Karnataka High Court
Mohammed Yunus vs Smt Honnamma W/O Kotrappa on 16 February, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.3008/2007 (INJ)
BETWEEN:
MOHAMMED YUNUS S/O ISMAIL SAB
AGED ABOUT 65 YEARS,
OCCUPATION: MEDICAL PRACTITIONER
RESIDENT OF MALLADIHALLI
HOLALKERE TALUK
CHITRADURGA DISTRICT
... APPELLANT
(BY SRI B.M.SIDDAPPA, ADVOCATE)
AND:
1. SMT. HONNAMMA
W/O KOTRAPPA
SINCE DEAD BY LRS.
1(a) KAMALAMMA
W/O HOLIYAPPA
AGED ABOUT 45 YEARS
RESIDENT OF KADALEKATTE
MALLADIHALLI POST
HOLALKERE TALUK
CHITRADURGA DISTRICT
1(b) GEETHAMMA
W/O MANJAPPA
AGED ABOUT 32 YEARS
2
R/O. BANNIHATTI
CHANNAGIRI TALUK
DAVANAGERE DISTRICT.
1(c) SHOBHA W/O MAYAPPA
AGED ABOUT 25 YEARS
R/O. ANDANUR
HOLALKERE TALUK
CHITRADURGA DISTRICT.
2. BASAPPA S/O KOTRAPPA
AGED ABOUT 54 YEARS
3 RAJAPPA S/O LATE KOTRAPPA
AGED ABOUT 47 YEARS
4 RAVI S/O KOTRAPPA
AGED ABOUT 41 YEARS
RESPONDENT NO.2 TO 4 ARE
RESIDENT OF DASIKATTE VILLAGE
HOLALKERE TALUK
CHITRADURGA DISTRICT.
... RESPONDENTS
(BY SRI P.M.SIDDAMALLAPPA, ADVOCATE FOR R1(a - c) &
R2 TO R4 ARE TREATED AS LRS OF DECEASED R1)
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 31.08.2007 PASSED IN
RA.NO.386/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
HOLALKERE AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.01.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
JUDGMENT
This appeal is filed challenging the judgment and decree
dated 31.08.2007 passed in R.A.No.386/2001 by the Civil Judge
(Sr. Dn.), Holalkere.
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 case of the plaintiff before the Trial Court the
plaintiff is the owner in possession of the suit schedule property
having purchased the same from one Holiyappa S/o Hotappara
Nagappa of Malladihalli village for valuable consideration under
the registered sale deed dated 23.01.1993 and paying
kandayam to the government having got mutated the revenue
entries in his favour. The plaintiff further stated that the
defendants are the strangers to the suit schedule property. The
land of defendant No.1 is situated on the southern side of the
suit schedule property and the defendants have put an eagle eye
on the suit schedule property and having no manner of right,
title or interest over the suit schedule property, the defendants
are trying to interfere with the suit schedule property. Hence,
the plaintiff has filed the suit for the relief of permanent
injunction.
4. In pursuance of suit summons, defendant No.1 has
filed the written statement which was adopted by the other
defendants and all of them have denied the plaint averments. It
is contended that one Holiyappa S/o Nagappa had filed a suit in
O.S.No.216/1983 against defendant No.1 relating to the suit
schedule property and the same came to be dismissed. The suit
schedule property was given to defendant No.1 under the
registered Will and she has been in possession of the suit
schedule property since the death of Neelamma who has
executed the Will in favour of defendant No.1 in respect of
Sy.No.35/3 was got phoded as 35/3a and 35/3b and the entries
in the revenue records are wrongly mentioned and the said
mistake has been carried out based on the registered Will but
the boundaries of the suit land are correctly mentioned. On the
basis of the said mistake, Holiyappa S/o Nagappa has filed a suit
which was dismissed and after having failed in the suit, the said
Holiyappa S/o Nagappa with a mala fide intention and to cause
trouble to this defendant has set up the plaintiff to file the suit
based on the fraudulent sale deed. The said Holiyappa has no
right to execute the sale deed in respect of the suit schedule
property. The plaintiff will not get any title in respect of the suit
schedule property under the said sale deed. Hence, the suit is
vexatious.
5. The Trial Court taking into note of the pleadings of
the parties, framed the following Issues:
1. Whether the plaintiff proves that he is in
possession and enjoyment of the suit schedule
property by him, and causing obstructions to
the suit schedule property from the
defendants?
2. Is there cause of action for the suit?
3. Whether Court fee paid is sufficient?
4. What order or decree?
6. The Trial Court after framing of the Issues, allowed
the parties to lead their evidence. In order to prove the case of
the parties, the plaintiff himself examined as PW1 and also
examined two witnesses as PW2 and PW3 and got marked the
documents at Ex.P1 to P8. On the other hand, defendant No.1
examined herself as DW1 and got marked the documents at
Ex.D1 to D4. The Trial Court having considered both oral and
documentary evidence placed on record granted the decree of
permanent injunction in favour of the plaintiff. Being aggrieved
by the judgment and decree of the Trial Court, an appeal was
filed by defendant No.1 in R.A.No.386/2001 before the First
Appellate Court. The First Appellate Court considering the
grounds urged in the appeal, formulated the following points:
1. Whether the lower Court is justified in
decreeing the suit of the plaintiff?
