Karnataka High Court
Mallaiah S/O Revana Siddaiah Angadi vs San Chidanandappa S/O Mallaiah Angadi on 4 December, 2023
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RSA No. 7261 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 7261 OF 2012 (DEC/INJ)
BETWEEN:
MALLAIAH
S/O REVANA SIDDAIAH ANGADI,
AGED ABOUT 76 YEARS,
AGRICULTURIST,
R/O KUMNOOR VILLAGE,
SHAHAPUR TALUK,
YADGIR DISTRICT.
...APPELLANT
Digitally signed
by SWETA (BY SRI. MANVENDRA REDDY, AND
KULKARNI
Location: HIGH SRI.NARENDRA REDDY, ADVOCATES)
COURT OF
KARNATAKA
AND:
1. SAN CHIDANANDAPPA
S/O MALLAIAH ANGADI,
AGED ABOUT 40 YEARS,
AGRICULTURIST,
R/O KUMNOOR VILLAGE,
TQ: YADGIR, DIST: GULBARGA.
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RSA No. 7261 of 2012
2. SMT. AMBAMMA
S/O DOD CHIDANANDAPPA,
AGE: 43 YEARS, OCC: HOUSE HOLD,
AND AGRICULTURE,
R/O KUMNOOR, TQ: SHAHAPUR,
DIST: YADGIR.
3 DOD CHIDANANDAPPA
S/O MALLAYYA GUNDHALLI
AGE:50 YEARS, OCC:AGRICULTURE,
R/O KUMNOOR, TQ:SHAHAPUR,
DIST: YADGIR.
...RESPONDENTS
(BY SRI. B. M. KINIKERI, ADV. FOR R1;
SRI. SHARANABASAPPA K. BABSHETTY, ADV. FOR R2
AND R3)
THIS RSA IS FILED U/S. 100 OF CIVIL PROCEDURE
CODE, PRAYING TO A) ALLOW THE APPEAL B) SET ASIDE
THE JUDGMENT AND DECREE OF THE FAST TRACT COURT AT
YADGIRI IN R.A.NO.6/2009 DATED 26.11.2011. C) RESTORE
THE JUDGMENT AND DECREE OF THE CIVIL JUDGE (Sr.Dn.),
SHORAPUR IN O.S.NO.109/2004 DATED 31.08.2010 AND
ETC.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7261 of 2012
JUDGMENT
Plaintiff in O.S.No.109/2004 on the file of the learned
Civil Judge (Sr.Dn) Shorapur sitting at Shahapur (herein after
referred to as the 'Trial Court' for brevity) has preferred this
appeal impugning the judgment and decree passed in
R.A.No.6/2009 on the file of the learned District Judge, Fast
Track Court, Yadgiri vide judgment dated 25.07.2012 allowing
the appeal and dismissing the suit of the plaintiff by setting
aside the common judgment and decree dated 03.10.2008
passed along with O.S.No.118/2004 and 119/2004 by the Trial
Court.
2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed suit
O.S.No.109/2004 against the defendant seeking declaration
that he is the absolute owner in possession of the property
bearing Sy.No.173/2 measuring 6.06 acres situated at
Kumnoor village of Shahapur taluk with boundaries mentioned
therein (referred to as 'suit property') for permanent injunction
restraining the defendant from interfering with the peaceful
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possession and enjoyment of the same and also for rectification
of revenue records by deleting the name of the defendant
entered in record of rights and to enter name of the plaintiff as
owner in possession of the same. It is contended by plaintiff
that suit property is his self acquired property as he purchased
it from Veerpakshappagouda and Somappagouda under
registered sale deed which was executed about 25 years back.
The plaintiff had no other source of income and he is depending
entirely on the income of the suit property. Defendant had no
manner of right over the suit property, but due to old age of
the plaintiff, defendant being the son was cultivating the same.
Taking advantage of the old age of the plaintiff, the defendant
got transferred property in his name behind the back of plaintiff
during 1993 and availed loan of Rs.15,000/- from State Bank of
India, (ADB), Yadagiri. It is contended that defendant is trying
to alienate the property projecting him as owner there of. He
has concocted certain documents to project that there was
partition between the father and son and that the plaintiff
signed the same. Therefore, plaintiff prayed for declaration of
his title over the suit property, to restrain the defendant from
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interfering with his peaceful possession and enjoyment of the
property and for rectification of the revenue entries.
4. Defendant has appeared before the Trial Court and
filed his written statement denying the contentions taken by
the plaintiff. The relationship between the parties is admitted.
It is denied that the suit property is self acquired property of
plaintiff. On the other hand, it is contended that it is joint
family property of plaintiff and defendant, as the same was
purchased in the name of the plaintiff with joint family funds. It
is also contended that during the year 1993 there was family
partition and the said property had fallen to the share of the
defendant. Revenue records stood in the name of defendant.
Since from the date of family partition, defendant is in
possession and enjoyment of the same.
