Karnataka High Court
Chikkamuniyappa vs P N Narasimhaiah on 7 September, 2023
Bench: H.P.Sandesh
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RSA No. 2399 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2399 OF 2017 (DEC)
BETWEEN:
1. CHIKKAMUNIYAPPA
S/O LATE MUNISHAMAPPA,
AGED ABOUT 59 YEARS,
2. AVALAKONDAPPA
S/O LATE MUNISHAMAPPA,
AGED ABOUT 64 YEARS,
BOTH ARE RESIDING AT
THIMMANAHALLI VILLAGE,
Digitally signed NANDI HOBLI,
by SHARANYA T CHICKBALLAPUR TALUK
Location: HIGH AND DISTRICT-562101.
COURT OF
KARNATAKA
3. SMT. KEMPAMMA
SINCE DEAD BY HER LRS,
3(a) SMT.AKKAYAMMA,
D/O LATE KEMPAMMA,
W/O LATE NARASAPPA,
AGED ABOUT 72 YEARS,
R/AT BRAHMANARAHALLI,
GUDIBANDE TALUK,
CHICKBALLAPUR (D) -562101
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3(b) SMT. JAYALAKSHMAMMA
D/O LATE KEMPAMMA,
W/O LATE CHIKKA MUNISHAMPPA,
AGED ABOUT 58 YEARS,
R/AT THIMMANAHALLI VILLAGE,
NANDI HOBLI,
CHICKBALLAPUR TALUK
AND DISTRICT-562101
...APPELLANTS
(BY SRI S.N.ASHWATHANARAYANA, SENIOR ADVOCATE FOR
SRI S.A.SUDHINDRA, ADVOCATE)
AND:
1. P.N. NARASIMHAIAH
S/O LATE NARASIMHAIAH,
AGED ABOUT 39 YEARS,
2. OBANNA
S/O LATE NARASIMHAIAH,
AGED ABOUT 44 YEARS,
3. VENKATAMMA
D/O LATE NARASIMHAIAH,
AGED ABOUT 44 YEARS,
4. GANGAMMA
W/O LATE NARASIMHAIAH,
AGED ABOUT 74 YEARS,
5. MOHIDDIN
S/O LATE BUDENSAB,
AGED ABOUT 44 YEARS,
6. JAYEESABU
S/O LATE BUDENSAB,
AGED ABOUT 54 YEARS,
7. JAMEELA
D/O LATE BUDENSAB,
AGED ABOUT 49 YEARS,
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8. KRISHNAMMA
D/O LATE NARASIMHAIAH,
AGED ABOUT 44 YEARS,
9. RAMAKKA
D/O LATE NARASIMHAIAH,
AGED ABOUT 44 YEARS,
RESPONDENT NOS.1 TO 9
ALL ARERESIDING AT
PERESANDRA,
MANDIKAL HOBLI,
CHICKBALLAPUR TALUK
AND DISTRICT-562 101.+
10. FAKRUMBEE
SINCE DECEASED DEAD BY LRS
10(a) SMT.PARVEEN TAJ
W/O LATE SHAIK MANZOON
AGED AOBUT 62 YEARS,
10(b) SMT.RAMEEZA
W/O GHOUSE PEET
AGED ABOUT 60 YEARS
RESPONDENT NOS.10(a & b)
ALL ARE RESIDING AT 8TH CROSS
1ST MAIN ROAD, NEAR GLOBLE SCHOOL
BAPUJI NAGAR, BANGALORE-560 026.
...RESPONDENTS
(BY SRI S.VISHWESHWARAIAH, ADVOCATE FOR
R1 TO R4, R8 & R9;
SRI K.VIJAYAKUMAR, ADVOCATE FOR R7 & R10[a & b])
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 26.9.2016 PASSED IN
R.A. NO.30/2013 ON THE FILE OF THE PRL. DISTRICT JUDGE,
CHIKKABALLAPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 19.1.2013
PASSED IN O.S.NO.74/2000 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND CJM, CHICKBALLAPUR.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for appellants and also
the counsel appearing for the respondents. This matter is
listed for admission.
2. The factual matrix of the case of the plaintiffs
before the Trial Court in O.S.No.74/2000 wherein sought
for the relief of declaration to declare that the plaintiffs are
the absolute owners of the suit schedule properties and to
grant for permanent injunction restraining the defendants
or anybody claiming under them from interfering with the
suit schedule properties and for costs and such other
relief.
3. The claim of the plaintiffs/appellants
before the Trial Court that the suit schedule properties
originally attached to the office of the Neeraganti Inamthy
belonged to Narasamma, the wife of Mariyanna, she
bequeathed the suit schedule properties in favour of the
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Munishamappa under the registered Will dated
28.05.1962. After her death, the legatee Munishamappa
become the owner of the suit schedule properties on the
basis of the Will and he was looking after the suits
schedule properties. He was also a party to the
proceedings in HOA(Nee)20/75-76 on the file of the
Tahasildar at Chikkaballapur. The Tahasildar passed an
order dated 17.06.1997 and re-granted the plaint schedule
lands to Munishamappa. The said Munishamappa died
leaving behind plaintiff Nos.1 and 2 who are his sons and
plaintiff No.3 the wife and two daughters who married long
ago. After the death of said Munishamappa, the katha
effected in favour of the plaintiff in pursuance of the order
of the Deputy Tahasildar dated 29.03.2000 in
R.E.T.D.5/99-2000. The plaintiffs have paid the land
revenue and they are in peaceful possession and
enjoyment of the suit schedule properties. The defendants
have no manner of right, title or possession over the suit
schedule properties and they were also parties to the
proceedings in case No.HOA(Nee)20/75-76 on the file of
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the Tahasildar, Chikkaballapur and their claim was
rejected. The defendants with a malafide intention to grab
the properties, attempting to interfere with the plaintiffs
peaceful possession and enjoyment of the suit schedule
properties by denying the plaintiffs' title. On 16.07.2000
the defendants with their supporters attempted to
interfere with the suit schedule properties and also there
were two jaali trees and honge trees on the land. When
the plaintiffs' questioned them, the defendants threatened
that they would remove the trees and illegal acts of the
defendants cannot be resisted by the plaintiffs. Hence, the
plaintiffs constrained to file the suit. Originally the suit is
filed by the defendants Nos.1 to 7 and defendant Nos.8 to
10 got impleaded. Accordingly, the amendment also
effected in the cause title.
4. In pursuance of the suit summons, the
defendants have appeared and defendant Nos.1 to 4 have
filed common written statement. The defendants Nos.5 to
7 and 10 have filed separate written statement and
defendant No.9 remained exparte.
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5. The defendants have denied the claim of the
plaintiffs that they are the absolute owners and also
contended that the very execution of the Will is concocted
document and same is created document. It is contended
that the suit schedule properties are attached to the office
of Neeraganti Inamthy is true. But, it is contended the
properties belonged to the Bira Sagara Kere Neeraganti
Inamthy. The Kadirappa got three children, by name
Mariyappa, Ramakka and Narasappa. The said Narasamma
was the wife of the Mariyappa. The said Mariyappa and
Narasamma had no issues. The defendant Nos.1 to 4 are
the grand children of the said Ramakka.
6. The defendants further contended that after the
death of said Kadirappa, these defendants are the
successors including the plaintiffs are in joint possession
and enjoyment of the suit schedule properties. There was
no division in the suit schedule properties and they are
entitle for share in the suits schedule properties.
7. The defendant No.10 has also filed written
statement denying the averments of the plaint and
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contend that the land was taken by the Government
through Assistant Commissioner, Chikkaballapur in case
No.R1VOC 1056/1962-63 dated 13.01.1968. In the
aforementioned proceedings, the Assistant Commissioner,
Chikkaballapur categorically observed that the defendants
father was the lawful Neeraganti of the Peresandra village
and the suit schedule properties came to be re-granted in
the joint name of P.Budensab and Fakrusabi.
8. It is also contended that the suit schedule
properties in question comes under various survey
numbers such as 273, 298, 319 and 320 and the nature of
the land in all these survey numbers are wet and the
measurements of the said land are 0-25 guntas, 02 acres
and 0-36 guntas respectively and contend that at no point
of time, the plaintiffs are in possession of the suit schedule
properties and hence prayed the Court to dismiss the suit.
9. The Trial Court has framed the issues and
additional issues also framed in view of the proposed
defendant took the contention with regard to the re-grant
dated 12.02.1981. The Trial Court allowed the parties to
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lead the evidence and having appreciated both oral and
documentary evidence regarding issue No.1 to 4 as well as
additional issue No.1, comes to the conclusion that the
material placed before the Court i.e. Ex.P1 clearly shows
that Sarkari and kabjedhar column is also mentioned as
Chikkamuniyappa S/o Muniyappa who is none other than
the first plaintiff herein and also taken note of Ex.P5 and
also taken note of R.R.T proceedings and comes to the
conclusion that though the plaintiff produced the tax paid
receipts which are marked as Ex.P7 to Ex.P9 along with
other documents which are marked as Ex.P10 to Ex.P15
and the same is prior to filing of the suit, tax paid receipts
are produced. None of the documents clear that plaintiffs
are in a peaceful possession and enjoyment of the suit
schedule properties and also Ex.P6 i.e., RRT proceedings
before the Deputy Tahasildar, it discloses that the matter
is pending before the Hon'ble Prl. District and Sessions,
Chikkaballapur Court and also taken note of the plaintiff
No.1 who is examined as PW1 did not subjected himself
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for cross examination. Hence, the Trial Court declined to
grant any relief of declaration as sought.
