Narasimhaiah @ Raju Dead By Lrs vs B N Ramaiah
2023 Latest Caselaw 242 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4TH DAY OF JANUARY, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          REGULAR SECOND APPEAL No.1195 OF 2021

BETWEEN

 NARASIMHAIAH @ RAJU DEAD BY LRS

 SMT. JAYALAKSHMAMMA
 @ VIJAYALAKSHMI
 D/O THIMMAIAH
 AGED ABOUT 32 YEARS
 R/O 1522, SANGAMESHWAR NILAYA
 BEML LAYOUT 5TH STAGE,
 3RD CROSS, R.R.NAGAR,
 BENGALURU-560058.
                                              ...APPELLANT
(BY SRI S.SANGAMESHWARAN , ADVOCATE)

AND

      B N RAMAIAH
      (DEAD BY LRS)

1 . MRS. VIJAYALAKSHMAMMA
    W/O LATE RAJAIAH
    AGED ABOUT 55 YEARS

2 . MS. NAGARATHNA
    D/O LATE RAJAIAH
    AGED ABOUT 30 YEARS
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3 . MS. MEGHANA
    D/O LATE RAJAIAH
    AGED ABOUT 20 YEARS

4 . MR. NARENDRA
    S/O LATE RAJAIAH
    AGED ABOUT 14 YEARS
    REPRESENTED BY MOTHER
    MRS. VIJAYALASHMAMMA
5 . MR. KODAPPA
    S/O LATE RAMAIAH
    AGED ABOUT 45 YEARS

6 . MR. NARAYANASWAMI
    S/O LATE RAMAIAH
    AGED ABOUT 43 YEARS

7 . GOVINDARAJU
    S/O LATE RAMAIAH
    AGED ABOUT 38 YEARS

8 . AMMANI
    D/O LATE RAMAIAH
    W/O GOVINDAPPA
    AGED ABOUT 45 YEARS
    R/O KODIHALLI, HALEGUBBI MAJARE,
    KASABA HOBLI, GUBBI TALUK-572116.
9 . SHANTHAMMA
    D/O LATE RAMAIAH
    W/O RAMA
    AGED ABOUT 35 YEARS

10 . MRS. LAKSHMAMMA
     W/O RANGAIAH
     AGED ABOUT 59 YEARS
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11 . NARASIMHAMURTHY
     S/O NARASEGOWDA
     AGED ABOUT 65 YEARS

12 . MR. C. HANUMARANGAIAH
     S/O CHIKKARANGAIAH
     AGED ABOUT 56 YEARS

    RESPONDENT 1 TO 7 & 9 TO 12 ARE
    R/O BILLIGERE VILLAGE,
    KASABA HOBLI, GUBBI TALUK,
    TUMKUR DISTRICT-572118
                                                ...RESPONDENTS



     THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 18.03.2020
PASSED IN RA.NO. 60/2014 ON THE FILE OF THE C/C
ADDITIONAL SENIOR CIVIL JUDGE, GUBBI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
20.11.2014 PASSED IN OS.NO. 180/2007 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC., GUBBI.

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

                       JUDGMENT

This matter is posted for admission. Heard the appellant's

counsel.

2. The factual matrix of the case of the appellant/plaintiff

before the Trial Court in O.S.No.180/2007 is that the land

bearing Sy.No.58 measuring 4 acres 11 guntas belong to one

Kodigowda. The said land is pada land. The plaintiffs are the

owners of the said land and they claimed the relief of declaration

and permanent injunction. Based on the plaintiffs' application

before the Tahasildar and other revenue authorities to restore

the pada land, the Deputy Commissioner after enquiring with the

Revenue authorities directed the Tahasildar, Gubbi to take the

penalty and accept the excess cess as per the Karnataka Land

Revenue Rules and restore the same in the name of the plaintiff.

As per the order of the Deputy Commissioner, the plaintiffs have

paid the necessary amount for restoration of pada and after

restoration the RTC stands in the name of Kodigowda. The

plaintiffs are the only owners of the suit schedule properties and

Kodigowda had six sons, by name Chikkarangaiah,

Narasegowda, Hanumarangaiah, Nalluraiah, Thimmaiah and

Rangaiah.

3. In the year 1964 itself, Kodigowda divided the

properties to his sons and the suit schedule property was

managed by Kodigowda himself for his legal necessities.

Kodigowda during his life time was under the care and custody

of his son Thimmaiah and he was in exclusive possession of the

suit property till his death. The said Kodigowda died long back.

