Smt. Ningamma vs Smt. Padmamma
2023 Latest Caselaw 1616 Kant

                                                -1-
                                                        RSA No. 1541 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 28TH DAY OF FEBRUARY, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                   REGULAR SECOND APPEAL NO. 1541 OF 2018 (DEC/INJ)

                   BETWEEN:

                   1.    SMT. NINGAMMA
                         W/O. LATE KEMPAIAH,
                         AGED ABOUT 77 YEARS,

                   2.    P. PRAKASH
                         S/O. LATE KEMPAIAH,
                         AGED ABOUT 52 YEARS,

                         BOTH ARE R/O. DEVAR
                         MALLANAYAKANAHALLI VILLAGE,
                         NAGAMANGALA TAKLUK,
                         MANDYA DISTRICT-571 401.
                                                                 ...APPELLANTS
                                   (BY SRI. RAJA L., ADVOCATE)
                   AND:
Digitally signed
by SHARANYA T
Location: HIGH     1.    SMT. PADMAMMA
COURT OF                 W/O. LATE MUDDELINGEGOWDA,
KARNATAKA
                         AGED ABOUT 52 YEARS,
                         R/O. DEVAMALLANAYAKANAHALLI
                         VILLAGE, DEVALAPURA HOBLI,
                         NAGAMANGALA TALUK-571 401,

                         NOW R/O. ANNAPURNESHWARI NILAYA,
                         NEW BRIDGE ROAD, KANAKA NAGARA,
                         BHADRAVATHI-577201.

                   2.    M. JAYANTHI
                         D/O. LATE MUDDELINGEGOWDA,
                         AGED ABOUT 50 YEARS,
                                -2-
                                              RSA No. 1541 of 2018




3.   M. KUSUMA
     D/O. LATE MUDDELINGEGOWDA,
     AGED ABOUT 45 YEARS,

4.   M. SATHYANANDA
     S/O. LATE MUDDELINGEGOWDA,
     AGED ABOUT 37 YEARS,

5.   M. RAVEEN
     S/O. LATE MUDDELINGEGOWDA,
     AGED ABOUT 37 YEARS,

     R-2 TO R-5 R/O ANNAPOORNESHWARI
     NILAYA NEW BRIDGE ROAD,
     KANAKANAGARA, BHADRAVATHI.
     SHIVAMOGGA DISTRICT-577201.
                                                  ...RESPONDENTS

             (BY SRI. K.N.NITISH, ADVOCATE FOR
        SRI K.V. NARASIMHAN., ADVOCATE C/R1 & R5)

      THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 06.03.2018 PASSED IN
R.A.NO.34/2017 ON THE FILE OF THE IV ADDL. DISTRICT AND
SESSIONS JUDGE, MANDYA DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 08.12.2016
PASSED IN O.S.NO.67/2011 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, NAGAMANGALA.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This matter is listed for admission.

Heard the learned counsel appearing for the appellants and the

learned counsel appearing for respondents No.1 and 5.

RSA No. 1541 of 2018

2. This appeal is filed challenging the judgment and

decree dated 06.03.2018 passed in R.A.No.34/2017 on the file

of the IV Additional District and Sessions Judge at Mandya.

3. The factual matrix of the case of the plaintiffs

before the Trial Court is that in a family partition taken place on

20.03.1967, the suit schedule property was allotted to the

share of Muddelingegowda, who is the husband of the first

plaintiff and father of plaintiff Nos.2 to 5 and they are in

possession over the suit schedule property. The plaintiffs have

sought for the relief of declaration and permanent injunction to

declare that they are the absolute owners after the death of

their father and they are in possession of the suit schedule

property. The defendants have no right, title or interest in the

suit schedule property. After the death of Muddelingegowda,

the defendants having colluded with the local officials got

fabricated the documents in respect of the suit schedule

property and also changed the khatha in the name of first

defendant. When the same came to the notice of the plaintiffs,

they preferred an appeal before the Taluka Panchayath in

Appeal No.7/2000-01, the same was dismissed. Against that

order, an appeal was filed before the Zilla Panchayath in Appeal

RSA No. 1541 of 2018

No.36/2001 and obtained the stay in respect of illegal entries

and defendants though not having any right in respect of the

suit schedule property and they are trying to dispossess the

plaintiffs from their lawful possession and enjoyment of the suit

schedule property.

