Smt Muthamma vs Sri Seenaiah
2023 Latest Caselaw 6573 Kant

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                                                       NC: 2023:KHC:33802
                                                     RSA No. 1806 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 19TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                           REGULAR SECOND APPEAL NO.1806 OF 2018

                   BETWEEN:

                   1.    SMT. MUTHAMMA
                         W/O LATE MADAIAH
                         AGED 64 YEARS,

                   2.    SRI MADESHA
                         S/O LATE MADAIAH
                         AGED 43 YEARS,

                   3.    SRI RANGASWAMY
                         S/O LATE MADAIAH
                         AGED 41 YEARS,

                   4.    SRI HANUMANTHA
                         S/O LATE MADAIAH
                         AGED 37 YEARS,
Digitally signed
by SHARANYA T
Location: HIGH           ALL ARE AT
COURT OF                 ADINJAMBAVA STREET,
KARNATAKA
                         YELANDUR TOWN
                         CHAMARAJANAGARA DISTRICT
                         PIN-571 440.

                   5.    SMT. PUTTAMMA
                         D/O LATE MADAIAH
                         AGED 39 YEARS,
                         W/O LATE MADESHA
                         BAPUNAGARA, KOLLEGAL
                         CHAMARAJANAGAR DISTRICT
                         PIN-571 440.
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                                         NC: 2023:KHC:33802
                                       RSA No. 1806 of 2018




6.   SMT. SIDDAMMA
     W/O LATE MADAIAH
     AGED 45 YEARS,
     W/O PUTTAIAH
     KAMAGERE VILLAGE
     KOLLEGAL TALUK
     CHAMARAJANAGARA DISTRICT
     PIN-571 440.
                                               ...APPELLANTS

           (BY SRI JAGADEESHACHARI, ADVOCATE)
AND:

1.   SRI SEENAIAH
     S/O CHIKKARANGAIAH
     AGED 75 YEARS,
     ADIJAMBAVA STREET
     YELANDUR TOWN
     CHAMARAJANAGARA DISTRICT
     PIN-571 440.
                                              ...RESPONDENT

       (RESPONDENT IS SERVED AND UNREPRESENTED)

      THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DTD 01.09.2017 PASSED IN
R.A.NO.77/2009, ON THE FILE OF THE SENIOR CIVIL JUDGE
AND CJM., CHAMARAJANAGAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED03.08.2009
PASSED IN O.S.NO.31/2007 ON THE FILE OF THE CIVIL JUDGE
[JR.DIVN.] AND JMFC., YELANDUR.

     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 appellants.

NC: 2023:KHC:33802 RSA No. 1806 of 2018

2. The factual matrix of the case of the

plaintiffs/appellants before the Trial Court that they are the

absolute owners of the suit schedule property and hence sought

for the relief of declaration and consequential relief of

permanent injunction and also the contention that defendant is

trying to obstruct the very peaceful possession over the suit

schedule property. Defendant appeared and filed written

statement contending that the suit itself is not maintainable

and the same is also barred by limitation and also suit is hit by

Section 11 of CPC and hence plaintiffs are not entitled for any

relief.

3. The plaintiffs in order to prove the case examined

himself as P.W.1 and two other witnesses as PWs.2 and 3 and

got marked the documents Exs.P1 to P23. On the other hand

defendant examined one witness as DW1 and got marked the

documents Exs.D.1 to D.30. The Trial Court having considered

the material on record comes to the conclusion that plaintiffs

though claims the relief of declaration not substantiated the

same by producing any document and also taken note of claim

of property measuring 22 ft x 23 ft. and also made an

observation that once the plaintiffs comes to the Court with a

NC: 2023:KHC:33802 RSA No. 1806 of 2018

specific case that they are the owners of the suit schedule

property they have to prove the said facts by oral and

documentary evidence and the same is not placed before the

Court and also taken note of, in view of the observations made

by the High Court of Karnataka in W.P.No.7530/1993, the

plaintiffs have instituted the present suit, but not produced any

document to substantiate their claim that they are the owners

and also taken note of oral testimony of DW1 as well as the

document produced by him that the defendants are the owners

in possession of the suit schedule property and also taken note

of the fact that earlier suit was filed in O.S.No.210/1998 and an

appeal was also filed by the plaintiff in R.A.No.23/2003 and the

same also came to be dismissed.

4. Having considered the material available on record

answered issue Nos.1 and 2 as negative and issue Nos.3 and 4

as affirmative regarding suit is barred by limitation as well as

the suit itself is not maintainable and answered the other issues

as negative and dismissed the suit. Being aggrieved by the said

judgment and decree of dismissal of the suit, an appeal is filed

in R.A.No.77/2009 and the First Appellate Court also

considering the grounds urged in the appeal memo formulated

NC: 2023:KHC:33802 RSA No. 1806 of 2018

the point whether the appellants proves that the Trial Court has

not properly appreciated the oral and documentary evidence

and whether the appellants proved that the learned Trial Court

has erred in not considering the fact that the vendor of the

defendant had no title to execute the sale deed and whether

the finding of the Trial Court that defendant is not in physical

possession is erroneous and the First Appellate Court also on

re-appreciation of both oral and documentary evidence

formulated the points and answered the same as negative in

coming to the conclusion that plaintiffs though sought for the

relief of declaration and specifically contended that they are in

physical possession and enjoyment of the property and failed to

prove the same that earlier also appeal was filed and appeal

was also dismissed and in order to prove the factum that the

plaintiffs are also owners of the property and not substantiated

the same by producing any document in paragraph Nos.19 and

20 and re-assessed both oral and documentary evidence. No

doubt the counsel appearing for the appellants would

vehemently contend that both the Courts are committed an

error in not relying upon the document of Exs.P1 to P23 and no

dispute that there was an observation in Writ Petition

NC: 2023:KHC:33802 RSA No. 1806 of 2018

No.7530/1993, liberty was given and accordingly a suit is filed

and the very contention of the appellants counsel that both the

Courts have committed an error in dismissing the suit and also

the appeal and not appreciated both oral and documentary

evidence.

5. Having perused the material on record particularly

the Trial Court dealt with the matter and issue Nos.1 and 2 with

regard to the claim of the plaintiffs as, they are the absolute

owners and the same has not been substantiated and also

taken note of earlier appeal filed by the plaintiffs and the same

was also dismissed and the First Appellate Court also in

paragraphs No.19 and 20 taken note of whether the Trial Court

has committed an error in not appreciating both oral and

documentary evidence and in the absence of any documentary

proof with regard to the title is concerned, question of granting

any relief of declaration does not arise. The plaintiffs have filed

the suit for the relief of declaration and injunction and when the

suit is filed for the relief of declaration, the plaintiffs have to

prove their title and not to depend on the weakness of the

defendant and hence the very claim of the plaintiffs that they

are the absolute owners has not been substantiated by placing

NC: 2023:KHC:33802 RSA No. 1806 of 2018

any documentary evidence and in the absence of any

documentary evidence, the question of granting the relief of

declaration does not arise and both the Trial Court as well as

the First Appellate Court considered the material on record and

I do not find any perversity in the finding of the Trial Court in

dismissing the suit for declaration and injunction and hence, no

ground to admit and frame any substantive question of law

invoking Section 100 of CPC.

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

following:

ORDER

Second appeal is dismissed.

Sd/-

JUDGE

AP