Sri. Shivappa S/O Basappa Kerur vs Sri. Puttappa A/F Ningappa ...
2022 Latest Caselaw 4872 Kant

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

       DATED THIS THE 16 T H DAY OF MARCH, 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                 R.S.A. NO.100317/2021

BETWEEN

SRI. SHIVAPPA
S/O BASAPPA KERUR
AGED ABOUT 73 YEARS,
OCC. AGRICULTURE,
R/AT. SHI GGAON,
TQ. SHIGGAON,
DIST. HAVERI.
                                           ...APPELLANT
(BY SRI. MRUTYUNJAY TATA BANGI , ADV.)

AND

SRI. PUTTAPPA
A/F NINGAPPA HARIGOND
AGED ABOUT 78 YEARS,
OCC. AGRICULTURE,
R/AT. SHI GGAON,
TQ. SHIGGAON,
DIST. HAVERI.
                                         ....RESPONDENT
(BY SRI.MAHESH WODEYAR, ADV.)

     THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 09.02.2021 PASSED IN
R.A.NO.163/2017 ON THE FI LE OF THE SENIOR CIVI L JUDGE
AND   JUDICIAL  MAGISTRATE    FIRST  CLASS,  SHI GGAON,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DTD 09.06.2017, PASSED IN O.S. NO.76/2012 ON
THE FILE OF THE CIVIL JUDGE AND JUDICIAL MAGI STRATE
FIRST CLASS, SHIGGAON, DISMISSING THE SUIT FI LED FOR
DECLARATION AND CONSEQUENTIAL RELIEF OF PERPETUAL
INJUNCTION.
                                        2



    THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT , DELIVERED THE FOLLOWING:

                               JUDGMENT

Challenging judgment and decree dated 09.02.2021

passed by Sr. Civil Judge & JMFC., Shiggaon (for short,

"first appellate court") in R.A. No.163/2017 and judgment

and decree dated 09.06.2017 passed by Civil Judge &

JMFC., at Shiggaon (for short, "trial court") in O.S.

No.76/2012, this Regular Second Appeal is filed.

2. Appellant herein was plaintiff before trial court

and appellant before first appellate court, while

respondent herein was defendant before trial court and

respondent before first appellate court. For sake of

convenience, parties to this appeal are referred to by

their ranks before trial court.

3. Plaintiff filed O.S.No.76/2012 against defendant

seeking for decree of declaration of ownership over suit

schedule property and for permanent injunction

restraining defendants from interfering with his peaceful

possession and enjoyment of suit schedule property. In

the plaint, it was stated that property bearing no.21 (old

no.13) situated at Shiggaon municipality, measuring east-

west 75 ft., north-south 35 ft. with a house property

measuring east-west 19 ft. north-south 33 ft.

4. It was stated that plaintiff was absolute owner

in possession of suit schedule property and paying tax

regularly. It was further stated that property was used for

storage of agricultural implements, firewood etc. It was

stated that defendant was plaintiff's brother and adopted

son of Sri Ningappa Harigouda. Defendant owned property

towards southern side of suit schedule property. But, with

help of officials concocted false documents in respect of

suit schedule property and got his name entered in

revenue records. Said entries were challenged before

Deputy Commissioner, Haveri. Appeal was dismissed on

26.02.2003 with observation that entries would be subject

to final order in O.S.No.34/2002. Further challenge

before this Court in W.P.No.602011/2011 was dismissed.

Based on above, defendant started to interfere with

plaintiff's peaceful possession. Defendant began storing

agricultural implements and firewood in suit schedule

property, constraining plaintiff to file suit.

5. On service of summons defendant entered

appearance and filed written statement denying plaint

averments. It was stated that he was adopted into family

of Harigouda in the year 1947. Before adoption his

adoptive father had died. Therefore, Smt. Puttavva

adopted defendant. It was stated that plaintiff's brother

was member of municipal council. Using his influence false

documents were created to cheat defendant. During March

2002, cowshed in suit schedule property collapsed killing

some cattle. Plaintiff objected to defendant's attempt to

remove debris. Therefore, defendant filed OS No.34/2002

for perpetual injunction against plaintiff. After full-fledged

trial, injunction was granted against plaintiff. Such being

case, without producing any documents to establish title,

instant suit was filed only to harass defendant without

accrual of any cause of action. It was further stated that

when plaintiff questioned order of Deputy Commissioner,

dismissing his appeal, this Court while dismissing writ

petition reserved liberty to approach civil court for

adjudication of his rights. Merely on said basis suit was

filed without any merit.

6. Based on pleadings, trial court framed following

issues:

1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule house and vacant site shown as "ABCD" and "CDEFGH" in the hand sketch map annexed to the plaint?

2. Whether the plaintiff proves alleged interference caused by the defendants?

3. Whether the plaintiff is entitled for the relief of perpetual inj unction order as prayed for?

4. What order or decree?"

7. In order to establish his case, plaintiff examined

himself as PW1 and another witness as PW2. Exhibits P1

to P.21 were marked. Defendant examined himself as DW1

and another witness as DW2. Exs.D1 to 17 were marked.

