Kallanagouda S/O Siddanagouda ... vs Channawwa W/O Basanagouda Patil
2022 Latest Caselaw 3284 Kant

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              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 25TH DAY OF FEBRUARY 2022

                          BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.5194 OF 2013 (DEC & INJ)

BETWEEN
1.      KALLANAGOUDA
        S/O SIDDANAGOUDA PATIL,
        AGE: 55 YEARS,
        OCC: AGRICULTURE,
        R/O SANNASOMAPUR,
        TQ. AND DIST. DHARWAD

2.      MALLANAGOUDA
        S/O SIDDANAGOUDA PATIL
        AGE: 53 YEARS,
        OCC: AGRICULTURE,
        R/O SANNASOMAPUR,
        TQ. AND DIST. DHARWAD
                                              ...APPELLANTS

(BY SRI. G. K. BHAT, SENIOR ADVOCATE FOR
SRI.S. R. HEGDE AND ASSOCIATES)

AND
1.  CHANNAWWA
    W/O BASANAGOUDA PATIL
    SINCE DECEASED BY LRS

1A.     SMT. PREMAVVA
        W/O. MUDIGOUDA PATIL,
        AGE: 65 YEARS,
        OCC: HOUSEHOLD WORK,
        R/O. NIGADI,
        TAL & DIST: DHARWAD
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1B.   TOPANAGOUDA
      S/O. BASANAGOUDA PATIL,
      AGE: 63 YEARS,
      OCC: EX-SERVICEMAN,
      R/O GULGANJIKOPPA, DHARWAD.

1C.   SMT. SHANTAVVA
      W/O. BASANAGOUDA BINGIYAR,
      AGE: 58 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O. GONYAGAR,
      TAL: RAMADURGA,
      DIST: BELAGAVI

1D.   SRI. DYAVANAGOUDA
      S/O. BASANAGOUDA PATIL,
      SINCE DECEASED BY LRS.

1D(A) SMT. SHOBHA
      W/O. DYAMANAGOUDA PATIL,
      AGE: 52 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O. C/O. MUDIGOUDA PATIL,
      DYAMAVVANA GUDI ONI,
      NIGADI, TAL & DIST DHARWAD.

1D(B) MISS. LATA
      D/O. DYAMANAGOUDA PATIL,
      AGE: 18 YEARS, OCC: STUDENT,
      R/O. C/O. MUDIGOUDA PATIL,
      DYAMAVVANA GUDI ONI, NIGADI,
      TAL & DIST DHARWAD.

1D(C) MR. PRAKASH
      S/O. DYAMANAGOUDA PATIL,
      AGE: 12 YEARS, OCC: STUDENT,
      R/O. C/O. MUDIGOUDA PATIL,
      DYAMAVVANA GUDI ONI, NIGADI,
      TAL & DIST DHARWAD.

      SINCE MINOR REPRESENTED BY
      RESPONDENT NO.1D(A)
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2.   SHIVAPPA S/O HANUMANTAPPA
     TALWAR @ KEMPANNAVAR,
     AGE: 60 YEARS,
     OCC: AGRICULTURE,
     R/O NAYAKANAHULIKATTI,
     TQ. AND DIST. DHARWAD

3.   SOMAPPA S/O HANUMANTAPPA
     TALWAR @ KEMPANNAVAR
     AGE: MAJOR,
     OCC: AGRICULTURE,
     R/O NAYAKANAHULIKATTI,
     TQ. AND DIST. DHARWAD
                                                ...RESPONDENTS

(BY SRI.B. K. MALLIGAWAD, ADV., AND
SRI. B. F. MALLIGAWAD ADV., FOR R1A TO R1C,
AND R1D(A) & R1D(B);
SRI. SRIHARSHA NEELOPANTH, ADV., FOR R2;
R3- NOTICE SERVED)


     THIS RSA IS FILED UNDER SECTION 100 OF CPC

PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED

15.12.2012 IN R.A.NO.32/2012 PASSED BY THE PRESIDING

OFFICER     OF   FAST   TRACK       COURT-III   DHARWAD      AND

CONFIRMING       THE   JUDGMENT      AND   DECREE   PASSED    IN

O.S.355/2007 BY THE III ADDITIONAL SENIOR CIVIL JUDGE

AND C.J.M., DHARWAD.


