Karnataka High Court
Smt Parvathi vs Srinivasamurthy on 30 August, 2023
Bench: Ashok S.Kinagi
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RSA No. 1344 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1344 OF 2007
(DEC/INJ)
BETWEEN:
1. SMT PARVATHI
W/O LATE GANESH RAO
AGED ABOUT 80 YEARS
R/AT HEGGAR VILLAGE
KOPPA TQ - 583 237
APPELLANT No.1 DIED ON 10.01.2018
HER LR'S ARE APPELLANT Nos. 2, 3 AND
APPELLANT Nos. 5 TO 11
2. K G RAMANANDA
S/O LATE GANESH RAO
AGED ABOUT 61 YEARS
Digitally RETD. JTO, SRINGERI - 577 139
signed by R
DEEPA
Location: 3. K G PALACHANDRA
High Court of S/O LATE GANESH RAO
Karnataka AGED 57 YEARS
KOTAR, MANGALORE - 576 221
4. K G KRISHNAMURTHY
SINCE DECEASED BY HIS LR
4(A) SMT. SUSHMA
W/O K.G. KRISHNAMURTHY
MAJOR
KILAGERE, HEGGAR VILLAGE
KOPPA TALUK - 583 237
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RSA No. 1344 of 2007
5. GUNASAGARI
W/O GOPALAKRISHNA
AGED ABOUT 59 YEARS
GADDEMANE
KEREKOPA VILLAGE
SRINGERI TQ - 577 139
6. ANURADHA
W/O S N BALASUBRAMANYA
AGED ABOUT 55 YEARS
C/O SURENDRA PRASAD
CANTEEN, UPPINANGADI
PUTTUR TQ - 574 201
7. SEETHALAKSHMI
D/O LATE K GANESH RAO
AGED ABOUT 53 YEARS
KILAGERE, HEGGAR VILLAGE
KOPPA TQ - 583 237
8. G KAMALAKSHI
W/O S BHANUCHANDRA
AGED ABOUT 50 YEARS
D.NO.372, T.K.LAYOUT
KUVEMPUNAGAR
MYSORE - 570 001
9. G ARYAMBA
W/O RAGHAVENDRA UPADHAYA
AGED ABOUT 48 YEARS
R/AT VADADA KODIGE
THIRTHAHALLI TQ - 577 432
10. PREMA
W/O VIJAYASHANKAR
AGED ABOUT 39 YEARS
UDDINAMAKKI KARAGADDE
POST: KALASA
MUDIGERE TQ - 577 132
11. BHAGYA
D/O LATE K GANESH RAO
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RSA No. 1344 of 2007
AGED ABOUT 35 YEARS
KILAGERE, HEGGAR VILLAGE
KOPPA TQ - 583 237S
...APPELLANTS
(BY SRI. VASANTH KUMAR K.M., ADVOCATE)
AND:
1. SRINIVASAMURTHY
S/O NAGABHUSHANA RAO
AGED ABOUT 45 YEARS
R/AT KILAGEE
HEGGAR VILLAGE
KOPPA TQ - 583 237
2. SHASHIREKHA
W/O RAMESHA
AGED ABOUT 48 YEARS, HALEBEEDI
SAKALESHPURA
HASSAN DIST - 583 215
3. SHESHAMMA
W/O NAGABHUSHANA RAO
AGED ABOUT 70 YEARS
R/AT KILAGERE
HEGGAR VILLAGE
KOPPA TQ - 583 237
RESPONDENT No.3 DIED
HIS LR'S ARE R1 AND R2
...RESPONDENTS
(BY SRI. GIRISH KODGI, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 28.2.2007 PASSED IN R.A.NO.
373/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-II, CHIKKAMAGALUR, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED
28.6.2003 PASSED IN OS.NO.169/1991 ON THE FILE OF
THE CIVIL JUDGE (JR.DN.), KOPPA.
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RSA No. 1344 of 2007
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants challenging the
judgment and decree dated 28.02.2007 passed in
R.A.No.373/2006 on the file of Fast Track Court-II,
Chikkamagalur.