On consideration, trial court answered issues no.1 to 3 in

negative and issue no.4 by dismissing suit with costs.

8. Assailing same, appellant herein filed

R.A.No.163/2017 on several grounds. It was contended

that, trial court failed to consider facts and evidence on

record in proper perspective. Findings given therein were

without framing proper issues and contrary to

documentary and oral evidence on record. Findings were

also contrary to presumptions available in law.

9. Based on above contentions first appellate court

framed following points for its consideration:

1. « ZÁgÀ u Á £ÁåAiÀ i Á®AiÀ Ä zÀ ª À g À Ä ªÁ¢AiÀ Ä zÁªÁ D¹Û U É ¸À A ¥À Æ tð ªÀ i Á°ÃPÀ £ ÁVgÀ Ä ªÀ £ À Ä JAzÀ Ä gÀ Ä dĪÁvÀ Ä ¥À r ¸À Ä ªÀ ° è «¥s À ® £ÁVgÀ Ä ªÀ £ À Ä JAzÀ Ä wêÀ i Áð£À P É Ì §A¢gÀ Ä ªÀ Å zÀ Ä £ÁåAiÀ Ä ¸À ª À Ä ävÀ ª ÁVgÀ Ä ªÀ Å zÉ Ã ?

2. ¥À æ ² ßvÀ wÃ¥À Æ ð ªÀ Ä vÀ Ä Û rQæ A iÀ Ä °è ªÀ Ä zÀ å ¥À æ ª É Ã ²¸À Ä ªÀ CUÀ v À å «zÉ Ã AiÉ Ä Ã?

3. AiÀ i ÁªÀ DzÉ Ã ±À CxÀ ª Á rQæ ?

10. On consideration, first appellate court answered

point no.1 in affirmative, point no.2 in negative and point

no.3 by dismissing appeal. Aggrieved thereby, this

Regular Second Appeal is filed.

11. Heard learned counsel on both sides. Perused

impugned judgment and decree and record.

12. Shri Mruthyunjaya Tata Bangi, learned counsel

for appellant submitted that both trial and first appellate

courts erred in passing impugned judgment and decree

without noticing fact that proper issues were not framed

by trial court. Though suit was for declaration and

permanent injunction, no issue regarding title over suit

schedule property was framed. On the basis of issue

regarding possession, trial court could not have dismissed

suit for declaration. It was further submitted that as

plaintiff had claimed suit schedule property to be

ancestral property and produced revenue records to

establish same, dismissal of suit on the ground that

plaintiff failed to produce title deeds over property was

perverse and capricious. It was further contended that

name of defendant was entered in revenue records based

on injunctive relief granted in his favour and not as a

result of acquisition of title.

13. In the light of above submission, learned

counsel proposes following substantial questions of law for

consideration:

1. Whether trial Court was justified in not framing issue with regard to title over property when declaratory relief was prayed in the suit?

2. Whether trial Court was justified in insisting plaintiff to produce title deeds over suit properties when suit properties are ancestral properties?

3. Whether there was improper appreciation of evidence by trial court and First Appellate Court insofar as mutation entry which was made based on injunctive relief?"

14. On the other hand, Sri Mahesh Wodeyar,

learned counsel for respondent opposed appeal and sought

its dismissal. It was submitted that suit was dismissed on

finding of fact, which is affirmed in appeal. Against

concurrent findings of fact, this appeal was filed and

same lacked merit.

15. Admittedly, plaintiff filed suit for declaration of

title and for permanent injunction in respect of suit

schedule property. Though, plaintiff stated that suit

schedule property was his ancestral property and there

were no title documents, he cannot escape burden of

establishing title over suit schedule property. It would not

therefore lie in the mouth of plaintiff to contend that he

did not lead evidence to establish title as no issue was

framed. Especially so, when he had approached Court

seeking for declaration of title. It is settled law that non-

framing of specific issue would not render decree

unsustainable, when parties were aware of their

rights/obligations and led evidence on those aspects.

16. This Court in Mahadev v. Bainabai reported in

(1974) 2 Kant LJ 184 held as follows:

"5. It was next contended by Shri Benadikar that the Court of first instance framed an issue only with regard to the validity and legality of the adoption of defendant No. 2 by defendant No. 1 and that, therefore, the courts below were not justified in going into the question of factum of adoption of defendant No. 2 and recording a finding against the defendants in that behalf. He submitted that the premises for the issue framed by the Court of first instance is that there is no dispute in regard to the factum of adoption and that the controversy was only in regard to the validity of the adoption, depending upon the question as to whether prior consent of the plaintiff was taken by Krishna.

