Sri L C Basavarajappa vs Smt Nagalambika
2023 Latest Caselaw 6424 Kant

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                                                          NC: 2023:KHC:32787
                                                      RSA No. 2117 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 11TH DAY OF SEPTEMBER, 2023

                                           BEFORE
                             THE HON'BLE MR JUSTICE H.P.SANDESH
                   REGULAR SECOND APPEAL NO. 2117 OF 2017 (DEC/INJ)

                   BETWEEN:

                   1.    SRI. L.C. BASAVARAJAPPA,
                         S/O LATE. CHANDRAPPA,
                         AGED ABOUT 70 YEARS,
                         R/O LAKKUR VILLAGE,
                         TERAKANAMBI HOBLI,
                         GUNDLUPET TALUK,
                         CHAMARAJANAGAR - 572 311.

                   2.    PRAKASH,
                         S/O L.C. BASAVARAJAPPA,
                         AGED ABOUT 37 YEARS,
                         RESIDING AT SAMPADA,
                         C-222, BRINDUVANA GARDEN
                         APARTMENTS, NEAR SKANDA,
Digitally signed
by SHARANYA T            SRI. CHAITHANYA TECHNO SCHOOL.
Location: HIGH
COURT OF
KARNATAKA          3.    MAHADEVAPRASAD,
                         S/O L.C. BASAVARAJAPPA,
                         AGED ABOUT 33 YEARS,
                         R/O LAKKUR VILLAGE,
                         TERAKANAMBI HOBLI,
                         GUNDLUPET TALUK,
                         CHAMARAJANAGAR - 572 311.
                                                               ...APPELLANTS



                   (BY SRI. P. MAHESHA, ADVOCATE)
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                                              NC: 2023:KHC:32787
                                            RSA No. 2117 of 2017




AND:

1.   SMT. NAGALAMBIKA,
     W/O LATE D.B. MAHADEVAPPA,
     AGED ABOUT 65 YEARS,
     R/O CHANDAKAVADI VILLAGE,
     CHAMARAJANAGAR TALUK
     & DISTRICT - 572 311.

2.   BALACHAVADI GRAMA PANCHYATH,
     TERAKANAMBI HOBLI,
     GUNDLUPET TALUK - 572 311,
     CHAMARAJANAGAR DISTRICT,
     REPRESENTED BY ITS
     SECRETARY / PANCHYATH
     DEVELOPMENT OFFICER.
                                                 ...RESPONDENTS
(BY SMT. S. SUMATHI, ADVOCATE FOR R1 AND R2)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908
AGAINST THE JUDGMENT AND DECREE DATED 13.09.2017
PASSED IN R.A.NO. 120/2017 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC. GUNDLUPET, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 19.11.2015 PASSED IN O.S.NO. 110/2005 ON THE FILE
OF THE CIVIL JUDGE AND JMFC., GUNDLUPET AND ETC.,

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

                          JUDGMENT

This matter is listed for admission.

Heard learned counsel for the appellant and learned

counsel for respondent No.2.

NC: 2023:KHC:32787 RSA No. 2117 of 2017

2. The factual matrix of the case of the plaintiff before the

trial court is that she has purchased the property vide sale deed

dated 06.01.1978 and she is the absolute owner in possession

and enjoyment of the suit schedule property. It is also claimed

that defendants are interfering with her possession and

enjoyment and hence she sought for permanent injunction and

also mandatory injunction restraining the defendants from

interfering. In pursuance to the suit summons, the defendants

filed written statement contending that they are in possession

and enjoyment of the suit schedule property by virtue of a

family partition dated 05.04.1994. The trial court having

considered the pleadings of the plaintiff and defendants framed

issues based on the contentions raised in the pleadings and

allowed the parties to lead evidence and accordingly, the

plaintiff has examined three witnesses as PW-1 to 3 and also

got marked documents Ex-P1 to Ex-P7. On the other hand, the

defendants examined three witnesses as DW-1 to DW-3 and

got marked documents Ex-D1 to D13. The trial court having

considered the material on record particularly the sale deed and

also the documents i.e., the application given to Grama

Panchayat, the endorsement given by Grama panchayat,

NC: 2023:KHC:32787 RSA No. 2117 of 2017

genealogical tree, the endorsement given by the Secretary,

Grama Panchayat and certified copy of the demand register and

also taking note of the documents produced by the defendants,

particularly Ex-D1 to D3 the assessment register extract,

demand register extract and tax paid receipt and having

considered the same, the trial court comes to the conclusion

that the plaintiff has proved the case for grant of relief of

declaration and also for the relief of mandatory injunction and

decreed the suit as plaintiff is the absolute owner of the suit

schedule property and defendants were prevented from

interfering with her peaceful possession and enjoyment of the

suit schedule property and also prevented the defendants not

to use and throw unwanted things and waste into the suit

schedule property by way of mandatory injunction and also

directed the Taluka Office to comply the order to collect

necessary stamp duty and penalty as per the Karnataka Land

Revenue Act since the unregistered Palu patti is impounded and

the said document was also kept in safe custody. Being

aggrieved by the judgment and decree of the trial court, an

appeal was preferred by the defendants in R.A.No.120/2017

and the appellate court having considered the grounds urged in

NC: 2023:KHC:32787 RSA No. 2117 of 2017

the appeal and also on re-appreciation of both oral and

documentary evidence formulated the points as to whether the

plaintiff has proved that she is the absolute owner, whether the

plaintiff has established that she is in lawful possession and

enjoyment of the suit schedule property and whether the

judgment of the trial court requires interference. The first

appellate court on re-appreciation of both oral and

documentary evidence has answered point Nos.1 and 2 in the

affirmative and comes to the conclusion that it does not require

any interference of the appellate Court and dismissed the

appeal. Being aggrieved by the judgment and decree of the

appellate court, the present second appeal is preferred by the

appellants/defendants Nos.1 and 3 before this Court against

concurrent findings of the trial court as well as the first

appellate court.

