Karnataka High Court
Sri Nagesh vs Sri Jaldappa on 13 March, 2023
Bench: H.P.Sandesh
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RSA No. 1253 of 2019
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.1253 OF 2019 (INJ)
BETWEEN:
1. SRI NAGESH
S/O. LATE DODDANAGE GOWDA
AGED ABOOUT 60 YEARS
2. SRI SHANTHARAJU
S/O. SANNANAGAPPA
AGED ABOUT 50 YEARS
BOTH ARE R/AT
CHENNAMALLANAHALLI VILLAGE
GARANI POST, I.D.HALLI HOBLI
Digitally signed
MADHUGIRI TALUK-572101
by SHARANYA T ...APPELLANTS
Location: HIGH (BY SRI PUNEETH K, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. SRI JALDAPPA
S/O. RANGAPPA AND
SMT. NAGARATHNAMMA
AGED ABOUT 45 YEARS
R/AT CHENNAMALLANAHALLI
I.D. HALLI HOBLI
MADHUGIRI TALUK-572133
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RSA No. 1253 of 2019
2. SRI BALAPPA
S/O DODDAIAH
AGED ABOUT 70 YEARS
3. SRI VEERANAGAPPA
S/O. NAGAPPA
AGED ABOUT 50 YEARS,
4. SRI NAGENDRA
S/O SANNANAGAPPA
AGED ABOUT 49 YEARS
5. SRI NAGANANDA
S/O. SANNANAGAPPA
AGED ABOUT 47 YEARS
6. SRI SUBRAMANYA
S/O SANNANAGAPPA
AGED ABOUT 46 YEARS
7. SRI LAKSHMIPATHI
S/O. SANNANAGAPPA
AGED ABOUT 40 YEARS
8. SMT. LAKSHMAMMA
W/O SANNANAGAPPA
AGED ABOUT 84 YEARS
9. SRI GIRIMALLAIAH
S/O LATE DODDANAGEGOWDA
AGED ABOUT 58 YEARS
10. SIR SOMASHEKAR
S/O LATE DDDANAGEGWDA
AGED ABOUT 55 YEARS
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RSA No. 1253 of 2019
11. SRI NANJEGWDA
S/O LATE DODANAGEGWDA
AGED ABOUT 52 YEARS
12 SRI JAYANNA
S/O LATE DODDANAGEGOWDA
AGED ABOUT 50 YEARS
13. SMT.MANJAMMA
W/O RAMACHANDRAPPA
D/O DODDANAGEGWDA
AGED MAJOR
R/AT NEAR RELIANCE PETROL BUNK
TUMAKURU ROAD, MADHUGIRI - 573 132
14. SRI NARASEGOWDA
S/O DODDAIAH
AGED ABOUT 78 YEARS
RESPONDENT 1 TO 12 AND 14 ARE R/AT
CHENNAMALLANAHALLI, I.D. HALLI HOBLI,
MADHUGIRI TALUK - 572 133
...RESPONDENTS
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 31.07.2018
PASSED IN R.A.NO.8/2015 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
MADHUGIRI AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1253 of 2019
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellants.
2. This appeal is filed challenging the judgment
and decree dated 31.07.2018 passed in R.A.No.8/2015 on
the file of the Additional Senior Civil Judge and JMFC,
Madhugiri.
3. The factual matrix of the case of the plaintiff
before the Trial Court is that the suit schedule properties
i.e., Sy.No.40 measuring 10 acres 15 guntas and
Sy.No.31/8 measuring 39 guntas of Channamallanahalli, I
D Halli hobli, Madhugiri originally belonged to one
Balegowda son of Nanjegowda, the maternal great
grandfather of the plaintiff and he was in exclusive
possession and enjoyment of the said properties during his
lifetime. The said Balegowda had two sons namely,
Mallegowda and Ramegwoda. After the death of
Balegowda, the elder son Mallegwda became the manager
RSA No. 1253 of 2019
of the family and has got changed the revenue documents
in his name in respect of the suit schedule propertiesand
this status continued till his death and also till the death of
his brother Ramegowda. The said Mallegowda died
unmarried. Ramegowda who is the another son of
Balegowda got married with one Dyavakka who died
issueless and again he got married with one Hanumakka
who is the maternal grandmother of the plaintiff. The said
Ramegowda had a daughter through Hanumakka namely,
Nagarathnamma @ Rathnamma who is non other than the
mother of the plaintiff. The plaintiff is a legal and lawful
successor of Balegowda after the death of his mother
Nagarathnamma, grandmother Hanumakka, grandfather
Ramegowda and Mallegowda and great grandfather
Balegowda and hence, he is in lawful and exclusive owner
in possession of the suit schedule properties.
