Karnataka High Court
Shankarappa @ Shankaraiah vs Sri. H.N. Muddukrishna on 4 December, 2023
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RSA No. 507 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 507 OF 2016 (DEC/INJ)
BETWEEN:
1. SHANKARAPPA @ SHANKARAIAH,
S/O LATE THIMMAIAH,
SINCE DECEASED BY LR'S,
1(A). SRI. RANGEGOWDA,
AGED ABOUT 58 YEARS,
1(B). SRI. RAMESH,
AGED ABOUT 52 YEARS,
1(C). SRI. BASAVARJU,
AGED ABOUT 47 YEARS,
1(D). SRI. MUDDUKRISHNA,
Digitally signed
by GAYATHRI AGED ABOUT 38 YEARS,
PG
Location: HIGH NOS. 1 TO 4 ARE THE SONS
COURT OF
KARNATAKA OF LATE SHANKARAIAH @
SHANKARAPPA,
ALL R/AT MARALENAHALLI VILLAGE,
KASABAHOBLI, HANABE POST,
DODDABALLAPURA TALUK.
1(E). SMT. S. RANGAMMA,
D/O LATE SHANKARAIAH @ SHANKARAPPA,
AGED ABOUT 56 YEARS,
R/AT NO. 50, 25TH CROSS,
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RSA No. 507 of 2016
6TH BLOCK, UPPARALLI, JAYANAGAR,
BANGALORE - 560 070.
1(F). SMT. LAKSHMIDEVI,
D/O LATE SHANKARAIAH @ SHANKARAPPA,
AGED ABOUT 54 YEARS,
R/AT NO. 1265 (OLD),
NEW NO. 157, R.C.C. BAR BENDER,
T.B., (Ex.,) BADAVANE,
NAGAMANGALA TALUK,
MANDYA DISTRICT - 571 432.
...APPELLANTS
(BY SRI. M.N. SATHYA RAJ, ADVOCATE)
AND:
1. SRI. H.N. MUDDUKRISHNA,
S/O LATE H.NARASIMHAIAH,
AGED ABOUT 76 YEARS,
2. SRI. H.N. JAYASIMHA,
S/O LATE H. NARASIMHAIAH,
AGED ABOUT 74 YEARS,
3. SRI. H.N. MARUTHI,
S/O LATE H.NARASIMHAIAH,
AGED ABOUT 64 YEARS,
ALL ARE R/AT VITOBA TEMPLE STREET,
5TH WARD, DODDABALLAPURA NAGAR.
...RESPONDENTS
(BY SRI. ANIL KUMAR, ADVOCATE FOR C/R1)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 26.02.2016 PASSED IN
RA.NO.10030/2014 ON THE FILE OF THE IV ADDL. DIST., AND
SESSIONS JUDGE, DODDABALLAPUR, BENGALURU (R)
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RSA No. 507 of 2016
DISTRICT, BENGALURU, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 21.10.2014
PASSED IN O.S.NO.168/2006 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., DODDABALLAPUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the original
defendant-Shankarappa @ Shankaraiah, assailing the
concurrent judgments of the Courts below, wherein
plaintiff's suit seeking relief of declaration of title and
injunction and also declaration that the decree passed in
suit for declaration and injunction in O.S.No.137/2002 is
not binding on them is decreed.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
3. Facts leading to the case are as under:
The plaintiffs are asserting title over the suit land
measuring 12 acres 4 guntas in Sy.No.16. The plaintiffs
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contended that their grandfather, namely, Patel
Hanumegowda, purchased 12 acres 4 guntas in Sy.No.16
under registered sale deed dated 14.09.1936. After his
death, plaintiff's father, H.Narasimhaiah, inherited the suit
property and therefore, plaintiffs, by way of inheritance,
are asserting title, possession and exclusive enjoyment of
suit schedule properties.
