Karnataka High Court
R. Rakshith vs M. Srinivasa on 9 June, 2022
Bench: Ravi V Hosmani
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RSA No. 235 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 235 OF 2018 (DEC/INJ)
BETWEEN:
1. R.RAKSHITH
S/O B.RAVIKUMAR
AGED ABOUT 27 YEARS
2. R.RACHITHA
D/O B.RAVIKUMAR
AGED ABOUT 29 YEARS
BOTH ARE RESIDINT AT
NO.1131/1A, DR.AMBEDKAR ROAD
KRISHNAMURTHY PURAM
CHAMARAJA MOHALLA
MYSURU-570 004.
...APPELLANTS
[BY SRI H.MALATESH, ADVOCATE (PH)]
AND:
Digitally signed by 1. M.SRINIVASA
VEENA KUMARI B
Location: High S/O LATE P.MALAIAH
Court of Karnataka
AGED ABOUT 75 YEARS
R/A #1131/1A
DR.AMBEDKAR ROAD
KRISHNAMURTHY PURAM
CHAMARAJA MOHALLA
MYSURU-570 004.
2. VASANTHA
W/O VISHWAMBARAIAH
AGED ABOUT 65 YEARS
R/A # 142/C
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RSA No. 235 of 2018
RAMAVILAS ROAD
K.R.MOHALLA
MYSURU-570 024.
3. RAVIKUMAR
S/O LATE BASAVARJU
@ BASAVARAJAPPA
AGED ABOUT 58 YEARS
4. SHASHIKUMAR
S/O LATE BASAVARAJU
@ BASAVARAJAPPA
AGED ABOUT 55 YEARS
5. SMT.DAKSHAYANI
W/O B.RAVIKUMAR
AGED ABOUT 50 YEARS
RESPONDENTS 3 TO 5 ARE
RESIDING AT #1131/1A
DR.AMBEDKAR ROAD
KRISHNAMURTHY PURAM
CHAMARAJA MOHALLA
MYSURU-570 004.
...RESPONDENTS
[BY SRI S.NAGARAJA, ADVOCATE FOR R1 (PH);
NOTICE SERVED TO R2 TO R5]
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 16.09.2017 PASSED IN
R.A.NO.77/2017 ON THE FILE OF THE VII ADDITIONAL DISTRICT
JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 30.01.2017 PASSED IN
O.S.NO.69/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., NANJANGUD.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, COURT
DELIVERED THE FOLLOWING:
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RSA No. 235 of 2018
JUDGMENT
Challenging judgment and decree dated 16.09.2017
passed by VII Addl. Mysuru R.A.No.77/2017 and judgment
and decree dated 30.01.2017 passed by Senior Civil Judge
& JMFC., Nanjangud, in O.S.No.69/2012, this appeal is
filed.
2. Appellants herein were defendants no.4 and 5 in
original suit and appellants no.1 and 2 in first appeal.
Respondent no.1 herein was plaintiff in suit and
respondent no.1 in first appeal. Respondents no.2 to 5
herein were defendants no.1 (a) to (c) and defendant no.6
in original suit and respondents no.2 to 5 in first appeal.
For sake of convenience parties shall be hereinafter
referred to their ranks in original suit.
3. O.S.No.69/2012 was filed by plaintiff seeking for
decree of declaration that he is absolute owner of suit
schedule property and entitled to get his name entered in
column no.9 and 12 of record of rights by deleting names
of defendants and for perpetual injunction restraining
RSA No. 235 of 2018
them from interfering with plaintiff's peaceful possession
and enjoyment of suit schedule property. Land bearing
Sy.no.125 measuring 1 acre 9 guntas out of 3 acres 27
guntas situated at Echagalli village, Chikkaianachatra
hobli, Nanjangud taluk is 'suit property'.
4. In the plaint, it was stated that husband of
plaintiff and defendant no.1 were brothers. Defendants
no.2 and 3 were sons of defendant no.1 and defendants
no.4 to 6 were children of defendant no.2. It was stated
that plaintiffs' father P. Mallaiah had two sons and four
daughters and that his grandfather Puttegowda had
predeceased his wife Smt. Kempamma. It was further
stated that partition took place between plaintiffs' father P
Mallaiah and husband of defendant no.1 i.e., late
Basavaraju and Smt. Kempamma under registered
partition deed dated 16.06.1957 in respect of suit
properties. It was stated that at that time plaintiff was
minor and was represented by his father. In said partition
plaintiff was allotted garden land bearing Sy.no.125 totally
RSA No. 235 of 2018
measuring 3 acres 27 guntas. In addition to above,
plaintiff was allotted Sy.no.123/1 measuring 3 acres 13
guntas and other lands. It was stated that since date of
actual partition, plaintiff was in possession of lands
allotted to his share and defendants had no right, title or
interest over suit property. However, upon noticing
mutation of name of late Basavarajappa in record of rights
illegally, he was constrained to file suit.
