Smt. Chikkanarasamma vs Sri. Kondegowda
2022 Latest Caselaw 5348 Kant

                            1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF MARCH, 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

           R.S.A. NO.242 OF 2018 (DEC/INJ)

BETWEEN:

1 . SMT. CHIKKANARASAMMA
    W/O. LATE THAMMAIAH,
    AGED ABOUT 66 YEARS,

2 . SRI. SRINIVASA
    S/O. LATE OBEGOWDA,
    AGED ABOUT 58 YEARS,

  BOTH ARE RESIDING AT
  SOMAHALLI VILLAGE,
  BEGUR HOBLI,
  GUNDLUPET TALUK - 571 111.
                                         ...APPELLANTS

(BY SMT. B.N. MANJULA, ADVOCATE FOR
     SRI. NAGARAJ R C, ADVOCATE)

AND:

1 . SRI. KONDEGOWDA
    S/O. APPEGOWDA,
    AGED ABOUT 62 YEARS,
    R/AT SOMAHALLI VILLAGE,
    BEGUR HOBLI,
    GUNDLUPET TALUK.

2 . BHARATHI AIRTEL LTD.,
    DIVYA SHREE TOWERS,
                              2




    #55, BANNERGHATTA MAIN ROAD,
    OPPOSITE JAYADEVA HOSPITAL,
    BANGALORE - 560 076.
                                            ...RESPONDENTS

    THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 08.11.2017 PASSED IN RA.NO.181/2017
(67/2016) ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC.,   GUNDLUPET,    DISMISSING   THE  APPEAL    AND
CONFIRMING THE JUDGMENT AND DECREE DATED 1.08.2015
PASSED IN OS.NO.19/2009 ON THE FILE OF THE CIVIL JUDGE
AND JMFC, GUNDLUPET.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is filed by the unsuccessful plaintiffs

challenging the concurrent finding of fact recorded by both

the Courts dismissing the suit filed by them for declaration

of their title to the suit property and for consequential

injunction.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. The plaintiffs claimed that the suit property

belonged to Chikkaobegowda. Since Chikkaobegowda had

no issues, he and his wife adopted Obegowda, the father-

in-law of plaintiff No.1 and the father of plaintiff No.2.

After the death of Chikkaobegowda, his wife

Smt.Narasamma, executed a Will in favour of Obegowda

on 23.10.1942 which was duly registered. After the death

of Chikkaobegowda, the plaintiffs became the absolute

owners of the suit property. The plaintiffs contended that

though the defendant No.1 was related to plaintiffs, but he

was a stranger to the suit property. The defendant No.1

had illegally entered into an agreement with the defendant

No.2 to install a mobile communication tower in the suit

property on a monthly rent of Rs.3,500/-. They claimed

that defendants No.1 and 2 had installed the tower without

obtaining license from Somahalli Gram Panchayat. They

therefore, contended that the defendants have no right

and since they attempted to interfere with their

possession, they filed the suit for declaration and

mandatory injunction to remove the mobile communication

tower.

4. The defendant No.1 contested the suit and

claimed that the suit property was sold by Obegowda to

his father, namely Appegowda on 22.04.1949 and at the

time of sale there existed 16 ankana house which

collapsed over a period of time. Thus, the suit property

became a vacant site which was in the possession of father

of defendant No.1. At a partition between family

members, the suit property fell to the share of defendant

No.1 and the revenue records stood in his name. He

further contended that on the eastern side of the suit

property, a small house existed which belonged to him,

where he was residing. The said house belonged to

Obegowda and he had sold it in favour of father of

defendant No.1. However, the plaintiffs had wrongly

mentioned that their house existed on eastern side. He

contended that the boundaries of the suit property was

clearly mentioned.

5. The defendant No.2, on the other hand,

contested the suit and claimed that it had entered into an

agreement of lease with defendant No.1 to install a mobile

communication tower in the suit property. It claimed that

the lease was for a period of 15 years. It contended that

the suit property was different from the property where it

had installed the communication tower.