5. It is contended that originally plaintiff belonging to
Kawloor village of Yadagiri taluk. Wherein, he had few
properties which had fallen to his share. Since the mother of
defendant was from Kumnoor village and in order to settle in
the Kumnoor village, property, which he inherited from his
ancestors, were sold to his other brothers. Out of the sale
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proceeds, the plaintiff purchased the suit property and
therefore, assumes the nature of joint family property. The
other contention raised by plaintiff are all denied and defendant
prayed for dismissal of suit with costs.
6. On the basis of these pleadings following issues
were came to be framed.
1) Whether plaintiff proves his exclusive title and
possession over suit land as described in para 2 of
the plaint as on the date of suit?
2) Whether defendant proves that suit land is joint
family property as it is acquired by investing joint
family nucleas and there was partition held during
1993 and plaintiff is a party to the said partition?
3) Whether plaintiff proves that defendant made
attempt to alienate the suit land?
4) Whether defendant proves that suit in the present
form is not tenable?
5) Whether plaintiff proves that, he is not party and
signatory to the alleged partition deed and it is a
concocted document by the defendant?
6) Whether plaintiff is entitled for the relief sought for in
the suit?
7) What order or decree?
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7. During the pendency of the suit O.S.No.109/2004,
defendant therein filed O.S.No.118/2004 against his mother
i.e., wife of the present plaintiff for declaration and permanent
injunction in respect of some other landed properties. He had
also filed O.S.No.119/2004 against plaintiff herein for similar
relief in respect of other agricultural properties. Therefore, all
three suits were clubbed to lead common evidence and
accordingly defendant in the present suit who is the plaintiff in
O.S.No.118/2004 and 119/2004 examined himself as PW.1 got
examined PWs.2 and 3 and got marked Exs.P.1 to 5 in support
of his defence evidence. The plaintiff got examined DWs.1 and
2 and got marked Ex.D.1 to 20 in support of his contention.
8. The trial Court after taking into consideration all
these material on record decreed O.S.No.109/2004 declaring
that plaintiff is the absolute owner of suit property and
restraining defendant from alienating the same. It also ordered
for rectification of the entries in the revenue records by deleting
the names of defendant and to mutate it in the name of
plaintiff. Suit O.S.No.119/2004 was dismissed with costs.
However, suit O.S.No.118/2004 was decreed in part declaring
that defendant No.2 there in Sri. Dodda Chidanandappa is not
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the owner and possessor of suit property but on the other
hand, it is only defendant No.1 who is plaintiff herein is the
owner in possession of the same. Accordingly, defendant No.2
therein was restrained from taking possession of the suit
property from defendant No.1.
9. Being aggrieved by the same, defendant in
O.S.No.109/2004 preferred R.A.No.6/2009 along with
R.A.Nos.5 and 7 of 2009 against the judgment and decree
passed in O.S.No.118 and 119 of 2004. The First Appellate
Court on re-appreciation of material on record dismissed
R.A.No.5/2009 and R.A.No.7/2009. However, allowed
R.A.No.6/2009 setting aside the impugned judgment and
decree passed by the Trial Court in O.S.No.109/2004.
Consequently, suit O.S.No.109/2004 was dismissed.
10. Being aggrieved by the same, plaintiff is before this
Court. It is stated that the judgment of the Trial Court and the
First Appellate Court passed on O.S.No.118 and 119/2004 have
reached finality as the same were never challenged.
11. Heard learned counsel Sri. Manvendra Reddy and
Sri. Narendra Reddy for the appellant and Sri. B.M.Kinikeri,
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learned counsel for respondent No.1 and Sri. Sharanabasappa
K Babshety, learned counsel for respondent Nos.2 and 3.
Perused the materials including the Trial Court records.
12. Learned counsel for the appellant contended that
plaintiff purchased the suit property under registered sale deed
dated 15.02.1980. Defendant is the son of the plaintiff, who
had no manner of any right, title or interest over the suit
property. He managed to get revenue records in his name
behind the back of plaintiff. Even though it is contended by the
defendant that there was family partition in the year 1993 and
therefore his name was came to be entered in the revenue
records, the same is not probabalised. Revenue entries do not
confer any right over the suit property in favour of defendant.
Even though Trial Court has decreed the suit of the plaintiff by
assigning reasons, the First Appellate Court committed an error
in dismissing the suit. The reasons assigned by the First
Appellate Court are baseless and perverse. Therefore, he prays
for allowing the appeal and to decree the suit in O.S.No.109/04
as prayed for.
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13. Per contra, learned counsel for respondent No.1
who is defendant No.1 in the suit opposing the appeal
submitted that a specific pleading is there before Trial Court
that the suit property is the joint family property purchased
from out of the proceeds got by the plaintiff from alienating the
other properties and there was family partition in the year
1993, in which, the suit property was fallen to the share of the
defendant. Accordingly, he mortgaged the suit property in
favour of Bank and finance institutions and had obtained loan.
It was defendant who improved the property and sold it in
favour of respondent Nos.2 and 3 herein.
