Karnataka High Court
Sri.Doddabusiyaiah vs Sri. Lingaiah @ Ningaiah on 2 March, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
REGULAR SECOND APPEAL NO.1491 OF 2017 (DEC)
BETWEEN:
1. SRI.DODDABUSIYAIAH,
S/O LATE DODDAMARILINGAIAH,
AGED ABOUT 84 YEARS,
R/O ARETHIPPUR VILLAGE,
C.A.KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 436.
2. NINGAMMA,
W/O SHIVALINGAIAH,
AGED ABOUT 49 YEARS,
R/O ARETHIPPUR VILLAGE,
C.A.KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
3. NINGARAJU,
S/O SHIVALINGAIAH,
AGED 49 YEARS,
R/O ARETHIPPUR VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
4. SHIVU,
S/O KULLAMANCHEGOWDA,
AGED 32 YEARS,
R/O ARETHIPPUR VILLAGE,
C.A.KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
2
5. YASHODAMMA,
W/O NINGARAJU,
D/O SHIVALINGAIAH,
AGED 41 YEARS,
R/O HARIHARA VILLAGE,
KANAKAPURA TALUK,
BANGALORE RURAL DISTRICT - 571 428.
6. PUTTALINGAIAH,
S/O SHIVALINGAIAH,
AGED 37 YEARS,
THE APPELLANTS 1 TO 4 AND 6 ARE THE
R/O ARETHIPPUR VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
...APPELLANTS
(BY SRI.PRAMOD R., ADVOCATE)
AND:
1. SRI. LINGAIAH @ NINGAIAH,
S/O CHIKKAMARIGOWDA,
AGED 62 YEARS,
R/O ARETHIPURA VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
2. NINGA,
S/O DODDAHYDA,
AGED 60 YEARS,
R/O ARETHIPURA VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
3. NINGAPPA,
S/O NINGEGOWDA,
AGED 59 YEARS,
R/O ARETHIPURA VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
3
4. RATHNAMMA,
W/O LINGAIAH @ NINGAIAH,
AGED MAJOR,
R/O BASAVANAPURA VILLAGE,
KASABA HOBLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 438.
5. SHANTHAMMA,
D/O LINGAIAH @ NINGAIAH,
AGED MAJOR,
R/O BASAVANAPURA VILLAGE,
KASABA HOBLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 436.
6. SIDDAMMA @ HOOVAMMA,
D/O LATE BUJANGAIAH,
W/O SUBBAIAH,
AGED 59 YEARS,
R/O S.I. HONNALAGERE VILLAGE,
C.A.KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 438.
7. SHIVANNA,
S/O LATE BUJANGAIAH,
AGED 54 YEARS,
R/O KABBARE VILLAGE,
K. HONNALAGERE POST,
KASABA HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 438.
8. SARASWATHI,
D/O LATE BUJAGAIAH,
AGED MAJOR,
R/O KABBARE VILLAGE,
K. HONNALAGERE POST,
KASABA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 438.
9. CHIKKATHAYAMMA,
D/O LATE BUJAGAIAH,
W/O B C PUTTAIAH,
4
AGED ABOUT 47 YEARS,
R/O BASAVANAPURA VILLAGE,
NANJEGOWDANADODDI POST,
HALAGUR HOBLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 436.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 10.04.2017 PASSED IN RA NO.52/2008 ON THE FILE OF
THE SENIOR CIVIL JUDGE, MADDUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
10.07.2008 PASSED IN OS NO.201/2003 ON THE FILE OF THE
PRL.CIVIL JUDGE (JR.DN) AND JMFC., MADDUR.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by unsuccessful plaintiffs
challenging the concurrent finding of fact recorded by both
the Courts rejecting their claim for partition and separate
possession of their alleged undivided share in the suit
property.
