Karnataka High Court

Erakuntappa vs Kaleerappa on 5 April, 2024

Author: H.P. Sandesh

Bench: H.P. Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 5th DAY OF APRIL, 2024

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              R.S.A. NO.1254/2007 (DEC/INJ)

BETWEEN:

1.     ERAKUNTAPPA
       S/O. MERE SANNAPPA
       AGED ABOUT 60 YEARS

2.     SHIVAMURTHAPPA
       AS/O. MEKE SANNAPPA
       AGED ABOUT 55 YEARS

       1 & 2 AGRICULTURISTS
       RESIDING AT BEESANAHALLI
       VILLAGE, KASABA HOBLI,
       HOSADURGA TALUK-577527.

3.     B.M.PARAMESWARAPPA
       S/O. CHIKKANNA
       AGED ABOUT 63 YEARS
       RESIDING AT BIDARAKERE
       GOLLARAHATTI,
       HOLALKERE TALUK-577526.            ... APPELLANTS

            (BY SRI M.S.VARADARAJAN, ADVOCATE)
AND:

1.     KALEERAPPA
       S/O. KUNTAPPA
       AGED ABOUT 68 YEARS
       RESIDING AT BEESANAHALLI VILLAGE
                                 2



      HOSADURGA TALUK
      CHITRADURGA DISTRICT-577527.               ... RESPONDENT

              (BY SRI B.K.MANJUNATH, ADVOCATE)

     THIS R.S.A. IS FILED UNDER SECTION 100 CPC AGAINST
THE JUDGMENT AND DECREE DATED 5.2.2007 PASSED IN
R.A.NO.19/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
HOLALKERE, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 17.4.2004 PASSED IN
O.S.NO.152/2002 ON THE FILE OF THE ADDL. CIVIL JUDGE
(JR.DN.), HOSADURGA.

    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    25.03.2024 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

                        JUDGMENT

1. Heard the learned counsel for the appellants and

the counsel appearing for the respondent.

2. The parties are referred to as per their original

rankings before the Trial Court to avoid confusion and for

the convenience of the Court.

3. The factual matrix of case of plaintiff/respondent

before the Trial Court while seeking the relief of declaration

to declare that plaintiff is the owner and in possession of

the suit schedule property and also for permanent

injunction, it is contended that the plaintiff is the absolute

owner of the property based on the sale deed dated

23.01.1980 executed by Meke Sannappa, ever since from

the date of purchase, he has been in possession of the

property and khata has been changed as per M.R.No.

2/80-81 and he is paying tax and without any disturbance.

The father of the defendant No.3 had filed the suit in

O.S.No.122/1984 and the same was dismissed on

18.06.1990. In view of interference by the defendants, the

present suit is filed for the relief of declaration and

injunction. The defendants have absolutely no manner of

right, title, interest or possession over the suit schedule

property. The defendants are strangers and the defendants

are unnecessarily interfering with the suit schedule

property. The defendants in the written statement

contended denying the averments made in the plaint and

denied the title as well as the possession.

4. It is contended that originally land bearing

Sy.No.10/1 measuring 1 acre 22 guntas situated at

Beesanahalli Village and other properties were belongs to

the Meke Sannappa, it was his ancestral property. The said

Meke Sannappa sold the aforesaid land along with other

lands to Chikkanna who is the father of 3rd defendant

through registered sale deed dated 25.06.1956. Since then

the said Chikkanna was the owner and in possession and

enjoyment of the said land till his death. After his death, his

elder son i.e., 3rd defendant inherited all his property and

the defendant Nos.1 and 2 cultivating the same as tenants.

The Meke Sannappa had no manner of right in suit land

since from 1956 when he sold the same in favour of the

said Chikkanna. The plaintiff is not the owner of the suit

schedule property and it appears from the sale deed dated

23.01.1980 alleged to have been executed by Meke

Sannappa. The boundaries of the land described in the sale

deed and extent is shown as 2 acres and this land described

within these boundaries and the extent was not tallying

with the boundaries of Sy.No.10/1. The boundaries

mentioned in the sale deed is of the year 1956 to an extent

of 1 acre 21 guntas. The boundaries mentioned in the sale

deed of the plaintiff is not corresponds with the Sy.No.10/1.