Subsequent to the death of Kodigowda, his son Thimmaiah was

in peaceful possession and enjoyment of the suit schedule

property. Thimmaiah died on 14.4.1998 and thereafter plaintiffs

are in peaceful possession and enjoyment of the suit schedule

property as absolute owners. It is also contended that the

plaintiffs have preferred writ petition before the Hon'ble High

Court of Karnataka, Bangalore, seeking direction to Tahasildar to

initiate mutation proceedings on the claim of the plaintiffs as

per the orders of the Deputy Commissioner. The High Court

directed the Tahasildar to consider the objection filed by the

plaintiffs and to dispose of the same. The defendants though

they have no right over the suit schedule property filed petition

before the Tahasildar to change khata in the name of

defendants. The defendants producing documents which do not

pertain to the suit schedule property, got the revenue entries in

their names. The Tahasildar without verifying the document has

passed order for change of khata in the name of the defendants.

He has no right to change khata in the name of the defendants.

The documents produced by the plaintiffs clearly disclose that

plaintiffs are the owners in possession and enjoyment of the suit

schedule property. Defendants 1 to 3 taking advantage of khata

in their name have sold the suit schedule property in favour of

4th defendant on 5.10.2007. The 4th defendant along with other

defendants attempting to interfere with the plaintiff's peaceful

possession and enjoyment of suit schedule property. After

service of notice, the defendants appeared through their counsel

and filed written statement denying the entire averments.

4. It is specific case that Kodigowda has six sons by

name Chikkarangaiah, Narasegowda, Hanumarangaiah,

Nalluraiah, Thimmaiah and Rangaiah and defendants no.1 to 3

are the sons of above said Narasegowda and 2nd defendant is

the daughter-in-law of above said Narasegowda and plaintiffs

are the sons and daughter of Thimmaiah. Before 1964, the sons

and grand sons of above said Kodigowda divided their joint

family properties and started living separately. In the said

partition, the suit schedule property fallen to the share of

Narasegowda-father of defendant No.1 and the said

Narasegowda was in possession and enjoyment of the suit

schedule property along with his family members. On

22.06.1964, the said Narasegowda along with his sons

mortgaged the suit schedule property under nominal sale deed

to one G M Chikkaveeranna of Chikkannanapalya. Subsequently,

the mortgage was redeemed and defendant No.1 to 3 were in

possession and enjoyment of the suit schedule property. About

two years back, defendant Nos.1 to 3 made a petition before the

Deputy Commissioner to restore katha of suit schedule property

into the name of Kodigowda. The father of the plaintiffs namely

Thimmaiah sold the property which had fallen to his share along

with his sons to one Siddabasamma under registered sale deed

dated 26.06.1969. From that document it is crystal clear that

there was partition among the sons of Kodigowda. As per the

orders of High Court, Sheristedar, Gubbi, conducted enquiry in

RRT (Dis.) Cr.80/2006-07 and ordered to write khata and pahani

of suit schedule property into the name of defendant Nos.1 to 3.

Subsequently, defendant Nos.1 to 3 sold the suit schedule

property to defendant No.4 under the registered sale deed dated

05.10.2007 and put him in possession. From past 45 years,

defendants and Narasegowda were in possession of suit schedule

property and they were raised crops regularly on the same.

Now, defendant No.4 is in possession and enjoyment of the suit

schedule property and he is raising crops on the same.

5. Based on the pleadings of the parties, the Trial Court

framed the Issues with regard to whether the plaintiffs prove

that they are the absolute owners and in lawful possession of the

suit schedule property and whether the plaintiffs prove the

interference of the defendants. In order to prove the case of the

plaintiffs, plaintiff No.1 examined as PW1 and other three

witnesses have been examined as PW2 to PW4 and got marked

the documents at Ex.P1 to P33. On the other hand, defendants

have examined six witnesses as DW1 to DW6 and got marked

the documents at Ex.D1 to D8. The Trial Court after considering

both the oral and documentary evidence dismissed the suit in

coming to the conclusion that the plaintiffs have not proved the

case that they are the absolute owners of the suit schedule

property. Being aggrieved by the judgment and decree of the

Trial Court, an appeal was preferred by the plaintiffs before the

First Appellate Court and the First Appellate Court on

consideration of materials available on record formed the points

for consideration that whether the Trial Court has committed an

error in holding that plaintiffs have failed to prove their title and

possession over the suit schedule property and whether the

impugned judgment and decree requires interference by the First

Appellate Court and on re-appreciation of materials available on

record dismissed the appeal and confirmed the judgment of the

Trial Court. Hence, the present appeal is filed by the plaintiff

before this Court.

