K H Channabasappa vs K H Maheshwarappa
2023 Latest Caselaw 445 Kant

                        1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 6TH DAY OF JANUARY, 2023

                     BEFORE

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

           R.F.A. NO.1489/2006 (RES)

BETWEEN:

1.   K.H. CHANNABASAPPA
     S/O LATE PARAMESHWARAPPA,
     AGED ABOUT 28 YEARS
     AGRICULTURIST,
     R/O CHIKKAMEGALAGERE,
     HARAPANAHALLI TALUK-583218.

2.   SMT. SAVITHRAMMA
     W/O MAHESHWARAPPA AND
     D/O LATE K.H.PARAMESHWARAPPA,
     AGED ABOUT 28 YEARS,
     R/O MAGANAHALLI, BILCHOOD POST,
     JAGALUR POST-583119.

3.   SMT. K.H. BASAMMA
     W/O LATE K.H.PARAMESHWARAPPA,
     AGED ABOUT 43 YEARS,
     R/AT CHIKKAMEGALAGERE,
     HARAPANAHALLI TALUK-583218.
                                       ...APPELLANTS

(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)
                               2

AND:

K.H. MAHESHWARAPPA,
S/O HANUMANTHAPPA,
AGED ABOUT 12 YEARS,
AGRICULTURIST,
R/O KADAJJI VILLAGE,
DAVANAGERE DISTRICT-577013.
                                             ...RESPONDENT
(BY SRI. M. VINAYA KERTHY, ADVOCATE)

     THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 07.04.2006 PASSED IN O.S.NO.122/2004
ON THE FILE OF THE CIVIL JUDGE (SR.DN.) HARIHAR,
DECREEING THE SUIT FOR PARTITION AND PERMANENT
INJUNCTION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 10.11.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-

                         JUDGMENT

Present appeal is directed against the judgment and

decree dated 7.4.2006 passed in OS No.122/2004 on the

file of the Civil Judge (Sr. Dn.), Harihar, whereby the suit

of the plaintiff is decreed as prayed for.

2. The parties are referred to as plaintiff and

defendants for the sake of convenience as per their

original rankings before the Trial Court.

3. Brief factual matrix of the case are as under:

Plaintiff filed a suit seeking cancellation of the

portion of the decree passed in OS No.28/2003 dated

23.10.2003, in respect of 'C' schedule property and as well

as cancellation of the portion of the partition deed dated

15.12.2003 executed by late K.H. Parameshwarappa and

defendants relating to the suit land of the plaintiff shown

as 'A' schedule in the said partition deed which has been

allotted to Parameshwarappa son of Channabasappa.

Case of the plaintiff further reveals that plaintiff is

the owner of the agricultural land bearing Survey No.493/B

measuring 4 acres 83 cents situated at Hiremeghala gere

village, Arasikere Hobli, Harappanahalli Sub-Division,

Davangere District bounded on East - land belonging to

B.Siddappa; West - land belonging to Gurappala Halamma;

North - land belonging to Hadapada Sharanappa and South

- land belonging to Hanumanthappa [hereinafter referred

to as the 'suit schedule property'] .

4. It is the further case of the plaintiff that plaintiff

purchased the suit property by virtue of the sale deed

dated 13.07.1998 from its original owner Sri Pujar

Mahadevappa for a valuable consideration in a sum of

Rs.1,64,000/-. After purchase of the suit property,

plaintiff got mutated the revenue entries in the concerned

records and was enjoying the suit property. Title to the

vendor of the plaintiff Pujar Mahadevappa is based on the

court auction sale dated 2.12.1993.

5. The father of the first and second defendants and

husband of the third defendant Sri K.H. Parameshwarappa

died in the month of June 2004 leaving behind his son,

daughter and wife. During the life time of

Parameshwarappa, the first defendant filed a suit for

partition in OS No.28/2003 seeking partition and separate

possession of his share against his parents.

6. It is further contended by the plaintiff that the

said suit in OS No.28/2003 ended in a compromise decree

dated 23.10.2003. It is further contended that the said

suit is a collusive suit and clandestinely suit property of the

plaintiff was included as the joint family property in 'C'

schedule in OS No.28/2003 without there being any

documents whatsoever to substantiate that the suit

property was the joint family property of K.H.

Parameshwarappa. It is further contended that few

documents were created by Parameshwarappa and first

defendant got included the suit property into the scope of

OS No.28/2003 and therefore, the compromise decree

passed in OS No.28/2003 is not binding on the plaintiff.