4. In pursuance of the suit summons, the defendants

filed the written statement and contending that they are in

lawful possession and enjoyment of the suit schedule property.

At any point of time the plaintiff No.1 or her husband was/is in

possession of the property and prayed the Court to dismiss the

suit.

5. The Trial Court after considering both oral and

documentary evidence placed on record has decreed the suit

and granted the relief of declaration and permanent injunction.

Being aggrieved by the judgment and decree of the Trial Court,

an appeal was filed before the First Appellate Court in

R.A.No.34/2017. The First Appellate Court also on re-

appreciation of both oral and documentary evidence placed on

record dismissed the appeal. Hence, the present second appeal

is filed before this Court.

RSA No. 1541 of 2018

6. The learned counsel appearing for the appellants in

the present appeal would vehemently contend that as on the

date the appellants are in possession of the suit schedule

property and both the Courts have committed an error in

decreeing the suit in granting declaration and injunction and

both the Courts have committed an error in taking note of the

documents - Exs.P1 and P6. Ex.P6 is an unregistered

document, which is compulsorily required for registration under

the Registration Act. Hence, it requires interference of this

Court. The learned counsel also would vehemently contend that

the plaintiffs are in possession of the property based on the

Relinquishment Deed executed by the husband of first plaintiff

and father of plaintiff Nos.2 to 5.

7. Per contra, learned counsel appearing for the

respondents No.1 and 5 would submit that both the Courts

have taken note of both oral and documentary evidence placed

on record and the property belongs to the family of the

husband of the first plaintiff and the suit schedule property

allotted to the share of the husband in the Palu-Patti dated

20.03.1967 and thereafter they are in possession of the suit

schedule property. The learned counsel would submit that after

RSA No. 1541 of 2018

the death of the father of plaintiff Nos.2 to 5 and husband of

the first plaintiff, the appellants made an attempt to change the

khatha in their favour and the same has been questioned

before the Taluka Panchayath and the appeal was dismissed.

Against the said order, an appeal was filed before the Zilla

Panchayath. The Zilla Panchayath was set aside the khatha

transferred in favour of the appellants herein and thereafter the

khatha was changed in favour of the plaintiffs/respondents and

they are in possession of the suit schedule property.

8. Having heard the respective counsel and also on

perusal of the material available on record, it is the claim of the

plaintiffs that the suit schedule property was allotted in the

family partition in favour of the husband of the first plaintiff and

father of plaintiff Nos.2 to 5 and they are in possession of the

property. Admittedly, no dispute with regard to the khatha was

changed in favour of the appellants herein and the same was

questioned before the Zilla Panchayath. The Zilla Panchayath

passed an order in favour of the plaintiffs. The Trial Court had

taken note of the material placed, particularly, the documents -

Exs.P1 to P6, declared the plaintiffs as the absolute owners.

The First Appellate Court also on re-appreciation of both oral

RSA No. 1541 of 2018

and documentary evidence placed on record and also taking

note of the contentions of the appellants herein came to the

conclusion that the Trial Court has not committed any error and

the property belongs to the family of the plaintiff and they are

in possession of the property and the revenue entries, which

were changed subsequently were also set aside and as on the

date of filing the suit property stands in the name of the

plaintiffs. Though the defendants have relied upon the

documents viz., Ex.D1-ZP order copy dated 25.01.2001, Ex.D2-

ZP order copy dated 17.03.2008, Ex.D3-two tax paid receipts,

Ex.D4-electricity bill and Ex.D5-residential address certificate,

both the Courts came to the conclusion that the property was

allotted in favour of husband of the first plaintiff and father of

plaintiff Nos.1 to 5 and they are in possession of the suit

schedule property. When such being the material available on

record and also the learned counsel appearing for the

appellants would contend that the Relinquishment Deed was

executed in favour of the husband of the first plaintiff, in order

to substantiate the same, no document is placed before the

Court. Under the circumstances, I do not find any error

committed by both the Courts in decreeing the suit and

RSA No. 1541 of 2018

confirming the same. Hence, no ground is made out to invoke

Section 100 of CPC.

9. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

In view of dismissal of the appeal, I.A.No.1/2018 for stay

does not survive for consideration and the same stands

disposed of.

Sd/-

JUDGE

CP