Kempaiah vs S.B. Shantharaju
2023 Latest Caselaw 1792 Kant

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                                                       RSA No. 1530 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 13TH DAY OF MARCH, 2023

                                           BEFORE

                              THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO.1530 OF 2017 (INJ)

                   BETWEEN:

                   1.   KEMPAIAH,
                        S/O LATE DODDA KEMPAIAH,
                        AGED ABOUT 71 YEARS.

                   2.   KENCHAPPA,
                        S/O LATE DODDA KEMPAIAH,
                        AGED ABOUT 76 YEARS.

                   3.   THIMMAIAH,
                        S/O LATE DODDA KEMPAIAH,
                        AGED ABOUT 66 YEARS.

                        BHAGAWATA REVANA SIDDAIAH,
                        S/O LATE SIDDANAYAKA,
Digitally signed
                        SINCE DEAD BY LRS.
by SHARANYA T
Location: HIGH     4.   SMT. RANGAMMA,
COURT OF                W/O LATE BHAGAWATA REVANA SIDDAIAH,
KARNATAKA
                        AGED ABOUT 59 YEARS.

                   5.   MANJUNATHA,
                        S/O LATE BHAGAWATA REVANA SIDDAIAH,
                        AGED ABOUT 39 YEARS.

                   6.   KRISHNAIAH,
                        S/O KENCHAPPA,
                        AGED ABOUT 52 YEARS.

                   7.   NAGARAJU,
                        S/O KENCHAPPA,
                        AGED ABOUT 50 YEARS.
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                                        RSA No. 1530 of 2017




      ALL ARE RESIDENT OF
      SIDANAKATTE VILLAGE,
      KANDIKERE HOBLI,
      CHIKKANAYAKANAHALLI TALUK,
      TUMAKURU DISTRICT-572228.
                                              ...APPELLANTS

            (BY SRI GANGADHARAPPA A.V., ADVOCATE)

AND:

S.B. SHANTHARAJU,
S/O BYRAPPA,
AGED 62 YEARS,
RESIDENT OF SIDANAKATTE VILLAGE,
KANDIKERE HOBLI,
CHIKKANAYAKANAHALLI TALUK,
TUMAKURU DISTRICT-572228.
                                             ...RESPONDENT

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.03.2017 PASSED IN RA NO.53/2013 ON THE FILE OF THE SENIOR CIVIL JUDE AND JMFC, CHIKKANAYAKANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.03.2013 PASSED IN OS NO.204/1995 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, CHIKKANAYAKANAHALLI.

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

JUDGM ENT

This matter is listed for admission today. Heard the

learned counsel for the appellants.

2. This appeal is filed challenging the judgment

and decree dated 22.03.2017, passed in

RSA No. 1530 of 2017

R.A.No.53/2013, on the file of the Senior Civil Judge and

JMFC, Chikkanayakanahalli.

3. The factual matrix of the case of the plaintiff

before the Trial Court is that the suit schedule property

was purchased by the father of the plaintiff by name

Bhyrappa from the father of the defendants

Doddakempaiah under the registered sale deed dated

13.02.1987 and the same is being used as the backyard

to store the fuel hay stock and is being used as cattle

shed. The plaintiff's father died leaving behind the

plaintiff, his mother Sannaranamma and other children

Chandrashekaraiah, S.B. Gajendra and Krishnamurthy.

So, the plaintiff and his family members are being in

possession and enjoyment of the suit schedule property.

After the death of his father, katha was effected in the

name of the mother of the plaintiff and his brothers.

There is a parapet compound wall of five feet height on

the schedule property and a entrance gate wherein the

plaintiff has stored fuel hay stock and agricultural

operations and using as cattle shed. The documents

RSA No. 1530 of 2017

produced by the plaintiff clearly shows the title of the

plaintiff over the schedule property. Even though the

defendants do not have any manner of right, title and

interest over the schedule property, are trying to

interfere with the plaintiff's possession and hence the suit

is filed for the relief of permanent injunction.

4. In pursuance of the suit summons, the

defendants appeared and filed the written statement

contending that after the death of the plaintiff's father,

the plaintiff has colluded with the Grama Panchayath

members and got katha changed in their name. The

plaintiff and his father created the sale deed by playing

fraud behind the back of their father. Their father was

an illiterate and innocent person and there was no

necessity for him to sell the property in question.

Further, the defendants submit that the father of the

defendants Doddakempaiah has purchased the schedule

property under the registered sale deed from one

Konegowda S/o Girigowda during the year 1943. The

property which is purchased under the sale deed dated

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01.03.1943 is situated in front of the house of

Konegowda, it measures east to west 19 feet, north to

south 22 feet. The plaintiff has shown the wrong

boundaries and claiming the defendants property. The

defendants on these grounds prayed for dismissal of the

suit.