     THIS    REGULAR      SECOND       APPEAL   HAVING    BEEN

RESERVED COMING ON FOR PRONOUNCEMENT OF JUDGMENT

THIS COURT DELIVERED THE FOLLOWING:
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                            JUDGMENT

The captioned regular second appeal is filed by the

plaintiff questioning the judgment of the First Appellate

Court in R.A.No.32/2012 wherein the First Appellate Court

has allowed the appeal and dismissed the suit filed by the

appellants-plaintiffs.

2. The genealogical tree of the family would be

relevant to examine the lis and same is culled out in the

present appeal, which is as under:

Bhimanagouda

Yellappagoua Dyamanagouda Thirthagouda Kallanagouda

Mallavva savvavva

Siddanagouda Channavva (D1) Basanagouda

Kallanagouda (P1) Mallavva

Mallanagouda (P2) Bhimanagouda

Bassavva (D2)

Prabhavva (D4) & children D5 to D8

3. Facts leading to the case are as under:

The appellants-plaintiffs have filed a suit for

declaration and injunction in O.S.No.355/2007. The

appellants-plaintiffs questioned the compromise decree

and sought for the relief of declaration alleging that the

said compromise is not binding on the present appellants.

The appellants-plaintiffs also sought the relief of

declaration to declare that the appellants-plaintiffs are the

owner of the suit schedule property and consequently

prayed to restrain respondent No.1-defendant No.1 from

interfering with appellants' peaceful possession and

enjoyment over the suit schedule property. The

appellants'-plaintiffs' contention is that there was litigation

between the father and grandfather of appellants-plaintiffs

and the respondents-defendants in Special Suit

No.4/1955. The appellants-plaintiffs claimed that the

matter was settled and compromise decree was passed on

04.06.1960. The appellants-plaintiffs claimed that in the

said compromise decree it was decided that land bearing

R.S.No.76/2 measuring 1 acre 36 guntas, R.S. No.80/6

measuring 1 acre 29 guntas, R.S.No.36/1 measuring 1

acre 37 guntas and R.S.No.49 measuring 3 acre 25 guntas

was allotted to the present respondent No.1/Channavva.

The appellants-plaintiffs further contended that their

grandfather Siddanagouda, in terms of compromise

decree, executed a relinquishment deed on 24.09.1956

and in terms of the said relinquishment deed, a

compromise was also reported in Special Suit No.4/1955

and compromise decree came to be passed on

04.06.1960.

4. The appellants-plaintiffs made contention that

though under relinquishment deed and consequent

compromise decree the present suit lands were transferred

in favour of respondent No.1-defendant No.1, however

they claimed that the possession was never handed over

to respondent No.1-defendant No.1. The appellants-

plaintiffs claimed that in spite of there being

relinquishment deed in favour respondent No.1-defendant

No.1, they were exclusively enjoying the suit lands and

they have further sub-divided the suit land bearing Bloci

No.76 as Block No.76/1A, 76/1B and 76/1C. The

appellants-plaintiffs have also claimed that their father

challenged the compromise decree passed in Special Suit

No.4/1995. The First Appellate Court in R.A.No.148/1966

confirmed the compromise decree passed by the Trial

Court and the second appeal No.809/1972 was also

dismissed by this Court on 04.08.1972. It is in this

background, the appellants-plaintiffs claimed that though

suit lands were given to respondent No.1-defendant No.1

in Special Suit No.4/1955, however respondent No.1-

defendant No.1 did not secure possession in terms of the

registered relinquishment deed and therefore, the

appellants-plaintiffs claimed that they are in exclusive

possession, which is within the knowledge of respondent

No.1 and therefore, the same amounts to ouster.

5. The appellants'-plaintiffs' claim is that

respondent No.1-defendant No.1 filed a suit in

O.S.No.92/1978. It appears that respondent No.1 initiated

execution proceedings by filing E.P.No.6/2003 and the said

execution is closed as if possession is handed over to

respondent No.1-defendant No.1 and therefore, they

claimed that the alleged possession handed over in

E.P.No.6/2003 is a paper decree and actual possession

was never taken from the present appellants-plaintiffs.