4. The present suit is filed alleging that defendant,
without impleading plaintiffs, has managed to file a suit for
injunction in O.S.No.137/2002 against Tahasildar,
Doddaballapur and the Secretary, Grama Panchayath, on
the premise that the said authorities are attempting to lay
a road in the properties owned by him and Sy.No.16 is
also shown as the subject matter for the declaration and
injunction. Therefore, plaintiffs, while asserting title over
the property, have also sought a declaration that the
decree passed in O.S.No.137/2002, which was decreed on
01.06.2006 is not binding on them.
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5. The original defendant, on receipt of summons,
tendered appearance, filed written statement and stoutly
denied the entire averments made in the plaint. The
defendant admitted filing a suit in O.S.No.137/2002. The
defendant has contested the suit by setting up an oral
agreement. Defendant claimed that he is in possession
based on an oral agreement executed by the plaintiff's
father-Narasimhaiah, in 1972. Defendant contended that
plaintiff's father received the entire sale consideration
amount, assuring that he would execute the sale deed in
respect of the suit lands. Defendants also claimed that
Narasimhaiah handed over possession in favour of the
present defendant. The defendant also contended that the
present suit is barred by limitation. The defendant has also
questioned the maintainability of the present suit and has
specifically contended that the present suit is barred under
the provisions of Order 2 Rule 2 of CPC., in the light of
decree passed in O.S.No.363/2002. The defendant
contended that plaintiffs sought possession of 3 acres of
land in Sy.No.16 in O.S.No.363/2002. Therefore,
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defendant claimed plaintiffs ought to have claimed relief of
declaration in respect of the remaining portion in
Sy.No.16, which is the subject matter of the present suit.
6. Plaintiffs, to substantiate their title and
possession, have let in oral and documentary evidence.
Plaintiffs have produced title documents, which are
marked as Exs.P.1 to 4. Records of rights are produced to
demonstrate that plaintiffs are in lawful possession. The
plaintiffs have also placed reliance on judgment rendered
in O.S.No.363/2002, which is confirmed by this Court in
R.S.A.No.1763/2008.
7. Defendant, has set up a plea of oral agreement
executed by plaintiffs father, and has further alleged that
plaintiffs father delivered possession pursuant to the oral
agreement and though alternate plea of adverse
possession is set up by the defendant, the original
defendant-Shankarappa, for reasons best known to him,
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has not chosen to step into the witness box to substantiate
his claim.
8. The Trial Court, referring to title documents
coupled with entries in the revenue records and in absence
of contest and rebuttal evidence let in by the defendant,
answered issue No.1 in the affirmative and issue No.2
partly in the affirmative. While answering issue No.1 in the
affirmative, the Trial Court, referring to the title deeds
obtained by plaintiffs ancestor at an undisputed time, held
that plaintiffs have succeeded in substantiating their
ancestors title over the suit land. While answering issue
No.2 partly in the affirmative, the Trial Court held that
plaintiffs have succeeded in establishing their title that
they are in lawful possession excluding 3 acres, which was
the subject matter of O.S.No.363/2002, wherein plaintiffs
have sought possession from defendant.
9. The defendant's plea in regard to adverse
possession was dealt while dealing with issue No.4 and
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additional issue No.3. The Trial Court, while dismissing the
counterclaim of the defendant, decreed the suit filed by
the plaintiffs, declaring that plaintiffs are absolute owners
and in possession of suit land excluding 3 acres of land,
which is the subject matter of decree passed in
O.S.No.363/2002. The Trial Court granted injunction
excluding 3 acres. The Trial Court also granted a
declaration declaring that judgment and decree passed in
O.S.No.137/2002 in favour of defendant, which was
admittedly filed against the State and legal authorities, are
not binding on plaintiffs rights.
10. Defendant feeling aggrieved by the judgment
and decree of the Trial Court, preferred an appeal before
the appellate Court. The Appellate Court independently
assessed the entire evidence on record. On an
independent assessment of the records, the Appellate
Court concurred with the findings and conclusions
recorded by the Trial Court. Consequently, appeal is
dismissed.
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11. Heard learned counsel appearing for the legal
heirs of the original defendant. Perused the concurrent
findings of the Courts below.
