Channabasamma vs Sannaiah
2023 Latest Caselaw 5619 Kant

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF AUGUST, 2023

                       BEFORE
     THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
 REGULAR SECOND APPEAL NO. 2395 OF 2008 (DEC)


BETWEEN:

1.     CHANNABASAMMA,
       W/O REVAIAHA,
       AGED ABOUT 50 YEARS,

2.     CHANNABASAVAIAH,
       S/O LATE GANAPATHINANAIAH,
       AGED ABOUT 54 YEARS,

BOTH ARE RESIDENTS OF
JYOTHIGOWDANAPURA VILLAGE,
CHANDRAKAVADI HOBLI,
CHAMARAJANAGAR TALUK-571 313.
                                      ...APPELLANTS
(BY SRI. SOMASHEKAR KASHIMATH, ADVOCATE)
AND:

SANNAIAH,
S/O LATE BASAVAIAH,
AGED ABOUT 40 YEARS,
R/AT JYOTHIGOWDANAPURA VILLAGE,
CHANDAKAVADI HOBLI,
CHAMARAJANAGAR TALUK-571 313.
                                      ...RESPONDENT
(RESPONDENT IS SERVED)

     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD:22.10.2008 PASSED IN
R.A.NO.58/08 ON THE FILE OF THE ADDL. DISTRICT AND
SESSIONS JUDGE AND PRESIDING OFFICER, FTC,
CHAMARAJANAGAR, ALLOWING THE APPEAL AND SETTING
                               2




ASIDE THE JUDGEMENT AND DECREE DTD:31.01.2006
PASSED IN OS 53/03 ON THE FILE OF THE ADDL. CIVIL
JUDGE, (JR.DN.) AND JMFC., CHAMARAJANAGAR.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.08.2023, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is filed by the defendants under

Section 100 of CPC challenging judgment and decree

dated 22.10.2008 passed by the Additional District

Judge and Presiding Officer, Fast Track Court,

Chamarajanagar ('First Appellate Court' for short) in

RA No.58/2006 by reversing the judgment and decree

dated 31.01.2006 passed by the Additional Civil Judge

(Jr. Dn.) and JMFC, Chamarajanagar ('trial Court' for

short) in O.S. No.53/2003.

2. For the sake of convenience, the parties

herein are referred as per the original ranks occupied

by them before the trial Court.

3. The brief case of the plaintiff is that, he is

the grand son of Nanjaiah @ Sotha Nanjaiah and

Kempamma and son of Basavaiah. The Basavaiah was

the only son of said Sotha Nanjaiah and Kempamma.

Basavaiah was having four sons and the plaintiff is the

third son of Basavaiah. The suit schedule property

situated in Jyothigowdanpura Villalge, Chandakavadi

Hobli, Chamarajanagar was purchased by the grand

father-Sri. Sotha Nanjaiah in the name of grand

mother of the plaintiffs by name Smt.Kempamma on

07.04.1971 under a registered sale deed and katha is

standing in the name of Sotha Nanjaiah, which is

ancestral property of the plaintiffs. The plaintiffs and

their father were in possession and enjoyment of the

suit schedule property and the defendants are

interfering in their peaceful possession and enjoyment.

Hence the plaintiffs filed a suit for declaration of their

title and injunction against the defendants before the

trial Court.

4. The defendants appeared before the trial

Court and filed written statement denying the status of

the plaintiff as the grand son of Sotha Nanjaiah. It is

asserted that the plaintiff-Sannaiah is the grand son of

one Smt. Mallamma and Sri. Masanapurada Galate

Nanjaiah is the father of Basavaiah. It is asserted that

the Sotha Nanjaiah was married to one Rajamma and

she died issueless and after that Kempamma was the

kept mistress of Sotha Nanjaiah and the plaintiff has

no locus-standi to file suit seeking declaration of their

title and injunction in respect of the suit schedule

property. It is asserted that Basavaiah is not the son

of Kempamma and SothNanjaiah. It is specifically

asserted that, during the life time of Sotha Nanjaiah,

he executed sale deed agreement pertaining the suit

property for Rs.900/- on 08.03.1970 in favour of one

Ganapathi Nanjaiah by delivering possession of the suit

schedule property and under the agreement of sale,

the Gnanapathi Nanjaiah was in possession and

enjoyment of the suit schedule property. It is asserted

that the defendants are protected under Section 53A of

the Transfer of Property Act, as such, the transfer and

possession is in pursuance of contract of sale and their

possession is protected, though the suit for specific

performance is barred by law of limitation. The

defendants denied the other contentions and sought

for dismissal of the suit.

5. On the basis of the pleadings, the trial Court

has framed the following Nine issues:-

i) Whether the plaintiff proves that he is enjoying the suit schedule property on the right of inheritance?

ii) Whether the defendants prove that the suit schedule property is belongs to one Sotha Nanjaiah and they have sold the same to one Chikkananjaiah @ Ganapathi Nanjaiah, on 08.03.1979 as per the sale agreement?

  iii)        Whether the defendants further prove that
              after      the    death      of    Chikkananjaiah        @
              Ganapathi        Nanjaiah,        the   suit    schedule
              property    is    in   possession          of   the   first

defendant along with other members of the family/

iv) Whether the plaintiff further proves that as on the date of suit, the plaintiff is in possession and enjoyment of the suit schedule property?

v) Whether the defendants are entitled to protect their right on the basis of said agreement as per the provisions of Section 53-A of Transfer of Property Act?

vi) Whether the defendants further prove that the sit is barred by principles of constructive resjudicata?

vii) Whether the plaintiff is entitled for the relief of declaration as prayed in the plaint?

viii) Whether the plaintiff is entitled for the relief of permanent injunction as sought for in the plaint?

ix) What relief or order?

6. The plaintiff-Sannaiah was examined as

PW.1 and two more witnesses were examined as PW.3

and PW.4, and PW.2 though initially examined, was

subsequently dropped. The plaintiff places reliance on

Exs.P1 to P6. The Defendant No.1-Channabasamma

was examined as DW.1 and one witness by name Sri.

Puttananjappa was examined as DW.2 and defendants

placed reliance on Exs.D1 & D2.

7. Having heard the arguments and after

appreciating the oral and documentary evidence, the

trial Court has answered Issue Nos. 1 to 3 & 5 in the

affirmative and other issues were answered in the

negative and dismissed the suit of the plaintiff.

8. Being aggrieved by this judgment and

decree of dismissal of the suit, the plaintiff has

approached the learned District Judge,

Chamarajanagar and the matter was transferred to

Additional District Judge and Presiding Officer, FTC,

Chamarajanagar, and registered in RA No.58/2008.

The learned District Judge, after re-appreciating the

oral and documentary evidence, has allowed the

appeal by setting aside the judgment and decree

passed by the trial Court and decreed the suit of the

plaintiff declaring that the plaintiff and his brothers are

the absolute owners of the suit property by virtue of

inheritance and issued injunction against the

defendants. Being aggrieved by this judgment and

decree of divergent view taken by the First Appellate

Court, the defendants are before this Court.

9. Heard the arguments advanced by the

learned counsel for appellants/defendants.

10. The respondent/plaintiff though served is

un-represented.

11. The learned counsel for the

appellants/defendants would contend that, this is the

defendants' appeal and there was an agreement of sale

on 08.03.1990 in favour of one Ganapthai Nanjaiah

and Ganapathi Nanjaiah was in possession of the suit

schedule property till his death. He would contend

that, though the suit properties are purchased by

Sotha Nanjaiah, in pursuance of the agreement of

sale, the defendants are in possession of the suit

schedule property. He would also contend that the suit

filed by the plaintiffs in OS No.163/2001 was dismissed

for non-prosecution and the plaintiffs failed to prove

their status as the Legal Representatives of Sotha

Nanjaiah. He would contend that the trial Court has

appreciated this aspect in proper perspective and

analysed the oral and documentary evidence in

accordance with law. But the First Appellate Court has

erroneously reversed the findings recorded by the trial

Court, which has resulted in miscarriage of justice.

Hence, he sought for allowing the appeal by setting

aside the judgment and decree passed by the First

Appellate Court, by restoring the judgment and decree

passed by the trial Court.

12. This Court while admitting the appeal

19.12.2018, has framed the following substantial

questions of law:

i) Whether the suit in question is maintainable in view of dismissal of OS No.163/2001 filed by the respondent/plaintiff?

ii) Whether the defendants/appellants are entitled for protection under Section 53-A of the Transfer of Property Act?

13. The respondent/plaintiff all along claims

that, he is the grand son of Sotha Nanjaiah and

Kempamma, being the son of Basavaiah. The trial

Court has framed as many as Nine issues and Issue

No.1 reads as under:

"Whether the plaintiff proves that he is enjoying the suit schedule property on the right of inheritance?."

14. The trial Court has answered Issue No.1 in

the affirmative holding that the plaintiff has inherited

the suit schedule property. This finding of the trial

Court is not at all challenged by the defendants. All

along, the defendants have disputed the status of the

plaintiff over the suit schedule properties and also

disputed the relationship of Sotha Nanjaiah with the

plaintiff. But, in the cross-examination, DW.1 admitted

that Kempamma, was the wife of Sotha Nanjaiah and

they had a son by name Basavaiah. By admitting the

suggestions, virtually the defendants have admitted

the status of the plaintiff as the grand son of Sotha

Nanjaiah. The said finding that the suit schedule

property was purchased by Sotha Nanjaiah in the

name of his wife Kempamma, was not challenged by

the defendants. When the property was purchased in

the name of Kempamma, question of Sotha Nanjaiah

entering into agreement with Ganapathi Nanjaiah,the

father of the defendants does not arise at all. The

original sale deed in the name of Smt. Kempamma is

produced at Ex.P1 and the sale deed is dated

07.04.1971 and it is standing in the name of

Smt.Kempamma. Hence, admittedly Smt. Kempamma

was the owner of the suit schedule property. But,

according to defendants, the agreement of sale was

executed by Sotha Nanjaiah on 08.03.1970. But,

interestingly, the Kempamma has purchased the suit

property on 07.04.1971 itself and hence question of

executing agreement of sale on 08.03.1970 does not

arise at all. The defendants have not produced the

original agreement of sale and the copy is marked as

Ex.D1 on the ground that the original is kept in OS

No.163/2001. But, nothing is prevented the

defendants from summoning the original documents

and the defendants have not made any attempts to

produce the original documents and even the said

agreement of sale was not enforced as per the claim

of defendants.

15. DW.2 claims to be the scribe of the sale

deed and hence he is not the attesting witness. Under

such circumstances, the evidence of DW.2 regarding

agreement of sale cannot be accepted. Except the

agreement of sale, no other documents are produced

by the defendants to prove that they are in possession

of the suit schedule property under the agreement of

sale and no documents have been produced by the

defendants to prove that, they had paid the land

revenue of the suit schedule property at any point of

time. On the contrary, the plaintiff produced Ex.P6-

Genealogical Tree, which is not challenged and Ex.P5 is

the land revenue receipts and Exs.P2 to P4 are

Original Assessment Register Extracts, which show that

the Kempamma was the original owner and admittedly

she had a son by name Basavaiah and the plaintiff is

the son of Basavaiah. Hence, the plaintiff inherits the

suit schedule property along with his brothers and

becomes the owner legally and this legal aspect is not

explained in the evidence of the defendants to

substantiate their contention regarding execution of

agreement of sale and taking the possession of the suit

schedule property, and no acceptable evidence is

forthcoming in this regard. Even if the agreement of

sale was held to be executed, defendants cannot

dispute the title of the plaintiff. The conduct of the

defendants discloses that they have gone to the extent

of denying the status of the plaintiff being the grand

son of Sotha Nanjaiah. The oral and documentary

evidence would clearly establish that the plaintiff is the

owner in possession of the suit schedule property along

with his brothers.

16. The trial Court did not appreciate any of

these factual aspects in proper perspective and in a

mechanical way on the basis of the alleged agreement

of sale, decreed the suit in OS No.53/2003. The earlier

suit filed by the plaintiff in OS No.163/2001 was

dismissed for non-prosecution and hence it does not

come in the way of filing declaratory suit. Even if the

agreement of sale is said to have been admitted, the

passive conduct on the part of the defendants and their

father for a long period, without initiation of any

proceedings for specific performance, would clearly

establish that they are not in possession of the suit

schedule property. The First Appellate Court has

appreciated the oral and documentary evidence in

proper perspective and rightly decreed the suit of the

plaintiff by setting aside the judgment and decree

passed by the trial Court. Since the earlier suit was

dismissed non-prosecution only, it has no bearing on

the present suit for declaration and hence, the second

suit for declaration is not barred. No evidence is

placed by the defendants to show that in the earlier

suit, they have disputed the title of the plaintiff by

filing written statement. Further, the defendants have

failed to prove that their possession was protected

under the provisions of Section 53-A of the Transfer of

Property Act. Considering their passiveness for long

period, the First Appellate Court has appreciated this

fact and has rightly rejected the defence of the

defendants.

17. Considering the above facts and

circumstances, the first substantial question of law is

answered in the affirmative and the second substantial

question of law is answered in the negative. As such,

the appeal being devoid of any merits, does not

survive for consideration and needs to be dismissed by

setting aside the judgment and decree passed by the

trial Court. Accordingly, I proceed to pass the

following:

ORDER

The appeal stands dismissed.

No order as to costs.

Sd/-

JUDGE

KGR*