5. The Trial Court after considering the pleadings

of the parties, framed the issues whether the plaintiff

proves that, he is in lawful possession and enjoyment of

the suit schedule property as on the date of filing the

suit, whether the plaintiff further proves that the

defendants interfered with the suit schedule property, as

alleged in the plaint and whether the plaintiff is entitled

for the relief of permanent injunction? The plaintiff in

order to prove his case, examined himself as P.W.1 and

examined another witness as P.W.2 and got marked the

documents at Exs.P.1 to 14. The defendants examined

defendant No.3 as D.W.1 and got marked the document

of Ex.D.1. The Trial Court after considering both oral and

RSA No. 1530 of 2017

documentary evidence placed on record, allowed the suit

and granted the relief of injunction as sought.

6. Being aggrieved by the judgment and decree

of the Trial Court, an appeal is filed in R.A.No.53/2013,

wherein also similar grounds which has been taken in the

written statement has been urged before the First

Appellate Court. The First Appellate Court extracted the

same in paragraph No.8 and formulated the points

whether the Trial Court is justified in decreeing the suit

of the plaintiff and whether the appellants have made out

grounds to allow the appeal. Considering the material on

record, the First Appellate Court on re-appreciation of

both oral and documentary evidence placed on record,

answered the point No.1 in the affirmative that the Trial

Court has not committed any error and answered point

No.2 in the negative in coming to the conclusion that the

appellants have not made out any ground to allow the

appeal and dismissed the appeal concurring with the

finding of the Trial Court. Hence, the present second

appeal is filed before this Court.

RSA No. 1530 of 2017

7. The learned counsel for the appellants/

defendants submits that when the defendants have

denied the title of the plaintiff, both the Courts have not

considered the same and ought not to have entertained

the suit for permanent injunction when the specific denial

was made with regard to the title of the plaintiff. The

learned counsel submits that the plaintiff himself has

stated that the defendants are denying the title. The

learned counsel would contend that the plaintiff is also

not certain about the identity of the property, which

according to him is stated to have been purchased by his

father in 1987 and the Courts below are not justified in

granting the relief of permanent injunction when the

identity of the property is in dispute. It is contended that

both the Courts are not justified in granting the relief of

permanent injunction by erroneously placing the burden

of proof on the defendants and that too when the plaintiff

has not produced any evidence to establish his lawful

possession and enjoyment of the suit schedule property.

Both the Courts committed an error in relying upon the

RSA No. 1530 of 2017

documents Exs.P.11 to 14 and hence it requires

interference of this Court and this Court has to frame

substantial question of law and admit the appeal.

8. Having heard the learned counsel for the

appellants and also on perusal of the material available

on record, it is the case of the plaintiff that the suit

schedule property was purchased from the father of the

defendants in the year 1987 i.e., on 13.02.1987 Ex.P.1.

It is also the claim of the plaintiff that the defendants are

interfering with the peaceful possession and enjoyment

of the plaintiff in the suit schedule property. The

defendants also took the specific defence that the sale

deed is a sham document and the father of the plaintiff

has created the said document. The plaintiff other than

the document of Ex.P.1 also got marked the documents

of Exs.P.2 and 3 demand register extracts, Ex.P.4 tax

paid receipt, Ex.P.5 certified copy of the order passed in

W.P.No.14287/1995, Ex.P.6 to 9 photographs, Ex.P.10

negative, Ex.P.11 sale deed, Ex.P.12 partition deed,

Ex.P.13 sale deed and Ex.P.14 licence. On the other

RSA No. 1530 of 2017

hand, defendant No.3 examined himself as D.W.1 and

got marked the certified copy of the sale deed dated

01.03.1943.

9. The Trial Court while considering the material

available on record comes to the conclusion in paragraph

No.15 and the same has been pointed out by the learned

counsel for the appellants that on perusal of the sale

deed Ex.P.1 and the sale deed relied upon by the

defendant Ex.D.1, it go to show that the boundaries are

entirely different and when the Court comes to the

conclusion that the boundaries are entirely different,

ought not to have granted the relief of permanent

injunction and there is a dispute with regard to the

identity. The Trial Court while considering the material

on record observed that when Doddakempaiah has

purchased the property from Konegowda, he had also

retained other properties and hence the sale made by

him in favour of the father of the plaintiff is valid. The

Court also taken note of retaining of some portion of the

property under which the property was purchased by sale

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RSA No. 1530 of 2017

deed dated 01.03.1943 and hence naturally the

boundaries mentioned in Ex.D.1 and Ex.P.1 would be

different. The Trial Court also taken note of the

admission given by D.W.1 in the cross-examination that

he has produced the sale deed for having purchased the

property from Konegowda and also elicited with regard to

retaining of the portion of the property and comes to the

conclusion that the property which was retained by

Konegowda, in turn, it was purchased by Doddakempaiah

and was sold in favour of the plaintiff and the same is

also taken note of by the Trial Court. The Trial Court

also discussed with regard to the answers given by P.W.1

in the cross-examination and the Court has to take note

of the material on record when considering the suit of

permanent injunction.