       6.    On   receipt   of       summons,          respondent

No.1/defendant    No.1   contested        the    proceedings    and

specifically narrated in the written statement in regard to

her source of title to the suit land. She has specifically

contended that the suit filed by the present appellants-

plaintiffs is frivolous suit. She further contended that the

decree passed in O.S.No.92/1978 has attained finality and

the present appellants-plaintiffs were party to the said

proceedings, which is well within the knowledge of

appellants-plaintiffs and therefore, sought for dismissal of

the suit. The Trial Court having recorded ocular and

documentary evidence of both the parties has answered

issue No.1, 2, 4 and 5 in the affirmative. The Trial Court

has come to the conclusion that the decree obtained by

respondent No.1-defenant No.1 against defendants 2 to 13

is illegal and the same is not binding the present

appellants-plaintiffs. The Trial Court has also come to the

conclusion that respondent No.1-defendant No.1 has

interfered with the possession of the appellants-plaintiffs.

On examination of material on record, the Trial Court has

come to the conclusion that the evidence adduced by the

appellants-plaintiffs is on the touchstone of preponderance

of probability and they have succeeded in proving their

case. Though the Trial Court has elaborately discussed the

rebuttal evidence adduced by respondent No.1-defendant

No.1, however has come to the conclusion that the

evidence on record tilts more in favour of the appellants-

plaintiffs and probabalises the fact that the appellants-

plaintiffs are in lawful possession over the suit lands. This

finding is recorded by the Trial Court even after having

taken judicial note of the fact that the suit filed by

respondent No.1-defendant No.1 in O.S.No.92/1978

against the father of appellants-plaintiffs was decreed and

consequently the name of respondent No.1-defendant

No.1 was duly mutated to the revenue records. The Trial

Court has given more credence to Ex.P13 and Ex.P14 and

by referring to these mutations in M.E.No.383 and 384,

the Trial Court has come to the conclusion that the father

of the appellants-plaintiffs viz., Siddanagouda and his

adoptive mother Mallavva were in lawful possession over

the suit land. On these set of reasons, the Trial Court has

proceeded to decree the suit.

7. Feeling aggrieved by the judgment and decree

passed by the Trial Court, respondent No.1-defendant

No.1 preferred an appeal before the First Appellate Court

in R.A.No.32/2012.

8. The First Appellate Court on reappreciation of

oral and documentary evidence on record has answered

points formulated in negative and has come to the

conclusion that the appellants-plaintiffs have failed to

prove that they are owners of the suit property and

possession was taken in terms of decree passed in

O.S.No.22/1960. The Appellate Court was also of the view

that the decree passed in O.S.No.22/1960 is binding on

the present appellants-plaintiffs also. The First Appellate

Court, having independently assessed the clinching

rebuttal evidence adduced by respondent No.1-defendant

No.1, has come to the conclusion that the appellants-

plaintiffs cannot assert that they are in possession of the

suit property on the basis of decree passed in

O.S.No.22/1960. The contention of the appellants-plaintiffs

is that they were not party to O.S.No.92/1978 and

therefore, decree passed in O.S.No.92/1978 is not binding

on them is also negatived. The First Appellate Court having

taken judicial note of Ex.P4, which is the judgment

rendered in O.S.No.92/1978, the First Appellate Court

found that Bheemanagouda Basanagouda Patil, who is

father of defendants 3 and 5 to 8 and husband of

defendant No.2 and 4, had filed Special Suit No.5/1964

questioning the compromise decree passed in Special Suit

No.4/1955. The said First Appellate Court found that the

said suit was compromised on 30.05.1966 and appeal filed

in R.A.No.48/1966 was also dismissed. The second appeal

in RSA No.809/1972 also was dismissed by this Court on

04.08.1972. Respondent No.1-defendant acquired right in

terms of compromise decree in O.S.No.4/1955, wherein

the father of the present appellants namely Siddanagouda

entered into compromise and executed a relinquishment

deed in favour of Channavva. This compromise was said to

be challenged in subsequent suit in Special Suit No.5/1964

and the same was dismissed by this Court and therefore,

the Appellate Court was of the view that the compromise

decree passed in O.S.No.4/1955 and also in terms of

registered relinquishment deed executed by the father of

the appellants herein i.e. Siddanagouda in favour of

respondent No.1-Channavva attained finality in view of

dismissal of subsequent suit filed in O.S.No.5/1964.