3. The main contention of the counsel appearing for the

appellants is that both the trial court and appellate court are

not justified in decreeing the suit of the plaintiff though the

plaintiff has not proved the sale deed, that the courts ought not

to have considered the evidence of General Power of Attorney

Holder who has no knowledge about the sale deed. Learned

NC: 2023:KHC:32787 RSA No. 2117 of 2017

counsel would also vehemently contend that since only certified

copy of the sale deed is produced and the original is not placed

before the trial court, a decree cannot be granted based on the

weakness of the defendants and hence this Court has to admit

the appeal and frame substantial questions of law.

4. Having heard the appellants' counsel and also on

perusal of the material on record, more particularly the

pleadings, it is the claim of the plaintiff that the suit schedule

property is purchased in the year 1978. As against the

pleadings of the plaintiff, the contention of the defendants is

that it is the ancestral property and they have got partitioned

the property and in order to prove the factum that the property

is an ancestral property, no documents is placed before the

Court. However, they have relied on Panchayath Parikat and

there was an order by the trial court to pay stamp duty and

penalty and duty and penalty was not paid and hence the

document was not exhibited. The only documents relied on by

the defendants are Ex-D1 to D3. Those documents are only

Assessment Register extract, demand register extract and the

tax paid receipt. The trial court having taken note of both oral

and documentary evidence, particularly considering the sale

NC: 2023:KHC:32787 RSA No. 2117 of 2017

deed, answered point No.1 in the affirmative by stating that

plaintiff is the absolute owner and since the defendants have

not substantiated that the said property is an ancestral

property as contended in their written statement and also taken

note of the admission given by DW-1 in the cross examination

wherein he has deposed not only that it is their ancestral

property but also claims that their father has got the title based

on the Will which was executed by their father and nothing is

placed before the Court to substantiate the same except the

documents such as assessment register extract, demand

register receipt and tax paid receipt. The trial court while

answering issue No.3 has taken note of both oral and

documentary evidence and also taken note of the relief sought

for mandatory injunction while answering issue Nos.4 and 5.

The very case of the plaintiff that defendants are throwing

waste in the suit schedule property and the first appellate court

also having reconsidered the oral and documentary evidence

available on record and formulated points and while answering

point Nos.1 and 2, extracted the admission given by DW-1

since defendant No.1 categorically admits that he has not

produced the documents to show the property was allotted in

NC: 2023:KHC:32787 RSA No. 2117 of 2017

favour of their father in the partition and no such documents,

that is discussed in paragraphs 16, 17 and also taken note of

non payment of duty and penalty and also in para 18 and 19

with regard to possession and by extracting the answers from

the mouth of the DW-1 to DW-3 and categorically DW-2 and

DW-3 admitted that though they are not residing in the very

same village but they are frequently visiting the property and

also taken note of the discussion made by the trial court in

paras 14, 17 and 18. When both the courts have come to the

conclusion with regard to the facts of the case as well as the

question of law and except the pleading that the defendants'

are claiming the property as their ancestral property, no

documents have been placed except the partition deed and the

duty and penalty also was not paid and only relied on the tax

paid receipt and hence the trial court having considered the

material available on record rightly comes to the conclusion

that the plaintiff has proved the case and also the sale deed is

of the year 1978 and the suit was filed in the year 2005 and

document is also more than 27 years. The very contention of

the counsel that PW-1 who is examined as Power of Attorney

Holder and he was aged only 12 years at the time of purchase

NC: 2023:KHC:32787 RSA No. 2117 of 2017

of the property and the same cannot be a ground to disbelieve

the evidence of PW-1. Whether he had got knowledge about

the facts of the case is the real question and hence the very

contention of the appellant's counsel that the Court has to

frame substantial question of law as the plaintiff has not proved

the sale deed cannot be accepted and the same is a registered

document and the Court can even draw presumption also and

even though not examined any of the witnesses of the sale

deed, but except the contention of the defendants that it is

ancestral property, they have also not produced any documents

and the very contention of the appellants' counsel that the

Court cannot grant the relief of declaration based on the

weakness of the defendants and it is not the case of weakness

as contended by the appellants as the plaintiff has produced

the sale deed with regard to the title is concerned and also the

trial court has analysed the evidence placed on record and

defendants have not placed any material and based on the

document of sale deed and other documents produced by the

plaintiff granted the relief of declaration and injunction. Hence,

I do not find any ground to admit and frame substantial

questions of law as both the courts have not committed any

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NC: 2023:KHC:32787 RSA No. 2117 of 2017

error or perversity while appreciating both oral and

documentary evidence and unless perversity is found in the

judgment of the trial court as well as first appellate court, the

question of exercising power under section 200 Cr.P.C. does

not arise.

In view of the discussions made above, I proceed to pass

the following order:-

The appeal is dismissed.

Sd/-

JUDGE

MN

CT: ABS