4. It is also the case of the plaintiff that the said
Balegowda had two brothers by name Rangegowda and
Nagappa who were divided members and during their
RSA No. 1253 of 2019
lifetime they were divided all joint family properties and
hence, there was no joint family status or joint ownership
so far as the suit schedule properties and other properties
owned and possessed by the said Balegowda and his
descendants are concerned. It is further contended that
after the death of Mallegowda, the revenue authorities
have changed the revenue entries in the name of the
plaintiff's mother Smt.Nagarathnamma and after her
death, the said authorities have changed the revenue
entries in respect of the suit schedule properties in favour
of the plaintiff as per mutation register No.6/2000-01
dated 13.08.2001 which was not challenged by anyone
including the defendants and as such the same remains
unchallenged. However, the defendants have approached
the Tahsildar, Madhugiri to get the revenue entries in their
name but the Tahsildar rejected their request by passing
an order in M.R.No.30/2006-07 dated 28.07.2007 but the
concerned of the officials in the Tahsildar's office without
reading and perceiving the order dated 28.07.2007, in its
perspective and in proper manner, have entered the
RSA No. 1253 of 2019
names of the first defendant and one Lakshmamma wife of
Sannanagappa illegally. For its rectification, the plaintiff
has filed the petition before the Tahsildar and the same is
still pending. As such, as on the date of the suit, the
names of first defendant and said Lakshmamma are
appearing in column No.9 and 12(2) of RTC extracts
pertaining to the suit schedule properties. Thus, based on
the illegal entries, the defendants do not derive any
vestige of right, title, interest or possession over the suit
schedule properties. Either Nagappa or his wife or his
children have not claimed or questioned during their
lifetime about the title, possession and enjoyment of the
suit schedule properties by the Balegowda and his
descendants. The plaintiff is residing in a house
constructed in the suit schedule item No.1 which is
sufficient to establish his lawful possession over the suit
schedule properties. Now the defendants have interfered
with the peaceful possession and enjoyment of the plaintiff
by obstructing agricultural operations in the suit schedule
properties by the plaintiff.
RSA No. 1253 of 2019
5. In response to the suit summons, defendant
Nos.3, 4, 6 to 10 have not appeared before the Court to
contest the suit. Defendant Nos.1, 2 and 5 have appeared
and filed their written statement denying the averments
made in the plaint. However, they admitted the
relationship of plaintiff with one Balegowda but the mother
of the plaintiff namely Nagarathnamma was given in
marriage to one Rangappa of Gundlahalli village,
Madhugiri taluk and after her death, the plaintiff is
enjoying the properties of his father Rangappa at
Gundlahalli. The plaintiff is not at all concerned to the
ancestral properties of the defendants and the plaintiff is
never in possession and enjoyment of the suit schedule
properties. The sons of Rangappa through his 2nd wife
namely, Nagaraju and Siddaiah are the necessary parties
and hence, the plaintiff alone cannot file the suit since he
alone is not the owner of the suit schedule properties. But
it is contended that the suit schedule properties and other
Sy.No.31/1, 31/5, 39/4 of Channamallanahalli village are
RSA No. 1253 of 2019
all the ancestral and undivided Hindu ancestral and joint
family properties of defendant Nos.1 to 9 and they are in
joint possession and enjoyment of the same and they are
having legitimate share in all the aforesaid properties.
The plaintiff has given a petition to the revenue authority
for change of khatha and pahani of the said properties on
the basis of IHR stating that his mother Nagarathnamma
and great grandfather Ramegowda were dead. The
revenue authorities on the basis of statements of
Rangappa, father of the plaintiff, Doddaiah, father of
defendant Nos.2 and 3, the first defendant and
Sannanagappa, father of defendants No.5 to 9 has passed
the orders. As on the date of issuance of Form-1 by the
revenue authorities, the father of defendant Nos.2 and 3
and father of defendant Nos.5 to 9 were not alive. That in
collusion with the revenue authorities, the plaintiff in turn
recorded the statements of dead persons and got accepted
the mutation. The defendant Nos.1 to 9 have preferred an
appeal before the Assistant Commissioner, Madhugiri in
RRT (A) No.219/2007-08 challenging M.R.No.6/2000-01
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RSA No. 1253 of 2019
which is still pending for adjudication. Hence, prayed fro
dismissal of the suit.