9. The Appellate Court also found that there was

relentless effort by the appellants' family in falsely

asserting the claim over the suit properties. The appellate

Court found that the present appellants herein filed

O.S.No.22/1960 seeking relief of possession was filed

without impleading Chinnavva and this suit for possession

was filed by arraying parties only within the branch of

Siddanagouda. This suit came to be decreed. Subsequently

respondent No.1-defendant No.1 having come to know

about this, filed independent suit in O.S.No.92/1978

claiming absolute ownership over the suit property and

also for consequential relief of injunction. The Appellate

Court having meticulously examined evidence on record

has recorded a categorical finding that O.S.No.22/1960

filed by appellants' family without impleading respondent

No.1 have obtained decree behind the back of respondent

No.1-defendant No.1 and therefore, the alleged possession

taken on the basis of decree passed in O.S.No.22/1960

was negative by the Appellate Court. The Appellate Court

taking note of Ex.D1 and Ex.D4 has come to the

conclusion that the decree passed in O.S.No.92/1978,

which was filed by respondent No.1-defendant No.1 is

binding on the present appellants-plaintiffs. On these set

of reasons, the Appellate Court has allowed the appeal and

has dismissed the suit filed by the present appellants-

plaintiffs. It is against these divergent findings, the

appellants-plaintiffs are before this Court.

10. Learned senior counsel Sri. G. K. Bhat,

appearing on behalf of appellants-plaintiffs submitted that

voluminous documents are produced and therefore, this

appeal has to be admitted and the matter has to be heard

finally. However this Court was not impressed with the

said submission made by the learned senior counsel. This

Court called upon the senior counsel to make out case for

admission as the captioned second appeal is filed under

Section 100 of CPC. The learned counsel appearing for

appellants sought for pass over and this matter was heard

at 2.30 p.m. The learned senior counsel appearing for the

appellants-plaintiffs submitted that in the earlier

proceedings, the extent which was allotted to respondent

No.1-defendant No.1 does not infact include fixing of

boundaries and therefore, he would submit to this Court

that unless boundaries and measurements are asserted,

by taking note of measurements, respondent No.1-

defendant No.1 again assert and claim possession over the

suit lands. Except above said submission, the learned

Senior Counsel has not brought to the notice of this Court

as to what is substantial question of law that would arise

for consideration in the present case on hand.

11. Per contra, learned Sri. Santosh Malligwad

appearing for respondent No.1-defendant No.1 would

however countered the arguments of learned senior

counsel and submitted to this Court that the present lis

between the parties has got a checkered history. He would

submit to this Court that there has been no respite for

respondent No.1-defendant No.1. The old lady has been

made to round out from pillar to post and she is

unnecessarily dragged by filing multiple suits on same

cause of action, which was already put to rest in view of

compromise between plaintiffs' father Siddanagouda in

Special Suit No.4/1955. He would submit to this Court that

in terms of compromise, the predecessor of plaintiffs i.e.,

Kallanagouda and predecessor defendant No.1-Channavva

entered into registered relinquishment deed dated

24.09.1966 pertaining to suit lands. He would submit to

this Court that this relinquishment deed was executed by

the father of plaintiffs in favour of respondent No.1-

Channavva. Having entered into compromise and also

having executed relinquishment deed, the father of the

appellants herein filed and sought for declaration in

O.S.No.20/1960 without arraying respondent No.1 as a

party and obtained a decree behind the back of respondent

No.1-defenant No.1. He would also submit that one more

suit was filed in Special Suit No.5/1964 questioning the

compromise decree and relinquishment deed. He would

submit that such a suit was dismissed confirming in

R.A.N.48/1966 and in RSA No.809/1972. He would also

submit to this Court that respondent No.1-defendant No.1

was compelled to file suit for declaration in

O.S.No.92/1978. The said suit was decreed declaring

deceased defendant No.1 (Channavva) as absolute owner.