2. The plaintiffs sought for partition and separate
possession of the land bearing Sy.No.56/1 of Koolagere
Village, C.A.Kere Hobli, Maddur Taluk, on the premise that
the revenue record of the said land stood in the name of
their grandfather, Linga S/o. Marilinga. The plaintiffs claim
that Linga S/o. Marilinga died intestate leaving behind him
three sons, namely, (1) Kadaiah, (2) Doddamarilingaiah
and (3) Chikkamarilingaiah. Kadaiah died leaving behind
his son Bujagaiah, who died issueless. Doddamarilingaiah
died leaving behind him his three sons, namely,
Chikkaputta, Doddabusiyaiah (plaintiff No.1) and
Shivalingaiah (plaintiff No.2). Chikkamarilingaiah died
intestate leaving behind him Lingaiah @ Ningaiah
(defendant No.1). The plaintiffs claim that they and
defendant No.1 were jointly cultivating the suit property
and were in joint possession. They alleged that the
defendant No.1 taking advantage of the similarity of his
name with Linga S/o. Marilinga alienated the suit property
on 16.05.2003. They claimed that defendant No.1 had no
absolute right to alienate the suit property to defendant
No.2, who allegedly knew that the suit property was the
ancestral property, where the plaintiffs had undivided
share and yet purchased it. The plaintiffs, therefore,
sought for partition and separate possession of that
property which according to them was numbered as Sy.
No.56/4.
3. The defendant No.1 and 2 contested the suit
and filed separate written statements denying the
averments of the plaint.
4. The defendant No.3, on the other hand, filed
his written statement contending that plaintiffs and 1st
defendant were not the descendants of Linga S/o.
Marilinga and that the genealogy furnished by plaintiffs
was false. He contended that the sale deed executed by
defendant No.1 in favour of defendant No.2 did not relate
to the suit property, but related to the property bearing
Sy.No.56/4 and not the suit property which was bearing
Sy.No.56/1. The defendant No.3 alleged that this was a
plot hatched by the plaintiffs in collusion with defendants
No.1 and 2 to grab the property of defendant No.3. He
claimed that the suit property belonged to Sidda S/o.
Nelamarana Ninga which lay within the limits of Malavalli
taluk. The said Sidda had mortgaged Sy.No.56/1 in favour
of Siddegowda on 09.12.1907 for a period of four years.
Subsequently, the said Sidda sold Sy.No.56/1 to the
mortgagee Siddegowda, who in turn sold it to the father of
defendant No.3 on 28.05.1919. He contended that while
mentioning the hissa number of Sy.No.56, it was wrongly
mentioned as Sy.No.56/3 instead of Sy. No.56/1.
However, the boundaries mentioned in the mortgage deed
and the sale deed corresponded to the boundaries
mentioned in the suit schedule. He claimed that from the
date of its purchase on 28.05.1919, his father was in
possession and later he continued to be in possession. He
claimed that he had planted four mango trees and other
trees in the suit property which were aged more than 50
years. Thus, he pleaded that the plaintiffs have no right
over the suit property.
5. The defendant No.4 filed her written statement
admitting the relationship of the parties. However, she
claimed that plaintiffs have no manner of right over the
suit property. She claimed that the defendant No.1 was
visually blind and had executed a sale deed dated
16.5.2003 in favour of defendant No.2 and alleged that the
defendant No.2 had not paid the sale consideration.
6. The defendant No.6 denied the case of the
plaintiffs and contended that the plaintiffs were not the
grandsons of Linga S/o. Marilinga, but were the grandsons
of Chikkaputta. He also claimed that the suit property did
not belong to the family of the plaintiffs and defendant
No.1.
7. Based on these rival contentions, the Trial
Court framed the following issues :
i. Whether the plaintiffs prove that they are entitled
for partition and separate possession of 1/3rd
right and share in the suit schedule property?
ii. Whether the plaintiffs prove that alienation made
by the first defendant in favour of the 2nd
defendant by way of sale deed dated 16.05.2003
registered document No.746/2003-04, book-I
Volume No.2432 pages 5 to 7 registred with sub-
registrar, Maddur, is not binding on the plaintiffs
share?
iii. Whether the plaintiffs prove the alleged
nd rd
interference by the 2 and 3 defendant in
respect of the suit schedule property?
iv. Whether the plaintiffs prove that they are entitled
for the relief of declaration and permanent
injunction against the defendants?
v. What order or decree?