6. Based on these rival contentions, the Trial

Court framed the following issues:

i. Whether the plaintiffs prove that they are lawful owners of the suit schedule property? ii. Whether the plaintiffs further prove the cause of action?

iii. Whether the plaintiffs further prove that the plaintiffs are entitled for the relief as sought for? iv. Whether the defendant No.1 prove the averments made in their written statement? v. What order or decree?

Additional Issues :

i. Whether the 1st defendant proves that his father called Appegowda is the owner in possession and enjoyment of the suit schedule property for having acquired the same under the registered sale deed dated 22.04.1949 for a valuation consideration of Rs.300/- from one Obegowda?

ii. Whether the 1st defendant further proves that after family partition the katha of the suit schedule property has been changed into his name?

iii. Whether the 1st defendant further proves that the eastern boundary mentioned in the plaint schedule is partly correct as they failed to mention the house of this defendant and the house of Singegowda?

iv. Whether the 1st defendant further proves that he has entered into an agreement of lease of schedule property with the 2nd defendant to erect an Airtel Tower for mobile service under the lease deed dated 21.09.2007?

v. Whether the plaintiff is entitled for mandatory injunction as prayed in the plaint that the 2nd defendant has to vacate and hand over the vacant possession of the schedule property?

7. The plaintiff was examined as P.W.1 and he

marked documents as Exs.P-1 to P-6. He also examined a

witness as P.W.2. However, defendants did not enter the

witness box and did not lead any evidence.

8. Based on the oral and documentary evidence,

the Trial Court held that the plaintiffs were claiming title to

the suit property based on a Will, but had failed to

examine any attesting witnesses to establish the lawful

execution of the Will. The Trial Court, therefore, dismissed

the suit.

9. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiffs filed R.A. No.181/2017. The

First Appellate Court secured the records of the Trial Court,

heard the counsel for the parties and framed points for

consideration and in terms of its impugned Judgment and

Decree, dismissed the appeal since the plaintiffs had failed

to prove the lawful execution of the Will.

10. During the course of the regular appeal, the

First Appellate Court entertained an application filed by the

defendants under Order XLI Rule 27 of CPC, whereby they

tried to produce a copy of the sale deed dated 22.04.1949.

The First Appellate Court allowed the application and

accepted the document on record and dismissed the

regular appeal.

11. Being aggrieved by the aforesaid, the present

Regular Second Appeal is filed.

12. The learned counsel for appellants / plaintiffs

submitted that the Will in question was executed 60 years

ago and that the attesting witnesses were all dead and

therefore, it was difficult to prove the lawful execution of

the Will. She, therefore, contended that the Trial Court

must have given some credence to the Will since the

document was registered in accordance with law. The

learned counsel further contended that the First Appellate

Court failed to follow the procedure prescribed under Order

XLI Rule 28 of CPC after allowing the application filed by

the defendants under Order XLI Rule 27 of CPC.

13. The plaintiffs had brought the suit for

declaration and mandatory injunction on the premise that

the predecessor of the plaintiffs had succeeded to the

property in terms of a Will. The title of the plaintiffs was

denied by defendant No.1, who contended that he was the

owner of the suit property. Therefore, it was incumbent

upon the plaintiffs to prove the Will in the manner provided

under Section 68 of the Indian Evidence Act, 1872. Any

amount of extraneous evidence cannot dispense the proof

of the Will, as mandated under Section 68 of the Indian

Evidence Act. Therefore, it was incumbent upon the

plaintiffs to have complied with the requirement of law to

claim title to the suit schedule property. The Trial Court

and the First Appellate Court have therefore rightly

assessed the oral and documentary evidence and have

held that the plaintiffs have not made out any case and

were justified in dismissing the suit. As no substantial

question of law arises for consideration in this appeal, the

appeal is dismissed.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm