Karnataka High Court
Sri. Nanjundappa vs Sri. Rayappa on 1 February, 2023
Bench: H.P.Sandesh
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RSA No. 149 of 2019
C/W RSA No. 148 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 149 OF 2019 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 148 OF 2019 (DEC/INJ)
IN R.S.A.NO.149 OF 2019:
BETWEEN:
1. SRI. NANJUNDAPPA
S/O. VENKATARAMAPPA,
AGED ABOUT 68 YEARS,
RESIDENT OF THATTANAKUNTE VILLAGE,
AVANI HOBLI, MULBAGAL TALUK,
KOLAR DISTRICT-563 127.
...APPELLANT
(BY SRI. S. VISWESWARAIAH, ADVOCATE)
AND:
Digitally signed
by SHARANYA T 1. SRI. JOHN JOSEPH
Location: HIGH S/O. LOURDHUSWAMY,
COURT OF
KARNATAKA AGED ABOUT 56 YEARS,
RESIDENT OF GOOKUNTE VILLAGE,
MULBAGAL TALUK,
KOLAR DISTRICT-563 127.
...RESPONDENT
THIS RSA., IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 25.10.2018 PASSED IN
RA.NO.133/2014 ON THE FILE OF THE I ADDL.DISTRICT
JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 29.10.2014 PASSED IN
OS.NO.180/2011 ON THE FILE OF THE II ADDL.SENIOR CIVIL
JUDGE, KOLAR, ITINERATING AT MULBAGAL.
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RSA No. 149 of 2019
C/W RSA No. 148 of 2019
IN R.S.A.NO.148 OF 2019:
BETWEEN:
1. SRI. NANJUNDAPPA
S/O. VENKATARAMAPPA,
AGED ABOUT 68 YEARS,
RESIDENT OF THATTANAKUNTE VILLAGE,
AVANI HOBLI, MULBAGAL TALUK,
KOLAR DISTRICT-563 127.
...APPELLANT
(BY SRI. S. VISWESWARAIAH, ADVOCATE)
AND:
1. SRI. RAYAPPA
S/O. ANTHONIYAPPA,
AGED ABOUT 48 YEARS,
RESIDENT OF GOOKUNTE VILLAGE,
MULBAGAL TALUK,
KOLAR DISTRICT-563 131.
...RESPONDENT
THIS RSA., IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 25.10.2018 PASSED IN
RA.NO.134/2014 ON THE FILE OF THE I ADDL. DISTRICT AND
SESSIONS JUDGE, KOLAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 29.10.2014
PASSED IN OS.NO.179/2011 ON THE FILE OF THE II
ADDL.SENIOR CIVIL JUDGE, KOLAR, ITINERATING AT
MULBAGAL.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are listed for admission. Heard the
learned counsel appearing for the appellant in both the appeals.
RSA No. 149 of 2019
C/W RSA No. 148 of 2019
2. These appeals are filed challenging the judgment
and decree dated 25.10.2018 passed in R.A.No.133/2014 and
R.A.No.134/2014, respectively on the file of the I Additional
District Judge at Kolar.
3. The appellant is the defendant in O.S.No.180/2011,
wherein, the plaintiff is one John Joseph, contended that he has
purchased the suit property from M. Jayakumari, Radhika and
Malathi for a sale consideration of Rs.90,000/- on 10.01.2007.
Since from the date of purchase he is in possession of the
property and the revenue records also mutated in his favour.
The defendant is very powerful in the locality who has not
cared the advise of the elders and causing interference. Hence,
filed a suit for declaration and permanent injunction.
4. In pursuance of the suit summons, the defendant
appeared and filed the written statement by denying the entire
averments made in the plaint. It is contended that the alleged
vendors of the plaintiff have no right to sell the suit schedule
property. Hence, the plaintiff has not acquired any title over
the suit schedule property. It is contended that the mutation
bearing M.R.No.41/06-07 has been cancelled by the Tahasildar
RSA No. 149 of 2019
C/W RSA No. 148 of 2019
against which an appeal was filed in RA.No.332/11-12 before
the Assistant Commissioner, Kolar, which is pending. It is
contended that the property bearing Sy.No.105 totally
measures 6 acres which originally belongs to
Ramachandrachari. He has sold the said land to him by
executing a sale agreement and handed over the possession.