7. It is also pleaded that defendants and late

Parameshwarappa thereafter entered into registered

partition deed on 15.12.2003 wherein Parameshwarappa

got the suit property as his share. Subsequent to the

registration of the partition deed, the revenue entries were

mutated in the name of K.H. Parameshwarappa when the

plaintiff came to know about the illegalities committed by

the defendants by obtaining encumbrance on 10.05.2004,

when he approached the Canara Bank for loan facility

based on the suit property. He was shocked and surprised

to see the name of Parameshwarappa and thereafter,

collected necessary documents and came to know about

the partition deed dated 15.12.2003 and decree in OS

No.28/2003 and immediately, he approached the revenue

authorities and objected for change of katha. The said

application was registered in dispute No.CR.23/2004-05.

He also contacted the defendants in this regard but his

efforts were went in vain and therefore, left with no

alternative, the plaintiff filed the suit seeking aforesaid

prayer.

8. Upon service of suit summons, defendants

entered appearance through the Advocate and first

defendant filed a detailed statement which has been

adopted by the other defendants. In the written statement

and plaint averments were denied in toto and contended

that the suit property is the joint family property of the

defendants and therefore, the suit is to be dismissed. The

defendants specifically denied that the defendants have

manipulated the revenue entries and concocted the

documents in respect of the suit properties and filed a

false suit and sought for dismissal of the suit.

9. Based on the rival contentions of the parties,

following issues have been raised:

"(1) Whether plaintiff proves that he is the owner of suit schedule property as per the sale deed dt.13-7-98 ?

(2) Whether plaintiff further proves that the defendants by mis-leading to the court and to cause legal injury & hardship to the plaintiff got compromised the decree in 0.S.No.28/03 in respect of suit schedule property which is belonging to him and the said decree is not binding upon him?

(3) Do defendants prove that the suit schedule property is their joint family property and they are in possession & enjoyment of the same?

(4) Do defendants further prove that the suit is bad for non-joinder of necessary party i.e., vendor of plaintiff?

(5) Whether plaintiff proves that he is in possession & enjoyment of suit schedule property on the date of filing the suit?

(6) Whether plaintiff further proves that the defendants have caused un-lawful obstruction for his possession & enjoyment of suit schedule property?

(7) Whether plaintiff is entitled for reliefs as sought for?

(8) What decree or order?"

10. In order to prove the case of the plaintiff,

plaintiff got examined himself as PW-1 and relied on 19

documents which were exhibited and marked as Exs.P1 to

P19 comprising of certified copy of the sale deeds, partition

deed, RTC extracts, Tax paid receipts, certified copies of

the order sheet, plaint, amended plaint, valuation slip,

written statement, compromise petition, decree, list of

documents, General Power of Attorney, letter of

requisition, notice and encumbrance certificate.

11. In order to prove the case of the defendants,

first defendant Channabasappa is examined as DW-1, but

did not place any defence evidence in respect of his

contentions. On conclusion of the trial, the learned Trial

Judge after hearing the parties in detail and on cumulative

consideration of the oral and documentary evidence on

record, decreed the suit of the plaintiff as under:

"The suit of the plaintiff is hereby decreed with costs against the defendants. It is hereby ordered & decreed that the decree passed in O.S.No.28/03 on the file of this court dt. 23-10-03 in respect of 'C' schedule property which is mentioned in the said decree in respect of present suit schedule property is hereby cancelled.

It is further hereby ordered & decreed that the partition deed dt.15-12-03 in respect of 'A' schedule property which is mentioned in the said partition deed with respect to present suit schedule property which is fallen to the share of Parameshwarappa S/o Channabasappa at the office of Sub-Registrar, Harappananalli in Book No.1 at Sl.No.2015 is hereby cancelled.

Further it is ordered and decreed that the defendants are hereby permanently restrained from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.

Draw decree accordingly."

12. Being aggrieved by the said judgment and

decree, the defendants are in appeal on the following

grounds:

"That the judgment and decree passed by the lower court is opposed to law and probabilities of the case.

That the Lower court has not taken in to consideration oral and documentary evidence and has come to a wrong conclusion.

That the Lower court ought to have dismissed the suit filed by the respondents.

That the Lower court seriously erred in law in holding that the respondent (Plaintiff) is the owner of the suit schedule property. The said findings recorded by the Trial court is totally erroneous.

That the court below seriously erred in law in relying upon Ex.P.1 to P.3 which are certified copies. That the court below fail notice that the respondent failed to produce the original copies of the sale deed which are inadmissible in evidence. This aspect of matter is not at all considered by the Trial Court.

