Karnataka High Court
Sri Manjunatha H S vs Sri H K Thimmegowda on 19 April, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 212 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 212 OF 2023 (DEC/INJ)
BETWEEN:
Sri Manjunatha H.S.
S/o Late Hucchegowda @ Ayyanna,
Aged about 35 years,
C/o K.O. Rangappa
Opp. Badagodamma Temple,
TB Extension,
Nagamangala Town,
Mandya District-571432.
...Appellant
(By Sri. Y K Narayana Sharma, Advocate)
AND:
1. Sri H.K.Thimmegowda,
Digitally S/o Late Konegowda,
signed by
SUMA B N Aged about 61 years
Location: R/a Hirisave Village and Hobli,
High Court
of Karnataka Channarayapatna Taluk-573124.
2. Smt. H. T. Latha,
D/o Sri H.K.Thimmegowda,
W/o Sri Sathish,
Aged about 33 years,
Residing at Kodihalli Village,
Bellur Hobli,
Nagamangala Taluk,
Mandya District-571445.
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RSA No. 212 of 2023
3. Sri H. T. Manjunath,
S/o Sri H. K. Thimmegowda,
Aged about 31 years,
Residing at Hirisave Village and Hobli,
Chananrayapatna Taluk-573124.
4. Sri G. S. Shankarachari,
S/o Late G. N. Singhachari,
Aged about 68 years
Residing at Gurigaranahalli Village,
Saravanabelagola Hobli,
Channarayapatna Taluk-573135.
5. Sri T. T. Sridhara,
S/o Sri Thopegowda,
Aged about 38 years,
Residing at Tondahalli Village
Alisandra,
Bellur Hobli,
Nagamangala Taluk,
Mandya District-571418. ...Respondents
This Regular Second Appeal is filed under Section 100 read
with Order 41 Rule 1 of CPC praying to call for the records in
R.A.No.56/2020 in the Court of the VII Addl. District Judge,
Mysuru and the records in O.S.No.19/2012 in the Court of the II
Addl. Civil Judge & JMFC, Channarayapatna and to set aside the
judgment and decree dated 19.10.2022 passed in
R.A.No.56/2020 by the Court of Addl. Senior Civil Judge and
JMFC, Channarayapatna, Hassan, and also the judgment and
decree dated 16.06.2020 passed in O.S.No.19/2012 by the Court
of the II Addl. Civil Judge & JMFC, Channarayapatna or pass
other suitable orders by allowing this appeal with costs
throughout in the interest of justice.
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RSA No. 212 of 2023
This Regular Second Appeal coming on for Admission, this
day, the Court delivered the following :
JUDGMENT
This appeal is by the unsuccessful plaintiff, who is
before this Court being aggrieved by the judgment and
decree dated 16.06.2020, passed in O.S.No.19/2012, on
the file of II Addl. Civil Judge and J.M.F.C.,
Channarayapatna, ('trial Court' for short), which is
confirmed by judgment and order dated 19.10.2022,
passed in R.A. No.56/2020, on the file of Addl. Senior Civil
Judge and J.M.F.C., Channarayapatna (First Appellate
Court).
2. The above suit in O.S.No.19/2012 is filed by the
plaintiff seeking relief of declaration of his title and for
permanent injunction in respect of the suit schedule
property.
3. It is the case of the plaintiff that one
Huchhegowda had four sons, namely Konegowda,
Thimmegowda, Dasappa and Huchegowda @ Ayyanna. The
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first son Konegowda had three children, namely Rajanna,
Kondegowda and Thimmegowda (defendant No.1). The
second son Thimmegowda had a wife by name Yallamma,
but, no issues. The third son Dasappa had three children,
namely Chandra, Kondegowda and Venkatesha and fourth
son Huchegowda @ Ayyanna had four children, namely
Sunanda, Shoba, Sumalatha and Manjunatha H (plaintiff).
4. It is the further case of the plaintiff that all the
sons of Huchegowda have partitioned the ancestral
properties. Since the second son Thimmegowda and his
wife Yallamma had no issues, they brought up the plaintiff
and treated him as their own son. That since the plaintiff
was taking care of Yallamma and Thimmegowda, after the
death of husband of Yallamma, the suit schedule property
was allotted to the share of plaintiff by way of Deed of
Settlement dated 01.01.2003. Accordingly, the plaintiff has
been in possession and enjoyment of the suit schedule
property as owner thereof.
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5. That on 13.08.2003, the plaintiff had given an
application to the Tahsildar, Channarayapatna, for change
of katha and was under an impression that the katha has
been changed. That just about two months prior to the
date of filing of the suit, the defendant No.4 started to
interfere with the plaintiff's peaceful possession and
enjoyment of the suit schedule property asserting that he
has purchased the same from defendant Nos.1 to 3 through
registered Sale Deed about three years prior to filing of the
suit.
6. That on verification, the plaintiff found that
defendant No.1 had concocted Panchayat Palupatti alleged
to have been executed by Yallamma in his favour based on
which he had obtained revenue entries in his name. That
defendants 1 to 3 had executed and registered a Sale Deed
dated 26.11.2008 in respect of 5 guntas of suit property. It
is further contended that plaintiff has reason to believe that
Yallamma's left thumb impression had been forged by
defendant No.1 to create deed of partition dated 10.02.2003
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in collusion with the witnesses and scribe. Hence, suit for
declaration.
