Karnataka High Court
Thimmappa vs Rajappa on 13 October, 2023
Bench: H.P.Sandesh
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RSA No. 352 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.352 OF 2021 (INJ)
BETWEEN:
1. THIMMAPPA
S/O NAGAPPA
AGE ABOUT 65 YEARS
R/O. HUNASEKATTE VILLAGE
KASABA HOBLI,
HOSADURGA TALUK
CHITRADURGA DISTRICT-577 501.
...APPELLANT
(BY SRI VIJAYA KUMAR BHAT A., ADVOCATE)
AND:
1. RAJAPPA
S/O HONNAPPA
AGED ABOUT 54 YEARS
Digitally signed
by SHARANYA T
Location: HIGH 2. MANJAPPA
COURT OF S/O HONNAPPA
KARNATAKA
AGED ABOUT 44 YEARS
3. SMT. SUNKAMMA
W/O HONNAPPA
AGED ABOUT 68 YEARS
4. VENKATESHA
S/O LATE HONNAPPA
AGED ABOUT 30 YEARS
5. SMT. MAMATHA
D/O LATE HONNAPPA
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RSA No. 352 of 2021
W/O KRISHNAMURTHY
AGED ABOUT 33 YEARS
ALL ARE AGRICULTURISTS
R/O. HUNASAKATTE VILLAGE
KASABA HOBLI, HOSADURGA TALUK
CHITRADURGA DISTRICT-577501.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 16.10.2020
PASSED IN R.A.NO.243/2016 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, HOSADURGA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 02.02.2016 PASSED IN O.S.NO.110/2009 ON THE FILE
OF THE C/C ADDITIONAL CIVIL JUDGE AND JMFC,
HOSADURGA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission.
I have heard the learned counsel for the appellant.
2. The factual matrix of the case of the
appellant/plaintiff before the Trial Court that he is the owner in
possession and enjoyment of the suit schedule property having
acquired the same under the Darkasth long ago. Accordingly,
khata came to be mutated in his name. Since, from the date of
acquisition he has been in possession and enjoyment of the suit
schedule property as absolute owner. Defendants being
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stranger to the suit schedule property having no manner of
right, title and interest or possession over the suit schedule
property tried to interfere with his possession and enjoyment
of the suit schedule property besides trying to dispossess him
from the suit schedule property. Hence, he filed the suit.
3. The defendants appeared and filed written
statement denying the plaintiff's right, title and possession
over the suit schedule property. It is contended that one
Nagappa @ Durgappa had three sons by name Honnappa -
defendant No.1, Thimmappa - plaintiff and Ramachandrappa
and three daughters by name Eramma, Kamalamma and
Gangamma. Daughters of said Nagappa were married long ago.
Nagappa and his sons continued to enjoy their family
properties. Nagappa @ Durgappa died about 35 years' ago. The
joint family was in unauthorized occupation and possession of
suit schedule property. Nagappa died prior to the grant,
plaintiff being wordly wise man having the knowledge about
grant, with the consent of his brothers, made an application
before the revenue authority to get the land granted in his
favour. Joint family paid the upset price to get the grant in
favour of plaintiff and accordingly, suit schedule property was
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granted in favour of plaintiff under Darkasth. Plaintiff,
defendant No.1 and Ramachandrappa got the suit schedule
property partitioned about 15 years ago orally. In the said
partition, eastern ½ portion of suit schedule property i.e. 3
acres had fallen to the share of defendant No.1 and western ½
portion had fallen to the share of plaintiff. Defendant has been
enjoying his share as absolute owner. When he made an
application before revenue authority to get the khata in his
name, plaintiff refused to give consent. Taking advantage of
strained relationship plaintiff tried to dispossess him.
4. Having considered the pleadings of the parties, the
Trial Court framed an issues, whether the plaintiff proves that
he is in peaceful possession and enjoyment of suit schedule
property and whether the plaintiff proves alleged interference
and whether entitled for relief of permanent injunction?
5. The plaintiff examined himself as PW-1 and got
marked Exs.P1 to P30 and examined one witness as PW-2. On
the other hand defendant No.1 examined himself as DW-1 and
got marked the documents Exs.D1 to D8 and Ex.C1 came to be
marked during cross examination of PW-1.