10. Being aggrieved by the judgment of the Trial
Court an appeal is filed before the First Appellate Court in
RA No.30/2013. The First appellate Court on re-
appreciation of both oral and documentary evidence comes
to the conclusion that power of re-grant of land is vested
with Tahasildar and not in the Civil Court and also taken
note of the earlier Writ Petition filed before this Court and
also taken note of that even though the matter was
remanded, it has not been challenged before the High
Court of Karnataka and also no purpose will be served by
setting aside the Trial Court judgment on the ground
stated in the appeal. The appellants have not made any
special grounds as to why they have not participated in
the original suit. Having taken note of the PW1 has not
subjected for cross examination, in spite of matter was
remanded dismissed the appeal.
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11. Being aggrieved by the said judgment and
decree, present second appeal is filed before this Court.
The counsel would vehemently contend that both the Trial
Court and the First Appellate Court have committed an
error in dismissing the suit as well as the appeal. Both the
Courts below ought to have taken into consideration that
initial burden on the appellants/plaintiffs and later on
burden shifts to the other side. But, the Trial Court and
the First Appellate Court not considered that in a suit or
proceedings the burden of proof lies on that person who
would fail to produce evidence and also contend that the
First appellate Court failed to take notice that the re-grant
order is questioned before the High Court of Karnataka in
W.P.No.32257/2016(KVOA) and the re-grant is subject to
the result of Writ Petition. Hence, this Court has to frame
substantive question of law as both the Courts below
passed a judgment and decree is contrary to the Section
102 of the Indian Evidence Act and also the counsel for
appellants would vehemently contend that PW1 is not
tendered for cross examination and in the absence of cross
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examination the documentary evidence would be futile.
Hence, this Court has to admit and frame substantive
question of law since the matter requires to be considered
with regard to the grant is concerned.
12. Per Contra, the counsel appearing for the
respondents would vehemently contend that the suit is
filed for the relief of declaration to declare the plaintiffs as
owners. No substantial material has been placed before
the Court. Earlier also suit was dismissed an appeal was
filed in RA No.45/2010 wherein also they took the specific
contention that an opportunity was not given and the
Court has remanded the matter in RA No.45/2010 by
giving a direction to give an opportunity to both the
parties vide order dated 31.01.2012 and in spite of it he
has not utilized the opportunity given to him and not
subjected for cross examination. Hence, the Trial Court
rightly comes to the conclusion that the plaintiff No.1 has
not established his claim. The First appellate Court has
also taken note of said facts into consideration and in
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detail passed an order and also made an observation that
no purpose will be served in setting aside the Trial Court
judgment on the ground that no appeal is filed. Hence, the
Trial court has not committed an error, in spite of remand
also he did not choose to appear and contest the matter.
Hence, in the second appeal nothing is there to decide.
13. In reply to the argument of the respondents'
counsel, the appellants' counsel submits that due to his
poverty he could not participate in the proceedings.
Hence, the matter may be remanded to consider the
same. Having considered the submission of the appellants'
counsel and also counsel appearing for the respondents
and the suit is filed for the relief of declaration and except
producing of document Ex.P6 and Ex.P7 i.e., tax paid
receipts nothing is placed before the Trial Court to declare
the appellants' are the absolute owners.
14. It is also important to note that earlier also the
matter was remanded in RA No.45/2010 and direction was
given to give an opportunity to take a decision on merits.
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In spite of the said direction also, the appellant No.1 did
not participate in the Court proceedings and not subjected
for cross examination. When suit is filed for relief of
declaration the plaintiff has to substantiate his claim by
placing both oral and documentary evidence.
15. It is also settled law that when the suit is filed
for the relief of declaration to declare them as owners, the
plaintiff has to prove his case by placing substantial
materials and the plaintiff cannot depend on the weakness
of the defendants. In spite of the matter was remanded
and opportunity was given, the PW.1 has not utilized the
opportunity and once again seeks for remand and the said
submission of the appellants' counsel cannot be accepted
and repeatedly coming before the Court seeking for the
remand and once the matter was remanded and given
opportunity also, he had not utilized the opportunity. It is
clear that earlier also one round of litigation was taken
place before the Trial Court as well as the First Appellate
Court and also matter was remanded again and again
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second round also on the very same ground that no
opportunity was given cannot be accepted. When the
opportunity was given, he did not utilize that opportunity
and also not placed any material to substantiate the same.
16. The very contention of the counsel that in the
absence of oral evidence, the documentary evidence which
has been produced is also futile which cannot be accepted.
Hence, I do not find any ground to set -aside the order of
the Trial Court and also the First Appellate Court and no
purpose will be served as observed by the First Appellate
Court, even if the matter is remanded. Apart from that the
appellant No.1 has not participated in the proceedings and
repeatedly seeking the remand. Hence, no ground is made
out to set aside the order and to admit and frame any
substantive question of law. No such substantive question
of law arises for consideration of this Court invoking
Section 100 of CPC.
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In view of the discussions made above I pass the
following:
ORDER
The Second Appeal is dismissed.
Sd/-
JUDGE
RHS
