Sri Shivanna vs Sri Narasappa
2023 Latest Caselaw 6434 Kant

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                                                         NC: 2023:KHC:32754
                                                       RSA No. 2148 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. 2148 OF 2017

                   BETWEEN:

                   1.    SRI SHIVANNA
                         AGED ABOUT 48 YEARS
                         S/O LATE GANGAIAH

                   2.    SRI NAGARAJ
                         AGED ABOUT 46 YEARS
                         S/O LATE GANGAIAH

                         BOTH ARE R/AT VEERASAGARA VILLAGE
                         SOMPURA HOBLI
                         NELAMANGALA TALUK-562 111.
                                                                ...APPELLANTS
                                 (BY SRI NAGESH S., ADVOCATE)
                   AND:
Digitally signed
by SHARANYA T      1.     SRI NARASAPPA
Location: HIGH            SINCE DEAD BY LRS
COURT OF
KARNATAKA
                   1(a) LASKSMINARASAMMA @ RAJAMMA
                        AGED ABOUT 67 YEARS
                        W/O LATE NARASAPPA

                   1(b) CHANDRANNA
                        AGED ABOUT 45 YEARS
                        S/O LATE NARASAPPA

                   1(c) NAGARAJ
                        AGED ABOUT 51 YEARS
                        S/O LATE NARASAPPA
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                                            NC: 2023:KHC:32754
                                         RSA No. 2148 of 2017




1(d) SRINIVAS
     AGED ABOUT 38 YEARS
     S/O LATE NARASAPPA

1(e) LAKSHMAMMA
     AGED ABOUT 33 YEARS
     D/O LATE NARASAPPA

1(f)   LAKSHMANA
       AGED ABOUT 31 YEARS
       S/O LATE NARASAPPA

       ALL ARE R/AT DOOR NO.29
       II MAIN WARD NO.15
       1ST STAGE, 1ST PHASE
       MANJUNATHNAGARA
       BENGALURU-560 010.
                                                ...RESPONDENTS

     THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 12.09.2017 PASSED IN
R.A.NO.09/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
NELAMANGALA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 13.06.2011 PASSED IN
O.S.NO.63/1995 ON THE FILE OF THE CIVIL JUDGE AND
JMFC,NELAMANGALA.

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

                          JUDGMENT

Heard the appellants' counsel. This matter is listed for

admission.

2. The factual matrix of the case of the plaintiffs

before the Trial Court that plaintiffs are the absolute owners of

the suit schedule property and hence to declare them as

NC: 2023:KHC:32754 RSA No. 2148 of 2017

absolute owners and also sought for the relief of permanent

injunction. Defendants appeared and filed their written

statement contending that they are the absolute owners in

possession and enjoyment of the suit schedule property having

purchased the same by means of a registered sale deed dated

12.6.1979 and Trial Court has given an opportunity to both

parties to lead evidence in order to substantiate their

contention. Accordingly plaintiff himself examined as PW1 and

also examined two witnesses as PWs.2 and 3 and produced the

documents which are marked at Exs.P1 to P4, two RTCs.,

judgment in O.S.No.130/1991 and decree in O.S.No.130/1991.

On the other hand, defendants also examined one witness as

DW1 and got marked the documents Exs.D1 to D4 i.e. certified

copy of the sale deed dated 29.11.2010 and two RTCs. and tax

paid receipt.

3. The Trial Court having considered both oral and

documentary evidence answered issue No.1 as negative in

respect of the issue framed against the appellants in coming to

the conclusion that, in order to claim that they are the absolute

owners, except RTC extracts i.e. P1 and P2, no other

documents are produced before the Court and also taken note

NC: 2023:KHC:32754 RSA No. 2148 of 2017

of the admission given by PW1 in the cross-examination, the

same is found in paragraph No.12 and DW1 in the cross-

examination admitted that, the property originally is the

ancestral property of the plaintiffs and even the admission with

regard to the document Exs.D1 and D2 and the admission

given by him is extracted in paragraph No.14 and also taken

note of in the cross-examination PW1 says that they challenged

the sale deed in favour of the defendants is created and

concocted document. It is the contention of the defendants

that they have purchased the property from the plaintiffs

mother and brother. The sale deed executed by the plaintiffs

mother and brother is to perform the marriage of her daughter

Bhadramma and for legal necessities and also not produced any

documents except two RTCs. to show that they are in

possession.