12. The present suit is filed by the children of

Siddanagouda in O.S.No.355/2007. The appellants-

appellants have again sought for declaration of title on the

basis of earlier decree in O.S.No.22/1960. He would

submit to this Court that the Appellate Court in RA

No.32/2012 having meticulously examined the evidence on

record has dismissed the suit filed by the appellants and

therefore, he would submit that no substantial question of

law would arise in the present appeal and prayed for

dismissal of the appeal by imposing heavy exemplary

costs.

13. Heard the learned senior counsel appearing for

the appellants and the learned counsel appearing for

respondents.

14. The judgment rendered by the Appellate Court

clearly depicts that relentless efforts were made by the

appellants' family in somehow keeping litigation alive.

Special Suit No.4/1955 was filed by Siddanagouda against

respondent No.1 and brother Siddanagouda. The said suit

was compromised and the father of appellants herein

namely Siddanagouda executed a registered

relinquishment deed in favour of respondent No.1 on

24.09.1956 thereby relinquishing his share in suit lands

bearing R.S.No.76/2, R.S.No.80/5, R.S.No.36/1 and

R.S.No.49. The children of Siddanagouda without

impleading respondent No.1 and suppressing the

compromise decree and also registered relinquishment

deed executed by their father filed a suit in

O.S.No.22/1960. The suit is filed without impleading

respondent No.1-defendant No.1 who acquired valid right

in the suit lands pursuant to compromise decree in Special

Suit No.4/1955 and also registered relinquishment deed

executed by Siddanagouda, the father of appellants

herein. On perusal of the records, this Court would concur

with the findings of the Trial Court that the suit filed by the

plaintiffs was a collusive suit. Based on a decree in

O.S.No.22/1960, plaintiffs are asserting that they are in

exclusive possession of the suit properties and even

though their father has executed a registered

relinquishment deed, possession was not parted.

15. The next round of litigation initiated by the

appellants-plaintiffs is suit in Special Suit No.5/1964. This

suit was filed questioning the compromise decree in

Special Suit No.4/1955 and have consequently sought for

the relief of possession of the suit land including other

properties. This suit was decided on merits and dismissed

on 30.05.1966 and confirmed by this Court in RSA

No.809/1972, which was dismissed on 04.08.1972.

16. Since the appellants-plaintiffs kept on asserting

their right on property in question and trying to interfering

with possession of respondent No.1-defendant No.1, it

appears that she was compelled to file suit in

O.S.No.92/1978. The said suit filed by respondent No.1

was decreed and same has attained finality.

17. On perusal of Ex.P4, this Court would find that

O.S.No.92/1978 was filed by respondent No.1 against her

brother's wife and children. After full-fledged trial, the Trial

Court was of the view that respondent No.1 was entitled to

all the properties on the basis of relinquishment deed

dated 24.09.1956. The judgment and decree passed in this

suit has attained finality.

18. The present suit is filed by the children of

Siddanagouda seeking declaration of title on the basis of

earlier collusive decree obtained in O.S.No.22/1960. The

reliefs sought in the present suit would be relevant and

same are culled out as follows:

Prayer: The plaintiffs most humbly prays as under:

a) It be declare that the decree obtained by the defendant-1 against the defendants No.2 to 13 is illegal and not binding on the plaintiffs.

b) It be declare that the plaintiffs are the absolute owners in physical possession of the suit schedule 2(b) (i) & (ii) properties.

c) It be declare that the entry of the name of Defendant -1 to suit schedule 2(B)(i) property on the strength of the decree in O.S.No.92/1978 without it being the subject matter of the suit is illegal.

d) A consequential relief of injunction restraining the defendant-1 from dispossessing or causing obstruction in peaceful possession and enjoyment of the suit properties be passed.

e) Costs of the proceedings be awarded.

f) Any other appropriate relief that the Hon'ble Court deems just and proper in the circumstances of the suit be awarded.

Thus the decree be passed in favour of plaintiffs, in the ends of justice and equity.