The boundaries and extent mentioned in the said sale deeds

corresponds to Sy.No.29 of Beesanahalli village was

belongs to Meke Sannappa. The plaintiff may have

purchased the land in Sy.No.29 and by mistake Sy.No.10/1

was shown instead of Sy.No.29. The plaintiff based on the

said sale deed managed to enter his name in revenue

record in collusion with revenue officials. The defendant

No.1 as a tenant of the suit land and other lands has filed

an application for grant of occupancy right before the Land

Tribunal and Land Tribunal granted the occupancy right

only to other lands as he is not entitled for more than 5

acres 4 guntas in total. The defendant Nos.1 and 2 have

cultivating the suit land as tenants now also under the

defendant No.3 who is the landlord of the suit land. Based

on the pleadings of the plaintiff and defendant, the Trial

Court has framed following Issues:

1) Whether the plaintiff proves his title to the suit schedule property?

2) Whether the plaintiff proves his possession over suit property as on the date of suit?

3) Whether the plaintiff proves the alleged interference of the defendants over the suit property?

4) Whether the plaintiff is entitled for the decree as sought for?

5) To what order or decree?

5. The plaintiff in order to prove his case, examined

himself as PW1 and got marked the document Ex.P1 to

Ex.P19. The plaintiff has examined one witness as PW2. The

defendant No.1 examined himself as DW1 and also

examined two witnesses as DW2 and DW3. The defendant

got marked the document Ex.D1 to Ex.D13. The Trial Court

having re-assessed the material on record and after the

remand order passed by the Appellate Court in

R.A.No.112/2002 has decreed the suit declaring that the

plaintiff is the owner of the suit schedule property and he

has been in possession of the property and restrained the

defendant from interfering with the possession of the

plaintiff. The said judgment and decree was challenged in

R.A.No.19/2004. The First Appellate Court having

considered the grounds urged in the appeal, formulated the

point whether the lower Court is justified in decreeing the

suit of the plaintiff, whether judgment requires interference

in the appeal and comes to the conclusion that lower Court

is justified in decreeing the suit of plaintiff and it does not

requires any interference and confirmed the judgment of

the Trial Court. Being aggrieved by the said judgment and

decree and also the confirmation of judgment of the Trial

Court, the present second appeal is filed before this Court.

6. The main contention urged in the second appeal

before this Court is that the Trial Court in the reasoning,

taken note that the plaintiff has perfected his title with

respect to the suit schedule property by way of adverse

possession is clearly erroneous for the simple reason that

adverse possession was not that of either pleaded or made

out by the plaintiff. It is also contended that when the

plaintiff sought for the relief of declaration of his alleged

title to the suit property on the basis of the registered sale

deed, the Trial Court committed a grave mistake in

decreeing the suit on the basis of adverse possession. It is

also contended that both the Courts below grossly erred in

overlooking Ex.D7, the registered sale deed already

executed by the plaintiff's vendor in favour of the 3rd

defendant's father in the year 1956 itself and by accepting

the sale deed in favour of the plaintiff which was in the year

1980 that is much later to the aforesaid sale deed. It is also

contended that both the Courts below grossly erred in going

through the mutation orders and entries based on the said

mutation and they are only consequential to Ex.P16- the

registered sale deed and the plaintiff did not acquire any

right under Ex.P16 the revenue documents cannot be relied

upon. Both the Courts have committed an error in relying

upon tax paid receipts and tax paid receipts cannot either

prove plaintiff's title or possession. Both the Courts

committed an error in relying upon M.R.No.2/80-81. When

there was a sale deed in terms of Ex.D7, the other revenue

entries made in favour of plaintiffs cannot be considered.

The very approach of both the Trial Court as well as First

Appellate Court is erroneous and it requires interference of

this Court.