12. The plaintiffs are asserting title over Sy.No.16
based on four title deeds, which are marked as Exs.P.1 to
4. Both the courts, referring to these title documents,
have come to the conclusion that plaintiffs have succeeded
in substantiating that their grandfather-Patel
Hanumegowda, purchased 12 acres 4 guntas of land in
Sy.No.16. The present suit is strongly resisted by the
defendant on two counts. Firstly, the defendant claimed
that the present suit for declaration and injunction in
O.S.No.168/2006 is not maintainable on the ground that it
is hit by the provisions of Order 2 Rule 2 of CPC in the
light of decree passed in O.S.No.363/2002.
13. It is evident from the judgment rendered by
both the Courts that plaintiffs filed the suit seeking relief
of possession in respect of 3 acres of land in Sy.No.16
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against the defendant by instituting the suit in
O.S.No.363/2002. It appears that defendant contested the
said suit. Plaintiffs suit seeking possession in
O.S.No.363/2002 was decreed on 14.02.2007.
14. The defendant, who suffered a decree in
O.S.No.137/2002 without impleading the plaintiffs, filed a
suit for declaration and injunction against the State and
local authorities and the suit is filed alleging that local
authorities are attempting to form a road in the properties
owned by the defendant herein. This suit was decreed on
01.06.2006 and the subject matter of O.S.No.137/2002 is
the entire extent, which measures 11 acres 23 guntas
excluding 21 guntas of kharab land.
15. Insofar as the plaintiffs title over the suit land is
concerned, the said issue does not require a detailed
enquiry at the hands of this Court. Both the Courts
referring to title documents and in absence of rebuttal
evidence coupled with pleadings in the written statement,
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wherein defendant is tracing his rights through plaintiffs by
way of an oral agreement and by way of a plea of adverse
possession, clearly establishes the plaintiffs title over the
suit land. The plaintiffs have discharged their initial burden
by producing title deeds, which are marked as Exs.P.1 to
4. The contention of defendant that plaintiffs' ancestor has
not acquired title over the suit land on the ground that it is
inam land and there is no grant order cannot be looked
into as the sale deeds are of the year 1936. Moreover,
there is no rebuttal evidence let in by the defendant. If
plaintiffs are asserting and tracing right through a sale
deed obtained by the grandfather way back in 1936, this
Court is of the view that plaintiffs have successfully
established their possessary title even otherwise.
Therefore, I am of the view that both the Courts were
justified in holding that plaintiffs are absolute owners of
the suit land measuring 12 acres 4 guntas and justified in
granting injunction thereby restraining the defendant from
interfering with plaintiffs' possession, excluding 3 acres of
land, which is in the possession of the defendant and there
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is a decree against him to hand over 3 acres of land to the
plaintiffs.
16. If defendant has consciously not impleaded
plaintiffs in O.S.No.137/2002 and if he has obtained a
declaration of title on 01.06.2006, then this Court is more
than satisfied that both the Courts were justified in holding
that the present suit filed on 04.08.2006 is very much
maintainable and the provisions of Order 2 Rule 2 of CPC
are not at all applicable. The plaintiffs had an independent
cause of action as the defendant secured a decree in
O.S.No.137/2002 on 01.06.2006. Based on the decree, it
seems that defendant was asserting right and title to the
entire extent and this compelled the plaintiffs to seek a
declaration to the entire extent. Both the Courts taking
cognizance of the decree for possession passed in
O.S.No.363/2002, have moulded the reliefs; relief of
declaration though granted to the entire extent; relief of
perpetual injunction is granted excluding 3 acres.
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17. In the light of discussion made supra, the
grounds urged in the appeal memo do not in any way lead
to any substantial question of law which requires
consideration at the hands of this Court. Plaintiffs, by
producing title documents, have succeeded in
substantiating their title and possession, excluding 3
acres. Therefore, no substantial question of law would
arise for consideration. The regular second appeal is
devoid of merits and accordingly stands dismissed.
In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
HDK
CT: BHK