7. Defendants 1 to 3 appeared and filed written
statement denying the plaint averments. It is contended
that suit property originally belonged to Huchhegowda and
in a partition it was allotted to the share of second son
Thimmegowda and after death of Thimmegowda, name of
his wife Yallamma was entered in the revenue records.
Yallamma had no issues and she brought up defendant No.1
as her son. Defendant No.1 had taken care of Yallamma till
her demise. She had executed a Panchayath Palupatti on
10.02.2003 and allotted the suit property to defendant
No.1. Later she died on 06.06.2004. That on the basis of
the said Palupatti, defendant No.1 got his name entered in
the revenue records. Plaintiff filed the suit after lapse of
nine years on the basis of alleged settlement deed which he
has fabricated by forging the thumb impression of
Yallamma, plaintiff has never been in possession of the
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property and plaintiff has not challenged the khatha till date
and hence sought for dismissal of the suit.
8. During the pendency of the suit defendant No.5
was impleaded who filed written statement contending that
defendant No.1 had sold 5 guntas of land out of suit
property and sold 4.04 guntas of remaining land in favour of
defendant No.5 in terms of registered deed of sale dated
23.05.2011 based on which name of defendant No.5 has
been entered in the revenue records. It is also contended
that Yallamma also had sold during her life time properties
in favour of other persons which have not been included by
the plaintiff. Hence, sought for dismissal of the suit.
9. Based on the pleadings, trial Court framed
following issues:
"1. Whether the plaintiff proves that, he is the absolute
owner of the suit schedule properties?
2. Whether the plaintiff proves that, the alleged palupatti
dated 10-02-2003 will not in any way affect the plaintiff
absolute title, ownership and possession over the suit
schedule property?
3. Whether the plaintiff proves that, he is in lawful
possession and enjoyment of the suit properties?
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4. Whether the plaintiff proves that, the defendants are
trying to interfere with their possession and enjoyment
over the suti land?
5. Whether the valuation is proper and Court fee paid to
sufficient?
6. Whether the plaintiff is entitled for the relief claimed?
7. What order or decree?"
10. On appreciation of evidence, trial Court answered
issue Nos.1 to 4 and 6 in the negative and issue No.5 in the
affirmative and consequently dismissed the suit. Aggrieved
by the same plaintiff preferred regular appeal in
R.A.No.56/2020 and based on the pleadings, First Appellate
Court framed following points for its consideration:
"1. Whether the trial court was justified in holding that
plaintiff has failed to prove declaration and permanent
injunction along with interference by defendants?
2. Whether the findings of the trial court requires
interference by this court?
3. What order or decree?"
11. On reappreciation of evidence, First Appellate
Court confirmed the Judgment and decree passed by the
trial Court and consequently dismissed the appeal. Being
aggrieved by the same, appellant is before this Court.
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12. Learned counsel for appellant reiterating the
grounds urged in the appeal memorandum submitted that
trial Court and First Appellate Court grossly erred in not
relying upon the settlement deed dated 01.01.2003
produced by the plaintiff solely on the ground that same had
not been registered. It is his further submission that the
trial Court and First Appellate Court on the other hand erred
in relying upon case of the defendants though they never
entered the witness box nor did they lead any evidence. He
submits that trial Court and First Appellate Court ought to
have seen that the plaintiff being one of the heirs of
Yallamma and Thimmegowda even otherwise would have
succeeded to his share in the property. That aspect of the
matter has not been considered. Thus, he submits trial
Court and First Appellate Court ought to have moulded the
relief instead of dismissal of the suit thus giving raise to
substantial question of law.
13. Heard and perused the records.
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14. The suit of the plaintiff was one for declaration
of his title based on purported settlement deed dated
01.01.2003 allegedly executed by Yallamma in his favour.
It is further case of the plaintiff that he has been in
possession and enjoyment of the property pursuant to the
said settlement deed.
15. Plaintiff claim to be the son of one Huchhegowda
who is stated to be the brother of Thimmegowda.
Thimmegowda had a wife by name Yallamma and both
Yallamma and Thimmegowda died issueless. It is based on
this relationship plaintiff claim that he was taking care of
Yallamma till her demise and that in consideration of the
same, Yallamma had conveyed this property in his favour in
terms of said settlement deed.
16. Admittedly said document is not registered in the
manner known to law. Needless to state
conveyance/creation of right, title and interest in respect of
immovable property value of which is more than Rs.100/-
requires compulsory registration under Section 17 of the
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Registration Act. The trial Court and First Appellate Court
taking note of this requirement of law have declined to
accept the said document dated 01.01.2003. Since the
plaintiff sought for declaration of title, he is required to
produce legally acceptable evidence which admittedly not
produced in this case. It may be a different aspect of the
matter that the plaintiff otherwise may be entitled for the
share in the property of Thimmegowda and Yallamma,
however, that is not the case which is pleaded by the
plaintiff before the trial Court. The specific case of the
plaintiff being he having acquired absolute right, title and
interest in the schedule property pursuant to unregistered
settlement deed dated 01.01.2003 which has been rightly
declined by the trial Court and First Appellate Court for want
of legal evidence.
17. In that view of the matter trial Court and First
Appellate Court have committed no error in dismissing the
suit of the plaintiff. No substantial question of law would
arise for consideration. Accordingly, appeal is dismissed.
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Needless to state that dismissal of this appeal may
not come in the way of plaintiff seeking any other relief
which he is entitled and permissible under law.
Sd/-
JUDGE
bk/SBN