19. If the reliefs sought in the present suit are

examined meticulously, this Court would find that

appellants-plaintiffs are questioning the decree passed in

O.S.No.92/1978, which was filed by respondent No.1

against her brother's children i.e. against defendants 2, 4

and 5 to 8. The plaintiffs are claiming that this decree

passed in O.S.No.92/1978 is illegal and not binding on

them. This relief is misconceived and appellants-plaintiffs

have played mischief in seeking a very deceptive prayer.

Appellants' father Siddanagouda, who has filed suit against

respondent No.1 and her brother in Special Suit No.4/1955

was compromised, Siddanagouda executed a registered

relinquishment deed dated 24.09.1956 in favour of

respondent No.1-defendant No.1. The appellants-plaintiffs

are not questioning the compromise decree passed in

Special Suit No.4/1955 and registered relinquishment deed

dated 24.09.1956 executed by the father of appellants-

plaintiffs in favour of respondent No.1-defendant No.1.

Plaintiff No.1-Kallanagouda has also filed Special Suit

No.5/1964 questioning the compromise decree in

O.S.No.4/1955 and also questioned the relinquishment

deed. The suit filed by plaintiff No.1 was dismissed and

confirmed by this Court in RSA No.809/1972.

20. If all these significant details are taken into

consideration, the core issue as to whether appellants-

plaintiffs can assert title over the suit property is already

decided in Special Suit No.5/1964 and same has attained

finality by the judgment rendered by this Court in RSA

No.809/1972. The issues and consequent findings

recorded by the Court below in Special Suit No.5/1964

would clearly indicate that the present suit itself is not

maintainable.

21. The judgment rendered in Special Suit

No.5/1964 was neither challenged by present plaintiffs nor

by their ancestors. It is more than trite that when a litigant

is dissatisfied by the judgment of competent civil Court,

the appropriate step to be taken is to go on appeal before

the superior court. After lapse of time, the litigant who

suffered a decree cannot bring in one more suit seeking

deceptive prayers and go on re-litigating on same cause of

action. The present suit clearly demonstrates that it is a

frivolous litigation and same is based on absurd legal

theories and the appellant-plaintiff intends to re-litigate on

same cause of action. One of the main form of abuse of

process of law is the institution of multiplicity of actions by

the same party on same subject matter. The malaise

which is unfortunate has become a common place. The

appellants-plaintiffs are guilty of improper use of judicial

process. Defendant No.1 who is a poor lady was tormented

and harassed by the appellants-plaintiffs. Though the

father of the plaintiffs has relinquished share in terms of

compromise decree passed in Special Suit No.4/1955, the

appellants-plaintiffs have indulged in filing multiple suits all

along and the litigation is kept pending for more than six

decades. This Court is compelled to condemn the conduct

of the appellants-plaintiffs in the present case on hand and

is also forced to take exception of unacceptable practice.

This has not only caused immense injury to defendant

No.1, but the valuable time of the Court is being wasted

on frivolous suit for more than six decades. Therefore, this

is a fit case to impose exemplary costs on the plaintiffs.

This is a fit case where this Court is bound to take judicial

notice as the present appellants-plaintiffs have indulged in

filing false and vexatious claims. Imposing nominal costs

or in most of the cases where no cost is imposed has been

really encouraging the litigants in filing frivolous suits.

Even in most of the cases, the costs awarded are not

realistic and are only nominal. If defendant No.1 during

her lifetime was made to run pillar to post and was often

pitted against frivolous suits and if she was kept engaged

for almost six decades, this Court would find that there are

compelling reasons in the present case on hand to exercise

powers under Section 35A of the Civil Procedure Code. The

appellants are guilty of deliberately prolonging the

harassment on a poor widow in lingering frivolous

litigations for almost six decades. Therefore, I am of the

view that this is a fit case to levy exemplary costs to

advance justice and to minimize the damage which is

already done at the hands of the appellants-plaintiffs.

22. Therefore, having regard to the facts and

circumstances of the case, I deem it fit to impose cost of

Rs.1,00,000/- on the appellants-plaintiffs payable to the

legal representatives of deceased defendant No.1. No

substantial question of law is involved in the present

appeal. Hence, the following:

ORDER

The appeal being devoid of merits is hereby dismissed with exemplary costs of Rs.1,00,000/- payable by the appellants-plaintiffs to the legal representatives of deceased respondent No.1- Channavva.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE yan