Smt Sunadamma vs Smt Munivenkatamma
2022 Latest Caselaw 12599 Kant

                             1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 27TH DAY OF OCTOBER, 2022

                           BEFORE

              THE HON'BLE MRS. JUSTICE M G UMA

      REGULAR SECOND APPEAL NO. 1059 OF 2014 (PAR)

BETWEEN:

SMT. SUNADAMMA
D/O. LATE. MUNIVENKATAPPA
W/O S.SRINVASA
AGED ABOUT 44 YEARS
RESIDING AT 132
YELLAMMA TEMPLE ROAD
C.V.RAMANNAGAR POST
BANGALORE - 560 093
                                                 ... APPELLANT

(BY SRI: LOURDU MARIYAPPA .A., ADVOCATE)

AND:

1.   SMT. MUNIVENKATAMMA
     W/O LATE. MUNVENKATAPPA
     AGED ABOUT 78 YEARS
     R/AT-NO-332, 8TH CROSS-8TH MAIN
     ATTUR LAYOUT, YELAHANKA
     BANGALORE - 560 064.

2.   SMT. AKKAYAMMA
     W/O. LATE. MUNIYAPPA
     AGED ABOUT 58 YEARS
     R/AT-NO-333
     8TH CROSS-8TH MAIN
     ATTUR LAYOUT, YELAHANKA
     BANGALORE - 560 064

3.   SMT. YELLAMMA
     W/O NARAYANNAPPA
     AGED ABOUT 52 YEARS
     HONNENAHALLI
     CHIKKANAYAKNAHALLI POST
                              2


     DODDABALLAPURA MAIN ROAD
     BANGALORE RURAL DISTRICT.

4.   SRI. RAJANNA
     S/O MUNVENKATAPPA
     AGED ABOUT 51 YEARS
     NO-332, 8TH CROSS-8TH MAIN
     ATTUR LAYOUT, YELAHANKA
     BANGALORE - 560 064

5.   SMT. GOWRAMMA
     W/O MUNIYELLAPPA
     AGED ABOUT 46 YEARS
     NO-333-8TH CROSS-8TH MAIN
     ATTUR LAYOUT, YELAHANKA
     BANGALORE - 560 064.

6.   SMT. MUNIYAMMA
     D/O BOMMAIAH, MAJOR
     R/AT MYLAPPANAHALLI VILLAGE
     HESRAGHATT HOBLI
     BANGALORE NORTH TALUK - 560 088.

7.   SRI. M. MANJUNATHA
     S/O MUNIVENKATAPPA
     AGED ABOUT 38 YEARS
     N.G. HULLAHALLI VILLAGE
     DODDAGUBBI POST
     BIDARHALLI HOBLI
     BANGALORE EAST TALUK - 560 064.

                                        ... RESPONDENTS

(BY MR: R. RAMESH, ADVOCATE FOR R1 TO R5
    MR: SUPREETH .S., ADVOCATE FOR R6 & R7)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 19.03.2014 PASSED IN
R.A.NO.151/2013 ON THE FILE OF THE II ADDL. SESSIONS AND
SPECIAL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 06.04.2013 PASSED IN O.S.NO.2103/2008 ON THE
FILE OF II ADDL. SENIOR CIVIL JUDGE, BANGALORE RURAL
DISTRICT, BANGALORE.
                                   3


     THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.09.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Even though the matter is listed for admission, with the

consent of learned counsel for both the parties, the matter is

taken up for final disposal.

2. The appellant - plaintiff has preferred this appeal

being aggrieved by the judgment and decree dated

06.04.2013 passed in OS No.2103 of 2008 on the file of the

learned II Additional Senior Civil Judge, Bengaluru Rural

district (hereinafter referred to as 'the Trial Court' for brevity),

wherein, the suit of the plaintiff for partition and separate

possession of item No.3 of the suit property came to be

dismissed, which was confirmed vide judgment dated

19.03.2014 passed in RA No.151 of 2013 on the file of

learned II Additional District and Sessions Judge, Bengaluru

Rural District (hereinafter referred to as 'the First Appellate

Court' for brevity) by dismissing the appeal preferred by the

plaintiff.

3. For the sake of convenience, parties are referred

to as per their status and rank before the Trial Court.

4. Brief facts of the case are that, the plaintiff has

filed suit in OS No.2103 of 2008 before the Trial Court against

defendant Nos.1 to 9 seeking partition and separate

possession of her 1/5th share in suit schedule item Nos.1 to

3 by metes and bounds. It is contended by the plaintiff that

she is the daughter of late Munivenkatappa and

Munivenkatamma. Defendant No.1 is her mother. Defendant

Nos.2 and 3 are her elder sisters and defendant No.4 is her

elder brother. Munivenkatappa died intestate in the year

1970. He was also called as Papanna. He had two brothers

by name Yankappa and Yarappa.

5. It is contended that Munivenkatappa was owning

the schedule properties out of which, 38 guntas of land in

Sy.No.34 was purchased by defendant No.1 - the mother of

the plaintiff from one Bommaiah under the registered sale

deed dated 04.02.1963. Other two items of the properties

belongs to the grand father of the plaintiff. Therefore, the

plaintiff and defendant Nos.1 to 4 are entitled for share over

the suit properties. It is contended that defendant No.6

obtained general Power of Attorney from defendant Nos.1 and

4 and sold item No.1 in favour of his wife who is defendant

No.7, under a registered sale deed dated 17.08.2006.

Yarrappa, the elder brother of defendant No.6 divided the

properties between the sharers on 12.11.2003. A partition

deed was executed in that regard. The plaintiff contended

that the Power of Attorney executed in favour of defendant

No.6 is not binding on her. Since the suit properties are the

ancestral properties of her father who died intestate, she is

entitled for the share in the same.

6. It is contended that defendant No.6 took

advantage of the Power of Attorney deed executed in her

favour and alienated the property in favour of his wife

defendant No.7 without any right. Similarly, defendant No.8

who was never concerned to the family got changed the khata

in respect of Sy.No.75/7 measuring 25 guntas. He is said to

have obtained general Power of Attorney deed on 26.04.1984

in respect of item No.3 of the plaint schedule. Without there

being any legal necessity, defendant No.8 executed the

registered sale deed dated 22.07.2004 in favour of defendant

No.9 and therefore, the said deed is also not binding on the

plaintiff.

7. It is further contended that the schedule

properties are the ancestral properties of the plaintiff's father

and the sale deed in favour of defendant No.6 and 7 and

defendant Nos.8 and 9 in respect of suit item Nos.1 to 3 are

not binding on the plaintiff and she is entitled for 1/5th share

in the same. Therefore, she filed the suit for partition and

separate possession of her 1/5th share in the suit properties.

8. On service of notice, defendant No.6 filed the

written statement denying the contentions of the plaintiff and

contended that the suit is not maintainable. The relationship

between the parties are admitted. The contention of the

plaintiff that the Power of Attorney deed executed in favour of

defendant No.6 and the sale deed executed in favour of

defendant No.7 are not binding on the plaintiff is denied. It is

submitted that the suit is not properly valued as defendant

Nos.7, 8 and 9 are in possession of the suit properties. It is

contended that Papanna had two brothers namely Yankatappa

and Yarappa. Yarappa is the father of defendant No.6. The

brothers have orally partitioned the suit schedule properties

and they were in exclusive possession and enjoyment of the

same. Item Nos.2 and 3 are allotted to the share of Papanna

along with other properties. After the death of Papanna,

Munivenkatappa had succeeded to the suit properties, who

died 30 years ago. After the death of Munivenkatappa, since

plaintiff and defendant Nos.1 to 5 were in deep trouble, they

decided to dispose of the properties and to leave the village.

They decided to sell suit item No.1 i.e., 6 guntas for a

valuable consideration of Rs.3,900/- in favour of defendant

No.6 and accordingly, defendant Nos.1 to 4 executed

agreement for sale in favour of defendant No.6 by receiving

the sale consideration. Similarly, they offered to sell suit item

Nos.2 and 3 of the suit properties and entered into various

agreement for sale after accepting consideration amount.

Since defendant No.6 was in peaceful possession and

enjoyment of 38 guntas of land in Sy.No.34 and in view of

the fact that three different agreements for sale were entered

into in respect of item Nos.1 and 2, which were hit by the

provisions of Fragmentation Act, the properties could not be

sold in favour of defendant No.6. In the meantime, defendant

Nos.1 to 4 approached defendant No.6 and requested for

balance sale consideration. They started demanding excess

amount and accordingly, they entered into an agreement for

sale by accepting the additional amount. After accepting the

entire sale consideration amount, defendant Nos.1 to 4

executed the general Power of Attorney deed confirming

delivery of possession and acknowledging the receipt of sale

consideration. It is thereafter defendant No.6 sold suit item

Nos.1 and 2 in favour of defendant No.7 along with other

items of the properties. Therefore, defendant No.7 came in

possession of the property under the registered sale deed and

the plaintiff and defendant Nos.1 to 4 are not having any

right, title or interest over the suit properties. Accordingly, he

prays for dismissal of the suit.

9. Defendant No.9 filed the written statement

admitting the relationship between the parties as contended

by the plaintiff and also stated that he is in no way concerned

to item Nos.1 and 2 of the suit properties. The allegation that

defendant No.8 obtained the Power of Attorney deed is

admitted, but it was contended that it was from defendant

Nos.1 to 3. It is contended that the plaintiff is in no way

concerned to item No.3 of the suit properties. It is also stated

that defendant No.8 sold item No.3 in favour of defendant

No.9 and therefore, it is defendant No.9 who is in possession

and enjoyment of item No.3 of the suit properties under the

registered sale deed dated 20.07.2004. Since the plaintiff is

not having any right, title or interest over the properties,

defendant No.9 prays for dismissal of the suit with cost.

10. It is stated that during pendancy of the suit,

plaintiff, defendant Nos.1 to 4 sold item Nos.1 and 2 in favour

of defendant No.6 by compromising the dispute. Therefore,

the name of defendant Nos.6 and 7 got deleted. In respect of

other items of the properties, the suit was contested.

11. On the basis of these pleadings, the Trial Court

framed the following issues and additional issues:

1. Whether the plaintiff proves that the suit property is the joint family property?

2. Whether the plaintiff proves that the court fee paid on the plaint is sufficient?

3. Whether the defendant No.6 proves that he is a bonafide purchaser under the GPA executed by defendants 1 to 4?

4. Whether the defendant No.6 proves that there is no cause of action to the suit?

5. Whether the plaintiff is entitle to partition?

6. What order or decree?

Additional Issues:

1. Whether the defendant No.9 proves that the suit is barred by limitation?

2. Whether the defendant No.9 proves that the suit is for partial partition and hence not maintainable?

3. Whether the Court fee paid on the plaint is sufficient?

12. Plaintiff examined herself as PW1, examined one

witness as PW2 and got marked Exs.P1 to 14 in support of her

contention. Defendants have neither examined any witness

nor got marked any documents. The Trial Court after

considering all these materials on record answered issue

Nos.1 and additional issue No.2 in Negative and additional

issue No.1 in Affirmative and held that the suit of the plaintiff

is barred by limitation and she is not entitled for any relief.

Accordingly, the suit was dismissed.

13. Being aggrieved by the same, the plaintiff

preferred RA No.151 of 2013 before the First Appellate Court

and the same came to be dismissed vide judgment dated

19.03.2014. As the First Appellate Court concurred with the

finding recorded by the Trial Court, now the plaintiff is before

this court seeking to decree the suit as prayed for.

14. Heard Sri A Lourdu Mariyappa, learned counsel for

the appellant, Sri Sri R Ramesh, learned counsel for

respondent Nos.1 to 5 and Sri S Supreeth, learned counsel for

respondent Nos.6 and 7. Perused the materials including the

Trial Court records.

15. Learned counsel for the appellant submits that on

the basis of similar contentions, the suit in respect of item

Nos.1 and 2 came to be compromised with defendant Nos.6

and 7. Accordingly, defendant Nos.6 and 7 were ordered to

be deleted. It is only defendant No.9 who contested the

matter. The general Power of Attorney dated 26.04.1984

executed in favour of defendant No.8 was misused by

defendant No.8 and he sold item No.3 in favour of defendant

No.9 under sale deed 22.07.2004. The suit properties are the

self acquired properties of the father of the plaintiff and after

his death, the plaintiff succeeded to 1/5th share over the suit

properties. The Trial Court as well as the First Appellate Court

has not properly appreciated the contention taken by the

plaintiff. When the sale deed executed by defendant No.8 in

favour of defendant No.9 is not binding on the plaintiff, the

suit could not have been dismissed as barred by limitation.

The general Power of Attorney deed dated 26.04.1984 is a

disputed document and the sale deed executed on its basis is

definitely not binding on the plaintiff.

16. Learned counsel for the appellant submitted that

he has filed two applications i.e., IA.1 of 2022 under order XLI

Rule 27 for producing additional documents and IA.2 of 2022

under Order VI Rule 17 seeking amendment of the plaint for

proper appreciation of the contention taken by the plaintiff

and also for final disposal of the matter. Amending the plaint

and production of additional documents is very much

necessary. Accordingly, he prays for allowing both the

applications and consequently to allow the appeal, in the

interest of justice.

17. Per contra, learned counsel for the respondents

opposing the appeal and the applications contended that

initially the plaintiff contended that the suit properties are the

ancestral properties of her father. Therefore, issue No.1 came

to be framed. Now the plaintiff contends that the properties

are the self acquired properties of her father. No documents

whatsoever were produced before the Trial Court to

substantiate the contention of the plaintiff. The documents

now produced under Order XLI Rule 27 of CPC cannot be

admitted in evidence as no grounds as set out under Rule 27

is made out. He also submitted that similar allegations were

made against defendant Nos.6 and 7 in respect of item Nos.1

and 2 of the suit properties and the plaintiff managed to settle

the dispute after accepting huge sums of money. The same

tactics is adopted against defendant Nos.8 and 9 and it is only

with an intention to extract money. The First Appellate Court

has recorded a categorical findings in this regard. The

conduct of the plaintiff in approaching the Court with false

allegations and not producing any material in support of her

contention disentitles her for any relief. Now the plaintiff

wants to amend the plaint to have new cause of action and to

fill up the lacuna by producing additional documents. There is

absolutely no reason as to why there are no proper pleadings

and no proof about the contention taken by the plaintiff.

Therefore, he prays for dismissal of both the applications and

the appeal as devoid of merits.

18. I have considered the submissions made by the

learned counsel for both the parties.

19. It is the specific contention of the plaintiff before

the Trial Court that the suit properties were inherited by her

through her father and defendant No.8 managed to get the

Power of Attorney deed dated 26.04.1984 under which item

No.3 was sold in favour of defendant No.9 under the

registered sale deed dated 22.07.2004. The suit came to be

filed on 17.12.2008. It is not as if the plaintiff was not aware

about execution of Power of Attorney deed or the sale deed in

question. In spite of that, the suit came to be filed after the

period of limitation that too only for partition and separate

possession of her share over the properties. No relief's were

sought in respect of the general Power of Attorney deed or

the registered sale deed.