It was also contended that the finding on the question of factum of adoption has necessary bearing on the question of consent by the plaintiff. If the factum of adoption is proved, it would undoubtedly go a long way to support the case of the defendant that she was a consenting party to the adoption having regard to her conduct. Shri Benadikar, in my opinion, is right when he maintains that the issue framed by the Court of first instance is not right. The plaintiff has, no doubt, sought for a declaration that the adoption of the second defendant by defendant No. 1 is not legal and valid. But, the averments in the plaint make it clear that the plaintiff has not conceded or admitted the factum of adoption. She has, in express terms, stated that the giving and taking did not take place and that, therefore, there was no factum of adoption as such. Having regard to the averments in the plaint and the prayer, one has to understand the relief claimed by the plaintiff as seeking a declaration that defendant No. 2 is not the adopted son of defendant No. 1. This prayer would include not only the investigation of the factum of adoption but also the question of validity of the adoption. Shri B.V. Deshpande, learned counsel appearing for the respondent, is right in maintaining that is how both the sides understood their respective cases and led evidence in the Court of first instance. If the wrong framing of the issue has not caused prejudice to the parties, it will not be proper to set aside the decree only on the ground that appropriate issues have not been framed by the Court of first instance. The second defendant has led oral evidence to prove his case that the adoption ceremony did take place. Such evidence would not have been led by the second defendant if he was misled by the issues framed by the Court of first instance. As I am satisfied that the second defendant did lead evidence on the assumption that he has to prove giving and taking in the event of the Court coming to the conclusion that the presumption under Section 16 is not available to him, the failure to frame an appropriate issue does not call for interference with the judgments and decrees passed by the Courts below."

Emphasis supplied

17. Similarly Hon'ble Supreme Court in the case of

Nedunuri Kameswaramma v. Sampati Subba Rao reported in

AIR 1963 SC 884, held as follows:

"5. On the first point, we do not see how the suit could be ordered to be dismissed, for, on the facts of the case, a remit was clearly indicated. The appellant had already pleaded that this was jeroyti land, in which a patta in favour of her predecessors existed, and had based the suit on a kadapa, which showed a sub-tenancy. It was the respondent who had pleaded that this was a Dharmila inam and not jeroyti land, and that he was in possession of the kudiwaram rights through his predecessors for over a hundred years, and had become an occupancy tenant. Though the appellant had not mentioned a Karnikam service inam, parties well understood that the two cases opposed to each other were of Dharmila Sarvadumbala inam as against a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We, therefore, proceed to consider the central point in the case, to which we have amply referred already."

Emphasis supplied

18. In the above matter, plaintiff has sought to

establish title by producing tax assessment registrar

extracts and tax paid receipts to substantiate his claim of

title. He has also examined an independent witness as

PW2 to corroborate his deposition. Trial court has

considered pleadings, weighed both oral evidence and

documentary evidence while arriving at its conclusions.

Trial court observed that plaintiff stated in plaint that suit

schedule property fell to his share in family partition, but

failed to establish nature of partition, whether oral or

written, registered or otherwise. It drew adverse inference

against plaintiff for failure to examine any person in

knowledge of partition to establish same.

19. Trial court took note of deposition of PW1,

wherein he stated that defendant was his natural brother

who went in adoption to Harigouda family and succeeded

to the properties belonging to Harigouda family. He

further claimed that even after adoption, plaintiff and

defendant were living together and enjoying properties

together. Thereafter, defendant clandestinely got his

name entered in revenue records, challenging which

plaintiff had filed appeal. As PW1 (plaintiff) admitted

during cross-examination that after going in adoption,

defendant was enjoying properties without any

interference by anyone as absolute owner, trial Court held

that only on the basis of revenue records which would not

be documents of title, plaintiff could not establish his

claim over suit schedule property.

20. Even during cross-examination of DW1, trial

Court observed that, there was no other material except

eliciting relationship between plaintiff and defendant. It

took note of judgment and decree passed in

O.S.No.34/2002. In the said decree, defendant herein

succeeded in getting decree of permanent injunction

against plaintiff from interfering with peaceful possession

over suit schedule property. Said decree was confirmed

upto this Court (in RSA no.5271/2009). Though, it was

contended that defendant had admitted joint possession of

suit schedule property with plaintiff in earlier suit, trial

Court held that said decree cannot be construed as

conferring or confirming title.

21. Insofar as issue regarding interference by

defendant, it held that earlier decree confirmed upto this

court, established joint possession of defendant in

property no.21, which could not be construed as

interference. On the above reasoning, trial court held that

plaintiff failed to establish title or possession in respect of

suit schedule property and accordingly dismissed suit.

22. First appellate court on re-appreciation has

confirmed findings of trial court. Though, learned counsel

vehemently contended that said findings were not

justified, he failed to establish that conclusions arrived at

were either contrary to evidence on record or in ignorance

of same. No case of either capriciousness or perversity is

made out.

23. For the aforesaid reasons, non-framing of

specific issue regarding title would not be substantial

question of law in this case. Likewise, as plaintiff had filed

suit for declaration, placing burden on plaintiff to

establish title also cannot be held to suffer from any

material irregularity. Conclusion of trial court and first

appellate court are not based only on mutation entry in

favour of defendant, but after taking into account entire

evidence on record. Therefore, even remaining questions

would not be substantial questions of law arising in this

case.

24. In the result, I pass following:

ORDER

Appeal is dismissed.

No order as to costs.

Sd/-

JUDGE Psg/kgk