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6. The Trial Court having considered both oral and
documentary evidence available on record comes to the
conclusion that, when the plaintiff claims that property is a
granted land and the same is granted under Darkasth in the
year 1965, in order to substantiate the same, he has not
produced any document, even plaintiff has been recalled and
got marked 24 documents and it is the claim of the plaintiff
that suit schedule property Sy.No.127/P2 measuring 6 acres
was granted to him under Darkasth and no such document is
placed before the Court. But in the RTC, name of the plaintiff is
appearing as per Darkasth and also he has produced RTC which
has marked as Exs.P1 to P20, but as per Exs.P12, P13, P14,
P15, the name of one Korachara Thimmappa S/o Thimmappa
was appearing in respect of Sy.No.127/P2 measuring 6 acres.
But the plaintiff has to prove that he also called as Korachara
Thimmappa. But as per Exs.P16 to P20 the name of plaintiff
was shown as Thimmappa S/o Nagappa. But as per the
documents produced by the plaintiff himself at Ex.P27, the
Sy.No.127/P2 measuring 6 acres is a Government land was
illegally entered in the name of the plaintiff and Village
Accountant also issued the notice against him in terms of
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Ex.P27 that said entry was made illegally by the plaintiff Even
though as per the plaintiff, he was cultivating the said suit
property, but he has to prove that as on the date of suit, he
was in lawful possession and enjoyment of suit property.
7. The Trial Court having taken note of the material
available on record and also considering the contention of the
defendants, since defendants claims that out of 6 acres, 3 acres
was given to them in the partition between himself and
plaintiff. Even DW.1 has produced the correspondence of
Tahasildar and Assistant Commissioner, wherein the plaintiff
has illegally entered his name in respect of 6 acres in
Sy.No.127. But as per the said Ex.D3 and D4, Sy.No.127 of
Kappagere Village is a Government land. Having taken note of
these materials comes to the conclusion that the plaintiff has
not proved that he is in possession of the property as absolute
owner as contended by him and also considered the other
document, particularly Ex.D3 and D4 produced by defendants,
i.e. plaintiff has entered his name in Sy.No.127 in respect of
the Government property and hence, dismissed the suit.
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8. Being aggrieved by the judgment and decree of the
Trial Court an appeal is filed in R.A.No.243/2016 . The First
Appellate Court having reassessed the material in keeping the
grounds urged in the appeal formulated the points, whether the
Trial Court is justified in holding that plaintiff has failed to prove
his lawful possession and enjoyment over the suit schedule
property, whether appellant has made out grounds to permit
him to adduce additional evidence by producing the documents
and also whether the documents are necessary and whether it
requires interference?
9. The First Appellate Court having reassessed the
material comes to the conclusion that the Trial Court has taken
note of the material on record that plaintiff has not proved his
lawful possession and enjoyment and answered first point as
affirmative and answered other points as negative and comes
to the conclusion that the Trial Court having considered the
material available on record when the plaintiff failed to prove
the lawful possession in respect of the suit schedule property,
the Trial Court has properly appreciated the oral and
documentary evidence available on record.
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10. When the title of the plaintiff over the suit schedule
property is seriously disputed and when there is a cloud on the
title of the plaintiff over the suit schedule property, the plaintiff
ought to have sought for the relief of declaration of title and not
sought any relief and also taken note of the judgment in the
case of ANATHULLA SUDHAKAR Vs. BUCHI REDDY (DEAD BY
LRS. AND OTEHRS) reported in 2008(4) SCC 594 comes to the
conclusion that when the title is disputed and when the cloud
on the title of the plaintiff ought to have filed the suit for the
relief of declaration and the same has not been sought by the
plaintiff and hence, dismissed the appeal.
11. The present second appeal is filed by counsel for
the appellant/plaintiff contending that both the Trial Court as
well as the First Appellate Court committed an error and not
appreciated the material in a proper perspective and fails to
take note of Exs.P1 to P30, which are the Government
documents not giving the findings and Ex.D1 is the grant
certificate which is the Government records in giving its finding
and both the Courts have failed to consider the material
available on record. The Courts below erred in not considering
the fact that complaint by Tahasildar under Ex.D4 and FIR is
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not a conclusive proof to dispute Exs.D1 to D30 in giving its
finding and hence, this Court has to frame the substantial
question of law.