Since Ramachandrachari has not executed the sale deed, he
has filed a suit in O.S.No.23/2009 against Ramachandrachari,
the same came to be decreed. Then he has filed
Ex.Pet.No.9/2009 and obtained the sale deed through the Court
and he has been enjoying the property. It is also contended
that another suit filed by one Rayappa in O.S.No.179/2011,
which is in respect of remaining 3 acres of land. The plaintiff
has no manner of right over the suit schedule property and was
never in possession of the property. Hence, the Trial Court by
considering the pleadings of both the cases framed issue Nos.1
to 4.
5. The plaintiff in order to substantiate his contention
examined himself of P.W.1 and also examined one witness as
P.W.2 and got marked the documents as Exs.P1 to P5. On the
other hand, the defendant examined himself as D.W.1 and also
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C/W RSA No. 148 of 2019
examined two witnesses as D.W.2 and D.W.3 and got marked
the documents as Exs.D1 to D13.
6. The Trial Court after considering the material
available on record answered issue Nos.1 and 2 as 'affirmative'
and issue No.3 as 'negative' with regard to his claim of decree
obtained in O.S.No.23/2009 and came to the conclusion that
the said decree is obtained with collusiveness of the plaintiff
suppressing the material. The Trial Court after considering both
oral and documentary evidence placed on record has decreed
the suit and passed an order of permanent injunction. Hence,
an appeal is filed by the appellant/defendant in RA
No.133/2014 before the First Appellate Court. The First
Appellate Court on re-appreciation of both oral and
documentary evidence placed on record, dismissed the appeal
and confirmed the judgment of the Trial Court. Hence, the
present second appeal in R.S.A.No.149/2019 is filed before this
Court.
7. The appellant is the defendant in O.S.No.179/2011,
wherein, the plaintiff is one Rayappa, contended that he has
purchased the suit property from M. Jayakumari, Radhika and
RSA No. 149 of 2019
C/W RSA No. 148 of 2019
Malathi for a sale consideration of Rs.90,000/- on 10.01.2007.
Since from the date of purchase he is in possession of the
property and the revenue records also mutated in his favour.
The defendant is very powerful in the locality who has not
cared the advise of the elders and causing interference. Hence,
filed a suit for declaration and permanent injunction.
8. In pursuance of the suit summons, the defendant
appeared and filed the written statement by denying the entire
averments made in the plaint. It is contended that the alleged
vendors of the plaintiff have no right to sell the suit schedule
property. Hence, the plaintiff has not acquired any title over
the suit schedule property. It is contended that the mutation
bearing M.R.No.40/06-07 has been cancelled by the Tahasildar
against which an appeal was filed in RA.No.333/11-12 before
the Assistant Commissioner, Kolar, which is pending. It is
contended that the property bearing Sy.No.105 totally
measures 6 acres which originally belongs to
Ramachandrachari. He has sold the said land to him by
executing a sale agreement and handed over the possession.
Since Ramachandrachari has not executed the sale deed, he
has filed a suit in O.S.No.23/2009 against Ramachandrachari,
RSA No. 149 of 2019
C/W RSA No. 148 of 2019
the same came to be decreed. Then he has filed
Ex.Pet.No.9/2009 and obtained the sale deed through the Court
and he has been enjoying the property. It is also contended
that another suit filed by one Joseph in O.S.No.180/2011 is in
respect of remaining 3 acres of land. The plaintiff has no
manner of right over the suit schedule property and was never
in possession of the property. Hence, the Trial Court by
considering the pleadings of both the cases framed issue Nos.1
to 4.
