Sri. Mayigaiah vs Sri. Kanchivaradaiah
2022 Latest Caselaw 5646 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 29TH DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

           R.S.A. NO.531 OF 2019 (DEC/INJ)

BETWEEN:

1.   SRI. MAYIGAIAH
     S/O LATE SRI. BOMMAIAH,
     AGED ABOUT 85 YEARS,

2.   SMT. NINGAMMA
     W/O LATE SRI. KENCHAIAH,
     AGED ABOUT 72 YEARS,

3.   SMT. GOWRAMMA
     D/O LATE SRI. KENCHAIAH,
     AGED ABOUT 52 YEARS,

4.   SRI. VARADARAJ
     S/O LATE SRI. KENCHAIAH,
     AGED ABOUT 37 YEARS,

5.   SRI. DAITHAIAH
     S/O LATE SRI. KENCHAIAH,
     AGED ABOUT 35 YEARS,

6.   SRI. PRAKASH
     S/O LATE SRI. KENCHAIAH,
     AGED ABOUT 33 YEARS,

7.   SRI. CHIKKAVARADAIAH
     S/O LATE SRI. BOMMAIAH,
     AGED ABOUT 75 YEARS,
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8.     SRI. RAMASWAMY
       S/O LATE SRI. BOMMAIAH,
       AGED ABOUT 62 YEARS,

9.     SRI. CHIKKAMMA
       D/O LATE SRI. BOMMAIAH,
       AGED ABOUT 60 YEARS,

10.    SMT. SHANTHAMMA
       D/O LATE SRI. BOMMAIAH,
       AGED ABOUT 55 YEARS.

ALL ARE RESIDENTS OF
URAGAHALLI VILLAGE,
BIDADI HOBLI,
RAMANAGARA TALUK & DISTRICT.
                                            ...APPELLANTS
(BY SRI. K. ABHINAV ANAND, ADVOCATE)

AND:

SRI. KANCHIVARADAIAH
S/O LATE SRI. MUNIMAYIGAIAH,
AGED ABOUT 63 YEARS,
R/O URAGAHALLI VILLAGE,
BIDADI HOBLI
RAMANAGARA TALUK & DISTRICT.
                                           ...RESPONDENT

(BY SRI. G.B. NANDISH GOWDA FOR SRI R.B. SADASIVAPPA,
ADVOCATE FOR C/R3 - VC)

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE
OF CIVIL PROCEDURE, 1908, R/W ORDER XLII RULE 2 OF
CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED
14.12.2018 PASSED IN RA.NO.47/2015 ON THE FILE OF THE III
ADDL. DISTRICT AND SESSIONS JUDGE, RAMANAGARA
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 20.06.2015 PASSED IN OS.NO.84/2012
ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE,
RAMANAGARA.
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     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal is filed by the plaintiffs in O.S.

No.84/2012 on the file of the Additional Senior Civil Judge,

Ramanagar (henceforth referred to as 'Trial Court')

challenging the divergent finding in R.A. No.47/2015 by

the III Addl. District and Sessions Judge, Ramanagara,

(henceforth referred to as 'First Appellate Court') by which

the Judgment and Decree passed in O.S. No.84/2012 was

reversed.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. The suit in O.S. No.84/2012 was filed for

declaration and perpetual injunction in respect of the land

bearing Sy.No.266 of Uragahalli village, Ramanagar taluk

measuring 4 acres 24 guntas. The plaintiffs claimed that

Sri.Bommaiah, their predecessor had purchased 6 acres of

land in the aforesaid survey number from Narasimha

Iyengar on 12.07.1967. He, thereafter, sold 20 guntas to

Dundamma and retained 4 acres 24 guntas. The plaintiffs

alleged that neither Bommaiah nor they had alienated the

suit property in favour of the defendant. However, the

defendant was disputing the right of the plaintiffs to an

extent of 1 acre 12 guntas contending that he had

acquired title over the same. Hence, plaintiffs sought for

declaration of their title to the suit property and for

perpetual injunction and also sought the alternate relief of

recovery of possession of the suit property.

4. The defendant contested the suit and claimed

that Bommaiah had four sons, namely, plaintiff No.1,

plaintiff No.7 and plaintiff No.8 and Kenchaiah and four

daughters. The plaintiff No.1 and his father Bommaiah

executed a deed of absolute sale on 21.05.1973 to Motaiah

and conveyed one acre of land in Sy.No.266. The said

Motaiah thereafter sold the said one acre to the father of

the defendant on 16.06.1975 and the possession of the

said land was delivered. The husband of the plaintiff No.2

and the legal heirs of Kenchaiah sold one acre of land in

Sy.No.266 to Chikkanna in terms of a sale deed dated

21.05.1973. Chikkanna thereafter sold 12 guntas to the

father of the defendant. The defendant, therefore,

contended that he was in possession of 1 acre 12 guntas in

Sy.No.266, and therefore, the suit against defendant was

not maintainable. He also contended that plaintiff No.7

had executed an agreement in favour of the defendant on

13.11.2002 agreeing to convey 16 guntas of land in

Sy.No.266. He claimed that he had sunk a borewell in

Sy.No.268/3 belonging to him and was drawing water from

the borewell to the land in Sy.No.266 and that he was in

possession of 1 acre 12 guntas in Sy.No.266.

