and hence, he became absolute owner in possession of the suit schedule property?

2. Whether the plaintiff/respondent has proved that the defendants/appellants are interfering with his peaceful possession and enjoyment of the suit schedule property?

3. Whether the defendants/appellants prove that the suit is barred by res judicata?

4. Whether defendant No.13/appellant No.13 has proved that he is the owner in

acres 05 guntas including Kharab of 24 guntas?

5. Whether the appellants/defendants have made out sufficient grounds for allowing I.A.No.III filed under Order 41 Rule 24 read with Section 151 of the Code of Civil Procedure to recast/resettle Additional Issue No.2?

6. Whether the appellants/defendants have made out sufficient grounds for allowing I.A.No.IV filed under Order 41 Rule 25 read with Section 151 of the Code of Civil Procedure to frame Additional Issue No.2(A)?

7. Whether the plaintiff/respondent is entitled to be relief sought for?

8. Whether the judgment and decree passed by the trial Court is perverse, capricious and illegal, calling for interference by this Court?

9. What order or decree?"

12. The First Appellate Court held that

Smt.C.Yamuna Devi had acquired title to the suit property

and later, she filed O.S.No.6419/1980 where she was

declared to be the owner of 2 acres 14 guntas in

Sy.No.1/2. Later, her name was entered in the revenue

records and she sold the subject property to the plaintiff in

terms of Ex.P.5.

13. The First Appellate Court noted that Sy.No.1/2,

measuring 2-05 acres was earlier owned and possessed by

Cheluvaiah who sold it to Kadiramma in terms of a sale

deed dated 05.03.1938 and on the death of Kadiramma,

her two sons Chikkagangaiah/Chikkagangappa and

Doddagangaiah/Doddagangappa partitioned the said

property in terms of which, they obtained 1 acre 2½

guntas share each. Subsequently, Doddagangappa/

Doddagangaiah sold his share of 1 acre 1½ guntas of land

in favour of Muniyappa on 19.06.1962, while

Chikkagangaiah/Chikkagangappa sold his share of 1 acre

2½ guntas of land in favour of Gangamma in terms of the

sale deed dated 19.04.1967. Gangamma was none other

than the mother of Muniyappa. After the death of

Gangamma, her son Muniyappa obtained two separate

Rectification Deeds from Doddarangaiah and

Chikkarangaiah on 04.05.1968. The said Muniyappa and

his brother Subbaiah and other brothers were in joint

possession and enjoyment of the suit property. Later,

Subbaiah executed a release deed dated 15.07.1968

thereby, relinquishing his share in the joint family

properties by accepting the suit property as his share.

Later, Subbaiah sold the suit property in favour of his

brother Muniyappa on 08.04.1969. Thus, the said

Muniyappa and his family members were in joint

possession and enjoyment of the suit property. On

29.12.1969, the said Muniyappa and his family members

had partitioned their joint estate including the suit

schedule property in terms of a registered partition deed

dated 29.12.1969. Under the said partition, the suit

property fell to the share of said Smt.C.Yamuna Devi who

was then a minor and represented by her brother

Muniyappa. Subsequently, Muniyappa representing

Smt.C.Yamuna Devi as her guardian sold the suit property

to the defendant No.2 on 15.06.1970. This sale was

challenged by Smt.C.Yamuna Devi in O.S.No.6419/1980

against Muniyappa and defendant No.2, where it was

declared that C.Yamuna Devi was the owner of the suit

property and the sale deed in favour of defendant No.2

was cancelled as it was not for her benefit and no

permission was obtained to sell it. The First Appellate

Court therefore held that Smt.C.Yamuna Devi was the

owner in possession of the suit property and her name was

entered in the revenue records. It held that

Smt.C.Yamuna Devi thereafter lawfully sold the suit

property to the plaintiff on 20.06.1991 subsequent to

which, revenue records were transferred to the name of

the plaintiff.

14. Based on these relevant facts, the First

Appellate Court held that the plaintiff had proved his title

to the suit schedule property and also proved that he was

in possession of the suit property. The First Appellate

Court noted that defendant No.13 was claiming title to 2

acres 5 guntas, which was subject matter of

O.S.No.363/1994 that was decreed and later confirmed in

R.A.No.192/1998. It held that the comparison of the

boundaries of the two properties involved in the two

proceedings were different inasmuch as the defendants

were claiming right over 2 acres 5 guntas of land in

Sy.No.1/2 while the plaintiff claimed right in respect of 2

acres 14 guntas in Sy.No.1/2. It therefore held that the

properties in O.S.No.363/1994 and O.S.No.6/1999 from

which the present appeal arises were different and hence,

confirmed the judgment and decree of the trial Court.

15. Being aggrieved by aforesaid judgment and

decree, the defendants have filed the present Regular

Second Appeal.

16. Learned Senior Counsel appearing for the

defendants- appellants submitted that the plaintiff

challenged an order refusing interim injunction in

O.S.No.6/1999 before this Court in W.P.No.16717/2004

where the plaintiff conceded the fact that he is not

interested in the land bearing Sy.No.1/2 of Rachanamadu

village, measuring 2 acres 5 guntas that was bound on

east by: land of C.Yamuna Devi, west by: land bearing

Sy.No.1/1 belonging to plaintiff (plaintiff in O.S.No.6/1999,

north by: land belonging to the plaintiff and south by: a

Government land. Based on such a statement, this Court

disposed off W.P.No.16717/2004 and directed the plaintiff

not to interfere with the possession of the defendants in

respect of the property described in the aforesaid

boundaries. Learned Senior Counsel appearing for the

defendants submitted that the Trial Court framed

Additional Issue No.4 and had answered the same in

'negative', which had the effect of taking away the

consequence of the decree passed in O.S.No.363/1994.

17. Per contra, learned counsel appearing for the

respondent- plaintiff submitted that the property of the

defendants did not exist and what existed was only the

land in Sy.No.1/1 as the same was described under the

partition deed amongst the family members of the

defendants in Ex.P.24.

18. The fact that the defendants had filed

O.S.No.363/1994 in respect of the below mentioned

property is not in dispute:

"Property bearing Sy.No.1/2. measuring 2 acres

14 guntas, situated at Rachanamadu Village,

Kengeri Hobli, Bengaluru South Taluk, bound on

the East by: land of Yamuna Devi, West by: Land

in Sy.No.1/1 belonging to Sanjeevaiah, North by: