Karnataka High Court
A V Sarojamma vs Chandrashekara on 31 October, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.709/2018 (INJ)
BETWEEN:
1. A.V. SAROJAMMA
W/O LATE A.D. VEERAPPAJI,
AGED ABOUT 61 YEARS,
2. A.V. MAHESHA
S/O LATE A.D. VEERAPPAJI,
AGED ABOUT 54 YEARS,
A.V. YOGESHA
S/O LATE A.D.VEERAPPAJI,
DIED ON 23/12/2017 BY HIS LR
3. GANGAMBIKE,
W/O A.V. YOGESHA,
AGE MAJOR,
4. A.V. RANI
D/O LATE A.D. VEERAPPAJI,.
AGED ABOUT 36 YEARS,
ALL ARE RESIDING AT
AAVARTHI VILLAGE,
HARANAHALLY HOBLI,
PERIYAPATNA TALUK,
MYSURU DISTRICT-570 001. ... APPELLANTS
(BY SRI ABUBACKER SHAFI, ADVOCATE)
2
AND:
1. CHANDRASHEKARA
S/O LATE NINGAPPA,
AGED ABOUT 61 YEARS,
R/AT AAVARTHI VILLAGE,
HARANAHALLY HOBLI,
PERIYAPATNA TALUK,
MYSURU DISTRICT-570 001. ... RESPONDENT
(BY SRI K.N.NITISH, ADVOCATE FOR
SRI K.V.NARASIMHAN, ADVOCATE FOR C/R)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DTD: 14.12.2017
PASSED IN R.A.NO.26/2017, ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, PERIYAPATNA ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
20.09.2017 PASSED IN O.S.NO.169/2012 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, PERIYAPATNA.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.10.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants-plaintiffs and
learned counsel for the respondent-defendant.
2. The parties are referred to as per their original
ranking before the Trial Court to avoid the confusion and for the
convenience of this Court.
3. The factual matrix of the case of the appellants-
plaintiffs before the Trial Court while seeking the relief of
declaration of ownership and permanent injunction is that suit
schedule property bearing Sy.No.66/2 measuring 1 acre, 12
guntas stands in the name of husband of first plaintiff and
Sy.No.66/3, an extent of 1 gunta stands in the name of
defendant's father. It is also contended that defendant wrongly
got changed the khatha in his name in M.R.No.30/2010-2011
and it is also contended that on 01.05.2012, the defendant tried
to interfere with the plaintiffs possession over the suit schedule
property. It is also the contention that the property in
Sy.No.66/2 originally was an ancestral property of late
Doddamallappa, the father-in-law of the plaintiff No.1 and
grandfather of the plaintiff Nos.2 to 4 and he enjoyed and was in
possession of the schedule property till his life time. It is
contended that till 1966, land measuring 1 acre, 12 guntas in
Sy.No.66/2 was standing in the name of late Doddamallappa,
the father-in-law of the plaintiffs and 1 gunta of land in
Sy.No.66/3 was standing in the name of the father of the
defendant by name Ningappa. When this was the case, after
1966-67, the property measuring 1 acre, 12 guntas in
Sy.No.66/2 was interchanged in the name of the defendant's
father Ningappa as Sy.No.66/3 to that extent and 1 gunta in
Sy.No.66/3 entered in the name of husband of the first plaintiff
late A.D. Veerappaji as Sy.No.66/2. The documents clearly
reflects the fact that an extent of 1 acre, 12 guntas of land in
Sy.No.66/2 is standing in the name of the father-in-law of first
plaintiff late Doddamallappa and subsequent to death of father-
in-law, the documents disclose the name of husband of the first
plaintiff and he has got mutated the revenue entries in his name
and the same has been interchanged.
4. The defendant appeared and filed the written
statement denying the claim of the plaintiffs and he contended
that he is the absolute owner of the suit schedule property and
the same is his ancestral property. It is his contention that
schedule property belongs to his father and he acquired the
same from his ancestors and since from 1950 to 2010, the
schedule property was standing in the name of his father. He
also contend that the schedule property is in his possession from
his forefather and also took the contention that they entered into
a partition dated 09.03.2011 and the suit schedule property has
fallen to his share and accordingly, he has got changed the
khatha and he is in possession of the suit schedule property.
5. The Trial Court allowed the parties to lead evidence
and on behalf of the plaintiffs, the plaintiff No.3 has been
examined as P.W.1 and also examined a witness as P.W.2 and
got marked the documents as Exs.P1 to P73. On the other
hand, the defendant examined his power of attorney holder as
D.W.1 and got marked the documents as Exs.D1 to D23.
6. The Trial Court, having considered the material on
record, granted the relief of declaration declaring that the
plaintiffs are the absolute owners of the suit schedule property
and also granted permanent injunction against the defendant.
Being aggrieved by the judgment and decree of the Trial Court in
O.S.No.169/2012, an appeal is filed before the First Appellate
Court in R.A.No.26/2017 and the First Appellate Court, having
considered the grounds urged in the appeal memo, formulated
the points whether the plaintiffs prove that they have acquired
title to the suit schedule property having succeeded to the same
upon death of their ancestors, whether the plaintiffs prove that
they are in exclusive possession and enjoyment of the suit
schedule property and defendant has interfered with the same
and whether the impugned judgment and decree of the Trial
Court is perverse, capricious, arbitrary and illegal and it requires
interference. The First Appellate Court, reversed the findings of
the Trial Court and answered point Nos.1 and 2 as 'negative' and
answered point No.3 as 'affirmative', in coming to the conclusion
that the judgment of the Trial Court is perverse, capricious,
arbitrary and illegal. Hence, the present second appeal is filed
before this Court.
7. The main grounds urged by the learned counsel for
the appellants-plaintiffs before this Court is that D.W.1
categorically admits the case of the plaintiffs and the same has
been considered by the Trial Court but, the First Appellate Court
without looking into the documentary evidence and admission,
reversed the findings of the Trial Court and the judgment of the
First Appellate Court is perverse and the same is against the
material on record.
8. This Court, having heard the matter, admitted the
second appeal and framed the following substantial question of
law:
"Whether the finding by the appellate Court
that the appellants have not been able to establish
title and therefore, possession of an extent of 1 Acre
12 Guntas described as land bearing Survey No.66/3
of Avarthi Village, Haranahally Hobli, Periyapatna
Taluk is based on evidence including the statement
made by the respondent in cross-examination".
9. Learned counsel appearing for the appellants-
plaintiffs in his argument would vehemently contend that there is
no dispute with regard to the relationship between the plaintiffs
and original family member of late Doddamallappa. The
appellants are the daughter-in-law and grand children of said
late Doddamallappa. Learned counsel also would vehemently
contend that all the revenue documents stands in the name of
late Doddamallappa from 1960 onwards till 1966-67 in respect of
Sy.No.66/2 and the revenue records clearly disclose that an
extent of 1 gunta of land in Sy.No.66/3 stands in the name of
Ningappa, who is the father of the respondent-defendant.
Learned counsel would vehemently contend that the said extent
of land was got interchanged in the revenue records and though
1 gunta of land was in existence in Sy.No.66/3 and the same
was interchanged as 1 acre, 12 guntas and the revenue entries
are made in the name of the father of the defendant in respect
of the said extent of land.
10. The counsel also would vehemently contend that the
evidence of P.Ws.1 and 2 is clear with regard to the claim made
by the plaintiffs and P.W.2 has also spoken with regard to the
possession of the plaintiffs before the Trial Court and the Trial
Court rightly appreciated the evidence of P.Ws.1 and 2 and so
also the admission of D.W.1. The witness D.W.1 categorically
admitted in the cross-examination that he does not know how
the said interchange was made and also do not know what is the
basis for interchanging the same and the Trial Court rightly
appreciated the admission by extracting the admission of D.W.1
with regard to the interchange of extent as well as the
possession since, he has given the undertaking before the police
when the complaint was given that plaintiffs are in possession
and till the disposal of the suit, they will not interfere with the
possession of the plaintiffs and the same has been extracted by
the Trial Court while appreciating the evidence available on
record.
11. The learned counsel would further contend that the
First Appellate Court while reversing the judgment, erroneously
comes to the conclusion that the plaintiffs have not placed any
documents and not looked into the voluminous documents
placed before the Trial Court which substantiate the claim of the
plaintiffs, but erroneously comes to the conclusion that there are
contradictions in the pleadings and the evidence but, no such
contradictions are found and the reasons assigned is against the
material on record.
12. Per contra, learned counsel appearing for the
respondent-defendant would vehemently contend that when the
plaintiffs claim that Sy.No.66/2 is interchanged as Sy.No.66/3,
not produced any document to substantiate the same. Learned
counsel also would vehemently contend that Ex.P3-M.R. Extract
is clear with regard to the fact that revenue entries are changed
in M.R.No.30/2010-11 based on the partition. It is also not in
dispute that Sy.No.66/3 belongs to the defendant and
declaration is also sought in respect of Sy.No.66/3. Learned
counsel also brought to notice of this Court the document of
Ex.P7, which discloses the fact that 1 gunta of land in
Sy.No.66/2 stands in the name of the husband of the first
plaintiff. The document of Ex.P8 discloses the fact that 1 acre,
12 guntas of land stands in the name of the father of the
defendant. Ex.P15 is also in respect of Sy.No.66/2 i.e., the land
to the extent of 1 gunta stands in the name of the plaintiffs. So
also, Ex.P37 is an important document i.e., Revision Settlement
Aakarband which clearly discloses measurement of each survey
numbers i.e., Sy.Nos.66/1, 66/2, 66/3 and 66/4. Learned
counsel also brought to notice of this Court the document of
Ex.P46-R.T.C. Extract for the year 1966-67 which discloses that
1 acre, 31 guntas of land in Sy.No.66/1 stands in the name of
Kalamma, 1 gunta of land in Sy.No.66/2 stands in the name of
the husband of the first plaintiff and 1 acre, 12 guntas in
Sy.No.66/3 stands in the name of the father of the defendant
and these are the documents which are taken note by the First
Appellate Court and the Trial Court failed to take note of the
material available on record.
13. Learned counsel for the respondent-defendant also
brought to notice of this Court the document of Ex.P64-survey
sketch and Ex.P67 which disclose the same measurement.
Learned counsel would vehemently contend that appeal was also
filed before the Assistant Commissioner and the same was
dismissed and for having phoded the property also, no document
is placed and so also in respect of changing the Sy.Nos.66/2 and
66/3, no document is placed before the Court. The First
Appellate Court also taken note of the fact that the witness
P.W.2 has been examined and he says that he is not aware of
anything and hence, not accepted his evidence. The plaintiffs
have also not challenged the entries from 1967 and the same is
discussed by the First Appellate Court in Para Nos.14 and 15 of
the judgment and comes to the conclusion that the judgment of
the Trial Court is perverse and rightly reversed the findings of
the Trial Court. Hence, it does not require any interference.
14. In reply to the arguments of the learned counsel for
the respondent-defendant, learned counsel for the appellants-
plaintiffs brought to notice of this Court the admission given by
D.W.1 in the cross-examination. The counsel also contend that
the very admission given by the witness D.W.1 has been
extracted by the Trial Court in the judgment, particularly in Para
Nos.13, 14 and 15 and also taken note of the documentary
evidence available on record and rightly decreed the suit.
Hence, this Court has to interfere with the findings of the First
Appellate Court and no reasons are assigned while reversing the
findings of the Trial Court and the reason assigned is also
erroneous.
15. Having heard the learned counsels for the
appellants-plaintiffs, respondent-defendant, the grounds urged
in the appeal memorandum and the substantial question of law
framed, this Court has to analyze the material available on
record. The substantial question of law framed by this Court is
whether the finding of the First Appellate Court that the
appellants have not been able to establish title and therefore,
possession of an extent of 1 acre, 12 guntas described as land
bearing Survey No.66/3 of Avarthi Village, Haranahally Hobli,
Periyapatna Taluk is based on evidence including the statement
made by the respondent in cross-examination. Hence, the
substantial question of law involved between the parties is with
regard to whether the finding of the First Appellate Court is
erroneous that the appellants have not been able to establish
their title. Hence, this Court has to consider both oral and
documentary evidence placed on record.
16. Having perused the material available on record, the
plaintiff No.3 has been examined as P.W.1 and he relied upon
the document of Exs.P1 to P73. On the other hand, the power of
attorney holder of the defendant has been examined as D.W.1
and he relied upon the document of Exs.D1 to D23. The
plaintiffs mainly relied upon the documents of Exs.P38 to P49
claiming that the property is an ancestral property which belongs
to late Doddamallappa. On the other hand, the defendant
contend that from 1950 to 2010, the property was standing in
the name of his father. In order to prove the contention that it
is an ancestral property, the defendant has produced the
document of Exs.D1 to D23. The defendant though claims that
suit schedule property is an ancestral property, in order to prove
the same, he has not produced any document, except relying
upon the document of partition which came into existence in the
year 2011 and the R.T.C. Extracts which are marked as Exs.D3
to D17. The other document produced before the Court is
Ex.D18 and the said document is the Survey Land Holding
Cultivation for the year 1966-67 and no doubt, in this document,
measurement is mentioned as 1 acre, 12 guntas in Sy.No.66/3,
1 gunta of land is standing in the name of the husband of the
first plaintiff i.e., A.D. Veerappaji in respect of Sy.No.66/2. But,
in order to prove the fact that it is an ancestral property, the
defendant has not placed any document before the Trial Court.
The document of Ex.D5 is against the defendant, since it
discloses only 1 gunta of land in the name of the father of the
defendant.
17. On the other hand, the plaintiffs particularly relied
upon the documents of Exs.P5, P6, P7 to P10, P21, P24, P25,
P33 to P40, P42 to P49, P55, P56, P58, P62 and P69. The
document of Exs.P5 and P6 i.e., R.T.C. Extracts are in respect of
Sy.No.66/2 pertaining to the year 1967 to 1982 and it reflects
the name of A.D. Veerappaji. A perusal of these documents
reveals that Sy.No.66/2 measures 1 acre, 12 guntas and it was
standing in the name of A.D. Veerappaji. The documents
pertaining to the year 1967 to 1982 clearly establishes that an
extent of 1 acre, 12 guntas of land in Sy.No.66/2 stands in the
name of A.D. Veerappaji. Likewise, Ex.P7 also reflects the
ownership of A.D. Veerappaji pertaining to Sy.No.66/2 for having
mutated the same in M.R.No.3/1996-97 through inheritance.
18. It is important to note that the document of Ex.P39
is the index of land which shows the measurement as 1 acre, 12
guntas in Sy.No.66/2 which stands in the name of late
Doddamallappa. The document of Ex.P40 also discloses the
name of late Doddamallappa to the extent of 1 acre, 12 guntas
in Sy.No.66/2 and in respect of Sy.No.66/3, 1 gunta of land was
standing in the name of late Ningappa i.e., the father of the
defendant and this document is of the year 1960-61 and
similarly, document of Ex.P41-index of land is of the year 1961-
62, Ex.P42 is of the year 1962-63, Ex.P43 is of the year 1963-
64, Ex.P44 is of the year 1964-65 and Ex.P45 is of the year
1965-66 which reflect the same measurement which discloses
the ownership of late Doddamallappa in Sy.No.66/2 measuring 1
acre, 12 guntas and Sy.No.66/3 measuring 1 gunta in the name
of late Ningappa, the father of the defendant. Though the
defendant contend that property is an ancestral property, no
document of index of land has been placed before the Court, but
he claims that from 1950-2010, the document was standing in
the name of his father and the same is an ancestral property and
no document is placed to substantiate the same. But, in Ex.P47-
index of land, once again, there was correction in the name in
respect of Sy.Nos.66/2 and 66/3 and these are the materials
which are taken note by the Trial Court while appreciating the
evidence available on record.
19. It has to be noted that when the plaintiffs also claim
that it is their ancestral property and the defendant also claims
that it is his ancestral property, the Court has take note of
preponderance of probabilities as to whether the probabilities are
in favour of the plaintiffs or the defendant. The Trial Court has
taken note of both oral and documentary evidence placed on
record in Para No.11 of the judgment and in Para No.12 of the
judgment, extracted the admission of D.W.1, who categorically
admitted the case of the plaintiffs and his admission is clear that
from 1961-62, the R.T.C. Extracts in respect of the suit schedule
property are standing in the name of late Doddamallappa. He
also categorically admits that 1 gunta of land was standing in the
name of father of the defendant. But, he says that there was
mistake in mentioning the same and categorically admits that till
1966-67, the pahanis were standing in the name of ancestors of
the plaintiffs. He further admitted in the cross-examination that
he cannot say on what basis the extent of land i.e., 1 acre, 12
guntas was shown in respect of Sy.No.66/3 in the year 1967-68
and also he did not make any effort to know what is the basis for
changing the same. He also admits that he did not made any
enquiry as to who interchanged the same and also he does not
know whether the said late Doddamallappa executed any
document in favour of late Ningappa.
20. It is also pertinent to note that document produced
by defendant i.e., Ex.D5 is also standing in the name of late
Ningappa to the extent of 1 gunta and the same is admitted in
the cross-examination of D.W.1 and the said admissions are
discussed in Para No.13 of the judgment of the Trial Court while
answering issue Nos.1, 2 and 5. Hence, the Trial Court
answered issue Nos.1 and 2 as 'affirmative' and issue No.5 as
'negative' declining the claim of the defendant. Even with regard
to the possession is concerned, issue No.3 was considered by the
Trial Court in Para No.14 of the judgment and extracted the
admission given by D.W.1 that in the year 2012, when the
complaint was given by the plaintiffs against the defendant, both
of them have given joint statement before the police that the
property stands in the name of Sarojamma and she has also
filed a suit before the Trial Court and till decision is taken in the
suit, he is not having any objection to continue the possession of
the plaintiffs and inspite of these answers elicited from the
mouth of D.W.1, though the First Appellate Court formulated the
points whether the plaintiffs prove that they have acquired title
to the suit schedule property having succeeded to the same
upon the death of their ancestors and whether the plaintiffs are
in exclusive possession and enjoyment of the suit schedule
property, answered these points as 'negative' and overlooked
the admission of D.W.1 which has been extracted by the Trial
Court while passing the judgment and erroneously comes to the
conclusion that title and possession of the plaintiffs is not proved
and comes to the conclusion that the finding of the Trial Court is
perverse and failed to consider particularly, the documentary
evidence i.e., Exs.P38 to P49.
21. Having reassessed the material available on record,
the finding of the First Appellate Court is perverse and not the
Trial Court. The Trial Court has taken note of both oral and
documentary evidence placed on record and even taken note of
the fact that from 1960-61 and 1966-67, all the documents were
standing in the name of late Doddamallappa and subsequently,
in the year 1966-67, the same has been interchanged showing
the extent as 1 acre, 12 guntas in respect of Sy.Nos.66/2 into
66/3 and observation is also made that D.W.1 does not admit
the ownership, possession and enjoyment of the plaintiffs in
respect of land to the extent of 1 acre, 12 guntas in Sy.No.66/3
Hence, the admission of D.W.1 is very clear that till 1966-67, all
the documents were standing in the name of late Doddamallappa
and no document is placed for interchanging the extent and
measurement of land is concerned. If 1 gunta of land is sought
to be interchanged as 1 acre, 12 guntas, there must be
documentary evidence and no document is placed in this regard
and the admission given by D.W.1 has not been considered by
the First Appellate Court. However, erroneously the First
Appellate Court observed that though the said admission leads to
an inference that first plaintiff is in possession of the suit
schedule property, it is a litigatious possession and not a clear
and unambiguous possession and the very approach of the First
Appellate Court is erroneous when there is an unequivocal
admission available on record. The First Appellate Court also in
Para No.19 of the judgment, while appreciating both oral and
documentary evidence placed on record, even not touched upon
the very documents placed by the plaintiffs i.e., Exs.P38 to P46
but, only relied upon the document of Ex.P68, in coming to the
conclusion that, except only one document, land in Sy.No.66/3
measuring 1 acre, 12 guntas to be standing in the name of late
Doddamallappa, there is not even a single piece of document
which would indicate that late Doddamallappa had succeeded to
the suit land from his ancestors. It is the specific case of the
plaintiffs that an extent of 1 acre, 12 guntas of land has been
interchanged as Sy.No.66/3.