That the Trial Court seriously erred in law in coming to the conclusion. That the appellants have obtained a compromise decree in

0.S.No.28/03 behind the back of the respondent. That the court below fail to notice that the respondent is not a necessary party, since the properties comprised in 0.S.No. 28/2003 belongs to the Joint family of the appellants. This aspect of the matter is not at all considered by the Trial Court.

That the court below fail to notice that one Tulajappa has executed the G.P.A in favour of the father of the 1st appellant. Hence he was the owner of the suit schedule property. This aspect of the matter was not at all considered by the Trial Court.

That the Court below seriously erred in law in holding that the partition deed as per Ex.P.3 was collusive and playing fraud on the part of the respondents.

That court below ought to have dismissed the suit for non-joinder of the necessary parties, since the vendor of the respondent has not made the party to the suit."

13. The learned counsel for the appellant Sri Sanath

Kumar Shetty K. vehemently contended that the Trial

Court has grossly erred in decreeing the suit of the

plaintiff. He also argued that the remedy for the plaintiff

was to approach the very same court which passed the

compromise decree and not to file a separate suit and

therefore, sought for allowing the appeal.

14. Per contra, learned counsel representing the

respondent Sri M. Vinaya Keerthy, supported the

impugned judgment clandestinely and contended that the

alleged compromise in the suit and by active collusion,

they have included the suit property in OS No.28/2003

which has been rightly appreciated by the learned Trial

Judge while passing the impugned judgment and decree

and sought for dismissal of the appeal.

15. In view of the rival contentions of the parties,

the following points would arise for consideration:

(i) Whether the defendants have made out a case that the suit property is the joint family property and therefore, defendants and Sri Parameshwara is justified in including the suit property as 'C' schedule property in OS No.28/2003?

(ii) Whether the defendants/appellants further prove that the suit filed by the plaintiff is not maintainable ?

(iii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

(iv) What order?

16. In the case on hand, in order to prove the case

of the plaintiff, plaintiff got examined himself as PW-1 by

filing an affidavit in lieu of his examination in chief. In the

said affidavit he reiterated the contents of the plaint in

verbatim and sought for decreeing of the suit. He relied

on 19 documentary evidence which were exhibited and

marked as Exs.P1 to P19, comprising of certified copies of

the sale deeds, partition deed, RTC extracts, Tax paid

receipts, certified copy of the order sheet, plaint, amended

plaint, valuation slip, written statement, compromise

petition, decree, list of documents, GPA executed by

Tulujappa, letter of requisition, Notice issued by Deputy

Tahasildar, Nadakacheti of Arasikere, Encumbrance

certificate in support his oral testimony.

17. In his cross examination he has answered that

original of Ex.P1 is misplaced. He admits that his vendor

got the title as per the order passed by court in Execution

Case No.8/1993 and Court Commissioner has executed the

sale deed in favour of his vendor. He admits that Poojar

Mahadevappa s/o.Gurushan is his vendor and he has not

produced the sale deed executed in favour of the said

Poojar Mahadevappa in pursuance of the order passed in

Exe.Case No.8/93. He denies the suggestion that his

vendor did not derive any right, title and interest in the

suit property in the sale deed executed by the Court

Commissioner. He pleaded ignorance about the Power of

Attorney vide Ex.P16. He denied the suggestion that

Ex.P16 is executed by the father of the first defendant in

his favour. He also denies the suggestion that first

defendant was in possession of the suit property in

pursuance of Ex.P16. He pleaded ignorance about the

pendency of original suit No.28/2003 which is filed for

partition by first defendant against his father, mother and

sister. He admits that he is resident of Kadabji village and

defendants are residents of Chikkamegalageri village. He

admits that the suit property bearing Survey No.493/B

being the part of Chikkamagalageri village of

Harappanahalli taluk, there could not be the same Survey

number being allotted by the land of the first defendant.

He denied the suggestion that as per the well wishers of

the village, defendants have entered into compromise vide

Ex.P14 in OS No.28/2003. He admits that he has not

furnished the mutation register extract in respect of the

suit property.

18. He denies that noting the defects in Ex.P2,

Tahasildar has rejected his application seeking transfer of

revenue entries. He denied the suggestion that even

though he was not having right, title and interest over the

suit property, he colluded with the revenue authorities and

got his name entered in Exs.P4 to P6. He denied the

suggestion that when revenue entries are transferred in

his name, the defendants were not notified. He denied the

suggestion that under Ex.P2 he did not derive possession

over the suit property.