7. This Court having considered the grounds urged

in the appeal at the time of admission, framed the following

substantial question of law:

i) Whether the First Appellate Court was justified in the first instance in passing an order of remand and the Trial Court arriving at its

finding inconsistent with the order issued by the order of remand?

ii) Whether the Trial Court could reconsider the matter on the grounds, which were not as per the directions issued under the order of remand?

iii) Whether the First Appellate Court was in turn justified in negating Ex.D7, which is the sale deed executed by the father of defendant Nos.1 and 2 in favour of defendant No.3 in re- considering the appeal?

8. The counsel appearing for the appellant in his

argument he vehemently contend that the concurrent

finding of both the Courts is erroneous and in Ex.P16- Sale

deed dated 23.01.1980 discloses that the sale deed

executed to an extent of 2 acres, but suit is filed for the

relief to an extent of 1 acre 22 guntas particularly in

Sy.No.10/1P3. The vendors of the said sale deed is also the

father of defendant Nos.1 and 2. It is the defense of the

defendants that the father of defendant Nos.1 and 2 had

sold the property in favour of defendant No.3 in the year

1956 i.e., on 25.06.1956. It is also the specific case that

defendant Nos.1 and 2 are in possession in terms of the

instructions of defendant No.3 and they are the tenants.

The counsel would vehemently contend that instead of

selling the property bearing Sy.No.29, it was wrongly

mentioned the property as Sy.No.10/1 in the sale deed

Ex.D16 and the specific case was also putforth by the

defendants in the written statement that the sale deed of

Ex.P16 is not in respect of Sy.No.10/1P3.

9. The counsel also would vehemently contend that

no reason has been assigned, but only sought for the relief

of declaration to an extent of 1 acre 22 guntas, when the

sale deed dated 23.01.1980 is executed to an extent of 2

acres. The counsel also would vehemently contend that the

appellate Court earlier set-aside the judgment of the lower

Court and remanded the matter in R.A.No.112/2002 and

the observations made in the remand also not been met by

the Trial Court once again and boundaries are not tallies

with each other. The decree granted by the Trial Court as

the plaintiff has perfected the title by adverse possession

has not been pleaded and that is not their case also. The

reasoning given by the Appellate Court is not concurrent

since the Trial Court in paragraph No.26 of the judgment

held that the plaintiff has perfected the adverse possession.

The counsel also would vehemently contend that the finding

given by the Appellate Court is also not correct and

reasoning is not correct as well as discrepancy has not been

established. The reasoning given by both the Courts is

against the pleadings.

10. The counsel in support of his argument he relied

upon the judgment of this Court reported in 1987 SCC

Online Kar 67 in case of Tibba Boyi @ Kariya and

others V/s K.Venkatappa in that judgment an

observation is made that when rectification of mistakes in

document has not sought and declaration of title whether

can be granted and held, Section 26 only enables the

parties or their representatives in interest to a contract or

other instrument in writing to institute a suit to have the

mistake crept in the contract or instrument in writing as a

result of which it does not express their real intention

rectified on the ground of fraud or mutual mistake,

however, Section 26 does not take away the jurisdiction of

civil Court to declare a title to a particular property on proof

of title, thus, a decree for declaration of title can be granted

even without the rectification of the mistake in the

document on the basis of which the title is sought, if the

title is proved inspite of such mistake by evidence adduced,

if without seeking the relief of rectification, the plaintiff is

able to prove his title to the suit property, it is permissible

in law and the Court has the jurisdiction to pass a decree

declaring the title of the plaintiff to the suit property as

claimed in the plaint. The counsel referring this judgment

would vehemently contend that contend that sale deed is in

respect of Sy.No.29 and not in respect of suit schedule

property bearing Sy.No.10/1P3.

11. Per Contra, the counsel appearing for the

respondent in his argument would vehemently contend that

the claim of the defendant in terms of Ex.P7 that they have

purchased the property to an extent of 1 acre 24 guntas

and though contend in the appeal that matter was

remanded, the same has not been considered by the Trial

Court. But, not led any evidence after the remand. The

counsel also would vehemently contend that when the

defendant contend that sale deed executed in respect of

Sy.No.29 and not in respect of Sy.No.10/1P3. The

defendants have not produced any document to show that

Sy.No.29 also belongs to the defendant. The counsel also

would vehemently contend that in sale deed- Ex.P7, it is

clearly mentioned that the total area is to an extent of 3

acres 2 guntas and remaining extent shown in the earlier

sale deed of the year 1956. Hence, the very contention that

the title is not passed in respect of suit schedule property in

favour of plaintiff cannot be accepted. The counsel would

vehemently contend that both the Courts have taken note

of material available on record and decreed the suit in

earliest point of time. Even after the remand also, the Trial

Court decreed the suit. The Appellate Court also having

reconsidered the material available on record, confirmed

the judgment of the Trial Court. Hence, no scope for second

appeal.

12. The counsel in support of his argument, he

relies upon the judgment reported in (1996) 6 Supreme

Court Cases 166 in case of Navaneethammal V/s

Arjuna Chetty and the counsel referring this judgment

would vehemently contend that the scope of second appeal

is very limited, High Court should not interfere with

concurrent findings of Courts below by reappreciating

evidence and arriving at another possible view. Interference

with the concurrent findings of the Courts below by the

High Court under Section 100 of CPC must be avoided

unless warranted by compelling reasons. The High Court

cannot re-appreciate the evidence just to replace the

findings of the lower Courts. The counsel referring this

judgment would vehemently contend that this Court cannot

exercise the power under Section 100 of CPC.

13. Having heard the appellants' counsel and the

counsel appearing for the respondent and also in keeping

the grounds urged in the appeal as well as respective

submissions of respective counsels and also the principles

laid down in the judgments referred supra by the

appellants' counsel and also the counsel for respondent and

so also substantial question of law framed by this Court,

this Court has to consider the material available on record.

Admittedly, the suit was filed for the relief of declaration

and injunction and declaration is also sought based on the

sale deed of the year 1980 which is marked as Ex.D16. It is

also not in dispute that earlier also suit was decreed and

the same was challenged and in appeal R.A.No.112/2002,

the matter was remanded and thereafter also the Trial

Court granted the relief of declaration and injunction and

confirmed the same in the appeal. Now, this Court has to

consider the substantial question of law framed by this

Court. The 1st substantial question of law is that whether

the First Appellate Court was justified in the first instance in

passing an order of remand and the Trial Court arriving at

its finding inconsistent with the order issued by the order of

remand by the Appellate Court. The 2nd substantial question

of law is Whether the Trial Court could reconsider the

matter on the grounds which were not as per the directions

issued under the order of remand. These two substantial

question of law has to be considered by this Court. Since,

these substantial question of law with regard to the remand

and also giving finding of the Appellate Court as well as the

Trial Court. Before considering these substantial question of

law, this Court would like to refer the earlier judgment of

remand order passed in R.A.No.112/2002. The First

Appellate Court in the said appeal formulated the point with

regard to the finding of lower Court in decreeing the suit.

The First Appellate Court comes to the conclusion that lower

in decreeing the suit of the plaintiff, on proper appreciation

of both oral and documentary evidence adduced by both

the parties, answered the issues as negative and also it

requires interference. The Appellate Court discussed the

evidence available on record and also taken note of the

boundaries described in the plaint and taken note of the

sale deed Ex.P16 and also taken note of the boundaries

mentioned in the sale deed and also the extent mentioned

in the sale deed and taken note of the boundaries

mentioned in the sale deed of the year 1956 which is

marked as Ex.D7. The Appellate Court observed that the

boundaries mentioned in the suit schedule property and

boundaries mentioned in the Ex.P16 are not tallying with

each other. The boundaries given by the plaintiff in his

cross-examination and boundaries mentioned in the

schedule are one and the same. The plaintiff has also

admitted that there is no change in the boundaries of the

land purchased by him and also he categorically admitted

that he does not know the boundaries mentioned in the sale

deed. The defendants are also claiming that Meke

Sannappa has sold the suit schedule property to Chikkanna

i.e., father of defendant No.3 under the sale deed of the

year 1956. In the said document though it is mentioned

that the property sold was Sy.No.10/1 measuring 1 acre 21

guntas but the boundaries are not tallying with the suit

schedule property neither the plaintiffs nor the defendants

have not adduced any evidence about the identity of the

property purchased by them. The findings recorded by the

lower Court that the plaintiffs proved that he has purchased

the suit schedule property and Ex.P16 discloses that the

plaintiff has purchased the suit schedule property are not

proper and hence remitted back to the lower Court for fresh

disposal after giving an opportunity to both the parties to

lead further evidence regarding the identity of the suit

property.