22. The very case of the plaintiffs is that the extent has
been interchanged in respect of Sy.Nos.66/2 and 66/3. When
the document clearly discloses that Sy.No.66/3 is only
measuring 1 gunta, no material is placed before the Court for
interchanging the same as Sy.No.66/3 measuring 1 acre, 12
guntas and the First Appellate Court committed an error in
reversing the findings of the Trial Court. The Trial Court, while
appreciating the evidence available on record i.e., both
documentary evidence as well as admission of D.W.1, not only
taken note of proving of title by the plaintiffs though interchange
was made to the extent of 1 acre, 12 guntas in respect of
Sy.No.66/3, but also taken note of the fact that the same is not
interchanged based on any order and only in the revenue
documents, the extent is interchanged without any basis. When
the defendant claim land to the extent of 1 acre, 12 guntas
instead of 1 gunta, he ought to have placed the material before
the Court to substantiate the same that he is the owner to the
extent of 1 acre, 12 guntas.
23. On the other hand, the plaintiffs have placed
voluminous documents before the Court with regard to the fact
that the property is an ancestral property and there is a
reference in the revenue documents that it is an ancestral
property of late Doddamallappa and there is no dispute with
regard to the fact that the plaintiffs are daughter-in-law and
grand children of late Doddamallappa and all the documents
clearly disclose the fact that the property stands in the name of
late Doddamallappa and no doubt the land is measuring to the
extent of 1 acre, 12 guntas in respect of Sy.No.66/2,
subsequently after 1966-67, it has been interchanged as
Sy.No.66/3 measuring 1 acre, 12 guntas instead of 1 gunta.
When such material is placed before the Court, preponderance of
probabilities are in favour of the appellants-plaintiffs and not in
favour of the respondent-defendant. Hence, the First Appellate
Court committed an error in reversing the findings of the Trial
Court and the Trial Court has passed a well reasoned order and
the First Appellate Court did not discuss anything about the
documents of Exs.P38 to P45 and those documents are the main
basis to grant the relief as sought for.
24. No doubt, learned counsel appearing for the
respondent-defendant relied upon the document of Ex.P37 i.e.,
Revision Settlement Aakarband, the same does not disclose
anything about title in respect of the property of the defendant
and no doubt, the respondent-defendant also relied upon the
documents of R.T.C. Extracts and sketch, those documents are
subsequent documents after the interchange of the extent and
with regard to the fact that the father of the defendant is holding
right to the extent of 1 acre, 12 guntas, no material is placed
before the Court, except interchanging the dimension of the
property. Hence, I answer the substantial question of law that
the finding of the First Appellate Court that the appellants have
not been able to establish the title is nothing but an erroneous
finding and the possession of extent of 1 acre, 12 guntas
described as land bearing Survey No.66/3 of Avarthi Village,
Haranahally Hobli, Periyapatna Taluk is established in view of
admission given by the D.W.1 in the cross-examination, wherein
he categorically admitted in the cross-examination that when the
complaint was given for interference by the defendant, he gave
an undertaking that he will not interfere with the possession of
the plaintiffs, till the disposal of the case and the same is also
not considered by the First Appellate Court while appreciating
the material on record and instead, committed an error in
reversing the findings of the Trial Court, in coming to the
conclusion that the judgment of the Trial Court is perverse.
Hence, I answer the substantial question of law framed by this
Court as 'affirmative' that the finding of the First Appellate Court
is erroneous and the same is against the material on record.
25. In view of the discussion made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
(ii) The impugned judgment and decree of the
First Appellate Court in R.A.No.26/2017 dated
14.12.2017 is hereby set aside and
consequently, the judgment and decree of the
Trial Court in O.S.No.169/2012 dated
20.09.2017 is restored.
Sd/-
JUDGE
ST