2. The parties are referred to as per their ranking
before the trial Court. The appellants are the legal
representatives of the deceased plaintiff and the
respondents are legal representatives of the defendant.
3. Brief facts leading rise to filing of this appeal are
as under:
The plaintiff filed a suit for declaration of title and
permanent injunction. It is the case of the plaintiff that the
defendant is the younger brother of the plaintiff and they
have two other living brothers who are Sheshagiriyappa
and Ramakrishna Rao. Their eldest brother Seetharamaiah
died in about the year 1952 and is survived by his wife
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and two daughters. The land bearing Sy.No.17 measuring
5 acres of Heggar Village was granted in favour of the
plaintiff by the Government under darkhast scheme for
coffee cultivation initially for a period of five years under
saguvali chit dated 24.01.1962. The plaintiff invested a
huge amount for developing the suit schedule land under
cultivation. After due verification regarding cultivation of
the schedule land, the Deputy Commissioner of
Chickmagalur District issued a registration certificate dated
21.04.1973 in favour of the plaintiff. Later on permanent
grant certificate dated 30.04.1982 was issued in favour of
the plaintiff by the Tahsildar in compliance with the order
of the Deputy Commissioner dated 22.04.1982. The
plaintiff has remitted Rs.1,086.72 to the treasury. The
plaintiff became the absolute owner and in possession of
the suit schedule property by virtue of permanent grant
certificate and it is his self acquisition cultivation and none
of his brothers including the defendant had contributed for
the acquisition and cultivation of the schedule land. The
suit schedule property was the self acquired property of
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the plaintiff. The defendant filed a petition before the
Tahsildar to change the records in respect of suit schedule
land in his name contending that he has got half share in
the suit schedule property. The Tahsildar has passed an
order to record the name of the defendant along with the
plaintiff in the revenue records. The said order was
confirmed by the Assistant Commissioner and the Deputy
Commissioner. The wife and daughters of the plaintiff
deceased brother filed a suit in O.S.No.155/1980 for relief
of partition and separate possession against the present
plaintiff and the defendant and other two brothers. The
said suit was ended in compromise by virtue of
compromise petition dated 13.09.1992 in respect of joint
family property, but in the said suit, the suit schedule
property was not included and the defendant on the
strength of the illegal order passed by the revenue
authority is interfering into the peaceful possession and
enjoyment of the suit schedule property. The plaintiff
requested the defendant not to interfere. The defendant
did not given any heed to the request made by the
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plaintiff. Hence, cause of action arose for the plaintiff to
file a suit for declaration and permanent injunction.
4. The defendant filed written statement denying
the averments made in the plaint. It is denied that the
suit schedule property was exclusively granted in favour of
the plaintiff. It is contended that the said land was
granted for the benefit of the joint family and not for the
plaintiff alone. It is denied that the plaintiff is the absolute
owner of the suit schedule property. He submits that that
the defendant filed the petition before the Tahsildar to
record his name along with plaintiff. The Tahsildar has
passed an order in favour of the defendant and the order
of Tahsildar was confirmed by the Assistant Commissioner
and by the Deputy Commissioner. It is admitted that the
wife, son and daughters of plaintiff's deceased brother
filed a suit in O.S.No.155/1980. It is denied that the suit
schedule land was not included in the joint family which
was not considered by all brothers including the defendant
that the suit schedule land was the self-acquired property
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of the plaintiff. It is contended that the partition was
effected between the brothers in the year 1964. In the
said partition, it was agreed that the suit schedule
property be partitioned between the defendant and the
plaintiff equally. The plaintiff got half share in the suit
schedule property. The family arrangement between the
plaintiff and the defendant was reduced into writing on
11.04.1964 in the presence of panchas. Since from the
date of partition, the defendant is enjoying his respective
share without any hindrance. It is contended that the suit
land was originally granted in favour of the plaintiff as he
is the elder brother and active member of the joint family
of both the plaintiff and the defendant. The suit land was
under the cultivation and supervision of all the brothers
along with the joint family property. At the time of
effecting partition amongst the brothers, the suit land was
not permanently granted to the defendant nor in the name
of the plaintiff. It was subject for confirmation from the
competent authority. The suit land has fallen to the share
of the plaintiff and defendant with an understanding that
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the legal status must be in the name of the plaintiff, so as
to get the remaining grant easily, without any hindrance to
the revenue proceedings, but with actual share with the
possession and enjoyment of the plaintiff and defendant.