6. The main contention of the learned counsel

appearing for the appellant that both the Courts have committed

an error in dismissing the suit and fails to take note of the

material available on record. The counsel for the appellant

vehemently contend that an application was filed before the

Tahsildar and Revenue Authorities to restore the land since the

land was Pada land. The Deputy Commissioner also directed to

the Tahsildar to take penalty and accept the cess and also as per

the direction of the Deputy Commissioner, he had paid the

necessary amount for restoration of Pada and after the

restoration, RTC stands in the name of Kodigowda. The Courts

below committed an error in coming to the conclusion that no

documents are placed before the Courts to show that the

plaintiffs are the absolute owners of the suit schedule property.

The counsel also vehemently contend that the plaintiff claimed

the right based on the Will and though the legal heir of one of

the attesting witness has been examined as PW4, his evidence

cannot be believed and hence, the Trial Court has committed an

error and it requires interference. The First Appellate Court also

not considered the grounds urged in the appeal and erroneously

confirmed the judgment of the Trial Court hence, it requires

interference invoking Section 100 of CPC to frame the

substantive question of law.

7. On perusal of material available on record and the

grounds urged in the second appeal it is clear that the counsel

for the appellant has not framed any substantive question of law

in the appeal memo. However, this Court can consider the

materials available on record to consider whether substantive

question of law arises on account of the grounds urged in the

appeal. It has to be noted that the suit is filed for relief of

declaration and permanent injunction claiming that the plaintiffs

are the absolute owners of the suit schedule property. In order

to substantiate the fact that they are the owners of the suit

schedule property, no documents are produced before the Courts

below except the documents of MR extract, re-survey sketch,

RTC and an endorsement issued by the Tahsildar. On the other

hand, the respondents have also relied upon the documents at

Ex.D1 to D3 and certified copies of sale deeds. The Trial Court

also had taken note that there was a partition among the sons of

said Kodigowda. It is also not in dispute that the property

originally belonged to Kodigowda and plaintiffs also not claimed

as absolute owners on the basis of any title deed but only

contended that the plaintiffs were in possession of the suit

schedule property after the partition among the sons and no

doubt they are the legal heirs of Kodigowda. But the fact that

the Trial Court taken note of the fact that the share which was

allotted in favour of the plaintiffs was also sold in the year 1969.

It is the definite case of the defendants that suit schedule

property came to their share when the partition was taken place

and the defendants are inherited the property of Kodigowda

through their father and sold the property in favour of defendant

No.4.

8. It is also the claim of the plaintiffs before the Trial

Court that they have filed an application before the Tahsildar and

writ petition was also filed and direction was given to consider

the objection of the plaintiffs and consider the material on record

and subsequently, an enquiry was held and ordered to keep the

katha in the name of defendant Nos.1 to 3. When the plaintiffs

claim the relief of declaration, they have to place the documents

before the Court with regard to the ownership but the same has

not been placed. When such being the case, the Trial Court

while answering Issue Nos.1 and 2 rightly comes to the

conclusion that the plaintiffs have failed to prove that they are

the absolute owners and in lawful possession of the suit schedule

property and having taken note of the documents produced by

the defendants comes to the conclusion that the defendants are

in possession of the property and subsequently they sold the suit

schedule property in favour of defendant No.4 in the year 2007

and the First Appellate Court also considering the grounds urged

in the appeal framed the point for consideration that whether the

Trial Court committed an error holding that the plaintiffs have

failed to prove their title and possession over the suit schedule

property and on re-appreciation of both oral and documentary

evidence comes to the conclusion that the plaintiffs though they

claimed that they are the absolute owners, no documents are

placed before the Court and concurrent finding is given by the

Trial Court. With regard to the finding is concerned and also on

perusal of the material available on record, I do not find any

error committed by both the Courts and there is no substantive

question of law to decide the issue in the second appeal invoking

Section 100 of CPC to admit the appeal. Both the Courts

considered the material available on record in a proper

perspective and comes to the conclusion that the plaintiffs have

not produced any document to prove that they are the owners of

the suit schedule property. When the relief of declaration and

permanent injunction was sought and subsequently the plaint

got amended stating that defendant Nos.1 to 3 have executed

the sale deed in favour of defendant No.4, the same is null and

void and not binding on the plaintiffs and whether it binds on

them or not is secondary. First of all, the plaintiffs have to prove

their case that they are the absolute owners of the suit schedule

property but they failed to prove the same. Hence, the question

of granting the relief of declaration and permanent injunction

does not arise. Both the Courts have applied their mind and

dismissed the suit. Hence, under this circumstance, I do not find

any merit to exercise the powers under Section 100 of CPC to

frame substantive question of law and to admit the second

appeal.

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

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SD/SN