5. Based on these rival contentions, the Trial

Court framed the following issues :

i. Do the plaintiffs prove that they are the absolute owners and in possession of suit schedule property as stated in the plaint? ii. Do the plaintiffs prove that the defendants are trying to interfere with the plaintiffs peaceful possession?

iii. Whether the plaintiffs are entitled for relief of declaration?

iv. Whether the plaintiffs are entitled for relief of injunction?

v. Whether the plaintiffs are entitled for reliefs claimed?

vi. What order or decree?

6. The plaintiff No.8 was examined as P.W.1 and

documents were marked as Exs.P1 to P21. The plaintiffs

examined P.W2 as their witness. On the other hand, the

defendant was examined as D.W.1 and he marked

documents as Exs.D-1 to D6.

7. Based on the oral and documentary evidence,

the Trial Court held that the revenue records indicated that

Bommaiah, the predecessor of the plaintiff was the owner

of the land bearing Sy.No.266 measuring 4 acres 24

guntas. The Trial Court held that though the defendant

had marked certified copies of the sale deeds at Exs.D2 to

D5, he did not furnish any revenue records to establish

that he was the owner of 1 acre 12 guntas of land in

Sy.No.266. The Trial Court noticed that P.W.1 admitted

that 1 acre 12 guntas in Sy.No.266 was given to the

defendant for cultivation and it was not sold to the

defendant or his father. The Trial Court, therefore, held

that the defendant did not establish his title to the suit

property based on Exs.D-2 to D5, the sale deeds alleged to

have been executed by Bommaiah and the plaintiff No.1 as

well as the husband of plaintiff No.2 and L.Rs. of

Kenchaiah. Thus, the Trial Court decreed the suit for

declaration of title of the plaintiffs and also granted

injunction restraining the defendants from interfering with

the possession of the plaintiffs. It also granted the

alternate relief for recovery of possession of 1 acre 12

guntas of land from the defendant.

8. Being aggrieved by the aforesaid Judgment

and Decree, the defendant filed R.A. No.47/2015.

9. The First Appellate Court secured the records

of the Trial Court, heard the counsel for the parties and

framed the following points for consideration :

i. Whether the plaintiffs have proved that they are the absolute owners in possession of entire suit schedule property?

ii. Whether the plaintiffs have proved that the defendant is trying to interfere with their peaceful possession and enjoyment of suit schedule property?

iii. Whether the plaintiffs are entitled for declaration and permanent injunction and alternative relief of possession?

iv. Whether the learned trial Judge is justified in decreeing the suit of the plaintiffs?

v. What order?

10. The First Appellate Court held that marking of

certified copies of the sale deeds as Exs.D-2 to D-4 was

not objected by the plaintiffs. It also held that the

plaintiffs did not suggest to D.W.1 that Exs.D-2 to D-4

were either fraudulent or concocted for the purpose of the

suit. It noticed the contention of P.W.1 that the defendant

and his father were permitted to cultivate the land and

that the defendant was in possession of the said property.

The First Appellate Court, therefore took these key

admissions and held that the defendant had proved the

lawful execution of the sale deeds at Exs.D-2 to D-4 and

thus allowed the appeal and dismissed the suit.

11. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiffs are before this Court in this

Regular Second Appeal.

12. The learned counsel for the plaintiffs submitted

that the Trial Court committed an error in not framing a

relevant issue regarding the alleged conveyance of 1 acre

12 guntas by plaintiff No.1 and his father as well as

husband of plaintiff No.2 and L.Rs. of Kenchaiah. He

submitted that the defendants also did not furnish the

originals of Exs.D-2 to D-4, and therefore, the Trial Court

and First Appellate Court which were bound to consider the

relevance and admissibility of these documents failed to

consider the admissibility of these documents.

13. The learned counsel for respondent/defendant,

on the other hand, submitted that the case of the plaintiffs

was itself that the defendant was in possession of 1 acre

12 guntas of land which corresponded with the assertion of

the defendant that his father had purchased it from the

predecessor of the plaintiffs. He, therefore, submitted that

the plaintiffs and the defendants were aware of each

other's case and therefore, it was for the plaintiffs to

dispute or deny the execution of the sale deed in favour of

the father of the defendant.

14. The learned counsel pointed out the finding of

the First Appellate Court regarding the validity of Exs.D-2

to D-4 and contends that the First Appellate Court had

considered the evidence in the right perspective and had

held that the plaintiffs had failed to establish that they had

not executed the sale deeds at Exs.D-2 to D4.

15. I have considered the submissions made by

learned counsel for the parties.

16. It is evident from the Judgment and Decree of

the Trial Court that the suit was filed based on the

assertion that the plaintiffs had not alienated 1 acre 12

guntas of land in Sy.No.266 in favour of the defendant or

his father. The defendant had set out in his written

statement contending that this 1 acre 12 guntas of land

was purchased by his father. Therefore, it is clear that the

plaintiff was aware about the case of the defendant and

the defendant also gave the particulars of the sale deeds.

Since the suit was for declaration of title and injunction,

when the defendants set up title unto themselves, the Trial

Court must have ideally framed an issue regarding the

purchase of the suit property by the father of the

defendants. Nonetheless, as rightly contended by the

learned counsel for the plaintiffs, the Trial Court must have

framed an issue regarding the claim of the defendants.

17. Since the plaintiffs have understood the case of

the defendants and have allowed Exs.D-2 to D-4 to be

marked in evidence and had not challenged the legality of

the said documents, the Trial Court and the First Appellate

Court were justified in refusing to grant the relief of

declaration and perpetual injunction.

18. In that view of the matter, no substantial

question of law arises for consideration in this appeal and

hence, the appeal is dismissed.

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

consideration.

Sd/-

JUDGE

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