The saguvalli chit was issued in the name of the plaintiff
for records sake. Defendant has also contributed equally
for the payment of upset price of the suit land. After
smelling of backbiting activities of the plaintiff, the
defendant requested the revenue authorities to maintain
the khatha of the suit land in the joint names of plaintiff
and defendant. The suit land was not permanently
granted till 1982. At the instigation of the plaintiff, the
wife and daughters of eldest brother of the parties to the
suit, filed a suit in O.S.No.155/1980 on the file of the
Munsiff Court, N.R.Pura. The instant suit property was not
subject-matter of the said suit and it was not known to all
the brothers of the said suit that the suit schedule
property is already partitioned between the plaintiff and
defendant in the year 1964. Hence for the said reason,
the said suit land was not included in the suit in
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O.S.No.155/1980. It is contended that the plaintiff is not
in possession of the western portion of the suit land to an
extent of 2 acres 20 guntas and the suit filed by the
plaintiff is not maintainable and prayed to dismiss the suit.
5. LR of defendant No.1(c) filed written statement
stating that the written statement filed by the defendant
be treated as part and parcel of her written statement and
prayed to dismiss the suit.
6. Defendant No.1(a)&(b) filed a memo adopting the
written statement filed by defendant No.1(c).
7. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1) Whether the plaintiff proves that he is the
absolute owner in possession and enjoyment
of the suit land?
2) Whether the defendant proves that he was
allotted 2.20 acres out of suit land on the
western side under the partition dated
11.04.1964, and he was put in possession of
the said share as alleged in para 9 of his
written statement?
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3) Whether the suit is barred by Law of
Limitation as contended in para 12 of the
written statement?
4) Whether the plaintiff is entitled for the relief
sought?
5) What decree or order?
8. In order to prove the case of the plaintiff, plaintiff
examined himself as PW-1 and got marked 19 documents
as Exs.P1 to P19. Defendant No.1(c) was examined as
DW-1 and one witness was examined as DW-2 and got
marked 6 documents as Exs.D1 to D6. The trial Court
after considering the oral and documentary evidence of
the parties, answered issue Nos.1 and 4 in the affirmative,
issue Nos.2 and 3 in negative and consequently decreed
the suit of the plaintiff. It is ordered and declared that the
plaintiff is the absolute owner in possession of the suit
schedule property and granted a decree for permanent
injunction restraining the defendant, their agents from
trespassing or interfering over the suit land of the plaintiff.
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9. The legal representatives of the defendant
aggrieved by the judgment and decree passed in the
above said suit, filed an appeal in R.A.No.373/2006. The
First Appellate Court, after hearing the parties, has framed
the following point for consideration:
"Whether the impugned judgment is
unsustainable in law?"
10. The First Appellate Court, after re-appreciating
the oral and documentary evidence, answered the said
point in affirmative and allowed the appeal vide judgment
dated 28.02.2007 and consequently dismissed the suit of
the plaintiff.
11. The legal representatives of the plaintiff,
aggrieved by the judgment and decree passed by the First
Appellate Court, has filed this second appeal.
12. This court admitted the appeal on the following
substantial question of law :
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"Whether the judgment and decree of the
First Appellate Court is perverse in misleading
and misapplication of Ex.D3 ?"
13. Heard learned counsel for the parties.
14. Learned counsel for the plaintiff submits that the
Land Tribunal granted the suit land in favour of the
plaintiff and not for the welfare of the family. The suit
schedule property is the self-acquired property of the
plaintiff and the defendant has no right, title or interest in
the suit schedule property. He further submits that the
family members of the plaintiff and defendant filed a suit
in O.S.No.155/1980. He submits that the suit schedule
property of the instant suit was not the subject-matter of
O.S.No.155/1980. He submits that the plaintiff has denied
the execution of Ex.D3 and submits that the defendant has
failed to prove the execution of Ex.D3. He submits that
the First Appellate Court placing reliance on Ex.D3 has
recorded a finding that there was a partition between the
plaintiff and defendant on 11.04.1964, He submits that
mere marking of document does not prove its contents.
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He submits that the defendant has not examined any
witnesses who were alleged to have been present at the
time of alleged partition dated 11.04.1964. Hence he
submits that impugned judgment passed by the First
Appellate Court is arbitrary and erroneous. Hence on
these grounds he prays to allow the appeal.
15. Per contra, learned counsel for the defendant
submits that though the land was granted in the name of
the plaintiff temporarily on 24.01.1962 and saguvalli chit
was issued on 30.04.1982, he submits that as on the date
of partition, the said land was not available to the family of
plaintiff and defendant. Hence plaintiff and defendant
partitioned the said land on 11.04.1964. The said land
was divided equally between the plaintiff and defendant on
11.04.1964. When the Land Tribunal granted occupancy
rights on 30.04.1982, the defendant submitted an
application to enter the name of the defendant along with
the plaintiff. He submits that the Tahsildar has passed an
order to enter the name of the defendant along with that
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of the plaintiff. He submits that the order of the Tahsildar
was upheld by the Deputy Commissioner. Hence he
submits that the suit schedule property was the joint
family property of plaintiff and defendant. He submits that
Ex.D3 was executed on 11.04.1964. A presumption has to
be drawn under Section 90 of the Evidence Act, 1872.
Hence he submits that the First Appellate Court was
justified in passing the impugned judgment and on these
grounds he prays to dismiss the appeal.
16. Perused the records and considered the
submissions of learned counsel for the parties.
17. It is the case of the plaintiff that the suit land
was granted in favour of the plaintiff by virtue of grant
order dated 30.04.1982. On the strength of the grant
order, the name of the plaintiff was entered in the revenue
records. The family members of the plaintiff filed a suit in
O.S.No.155/1980 excluding the suit schedule property.
The plaintiff and defendant were parties in the said suit in
O.S.No.155/1980. The said suit ended in compromise.
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After the disposal of O.S.No.155/1980, the defendant
submitted an application to the Tahsildar to enter the
name of the defendant along with the plaintiff in the
revenue records in respect of the suit schedule property.
The plaintiff filed objection to the said application. The
Tahsildar after holding an enquiry, passed an order in
favour of the defendant and it is ordered to enter the
name of the defendant along with the plaintiff in the
revenue records. The plaintiff aggrieved by the order
passed by the Tahsildar, filed an appeal before the
Assistant Commissioner. The Assistant Commissioner
dismissed the appeal and the plaintiff filed a revision
petition before the Deputy Commissioner. The Deputy
Commissioner dismissed the revision petition. Hence the
plaintiff filed this instant suit for declaration of title and
injunction.
18. The plaintiff in order to prove his case, examined
himself as PW-1 and produced Ex.P1 temporary saguvalli
chit issued on 24.01.1962, Ex.P2 is the permanent
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saguvalli chit issued on 30.04.1982 in the name of the
plaintiff. Ex.P3 is the registration certificate. Ex.P4 to P7
are the RTC extracts in respect of the suit land which
stands in the name of the plaintiff. Ex.P8 is the sketch of
the suit schedule property. Ex.P9 is the PT sheet. Ex.P10
to P12 are the notices. Ex.P13 is the certified copy of the
plaint in O.S.No.155/1980 wherein Lalitha and others have
filed suit against the plaintiff and defendant for partition
and separate possession in respect of other properties
excluding the suit schedule property. Ex.P14 is the
certified copy of the compromise petition filed by the
parties in O.S.No.155/1980. Ex.P15 is the compromise
decree passed in O.S.No.155/1980. Ex.P16 to P19 are the
tax paid receipts.
