Karnataka High Court
Sri G N Ramaiah vs Bachakkanavara Ramaiah on 5 August, 2024
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NC: 2024:KHC:30916
RSA No. 973 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.973 OF 2021 (DEC/INJ)
BETWEEN:
SRI G N RAMAIAH
S/O NT NARAYANAPPA
(SINCE DEAD BY HIS LRS)
1. SMT. MUNILAKSHMAMMA
W/O G.N. RAMAIAH
AGED ABOUT 67 YEARS
2. SRI SURESH BABU
S/O G.N. RAMAIAH
AGED ABOUT 51 YEARS
Digitally signed 3. SRI SUDHAKARA
by DEVIKA M
Location: HIGH
S/O G.N. RAMAIAH
COURT OF AGED ABOUT 47 YEARS
KARNATAKA
4. SRI MOHAN BABU
S/O G.N. RAMAIAH
AGED ABOUT 41 YEARS
ALL ARE R/AT GADDEKANNUR VILALGE
KASABA HOBLI,
KOLAR TALUK - 563101
...APPELLANTS
(BY SRI NARASIMHA MURTHY G V, ADVOCATE)
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NC: 2024:KHC:30916
RSA No. 973 of 2021
AND:
1. BACHAKKANAVARA RAMAIAH
[SINCE DEAD BY LRS]
1(A) SMT. NARAYANAMMA
W/O BACHAKKANAVARA RAMAIAH
AGED ABOUT 69 YEARS
1(B) SRI MANJUNATHA
S/O BACHAKKANAVARA RAMAIAH
AGED ABOUT 49 YEARS
BOTH ARE R/AT GADDEKANNUR VILLAGE
KASABA HOBLI, KOLAR TALUK - 563101
1(C) SMT. JAYALAKSHMAMMA
W/O NARASIMHAPPA
D/O BACHAKKANAVARA RAMAIAH
AGED ABOUT 61 YEARS
R/AT JANAPANAHALLI, HOLUR HOBI
KOLAR TALUK - 563101
2. SRI VANARASI VENKATASWAMY
S/O VENKATAPPA
AGED ABOUT 76 YEARS
3. SRI. VENKATESHAPPA
S/O NARAYANAPPA
AGED ABOUT 76 YEARS
4. SRI KRISHNAPPA
S/O MUNISHAMANNA
AGED ABOUT 59 YEARS
5. SRI MUNIYAPPA
S/O GIRIYAPPA
AGED ABOUT 44 YEARS
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NC: 2024:KHC:30916
RSA No. 973 of 2021
6. SRI NAGESHA
DEAD BY HIS LRS
6(A) SMT. PADMA
W/O LATE NAGESH
AGED ABOUT 44 YEARS
ALL ARE R/AT GADDEKANNUR VILLAGE
KASABA HOBLI, KOLAR TALUK - 563101
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 08.01.2020
PASSED IN R.A.NO.201/2014 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE, KOLAR AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the legal representatives
of the original plaintiff challenging the judgment and
decree dated 08.01.2020 passed in R.A.No.201/2014 on
the file of the III Additional Senior Civil Judge, Kolar
confirming the judgment and decree dated 22.09.2014
NC: 2024:KHC:30916
passed in O.S.No.247/1995 on the file of the Principal Civil
Judge and JMFC, Kolar.
2. It is the case of the plaintiff that, the plaintiff is
owner of the land in question bearing Sy.No.1/4
measuring 4 guntas situate at Gaddekannur Village, Kolar
Taluk. It is stated in the plaint that, originally the
property was belonged to his grandmother-Munekka and
after her demise, his father-Narayanappa succeeded to the
estate of his late grandmother. Accordingly, it is the case
of the plaintiff that, the suit schedule property belonging
to the plaintiff. It is also stated in the plaint that, father of
the plaintiff had planted Neem tree and Arali tree in the
suit schedule property and the plaintiff used to cut and
graze the leaves of trees for the benefit of the cattle and
as such, the plaintiff has filed the suit seeking the relief of
declaration with consequential relief of permanent
injunction against the defendants as the defendants have
no right to claim the portion of the suit schedule property.