12. Whether both the Courts justified in rejecting the
claim of the plaintiff without considering the Government
records standing in the name of the plaintiff in 1965? Whether
the Courts below are justified in rejecting the claim of the
plaintiff merely on the ground of filing a complaint by the
Tahasildar? and whether the Courts below are rejecting the
claim of the plaintiff when the RTCs, revenue records standing
in the name of the plaintiff in a suit for permanent injunction?
The First Appellate Court ought to have only consider
whether plaintiff is in possession as on the date of filing a suit.
13. Having heard the appellant's counsel and also on
perusal of the material available on record, very pleading of the
plaintiff before the Trial Court, suit schedule property is
granted to him under Darkasth. On the other hand, it is the
case of the defendants that there was a division in the property
of the family and only 3 acres was fallen to defendant No.1 and
western portion of 3 acres fallen to the share of the plaintiff
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The Trial Court also taken note of in paragraph No.11 that
when the plaintiff claims that property was allotted to him
under Darkasth, he has not produced any document regarding
grant of suit property in his favour but only produced the RTC
and also in respect of RTC there is a dispute that there was a
illegal entry and also taken note of Ex.P27 by Village
Accountant issued a notice to the present plaintiff that the said
entry was made illegally by the plaintiff and having taken note
of the material on record even DW1 has produced the
correspondence of Tahasildar and Assistant Commissioner
wherein the plaintiff has illegally entered his name in respect of
6 acres in Sy.No.127 and also taken note of Exs.D3 and D4
Sy.No.127 of Happagere Village is a Government land and
hence, comes to the conclusion that plaintiff has not made out
any case to grant the relief of permanent injunction. It is also
taken note of by the First Appellate Court also on re-
appreciation of evidence when the defendants disputed the
very title and possession of the plaintiff and ought to have
sought for the relief of declaration that when there was a cloud
on the title of the plaintiff and both the Courts taken note of
non production of any document, granting of property in favour
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of the plaintiff and also with regard to the entry in respect of
RTC, a criminal compliant was registered. The counsel
appearing for the appellant would submit that though criminal
complaint is filed against him and the same is ended in
acquittal. Even if it is acquitted and when the criminal case is
registered and the same cannot be a title deed in respect of
any of the parties, but when the plaintiff approaches the Court
seeking the documentary relief of permanent injunction ought
to have placed the material, prima facie show that he has been
in lawful possession over the suit schedule property and
documents which have been relied upon clearly discloses that a
criminal proceedings has been initiated against the plaintiff and
Ex.27 is the document with regard to initiation of criminal
complaint and in order to substantiate his contention that
property was granted to him under Darkasth also no document
is produced before the Court. When such materials are
considered by the Trial Court as well as the First Appellate
Court and First Appellate Court also while accepting the
reasoning given by the Trial Court also taken note of and there
is a dispute with regard to the title and cloud on the title of the
plaintiff, ought to have sought for the relief of declaration and
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declaratory relief has not been sought and First Appellate Court
also in paragraph No.23 while discussing the same held that
when the title of the plaintiff over the suit schedule property is
seriously disputed and when there is a cloud on the title of the
plaintiff over the suit schedule property, the plaintiff ought to
have sought for the relief of declaration of title and having
considered the principles laid down in the judgment of
Anathulla Sudhakar case also comes to the conclusion that
when title is disputed, ought to have sought for declaration. No
doubt, when the relief is sought for permanent injunction, the
Court has to look into the material available on record.
14. The counsel for the respondents vehemently
contend that RTC Ex.P1 is before the Court and the very entry
in respect of RTC is concerned is disputed and criminal
prosecution is also initiated against the appellant/plaintiff with
regard to illegal entry of his name and when title is also
disputed ought to have placed the material before the Court
that prima facie he has been in possession over the suit
schedule property and in order to substantiate the same, not
placed any material and hence, I do not find any error
committed by the Trial Court and First Appellate Court in
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coming to the conclusion that the plaintiff has not made out a
case to grant the relief of permanent injunction.
15. In view of the discussions made above, I pass the
following:
ORDER
Second appeal is dismissed.
Sd/-
JUDGE
AP