5. It was also stated that plaintiff had earlier filed
suit for declaration and perpetual injunction in
O.S.No.80/2004. Same came to be decreed.
R.A.No.836/2007 filed by defendants no.2 and 3 came to
be dismissed on 05.07.2007. As there was no further
challenge, said decree attained finality. Thereafter,
defendants no. 2 and 3 instigated defendants no.4 to 6 to
file suit for declaration, partition and separate possession,
which came to be dismissed on 03.11.2011. Challenging
said decree, defendants no.2 to 6 preferred
R.A.No.566/2011 which was pending and as plaintiff was
RSA No. 235 of 2018
unable to have entries in record of rights rectified, suit was
filed.
6. Despite service of suit summons, defendant
no.1(a), (c) and (e) did not contest. Suit against
defendant no.1(d) was dismissed. Though defendants no.2
to 6 entered appearance, only defendants no.4 and 5 filed
written statement. In their written statement defendants
no. 4 and 5 submitted that suit was not maintainable.
They admitted relationship with plaintiff, but denied other
averments. It was specifically contended that during 1956,
there was prior partition between plaintiff and his brother -
late Basavaraju. In said partition, they were allotted 3
acres 27 guntas each in Sy.No.125. Thereafter, on
03.10.1985 plaintiff had relinquished his right to an extent
of 1 acre 9 guntas out of 3 acres 27 guntas from his share,
in favour of late Basavaraju. Relinquishment was reduced
into writing before panchayatdars. Said property was
enjoyed by late Basavaraju till his death and thereafter his
wife and son i.e., defendants no.1 and 2, who were paying
RSA No. 235 of 2018
land revenue regularly. It was further stated that khata of
suit property was mutated in name of defendant no.1
during year 2009-10 and therefore plaintiff had no right
over suit property. On said averments, they sought
dismissal of suit.
7. Based on pleadings, trial Court framed following
issues and additional issue:
1. Whether the plaintiff proves that the suit
schedule property was fallen to his share
through partition deed dated 16.06.1957
as alleged in the plaint?
2. If yes, the plaintiff further proves that
the name of the 1st defendant is entered
in RTC., extracts by fraudulent means ?
3. Whether the defendants prove that the
plaintiff has relinquished his right in
respect of schedule property on
03.10.1965?
4. Whether the plaintiff is entitled for the
suit relief?
5. What order or decree?
Additional Issue
1. Whether the suit as brought by the
plaintiff for the relief of declaration and
permanent injunction is maintainable?
RSA No. 235 of 2018
8. Thereafter, plaintiff examined herself as PW-1.
Exhibits P.1 to P.20 were marked. Defendant no.4
examined herself as DW-1. Exhibits D.1 to D.6 were
marked.
9. On consideration trial Court answered issues
no.1, 2, 4 and additional issue no.1 in affirmative; issue
no.3 in negative and issue no.5 by decreeing suit,
declaring plaintiff as absolute owner of suit schedule
property and entitled to get his name entered in record of
rights. Consequential injunction was also issued against
defendants from disturbing plaintiff's possession.
10. Aggrieved thereby defendants no.4 and 5 filed
R.A.No.77/2017 on several grounds. It was contended that
trial Court had not properly appreciated facts of case and
evidence on record and decreed suit ignoring evidence led
by defendants. It was also contended that trial court
ignored clear evidence regarding relinquishment of share
by plaintiff. Before panchayatdars and same had resulted
in miscarriage of justice.
RSA No. 235 of 2018
11. Based on contentions, first appellate Court
framed following points for consideration:
1. Whether the impugned judgment and decree
of the lower court is opposed to law, facts
and circumstances of the case and
interference of this court is necessary?
2. What Order?
12. On appreciating contentions, it answered point
no.1 in negative, point no.2 by dismissing appeal,
confirming judgment and decree of trial court.
13. Against concurrent findings, defendants no. 4
and 5 have preferred this second appeal.
14. Sri H.Malthesh, learned counsel for appellant,
submitted that impugned judgment and decree passed by
both Courts were perverse and illegal and reasoning was
improper. They erred in not appreciating evidence on
record. Learned counsel further submitted that as plaintiff
had sought for entry of name in record of rights, suit was
not maintainable.
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RSA No. 235 of 2018
15. Heard learned counsel, perused impugned
judgment and decree and record.
16. From above submission, relationship of parties is
not in dispute. Even nature of suit property as ancestral
joint family property is also not in dispute. Prior partition
effected between father of plaintiff i.e., P. Mallaiah,
husband defendant no.1 - late Basavaraju and their
mother - Smt. Kempamma on 16.06.1957 under
registered partition is not in dispute. It is admitted that in
said partition, extent of 3 acres 37 guntas, out of total
extent of 7 acres 14 guntas in Sy.No.125 was allotted in
favour of plaintiff's father. In addition he was also allotted
3 acres 13 guntas in Sy.No.123/1. Allotment of 3 acres 27
guntas in Sy.No.125 to late Basavaraju is admitted apart
from other lands. Dispute is only about 1 acre 9 guntas
out of total 3 acres 27 guntas in Sy.no.125 allotted in
favour of plaintiff's father - P. Mallaiah. This is suit
property.