8. The plaintiff No.2 was examined as PW1 and
marked documents as Exs.P-1 to P-13. P.Ws.2 and 3 were
the witnesses who were examined. The defendant No.3
was examined as D.W.1 and marked documents as Exs.D-
1 to D-7. For the defendants, D.W.2 and 7 were
examined.
9. Based on the oral and documentary evidence,
the Trial Court held that the plaintiffs have not established
their relationship with Linga S/o. Marilinga. It also held
that the properties sold by defendant No.1 in favour of
defendant No.2 was the land in Sy.No.56/4 and not the
suit property which was Sy.No.56/1. It further held from
the evidence of D.W.6 that the family of plaintiffs and
defendant No.1 never owned the land in Sy. No.56/1. It
further held that the property purchased by father of
defendant No.3 in terms of the sale deed dated
28.05.1919 related to the land in Sy.No.56/1, and
therefore, the plaintiffs have no right, title or interest in
the suit property and hence, dismissed the suit.
10. Feeling aggrieved by the aforesaid judgment
and decree, the plaintiffs filed R.A. No.52/2008.
11. The First Appellate Court secured the records
of the Trial Court and after hearing the parties, framed the
points for consideration. The First Appellate Court held
that the plaintiffs had proved their relationship with Linga
S/o. Marilinga and also that Exs.P-2 and P-3 to P-5 as well
as P-11 concerning Sy.No.56/1 stood in the name of Linga
S/o. Marilinga. The First Appellate Court compared the
boundaries mentioned in the sale deed 28.05.1919 (Ex.D-
1) and held that the boundaries mentioned therein clearly
corresponded with the boundaries mentioned in the suit.
The First Appellate Court held that it was incumbent upon
the plaintiffs to prove the antecedent title of Linga S/o.
Marilinga in respect of the suit property. It held that mere
production of revenue records in the name of Linga
S/o.Marilinga cannot confer any title on the plaintiffs, more
particularly, in view of the sale deed dated 28.05.1919.
Therefore, the First Appellate Court dismissed the appeal
filed by the plaintiffs.
12. Being aggrieved by the aforesaid judgment and
decree, the present regular second appeal is filed.
13. The learned counsel for plaintiffs submitted
that the First Appellate Court after holding that the
plaintiffs were related to Linga S/o. Marilinga and after
holding that the revenue documents stood in his name,
could not have dismissed the suit. He further contended
that the sale deed dated 28.05.1919 (Ex.D-1) did not
relate to the land in Sy.No.56/1 but concerned to the land
in Sy.No.56/3 , and therefore, both the Courts committed
an error in mis-construing Ex.D-1.
14. I have considered the submissions of the
learned counsel for the plaintiffs.
15. Though the First Appellate Court had held that
the plaintiffs had proved their relationship with Linga
S/o.Marilinga and that the revenue documents of
Sy.No.56/1 stood in the name of Linga S/o. Marilinga, but
yet both the Courts have noticed the evidence of owners of
the lands adjacent to the suit property, who deposed that
it was the defendant No.3 who was cultivating and in
possession of land bearing Sy.No.56/1. In order to know
whether the boundaries mentioned in the sale deed dated
28.05.1919 corresponded with the suit property, this Court
secured the copies of the same and found that the
boundaries did tally. Therefore, even if wrong survey
number was mentioned in sale deed dated 28.05.1919, but
the boundaries corresponded with the boundaries
mentioned in the schedule to the suit. As the defendant
No.3 had relied upon the sale deed dated 28.05.1919, it
was incumbent upon the plaintiffs to prove antecedent title
or that the father of defendant No.3 had conveyed it to
them.
16. In that view of the matter, since the Courts
have recorded a finding of fact that the father of defendant
No.3 was in possession of the suit property for nearly 100
years, this Court does not consider it appropriate to upset
the concurrent finding of fact.
17. Consequently, this Regular Second Appeal fails
and is dismissed.
Sd/-
JUDGE
NR/-
