Sri Narayanappa S/O Mudda ... vs Sri Thimmarayappa S/O ...
2022 Latest Caselaw 2514 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF FEBRUARY, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

      REGULAR SECOND APPEAL No.2081 OF 2006

BETWEEN:

SRI NARAYANAPPA
S/O MUDDA HANUMAIAH
AGED 63 YEARS,
RESIDING AT NO.652/E,
1ST MAIN,'D' BLOCK,
RAJAJINAGAR II STAGE,
BENGALURU - 560 010.
                                       ... APPELLANT

(BY SRI C.SHANKAR REDDY, ADV. (VIDEO CONFERENCING))

AND:

1.     SRI THIMMARAYAPPA
       S/O THIRUMALAIAH
       SINCE DECEASED, BY LR'S.

1(a) SMT.MUDDU HANUMAKKA
     W/O LATE THIMMARAYAPPA,
     AGED ABOUT 68 YEARS.,
     R/S. SANKAPURA VILLAGE,
     PURAVARA HOBLI,
     MADUGIRI TALUK - 572 132
     TUMAKURU DISTRICT.

1(b) SMT. LAKSHMINARASAMMA
     W/O SRI MALLESHAPPA
     AGED ABOUT 45 YEARS.,
     R/O KADALAVENI
                              2



       GOWRIBIDANUR TALUK
       KOLAR DISTRICT 563 101.

1(c) SMT. LAKSHMIDEVAMMA
      W/O SRI JAGADEESH
     MAJOR,
     R/O MUDUGERE
     GOWRIBIDANUR TALUK
     KOLAR DISTRICT.

1(d) SMT.GOWRAMMA
     W/O LATE LAKSHMINARAYANA
     MAJOR,
     C/O SREE BALAJI RICE CENTER
     NO.4, 4TH MAIN, NEAR BALAJI THEATRE
     BALAJI NAGARA, D.R.C. POST
     BENGALURU DISTRICT - 560 029.

1(e) SMT. MUDDU GANGAMMA
     W/O SRI CHANDRASHEKAR
     AGED ABOUT 45 YEARS.,
     R/O MANCHEHALLI
     GOWRIBIDANUR TALUK
     KOLAR DISTRICT.

1(f)   SRI NARASIMHA MURTHY
       S/O LATE THIMMARAYAPPA
       AGED ABOUT 43 YEARS.,
       R/A NEAR SRINIVAS THEATRE
       1ST MAIN ROAD, S.D. PLAYA, D.R.C. POST
       NAGALAPURA, BENGALURU - 560 029.

1(g) SRI THIRUMALLAPPA
     S/O LATE THIMMARAYAPPA
     AGED ABOUT 40 YEARS,
     R/A NEAR BALAJI THEATRE
     TAVARAKERE, BALAJI NAGARA
     D.R.C. POST,
     BENGALURU - 560 029.
                             3



2.   SRI NARASAPPA
     S/O THIRUMALAIAH,
     SINCE DECEASED, BY LR'S.

2(a) SRI HANUMANTHARAJU
     AGED ABOUT 45 YEARS
     S/O LATE NARASAPPA.

2(b) SRI NARASIMHA MURTHY
     AGED ABOUT 35 YEARS
     S/O LATE NARASAPPA.

2(c) SRI NARAYANAPPA
     AGED ABOUT 28 YEARS
     S/O LATE NARASAPPA.

2(d) SMT. LAKSHMIDEVAMMA
     AGED ABOUT 31 YEARS
     D/O LATE NARASAPPA.

2(e) SMT.VENKATALAKSHMAMMA
     AGED ABOUT 25 YEARS
     S/O LATE NARASAPPA.

     ALL ARE RESIDING AT
     SANKAPURA VILLAGE
     PURAVARA HOBLI
     MADUGIRI TALUK
     TUMAKURU DISTRICT.
                                       ... RESPONDENTS

(BY SRI VENKATASWAMY, ADV. FOR R1(a-g);
    SERVICE OF NOTICE TO LRs OF R2 I.E., R2(a-e) IS
    ACCEPTED VIDE ORDER DATED 03.12.2012))


     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND
DECREE DT. 12.04.2006 PASSED IN RA.NO.95/1993 ON THE
FILE OF THE CIVIL JUDGE (SR. DN.) MADHUGIRI,
DISMISSING   THE    APPEAL  AND    CONFIRMING    THE
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JUDGEMENT AND DECREE DT.30.08.1993 PASSED IN
OS.NO.382/1985 ON THE FILE OF THE PRL.MUNSIFF,
MADHUGIRI AND ETC.,


     THIS REGULAR SECOND APPEAL COMING ON FOR
FINAL HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                   JUDGMENT

This second appeal is by the defendant.