20. It is interesting to note that even the said general

Power of Attorney deed or sale deed were not produced

before the Trial Court. Now applications are filed under Order

XLI Rule 27 of CPC seeking production of sale deed dated

16.06.1975 said to be the sale deed under which item No.3

was purchased by the father of the plaintiff and to contend

that item No.3 of the suit property is the self acquired

property of her father. On going through this document, the

description of the schedule which is the subject matter of the

sale deed is mentioned as Sy.No.51/1, whereas item No.3 of

the plaint schedule is Sy.No.75/7. There is no explanation as

to why and how the additional documents are relevant to

decide the case. The second document produced as

additional evidence is the sale deed dated 22.07.2004

executed by defendant No.8 in favour of defendant No.9.

There is reference to this sale deed in the plaint, but the

plaintiff has not chosen to produce this document before the

Trial Court for the reasons best known to her. The third

document is the encumbrance certificate in respect of item

No.3. All these documents are only Xerox copies and not the

certified copies. Moreover, Order XLI Rule 27 of CPC bars

production of additional evidence in the appeal unless specific

ground as mentioned under Rule 27 of CPC is made out. No

such grounds are made out by the plaintiff to consider the

applications filed by her. Moreover, even if the application is

to be allowed and the documents are taken on record, no

purpose would be served and it will not strengthen the case of

the plaintiff in any manner.

21. IA.2 of 2022 is filed by the plaintiff seeking to

amend the plaint by inserting additional para to contend that

sale deed dated 22.07.2004 executed by defendant No.8 in

favour of defendant No.9 is illegal and no title is passed on to

defendant No.9. The plaintiff also intends to contend that the

general Power of Attorney dated 26.04.1984 is a concocted

and fabricated one. It is pertinent to note that there is

reference to this general Power of Attorney dated 26.04.1984

in the plaint. But there is no allegation that the same was

concocted and fabricated by defendant No.8. On the other

hand, it is only stated that defendant No.8 obtained the

general Power of Attorney deed in respect of suit item No.3.

Therefore, it is only an after thought for the plaintiff to seek

amendment of the plaint after lapse of 14 long years to take

an inconsistent plea. Therefore, I am of the opinion that

IAs.1 and 2 of 2022 filed by the plaintiff deserve to be

dismissed. Accordingly, they are dismissed.

22. Even though it is contended that defendant No.8

had no right, title or interest to execute the sale deed in

favour of defendant No.9, neither the general Power of

Attorney deed nor the sale deed were produced before the

Court. The contention of the learned counsel that the copy of

general Power of Attorney deed dated 26.04.1984 was

produced along with the plaint and it is part of record, will not

improve the case of the plaintiff as she has not chosen to

admit the documents in accordance with law. The Trial Court

as well as the First Appellate Court have recorded the

categorical finding and arrived at a conclusion that the

plaintiff is not entitled for any relief in respect of item No.3 of

the suit property. When the plaintiff specifically admits that

the relevant documents were not placed before the Trial Court

in support of her contention, the findings recorded by both the

Courts cannot be termed as perverse or against the materials

on record.

23. When this Court exercises the jurisdiction under

Section 100 of CPC, against the concurrent findings of facts by

the Trial Court as well as First Appellate Court, it can do so

only when the findings recorded by Courts are perverse or

against the materials that are placed before the Court or if

such findings are against the settled proposition of law. The

appellant has failed to prove that such findings recorded by

the Trial Court as well as First Appellate Court are perverse or

against the settled proposition of law or atleast it is against

the materials that are placed before the Court. Under such

circumstances, I do not find any reason to interfere with the

well reasoned judgment of the Trial Court as well as First

Appellate Court. I do not find any substantial question of law

to be considered in the present case. Hence, no grounds are

made out to admit the appeal.

24. Hence, I proceed to pass the following:

ORDER

The appeal is dismissed with costs.

The judgment and decree dated 06.04.2013 passed in

OS No.2103 of 2008 on the file of the learned II Additional

Senior Civil Judge, Bengaluru Rural district, which was

confirmed vide judgment dated 19.03.2014 passed in RA

No.151 of 2013 on the file of learned II Additional District and

Sessions Judge, Bengaluru Rural District, are hereby

confirmed.

Registry to send back the Trial Court records along with

the copy of the judgment.

Sd/-

JUDGE

*bgn/-