4. Having considered the material on record answered

the issue against the plaintiffs and in favour of the defendants

and dismissed the suit.

5. Being aggrieved by the dismissal of the suit, an

appeal is filed in R.A.No.9/2011. The First Appellate Court also

NC: 2023:KHC:32754 RSA No. 2148 of 2017

on considering the grounds urged in the appeal, formulated the

point, whether the Trial Court committed an error in coming to

the conclusion that the plaintiffs have failed to prove the title

and possession over the suit schedule property and first

appellate court on re-appreciation of both oral and

documentary evidence particularly the admission given by

DW1 and also considering the document of sale deed and also

considering Exs.P1 and P2 RTC extracts, except those two RTC

Extracts, plaintiffs have not produced any documents. Hence,

dismissed the appeal. Being aggrieved by the said judgment

and decree, the present second appeal is filed before this

Court.

6. The main contention of the counsel appearing for

the appellants that judgment of the Trial Court and First

Appellate Court are perverse and they have not applied their

mind and also fails to take note of the fact that there was a

decree in O.S.No.130/1991, which reflects that on the eastern

side property belongs to appellants father and both the Courts

fails to take note of the judgment and decree as well as the oral

and documentary evidence available on record. The counsel

would vehemently contend that this Court has to frame

NC: 2023:KHC:32754 RSA No. 2148 of 2017

substantive question of law, whether the judgment and decree

of the Trial Court and First Appellate Court are legal and

sustainable, when the documents are not considered by the

Trial Court and the First Appellate Court and there was no

sufficient evidence on the part of the respondent to come to a

conclusion that they have to prove their case and hence, this

Court has to frame substantive question of law.

7. Having heard the appellants counsel and also on

perusal of the material and particularly the reasoning given by

the Trial Court as well as the First Appellate Court and when

the suit is filed for the relief of declaration seeking the relief to

declare that the plaintiffs are the absolute owners of the suit

schedule property, the Court has to consider the title

documents and no such title documents are placed before the

Court except relying upon the documents Exs.P1 and P2 and

those two documents are RTC extracts and no doubt copy of

the judgment and decree in O.S.No.130/1991 is also produced

before the Court. These documents are not the title documents

and the relief is sought to declare the plaintiffs as absolute

owners. The Trial Court having taken note of the documents

which have been produced and also the admissions given by

NC: 2023:KHC:32754 RSA No. 2148 of 2017

PW1 and the evidence of PW1 is also extracted in paragraph

No.12 of the judgment and also taken note of the further

evidence of PW1 and the same is also extracted in paragraph

14 and First Appellate Court also having considered the reason

given by the Trial Court, particularly in paragraph No.18 in

detail discussed the documents of plaintiffs and defendants and

comes to the conclusion that in order to claim the relief

regarding the absolute owners over the suit schedule property

to the extent of 1 acre 17 guntas, the plaintiffs have not placed

the cogent and convincing evidence regarding the partition

effected and the evidence is also not produced before the Court

and though it is pleaded that they are the absolute owners, in

order to substantiate the same, not produced any documents

and hence, in paragraphs 19 and 20 in detail discussed with

regard to the claim of the plaintiffs is concerned. When such

finding is given by the Trial Court and Appellate Court

considering both oral and documentary evidence and unless

perversity is find in the judgment of the Trial Court and

Appellate Court and in order to establish that they are the

absolute owners, no material is placed except the judgment

and decree as well as two RTC. Hence, I do not find any error

NC: 2023:KHC:32754 RSA No. 2148 of 2017

committed by the Trial Court in declining to grant the relief of

declaration. When there is no perversity, question of invoking

Section 100 of CPC does not arise.

8. In view of the discussions made above, I pass the

following:

ORDER

Appeal is dismissed.

Sd/-

JUDGE

AP