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RSA No. 235 of 2018
17. While plaintiff contends that after partition, his
father was in separate possession and enjoyment and
after his death, plaintiff was in possession when
defendants no.4 and 5 illegally got their names mutated in
record of rights in respect of suit property and plaintiff was
entitled for declaration of title and entry of name by
removal of name of defendants in record of rights in
respect of suit property, defendants no.4 and 5 contend
that after partition during 1956, as plaintiff's father had
got larger portion of lands than husband of defendant
no.1, there was relinquishment to extent of 1 acre 9
guntas out of 3 acres 27 guntas fallen to share of
plaintiff's father - P. Mallaiah, in favour of late Basavaraju
on 03.10.1985. It is contended that relinquishment was
reduced into writing before panchayatdars and in terms of
same, late Basavaraju enjoyed suit property till his death
and thereafter khata was mutated in name of defendant
no.1. It is specific case of defendants no. 4 and 5 that in
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RSA No. 235 of 2018
view of relinquishment, plaintiff had no right over suit
property.
18. Before trial Court, plaintiff deposed as PW.1 as
per plaint averments. To support same, he produced
record of rights as Exhibits P.1 to P.11, Patta books as
Exs.P.12 and P.13, certified copy of partition deed dated
16.06.1957 as P.14 and certified copies of judgment and
decree in O.S.No.80/2004 and O.S.No.197/2007 as
Exhibits P.15 to P.18.
19. On examination of said evidence, trial court
observed that plaintiff had filed earlier suit against some of
defendants. In O.S.80/2004 and obtained decree in
respect of property bearing Sy.no.123/1.
O.S.No.197/2007 was filed by some of defendants.
Against plaintiff and others in respect of Sy.nos.123/1,
206, 263, 124/1, 128, and 129 of Yechagalli village.
20. Defendants on the other hand, lead evidence by
examining Defendant no.4 as DW.1. Panchayat palu patti
was got marked as Ex.D.1., endorsement issued by
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RSA No. 235 of 2018
Tahsildar as Ex.D.2; copy of sale deed dated 23.09.1985
as Ex.D.3, mahazar as Ex.D.4 and Survey Record and
sketch prepared by Taluka Surveyor as Ex.D.5 & 6.
21. Admittedly, panchayat palupatti - Ex.D.1 is an
unregistered document. No evidence was led to establish
plaintiff's signature on it. Trial Court observed that during
prior partition, suit property fell to share of plaintiff's
father. Except claiming right over it under relinquishment
on 03.10.1985, defendants no.4 and 5 have no other basis
for their claims. It observed that mere change of khata in
respect of suit property unsupported by any valid mode of
transfer of title would not enure to them. On said
conclusion, it proceeded to decreed suit.
22. First appellate Court on re-appreciation, to wit
Ex.D.1- unregistered and unstamped document dated
03.10.1985 was of opinion that recitals indicated it to be
an 'agreement'. It observed that defendants failed to
either establish plaintiff's signature on it and also failed to
examine panchayatdars in whose presence it was
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RSA No. 235 of 2018
executed. As it was unregistered and unstamped
document, it concluded that it conveyed no valid title. First
appellate Court also endeavored to compare admitted
signatures of plaintiff found in trial Court records with that
found on Ex.D.1 and concluded that there was no
resemblance. On examination of other evidence available,
as well as effect of decree passed in other suits, in which
defendants were unsuccessful, proceeded to confirm
judgment and decree passed by trial Court.
23. Admittedly, only basis for claim by defendants
no.4 and 5 is relinquishment deed marked as Ex.D.1. As
observed by first appellate Court, it is unregistered and
unstamped. Defendants not only failed to establish
plaintiff's signature on it but also failed to examine
Panchayatdars and that they had also not made any
suggestions to PW-1 about relinquishment. Therefore
mere marking would not prove contents of Ex.D.1. Further
it was marked during deposition of DW-1 who was not
even born at time of its execution. Hence, both Courts
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RSA No. 235 of 2018
concurrently held Ex.D.1 as not proved. In addition, first
appellate Court has also compared signature of plaintiff on
Ex.D.1 with admitted signatures and concluded that there
was no resemblance.
24. Since very basis of claim of defendants no.4 and
5 was destroyed, both Courts were justified in rejecting
contentions of defendants and decreeing plaintiff's suit. No
case of perversity in findings is made out.
25. In the result, none of proposed substantial
questions of law arise for consideration herein. Hence, I
pass following:
ORDER
Appeal is dismissed.
No order as to costs.
Sd/-
JUDGE
Psg*