6. The Trial Court based on the pleadings of the
parties framed the issues and the parties have led their
evidence. In order to prove the case of the plaintiff, he got
examined himself as PW1 and got marked the documents
at Ex.P1 to P40. On the other hand, defendant No.2 has
examined as DW1 and one witness as DW2 and got
marked the documents at Ex.D1 to D4. The Trial Court
after considering both oral and documentary evidence
placed on record particularly admission given by DW1
granted the relief of permanent injunction against the
defendants hence, an appeal was filed in R.A.No.8/2015.
The appellants also contended in the appeal that the Trial
Court has committed an error in granting the relief of
permanent injunction in favour of the plaintiff. The First
Appellate Court based on the grounds urged in the appeal
formulated the points with regard to whether the Trial
Court has erred in decreeing the suit of the plaintiff and
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RSA No. 1253 of 2019
granted an order of permanent injunction against the
appellants and whether it requires interference. The First
Appellate Court on re-appreciation of both oral and
documentary evidence placed on record comes to the
conclusion that DW1 categorically admitted that the
plaintiff is in possession of the suit schedule properties.
More importantly he has admitted that the suit schedule
properties are the properties fallen to the share of
grandfather of the plaintiff Balegowda. So as admittedly
the suit schedule properties have fallen to branch of
Balegowda, the members of the Nagegowda branch will
not get any right over the properties of Balegowda branch.
Hence, confirmed the judgment and decree of the Trial
Court. Hence, the present suit is filed before this Court.
7. The learned counsel for the appellants would
vehemently contend that as on the date of filing of the
suit, the revenue entries were in the name of the
defendants inspite of that both the Courts have committed
an error in decreeing the suit in favour of the plaintiff
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RSA No. 1253 of 2019
hence, it requires to frame the substantial question of law
and admit the second appeal.
8. Having heard the counsel for the appellant and
also on perusal of the material available on record, is
discloses that there is a dispute between the parties with
regard to the partition as well as changing of the katha in
their names and appeals were also pending before the
revenue authorities. But the Trial Court after considering
the admission given by DW1 and the documents at Ex.P1
to 40 comes to the conclusion that defendants are
interfering with the possession of the suit schedule
property and granted the decree. The First Appellate
Court also on re-appreciation of material on record and
also the admission given by DW1 in the cross-examination
that the plaintiff is in possession of the suit schedule
properties and more importantly, he has admitted that the
suit schedule properties are the properties fallen to the
share of grandfather of the plaintiff Nagegowda and the
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RSA No. 1253 of 2019
branch of Nagegowda will not get any right over the suit
schedule properties.
9. The Court has to take note of the two things
while granting the relief of permanent injunction. Firstly,
whether the plaintiff is in possession of the suit schedule
properties as on the date of filing of the suit and secondly,
whether there is an interference. In the case on hand, the
records reveals that the property was changed in the
name of the plaintiff in M.R.No.6/2000-01 dated
13.08.2001 wherein an order was made by the Deputy
Tahsildar to enter the name of the plaintiff and
subsequently an appeal was filed and the same was also
dismissed and once again the defendants have approached
the revenue authorities and revenue authorities did not
consider the same. Hence, it clearly discloses that there is
an interference in the interest of the defendants. It is also
important to note that when DW1 categorically admitted
that the plaintiff is in possession of the suit schedule
properties and apart from that when an admission was
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RSA No. 1253 of 2019
given that the property was fallen to the share of branch
of Balegowda, these aspects were considered by the Trial
Court. When there is clearly admission on the part of DW1
that the plaintiff is in possession of the suit schedule
property and admitted fact need not be proved. No doubt,
the dispute is with regard to the entries made by the
revenue authorities and both of them have claiming with
regard to the revenue entries. When DW1 itself given the
clear admission in the cross-examination that the plaintiff
is in possession of the suit schedule property, both the
Courts have not committed any error in decreeing the suit
in favour of the plaintiff and in confirming the same.
Hence, I do not find any merit in the second appeal and
not found any perversity to invoke Section 100 of CPC to
frame the substantial question of law and to admit the
appeal.
10. In view of the discussions made above, I pass
the following:
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RSA No. 1253 of 2019
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A.s if any,
dos not survive for consideration and the same stand
disposed of.
Sd/-
JUDGE
SN