14. Learned counsel further submits that in
O.S.No.118/2004, defendant who is the wife of present plaintiff
had filed written statement admitting the claim of present
defendant. PW.2 examined before the Trial Court on behalf of
defendant who is the brother of the plaintiff and he
categorically stated about the existence of family properties,
selling the same and from out of the proceeds purchasing the
suit property. DW.1 is the other son of the plaintiff who
admitted family partition and he had also admitted the same
while filing written statement in O.S.No.118/2004 as defendant
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No.2. In view of all these facts and circumstances, defendant is
successful in proving his contention. Whereas, plaintiff has
failed to probabalise his contention. Under such circumstances,
the First Appellate Court was right in allowing the appeal and
dismissing the suit of the plaintiff. There are no merits in the
contention taken by the plaintiff and therefore, prayed for
dismissal of the appeal on devoid on merits.
submitted that these respondents are purchasers of suit
property under the registered sale deed. They were impleaded
during pendency of this appeal. Respondent Nos.2 and 3 are
bonafide purchaser for value and therefore, plaintiff is not
entitled for any relief. Accordingly, he prays for dismissal of the
appeal.
16. This Court vide order dated 26.06.2013 framed
following substantial question of law for consideration.
Whether the lower appellate Court was
justified in reversing the finding of the Trial Court to
dismiss the suit?
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My answer to the above is in the 'Affirmative' for the
following:
REASONS
17. It is the specific contention of the plaintiff that he is
the absolute owner in possession of the suit property i.e.,
Sy.No.173/2 measuring 6.06 acres and the same was
purchased under registered sale deed on 15.02.1980.
Therefore, he sought for declaration regarding his title and for
permanent injunction against the defendant, who is none other
than his own son.
18. On the other hand, the defence taken by the
defendant that there were other family properties, which were
sold by the plaintiff and from out of the proceeds from the said
sale transactions, his father-plaintiff purchased the schedule
property and therefore same is the family property. It is his
further contention that during the year 1993, there was a
family arrangement in the family, in which, he was allotted with
the schedule property. Therefore, his name was mutated in the
revenue records. Hence, plaintiff is not entitled for either
declaration or permanent injunction.
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19. It is pertinent to note that defendant in the present
suit had filed O.S.No.118/2004 and O.S.No.119/2004 seeking
declaration and permanent injunction in respect of two other
item of properties. All the suits were came to be dismissed
under the common impugned judgment and decree. It is
interesting to note that defendant No.2 in O.S.No.118/2004, is
the son of the plaintiff herein and he was examined as DW.1
being special Power of Attorney of plaintiff. It is stated that
DW.1 who was defendant No.2 in O.S.No.118/2004 filed written
statement asserting family arrangement in the family. PW.2 is
the brother of the plaintiff who was examined by defendant to
prove the existence of family properties and selling of the
same, purchase of schedule property from out of the
proceedings and also family arrangement between members of
family, in which, defendant was allotted with schedule property.
Even though PW.2 was cross examined at length, nothing has
been elicited from him to disbelieve his version.
20. Defendant himself examined as PW.1. He also
examined PW.3 an independent witness. Even though all these
witnesses were cross examined at length, nothing has been
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elicited from them to probabalise the contention of the plaintiff
or to disbelieve the version of the defendant.
21. One more circumstances that is to be taken into
consideration is that the plaintiff has not stepped into the
witness box to speak about his contention for the reasons best
known to him. On the other hand, he has examined his other
son as DW.1, who was admittedly defendant No.2 in
O.S.118/2004. When all the three suits were clubbed together
and taken up for consideration by first appellate Court together,
it had the advantage of taking into consideration the pleadings
in O.S.No.118/2004 and 119/2004 and the evidence commonly
adduced in all the three suits. It is not the contention of the
plaintiff, who is appellant herein that DW.1 had not filed any
written statement in O.S.No.118/2004 between the members
of family. On going through revenue records produced by the
parties where name of defendant is entered in respect of
schedule property, the explanation offered by defendant that in
the family arrangement, he was allotted with schedule property
is more probable, when there is no explanation by plaintiff as to
how and why the name of the defendant came to be entered in
the revenue records. Simply because plaintiff is relying on
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registered sale deed in his favour, he is not entitled for
declaration, when cloud is cast on his claim over property as
exclusive one.
22. On going through the material that are placed
before the Court, I am of the opinion that plaintiff is not
successful in probabalizing his contention. Whereas, defendant
is successful in proving his defence. Hence, plaintiff is not
entitled for the relief.
23. I have gone through the impugned judgment and
decree passed by the Trial Court and the First Appellate Court.
There are no reasons to interfere with the Judgment and decree
passed by the First Appellate Court. Hence, the substantial
question of law is answered in the Affirmative.
24. In view of the above, I proceed to pass the
following:
ORDER
(i) The appeal is dismissed with cost.
(ii) The judgment and decree dated
25.07.2012 passed in R.A.No.6/2009 on
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the file of learned District Judge, Fast
Track Court, Yadgiri is hereby confirmed.
Registry to send back the Trial Court records along with
copy of this judgment.
Sd/-
JUDGE
BH