2. The facts relating to the filing of this second appeal

are as follows:

The father of the plaintiffs, one Thirumalaiah, sold the

land bearing Sy.No.73/2 measuring 22 guntas and land

bearing Sy.No.73/3 measuring 14 guntas in favour of one

Muddahanumaiah, the father of the defendant. It was stated

that though Sy.Nos.73/2 and 73/3 had been sold, the

defendant was taking a claim in respect of Sy.No.73/9 which

according to the plaintiffs, belonged to them.

3. The defence of the defendant was that though the

sale deed dated 10.08.1967 did state that Sy.Nos.73/3 and

73/2 were sought to be conveyed, the true intention of the

parties was to convey Sy.Nos.73/3 and 73/9 and by oversight

instead of Sy.No.73/9, it had been mentioned as Sy.No.73/2

in the sale deed. It was stated that the revenue authorities

on physical verification of the defendant's possession had

ordered change of entry in respect of Sy.No.73/9 and

therefore, the claim of the plaintiffs over Sy.No.73/9 should

not be entertained.

4. The Trial Court, on appreciation of evidence, came to

the conclusion that the plaintiffs had proved that they were

owners of Sy.No.73/9 and it accordingly decreed the suit and

also granted a decree of permanent injunction in their favour.

5. The defendant, being aggrieved, preferred an appeal.

The Appellate Court on re-appreciation of the entire evidence,

concurred with the finding of the Trial Court and proceeded to

dismiss the appeal.

6. It is as against these concurring judgments, the

present second appeal has been preferred.

7. This second appeal was admitted on 19.08.2009 to

consider the following substantial questions of law:

"Whether the courts below were justified in decreeing the suit of the plaintiff on the ground

that the defendant and his father have not secured rectification of the sale deed executed in their favour and as such, the correction to the survey number by an order of Tahsildar does not amount to rectification of survey number conveyed in his favour"?

In addition, on 25.10.2021, two further questions of law

were framed which read as under:

(1) Whether Courts below have committed patent error and illegality in declaring plaintiffs/respondents herein are owners in possession and enjoyment of the suit schedule property, in the absence of any title over the property or production of any material documents pertaining to the suit schedule property of the title?

(2) Whether the Courts below have ignored Ex.D5, which is the order of Tahsildar, Madhugiri Taluk, rectifying the Sy.No.73/2 to 73/9?"

8. Learned counsel for the appellant submitted that

along with the second appeal an application for production of

additional evidence has been filed and these documents were

in relation to both Sy.Nos.73/2 and 73/9 and these would

clear the doubts in respect of the ownership of both

Sy.Nos.73/2 and 73/9. He submitted that production of

additional evidence was essentially in order to clear the

controversy between the parties.

9. The application for additional evidence is not

opposed by filing any objections.

10. It is not in dispute that the plaintiffs did admit that

their father sold Sy.Nos.73/2 and 73/3 under the sale deed

dated 10.08.1967. The Trial Court has essentially decreed

the suit only on consideration of two RTC extracts Exs.P1 and

P2. The Trial Court has not had the benefit of considering the

revenue documents in relation to both Sy.Nos.73/2 and 73/9.

11. In my view, merely on the basis of two RTC

extracts the Trial Court ought not to have come to the

conclusion that the plaintiffs were owners of Sy.No.73/9

especially, when there was no document of title produced by

the plaintiffs to establish their claim over Sy.No.73/9.

12. Be that as it may, since the crucial question to be

considered between the parties is as to whether Sy.No.73/9

was the subject matter of conveyance under the sale deed

dated 10.08.1967 or only Sy.No.73/2 was conveyed, in order

to decide this question, the documents in relation to both

Sy.Nos.73/2 and 73/9 will have to be examined.

13. The application I.A.No.1/2015 filed for production of

additional evidence is in relation to both Sy.Nos.73/2 and

73/9 and a consideration of these documents would help

resolve the controversy. I am, therefore, of the view that the

application for production of additional evidence requires to

be allowed and is accordingly, allowed.

14. As stated above, both the Courts have not had the

benefit of the revenue documents relating to Sy.Nos.73/2 and

73/9. Since the application for additional evidence has now

been allowed, it would be just and proper to remand the

matter with a direction to the trial Court to consider the

documents now produced and determine whether Sy.No.73/2

was conveyed or Sy.No.73/9 was conveyed under the sale

deed dated 10.08.1967.

15. The question of law as to whether the Courts were

entitled to decree the suit on the ground that the father of

the defendant had not secured a deed of rectification may not

arise for consideration, if the question as to whether

Sy.No.73/2 was owned by the father of the plaintiffs or

Sy.No.73/9 was owned by the father of the plaintiffs, is

resolved.

16. The trial Court shall therefore, consider this

question, in the light of the documents produced and decide

the matter afresh. The question of law is accordingly

answered in favour of the appellant(defendant) in the manner

stated above.

Regular Second Appeal is allowed.

Sd/-

JUDGE

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