Hence, the plaintiff has filed the suit.
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3. After service of notice, the defendants entered
their appearance and filed detailed written statement
denying the averments made in the plaint and have
specifically contended that the plaintiff is not in possession
of the trees and Aralikatte to the suit schedule property.
As such, the defendants have sought for dismissal of the
suit.
4. Based on the pleadings and records, the Trial
Court framed the Issues and Additional Issues for its
consideration.
5. In order to establish their case, the plaintiff has
examined three witnesses as PW1 to PW3 and produced
11 documents and the same were marked as Ex.P1 to
P11. The defendants have examined one witness as DW1
and produced 10 documents and the same were marked
as Ex.D1 to D10. The Trial Court has appointed the
Commissioner and he deposed as CW1 and produced 8
documents and same were marked as Ex.C1 to C8.
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6. The Trial Court, after considering the material
available on record, dismissed the suit of the plaintiff by
judgment and decree dated 22.09.2014 and the same was
questioned before the First Appellate Court in
R.A.No.201/2014. The defendants have resisted the said
appeal. The First Appellate Court, after reconsidering the
material available on record, by its judgment and decree
dated 08.01.2020, dismissed the appeal, consequently,
confirmed the judgment and decree dated 22.09.2014
passed in O.S.No.247/1995. Being aggrieved by the
same, the legal representatives of the deceased original
plaintiff have preferred this regular second appeal before
this Court.
7. I have heard Sri Narasimha Murthy, learned
counsel for the appellants and perused the appeal papers.
8. The learned counsel, Sri Narasimha Murthy,
appearing for the appellants would contend that the
judgment and decree passed by the Courts below by
dismissing the suit of the plaintiff is incorrect as the entire
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finding recorded by both the Courts are per se illegal
based on the evidence adduced by the Court
Commissioner as well as the documents referred to at
Ex.C1 to C8. It is further contended that, on the earlier
occasion also, the judgment and decree passed in the suit
was questioned before the First Appellate Court in
R.A.No.134/2007, wherein, the First Appellate Court was
pleased to remand the matter to the Trial Court for fresh
consideration. On the earlier occasion also, Court
Commissioner was appointed and there was no necessity
for appointment of new Court Commissioner by the Trial
Court after remand. Accordingly, he sought for
interference of this Court.
9. On the light of the submissions made by the
learned counsel appearing for the appellants, I have
carefully examined the material available on record. It is
not in dispute that, the plaintiff has filed a suit, seeking
the relief of declaration with consequential relief of
permanent injunction. Since the relief of declaration has
NC: 2024:KHC:30916
been sought, it is the duty of the plaintiff to prove that the
suit schedule property is belonging to the plaintiff. The
entire case of the plaintiff is based on the Gift Deed said to
have been executed in favour of the grandmother of the
plaintiff-Munekka. However, on careful examination of the
material available on record, it would indicate that the
Court Commissioner was appointed at the instance of the
parties and the documents produced by the Commissioner
would indicate that the Aralikatte has been constructed
recently. It is also forthcoming from the document at
Ex.C4-Survey Sketch prepared by the Court Commissioner
that, small portion of the Aralikatte is situated within the
boundaries of the suit schedule property. However, the
maximum portion is situated in the property of Grama
Tana and the said Aralikatte is being utilized by the people
during auspicious function like marriage. However, on
perusal of the Gift Deed said to have been executed in
favour of grandmother of the plaintiff would indicate that,
nothing is stated in the plaint relating to existence of the
Neem or Arali trees as well as Aralikatte in the suit
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schedule property. In that view of the matter, the suit is
filed seeking the relief of declaration but, the
appellants/plaintiffs have failed to establish the fact that
the Aralikatte as well as the two trees were situated in the
suit schedule property. In that view of the matter, both
the Courts below have rightly arrived at a conclusion while
dismissing the suit filed by the plaintiff. In that view of
the matter, the appellants have not made out a case for
framing of substantial questions of law as required under
Section 100 of CPC. Accordingly, the Regular Second
Appeal is dismissed at the stage of admission.
Sd/-
(E.S.INDIRESH)
JUDGE
SN