14. Having considered the reasons mentioned by the

First Appellate Court in R.A.No.112/2002 is very clear that

an opportunity has to be given to the parties to lead their

evidence. It has to be noted that on perusal of order sheet

of the Trial Court, after remanding the matter, the Trial

Court issued notice to both the parties. The parties are

represented through their respective counsels. When the

opportunity was given for filing written statement if any,

the counsel made the submission that no additional written

statement and hence taken as no additional written

statement and posted for plaintiff evidence. The counsel for

plaintiff took time to lead evidence and after the remand,

the plaintiff examined as PW1 in part. He re-iterated that

earlier evidence which he has given may be considered as

his evidence and also deposed before the Court that with

regard to the boundaries mentioned in the sale deed as well

as boundaries at the time of filing of the suit. He was

further cross examined by the defendant's counsel. The

DW1 after the closure of plaintiff's evidence, made

submission that he has no evidence. Having considered the

material on record, except further examination of PW1, the

defendant has not led any evidence. The Court has to see

the order of the Trial Court after remanding the matter

while reconsidering the material available on record and

taken note of the plaintiff's evidence and also the

defendant's evidence and comes to the conclusion that

earlier purchaser Chikkanna had filed a suit against the

plaintiff in O.S.No.122/1984 and the same was dismissed

and considered only the mutation entries and also the sale

deed and comes to the conclusion that non challenging of

the sale deed by the defendant No.3 from the year 1980

and his right has been extinguished and also taken note of

the evidence of DW2 and extracted in paragraph No.39 and

not considered the grounds on which the First Appellate

Court remanded the matter and not answered with regard

to the observations made by the First Appellate Court.

Instead of comes to the conclusion that Ex.D1 is not relates

to the suit schedule property and with regard to the

boundary description is concerned, not discussed anything,

since the First Appellate Court extracted the boundaries

mentioned in the plaint as well as in the sale deed of the

year 1990 and also the sale deed of the year 1956. Instead

of proceeded to consider the matter on other grounds which

were not as per the directions issued under the order of

remand.

15. The First Appellate Court fails to take note of the

reasoning given by the Trial Court. No doubt, the First

Appellate Court while passing the order, discussed

regarding title claimed by the plaintiff and defendant and

also discussed the document produced by the plaintiff as

well as the defendant and also discussed with regard to the

extent which has been mentioned. The First Appellate Court

not discussed anything about the order passed by the

earlier remand order. The First Appellate Court not justified

at the first instance in passing an order of remand and the

Trial Court arriving at its finding inconsistently the order

issued by the order of remand. Both the Courts fail to take

note of the observations made by the appellate Court

earlier in R.A.No.112/2002 and hence, I answered the

substantial question of law Nos.1 and 2 that both the

Appellate Court and Trial Court have committed an error

and the very approach of both the Courts is erroneous.

16. Now, the 3rd substantial question of law is

whether the First Appellate Court was in turn justified in

negating Ex.D7 which is the sale deed executed by the

father of defendant Nos.1 and 2 in favour of defendant No.3

in re-considering the appeal. Having considered the 3rd

substantial question of law with regard to the document of

Ex.D7 and also the document of plaintiff which relies upon

Ex.P16, it is very clear that in respect of both the sale

deeds, Vendors are same i.e., Meke Sannappa. The

plaintiffs also claims title through the one Meke Sanappa

and the defendant also in terms of Ex.D7 claims the title

through the said Meke Sannappa. Though defendant Nos.1

and 2 who are the sons of the said Meke Sannappa,

disputes the subsequent sale deed of the year 1980 i.e.,

Ex.P16 executed in favour of plaintiff and also this Court

answered substantial question of law Nos.1 and 2 that both

the Courts have committed an error and fails to take note

of the description of boundaries mentioned in all the sale

deeds of Ex.D7 and Ex.P16 and also the boundaries

mentioned in the suit schedule property which has been

shown in the schedule.