19. In the cross-examination, it is suggested to PW-
1 that there was partition on 11.04.1964 and the suit
schedule property was divided equally between the
plaintiff and defendant. The said suggestion was denied
by PW-1 and PW-1 denied the execution of Ex.D3.
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20. In rebuttal, one of the legal representatives of
the defendant was examined as DW-1. She has reiterated
the written statement averments in the examination-in-
chief. Defendant have produced documents at Ex.D1 and
D2 which are the receipts for payment of assessment.
Ex.D3 is the certified copy of the Tahanama. Ex.D4 is the
tax paid receipt. Ex.D5 is the copy of the order dated
04.05.1985 passed by the Assistant Commissioner,
Chikmagalur. Ex.D6 is the copy of order dated
02.12.1985 passed by the Deputy Commissioner,
Chikmagalur, in the revision petition filed by the plaintiff.
She admits in the course of cross-examination that the
suit property was not the subject-matter of the suit in
O.S.No.155/1980 and also admits that she has given an
application to enter the name of the defendant on the
basis of Ex.D3.
21. The defendant also examined one witness as
DW-2 in order to prove the partition on 11.04.1964,
between the plaintiff and defendant. In the course of
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cross-examination, he has deposed that he is unable to
say what are the properties which were partitioned
between the plaintiff and defendant and extent of the
properties allotted to the plaintiff and defendant.
22. From the perusal of the evidence of the parties,
it is admitted that the suit schedule property was granted
in favour of the plaintiff by the Land Tribunal on
30.04.1982. The defendant has taken a defence that
there was partition between the plaintiff and defendant on
11.04.1964 and produced Ex.D3. Though the plaintiff has
denied the execution of Ex.D3, the defendant has not
examined any independent witnesses who were present at
the time of alleged partition. Further, though the alleged
document was executed on 11.04.1964, the parties have
not acted upon the said document. On the basis of Ex.D3,
the defendant has not submitted any application before
the revenue authorities to enter the name of the
defendant. Only after the disposal of the suit in
O.S.No.155/1980, the defendant submitted an application
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to the Tahsildar to include the name of the defendant
along with the plaintiff in the revenue records. The
Tahsildar, without considering the grant made in favour of
the plaintiff, in his individual capacity and not for the
benefit of the family, has passed the order in favour of the
defendant to enter the name of the defendant along with
the plaintiff. It is settled law that rights of the parties are
to be decided by the Civil Court and not by the revenue
authorities in view of the law laid down by the Co-ordinate
Bench of this Court in the case of SMT. JAYAMMA & ORS.
VS. THE STATE OF KARNATAKA, REP. BY ITS SECRETARY,
DEPARATMENT OF REVENUE & ORS., reported in ILR 2020
KAR 1449. The said aspect was not considered by the
First Appellate Court. The First Appellate Court placing
reliance on Ex.D3 which was alleged to have been
executed by the plaintiff on 11.04.1964, has held that
there was a partition between the plaintiff and defendant.
The First Appellate Court has committed an error in
placing reliance on Ex.D3 which has not seen the light of
the day till it was produced before the Tahsildar on
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26.12.1983. From the perusal of Ex.D5, the parties have
not acted on Ex.D3 which was executed on 11.04.1964, till
the year 1983. The First Appellate Court has committed
an error in placing reliance on Ex.D3 and dismissed the
suit of the plaintiff. The impugned judgment passed by
the First Appellate Court is perverse in misleading and
misapplication of Ex.D3.
23. In view of the above discussion, I answer the
substantial questions of law in affirmative and proceed to
pass the following:
ORDER
The appeal is allowed.
The impugned judgment passed by the
First Appellate Court is set aside. Consequently,
the judgment and decree passed by the trial
Court is restored.
No order as to the costs.
SD/-
JUDGE
RD