19. First defendant Channabasappa also filed

affidavit in lieu of his examination in chief wherein he has

reiterated the contents of the written statement and

sought for dismissal of the suit. In his cross examination,

he admits that he is acquainted with Kannada language

and his father died on 20.5.2004. He admits that since

there is no cordial relationship between his father, they

were having separate residence. He admits that he had got

an elder sister and filing of OS No.28/2003. He admits

that he has included land in Survey No.493/D in OS

No.28/2003, and he has furnished a Power of Attorney

executed in favour of his father by the erstwhile land

owner and except that documents he has not furnished

any other documents to prove the ownership over the suit

property. He admits that suit property is in the name of

the plaintiff and neither himself nor his father has been

examined as witness in OS No.28/2003. He further admits

that suit OS No.28/2003 ended in compromise and based

on the same, the partition deed was registered in the office

of Sub Registrar, Harappanahalli. He admits that in

Ex.P10, there is a mention that suit land is situated in

Chikkamegalageri village. He admits that in respect of

the suit property except the Power of Attorney marked at

Ex.P-16, there is no other document. He pleaded

ignorance that on 13.07.1998 suit property was purchased

by the plaintiff from Poojar Mahadevappa in a sum of

Rs.1,64,000/-. However, he admits that Poojar

Mahadevappa purchased the suit property on 2.12.1993 in

the court auction. He denies other suggestions.

20. On cumulative consideration of oral and

documentary evidence on record, it is crystal clear that

suit property was put into auction in Ex.No.8/93 by Sri

Poojar Mahadevappa. Thereafter, Poojar Mahadevappa

was put into possession of the suit property. The revenue

entries got transferred in the name of Poojar Mahadevappa

certified copy of the sale deed marked at Ex.P1 dated

13.7.98 recites the same about the title in respect of the

suit property. Likewise, Ex.P2 being the sale deed

executed by the Court Commissioner on 2.12.1993 in

favour of the Poojar mahadevappa. The said consideration

is shown as Rs.1,64,000 in Ex.P1.

21. As could be seen from the above, it is the

plaintiff who is the owner of the suit property. However,

without there being any right, title and interest over the

suit property, the same is included in the compromise

decree entered into by first defendant and his family

members in OS No.28/2003.

22. There is a specific admission by the first

defendant in his cross examination that except General

Power of Attorney executed by Tulajappa in favour of the

father of the first defendant, there is no other document to

establish the right, title and interest over the suit property.

23. Since the suit ended in a compromise, the

learned Trial Judge who passed the compromise decree in

Os No.28/03, did not bestow his attention as to the title of

the first defendant or his family members over the suit

property. The partition deed dated 15.12.2003 was

registered in the office of the Sub. Registrar

Harappanahalli based on the compromise decree.

24. It is settled principles of law that a person

would not get any title over the suit property based on the

power of attorney alone. As such, title of the defendant

over the suit property is not established by the defendant.

On the contrary, the materials on record clearly shows that

the plaintiff has established his right, title and interest over

the suit property by placing cogent and convincing

evidence on record by tracing his title in his vendor namely

Poojar Mahadevappa who purchased the suit property in a

court auction in Execution No.8/1993.

25. Therefore, the materials on record clearly

indicates that it is the plaintiff who is the absolute owner in

possession of the suit property and inclusion of the suit

property in OS No.28/1993 and said suit ending in a

compromise between first defendant and his family

members and pursuant thereof, partition deed is registered

on 15.12.2003 in the office of the Sub. Registrar

Harappanahally is thus bad in law and therefore, the

learned Trial Judge was perfectly justified in decreeing the

suit of the plaintiff as referred to supra.

26. Even after re-appreciation of the entire

materials on record both on facts and law, this court is of

the considered opinion that the grounds urged in the

appeal memorandum are hardly sufficient to hold that the

impugned judgment is suffering from legal infirmity or

perversity. On the contrary, the impugned judgment is

based on proper and sound re-appreciation of the

materials on record logically.

27. In view of the foregoing discussion, this court is

of the considered opinion that this court is not made out

any good grounds whatsoever to interfere with the

impugned judgment. Accordingly, Point Nos.1 & 2 are

answered in the negative.

28. REG.POINT NO.3: In view of findings on Point

Nos.1 & 2, above, pass the following order:

ORDER

Appeal is merit less and hereby dismissed. No order

as to costs.

SD/-

JUDGE

PL*