17. It is important to note that the plaintiff in the

suit described western north as Oni. But, in terms of the

sale deed of the plaintiff as per Ex.P16 is not inconsonance

with the suit schedule. Apart from that, it is also important

to note that sale deed of the year 1956 i.e., Ex.D7, in the

said sale deed also Western-North boundaries are shown as

Oni. But, on the Eastern-South properties are shown as

land of Siddappa and land of Sannappa. In the suit schedule

boundary, the plaintiff has shown East Oda kuntappa and

on the southern side the property of Bheemanna. But, in his

sale deed of the year 1980, east land of Mallappa and South

land of Sanneerappa had shown and all these boundaries

are different and not tallies with the suit schedule property.

It is also important to note that the plaintiff's sale deed for

2 acres of land. But, suit is filed only for 1 acre 22 guntas

and also it is important to note that according to the

defendants, Meke Sannappa had sold the property bearing

Sy.No.10/1 measuring 1 acre 22 guntas of Bheesanahalli

village. Having considered the recitals Ex.D7, it is

mentioned that out of 3 acres 2 guntas, 1 acre 22 guntas

was sold. But, nowhere it is mentioned that they have

retained the remaining property. But, I have already

pointed out that in Ex.D7, clear averment is made that the

khata is standing in the name of his brother Sannappa S/o

Erakuntappa and he got 3 acres 2 guntas in the said

partition, the same is in his possession. Out of that ½

portion was sold. When such averment is found in Ex.D7, it

is very clear and also it discloses that remaining ½ of the

portion out of 3 acres 2 guntas and also discloses that the

same is in his possession and the said aspect also to be

considered by the Trial Court. All these aspects has not

been considered by the Trial Court as well as the First

Appellate Court. Hence, I answered 3rd substantial question

of law also that both Appellate Court as well as Trial Court

have not properly appreciated the documents since both of

them claims the title through the said Meke Sannappa.

Hence, the matter requires to be consideration of these

issues involved between the parties. Both the Courts cannot

comes to the conclusion that the document Ex.D7 cannot be

looked into. No doubt no document stands in the name of

the defendants after purchasing the property in the year

1956. On the other hand, the plaintiffs have produced the

document from the date of purchase and all revenue entries

are stands in their names and revenue records cannot be a

title to the properties. The suit is also filed for the relief of

declaration and injunction. When such being the case, all

these aspects has to be considered by the Trial Court.

Hence, matter requires remand in view of answering

substantial question of law Nos.1 to 3 accordingly.

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

the following:

ORDER

i) The Second Appeal is allowed.

ii) The judgment and decree of Trial Court as well

as First Appellate Court are set-aside.

iii) The matter is remitted back to the Trial Court for

consideration of issues involved between the parties as

observed by this Court and also the observation made in

the earlier appeal i.e., in R.A.No.112/2002 and the Trial

Court is directed to dispose of the same in accordance with

law. The suit is of the year 2002 and almost 2 decades has

been elapsed. Hence, the matter is remitted back to the

Trial Court to dispose of the same giving an opportunity to

the plaintiff and defendants. It is observed that the

defendant has not led any evidence after the remand. Both

the parties are directed to lead their evidence in view of

discussions made in the present Second Appeal as well as in

R.A.No.112/2002.

iv) The Trial Court is directed to dispose of the suit

within 4 months from 28.05.2024.

v) The parties and respective counsels are directed

to appear before the Trial Court without expecting any

notice from the said Court. Both of them are also directed

to assist the Trial Court to dispose of the suit within 4 four

months without seeking any unnecessary adjournment.