9. The plaintiff in order to substantiate his contention
examined himself of P.W.1 and also examined one witness as
P.W.2 and got marked the documents as Exs.P1 to P4. On the
other hand, the defendant examined himself as D.W.1 and also
examined two witnesses as D.W.2 and D.W.3 and got marked
the documents as Exs.D1 to D13.
10. The Trial Court after considering the material
available on record answered issue Nos.1 and 2 as 'affirmative'
and issue No.3 as 'negative' with regard to his claim of decree
obtained in O.S.No.23/2009 and came to the conclusion that
the said decree is obtained with collusiveness of the plaintiff
RSA No. 149 of 2019
C/W RSA No. 148 of 2019
suppressing the material. The Trial Court after considering both
oral and documentary evidence placed on record has decreed
the suit and passed an order of permanent injunction. Hence,
an appeal is filed by the appellant/defendant in RA
No.134/2014 before the First Appellate Court. The First
Appellate Court on re-appreciation of both oral and
documentary evidence placed on record, dismissed the appeal
and confirmed the judgment of the Trial Court. Hence, the
present second appeal in R.S.A.No.148/2019 is filed before this
Court.
11. The main contention of the learned counsel
appearing for the appellant is that both the Courts have
committed an error in accepting the case of the plaintiffs and
already there was a decree in favour of the defendant in
O.S.No.23/2009 and Sale Deed also executed by the Court in
Ex.No.9/2009. The learned counsel would vehemently contend
that the substantial question of law is with regard to both the
Courts are not justified in properly appreciating Exs.D12 and
D13, which are the suits filed by the respondents viz., Rayappa
and John Joseph for permanent injunction, which came to be
dismissed and attained its finality. By ignoring the same, the
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C/W RSA No. 148 of 2019
decree has been passed by both the Trial Court as well as the
First Appellate Court and confirmed the same. Both the Courts
have ignored Exs.D9 to D11, which reveals that the revenue
entries made in favour of respondents is being stayed and over
looking the same, the judgment and decree had been granted
and the same requires interference.
12. In a similar set of facts in O.S.No.180/2011, the
plaintiff - John Joseph has claimed that he had purchased the
property from the legal heirs of Mani vide sale deed dated
10.01.2007 and he has been put in possession and the
defendant is claiming rights. Hence, without having any other
alternative remedy, sought for an order of declaration. Similar
defense was also taken by the appellant/defendant in the said
suit. The Trial Court after considering both oral and
documentary evidence placed on record has decreed the suit
and passed an order of permanent injunction.
13. Similar grounds are also urged in the second appeal
that the Trial Court as well as the First Appellate Court have
committed an error in not considering the documents -
Exs.D12 and D13, wherein, the Courts are rejected the prayer
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C/W RSA No. 148 of 2019
of permanent injunction sought by the plaintiffs and also failed
to take note of Exs.D1, D3, D4 and D6 to D8. Hence, this Court
has to admit both the appeals and framed the substantial
question of law.
14. Having heard the learned counsel appearing for the
appellant and also on perusal of the material available on
record in both the suits in O.S.No.179/2011 and
O.S.No.180/2011, wherein, both the respective plaintiffs have
claimed that they have purchased the property from the legal
heirs of Mani for a sale consideration on 10.01.2007 and
thereafter the documents are transferred in their name and
they are in possession of the property. In both the suits
defendant is the same and took the defense that he had
obtained the decree in O.S.No.23/2009 and by virtue of
execution proceedings in Ex.No.9/2009, the defendant has
perfected the title and possession of 6 acres including the suit
schedule property in both the suits. The Trial Court having
considered the material available on record came to the
conclusion that the property originally belongs to
Ramachandrachari and in turn he has sold the property in
favour of Mani and also it is the claim of the said
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RSA No. 149 of 2019
C/W RSA No. 148 of 2019
Ramachandrachari that after selling the property in favour of
Mani once again he had entered into a sale agreement dated
29.04.1991 and he also filed a suit for specific performance in
O.S.No.398/2007. Both First Appellate Court and Trial Court
have taken note of the fact that this appellant/defendant has
obtained the compromise decree on 05.02.2009 and the suit
was filed on 23.01.2009 i.e., within 15 days of filing of the suit.
15. It is also observed by both the Courts that when the
suit was filed by Ramachandrachari in O.S.No.398/2007 and
during the pendency of the said suit and also the suit filed by
the plaintiffs in O.S.No.214/2007 and O.S.No.215/2007 against
the said Ramachandrachari and he had suppressed the same
and entered into a compromise with the defendant in
O.S.No.23/2009 and also taken note of the fact that once the
property was already sold in favour of vendors of the plaintiffs
herein based on the alleged agreement of sale, he cannot
convey any title in favour of this defendant. The Trial Court
also taken note of the documents, which are standing in the
name of the plaintiffs subsequent to purchasing of the property
i.e., sale deed - Ex.P1 in both the suits and mutation register
extract and RTC extract and also Ex.P4, certified copy of the
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RSA No. 149 of 2019
C/W RSA No. 148 of 2019
judgment and decree which was dismissed, the same was filed
by the said Ramachandrachari and came to the conclusion that
the vendors of the plaintiffs have conveyed the title in favour of
the plaintiffs and the judgment and decree obtained in
O.S.No.23/2009 is a collusive decree and no doubt, Sale Deed
was executed based on the said collusive decree in
Ex.No.9/2009, the same is also filed against the said
Ramachandrachari. Both the Courts came to the conclusion
that it will not create any title over the suit schedule property
since the said Ramachandrachari has already transferred his
title to R. Mani by executing a Sale Deed. The vendors are the
legal representatives of the said R. Mani, who have sold the
property in favour of the plaintiffs in the year 2007 itself and
taking into material on record both the Trial Court as well as
the First Appellate Court came to the conclusion that the right
which has been claimed by the defendant under the decree in
O.S.No.23/2009 is a collusive decree and the concurrent finding
is given by both the Courts and the fact that the compromise
was also entered during the pendency of other three suits is
also not in dispute. Before that already there was a sale in
favour of the plaintiffs herein that too by the legal heirs of the
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C/W RSA No. 148 of 2019
said Mani. Once the property was already sold by
Ramachandrachari in favour of the vendor's father and he was
not having any title and instead of they have entered into a
compromise with this defendant even though he was not
having any right in respect of the suit schedule property.
Admittedly, both plaintiffs have purchased 3 acres of land each,
which is in respect of Sy.No.102. When such being the
material available on record, I do not find any error committed
by the Trial Court and also the First Appellate Court in
appreciating both oral and documentary evidence placed on
record.
16. The main contention of the learned counsel
appearing for the appellant that Exs.D12 and D13 are not
considered by the Trial Court and the First Appellate Court. No
doubt, those suits are filed for the relief of permanent
injunction. But in these suits sought for comprehensive decree
of declaration and injunction based on the title, which they
have bought. Hence, I do not find any error committed by the
Trial Court as well as the First Appellate Court in both the suits
in declaring the respective plaintiffs are the absolute owners of
the suit schedule property and granted the relief of permanent
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C/W RSA No. 148 of 2019
injunction. The claim of the appellant in both the appeals is
that he is in possession of the property based on the decree
which he has obtained from the Court. When both the Courts
have given the finding that the very decree itself is collusive
decree and not conveyed any title and taken note of the better
title of the respondent herein. Hence, I do not find any force in
the contention of the learned counsel appearing for the
appellant and no merit in the appeals to admit and to frame
any substantial question of law.
17. In view of the discussions made above, I pass the
following:
ORDER
Both the appeals are dismissed.
In view of dismissal of the appeals, I.A.No.1/2019 for
stay in both the appeals does not survive for consideration, the
same stands disposed of.
Sd/-
JUDGE
CP