10. The plaintiff also produced other documents

before the Court to show that they are in possession of

the suit schedule property and the defendants except

producing Ex.D.1, not produced any other documents

before the Court to show that they are in possession of

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RSA No. 1530 of 2017

the suit schedule property. The Trial Court also taken

note of the answers elicited from the mouth of D.W.1 in

paragraph No.16 and also taken note of the contention of

the defendants that sale deed is a sham and void

document. Having considered the said defence in

paragraph No.17, the Trial Court discussed that no effort

till date is taken by the defendants in order to cancel the

sale deed and further taken note of the admission that

they have not taken any action to question the said sale

deed. Though, not discussed with regard to the order

passed by the High Court in W.P.No.14287/1995 when

the khatha was transferred in the name of the plaintiff's

mother, the same was challenged and the same was

taken note of by the First Appellate Court while

answering point No.1 that Ex.P.5 is the copy of the order

passed in W.P.Nos.13789/1995 and 14287/1995 filed by

appellant Nos.1 to 3 against the plaintiff and his family

members and the Grama Panchath and respondent No.4

is also the petitioner in another petition and both are

clubbed and common order was passed by this Court.

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RSA No. 1530 of 2017

The Appellate Court in paragraph No.13 discussed in

detail the said petitions have been filed challenging

khatha made in the name of the plaintiff and his family

members and accordingly this Court observed that to

seek the relief of declaration before the competent civil

Court. Inspite of that, the appellants have not

challenged the alleged sale deed Ex.P.1 and not sought

for the declaration of their title over the suit schedule

property. The First Appellate Court also taken note of

the material placed before the Trial Court i.e., Exs.P.1 to

14 and also taken note of both oral and documentary

evidence placed on record and confirmed the judgment

and decree of the Trial Court.

11. The main contention of the learned counsel for

the appellants is that when the title has been denied,

both the Courts ought not to have granted the relief of

permanent injunction, but admittedly the sale deed

executed by the defendants' father is not in dispute.

Only their contention is that it is a sham and fraudulent

document and the same has not been questioned before

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RSA No. 1530 of 2017

any Court of law and this Court observed the same when

writ petition was filed. Inspite of it, no action was taken

and the same has been admitted in the cross-

examination of D.W.1. When the defendants' father had

executed the sale deed in favour of the plaintiff's father

and when the suit is filed for the relief of permanent

injunction and boundaries mentioned in Ex.P.1 tallies

with the boundaries mentioned in the suit, the very

contention of the learned counsel for the appellants that

there is a dispute with regard to the identity of the

property cannot be accepted.

12. The learned counsel for the appellants mainly

contend that the boundaries mentioned in Ex.P.1 and

Ex.D.1 does not tally with each other. But both the

Courts have given a finding with regard to the boundaries

mentioned in the document Ex.D.1 and Ex.P.1 and

certain portion of the property was retained and hence

there was a difference in the boundaries. Both the

Courts have applied their mind and given anxious

consideration to the material on record and given

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RSA No. 1530 of 2017

concurrent finding. This Court can entertain the second

appeal only if any perversity is found in considering the

material on record. I do not find any such perversity in

the findings of both the Courts. The contention that

ought to have filed comprehensive suit for declaration

does not arise since the defendants' father himself has

sold the property in favour of the plaintiff's father and

the plaintiff is seeking the relief of permanent injunction

based on the sale deed executed by the defendants'

father and particularly boundaries which have been

mentioned in Ex.P.1 and suit schedule boundaries also

tallies with Ex.P.1. Under the circumstances, the

contention of the learned counsel for the appellants that

there is a dispute with regard to the identity of the

property and ought to have filed a suit for declaration

cannot be accepted. The defendants though claim that

the sale deed Ex.P.1 is a sham document and the same

is obtained by playing fraud, the same has not been

questioned and nothing is placed on record for having

questioned the said sale deed. Hence, I do not find any

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RSA No. 1530 of 2017

merit in the appeal to admit the appeal and frame

substantial question of law.

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

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MD