2. Whether the judgment and decree of the lower
Court is required to be interfered with in this
appeal?
7. The First Appellate Court having considered both oral
and documentary evidence placed on record, reassessed the
evidence available on record and comes to the conclusion that
the Trial Court is not justified in decreeing the suit of the plaintiff
hence, answered point No.1 as negative and point No.2 as
affirmative in coming to the conclusion that the judgment of the
Trial Court requires interference. Being aggrieved by the
judgment and decree of the First Appellate Court, the present
second appeal is filed before this Court.
8. The grounds urged by the learned counsel for the
appellant that First Appellate Court grossly erred in considering
the title to the property while answering the question whether
the plaintiff is in possession and enjoyment of the suit schedule
property as on the date of filing of the suit and ought not to
have gone to consider the question of title when the suit is filed
only for the relief of bare injunction. The First Appellate Court
grossly erred in taking into consideration the stray admission of
the plaintiff in the cross-examination and comes to the
conclusion that the plaintiff not at all enquired with regard to the
tile to the property while purchasing the land in question without
taking into consideration of the fact that what were the entries in
the revenue records as on the date of purchasing of the suit
schedule property by the plaintiff and the very approach of the
First Appellate Court is erroneous. Defendant No.1 has not
produced any RTC extracts or any documents to show that
defendant No.1 and her mother were in occupation and
enjoyment of the land in question as on the date of purchasing
of the property by the plaintiff. The First Appellate Court grossly
erred in holding that the Trial Court failed to club both the cases
while recording the evidence and the reasoning of the First
Appellate Court for setting aside the judgment and decree
passed by the Trial Court is bad in law. The counsel also prayed
this Court to admit the appeal and frame the following
substantial question of law:
1. Whether the First Appellate Court is right in law
in setting aside the judgment and decree passed
by the Trial Court without there being any valid
reasons and without finding any arbitrariness,
perversity and illegality in the judgment and
decree passed by the Trial Court?
2. Whether the First Appellate Court is right in law
while considering the possession of the plaintiff
as on the date of filing of the suit in making
rowing enquiry with regard to source of title to
the property?
3. Whether the First Appellate Court is right in law
in holding that the plaintiff has failed to prove
his possession as on the date of filing of the suit
though the sale deed and revenue records
clearly goes to show that the plaintiff is in
possession and enjoyment of the land in
question?
9. This Court having considered the grounds urged in
the appeal, while admitting the appeal framed the following
substantial question of law:
"Whether the First Appellate Court was justified in
holding that notwithstanding the sale deed on which
the appellant had relied since there was a suit for
declaration filed by defendant No.1 and the same
having been dismissed though reversed in the First
Appellate Court, and in the face of appellant herein
having challenged the same by way of a second
appeal, whether the First Appellate Court was
justified in applying the same in negating the sale
deed of the appellant."
10. The learned counsel for the appellant would
vehemently contend that the First Appellate Court committed an
error in reversing the finding of the Trial Court considering the
title of the plaintiff and the First Appellate Court ought not to
have considered the title and fails to take note of the very case
of the plaintiff since there was a sale deed in his favour and
possession has been delivered in his favour. On the other hand,
it is the contention of the learned counsel for the respondents
that the First Appellate Court has rightly appreciated and
considered the comprehensive suit filed by the plaintiff in other
suit and also taken note of the admission given by PW1 in the
cross-examination. Having considered the grounds urged in the
appeal as well as the oral submission and also considering the
substantial question of law framed by this Court that whether
the First Appellate Court was justified in holding that
notwithstanding the sale deed on which the appellant had relied
since there was a suit for declaration filed by defendant No.1 and
the same having been dismissed though reversed by the First
Appellate Court and in the face of appellant herein having
challenged the same by way of second appeal, whether the First
Appellate Court was justified in applying the same in negating
the sale deed of the appellant, this Court has to reanalyze the
material available on record since there is a divergent finding.
11. The case of the plaintiff before the Trial Court that he
had purchased the suit schedule property from one Holiyappa
and he has been in possession of the same. On the other hand,
it is the contention of defendant No.1 that property was
bequeathed in her favour by her mother. Whether the plaintiff
has been in possession of the suit schedule property or not has
to be looked into since the relief is sought only for permanent
injunction. It is not in dispute that the plaintiff in support of his
case examined himself as PW1 and also examined two witnesses
as PW2 and PW3 and got marked the documents at Ex.P1 to P8.
On the other hand, the defendants relied upon the certified copy
of the judgment passed in M.A.No.50/1983, copy of atlas and
RTC extracts.
12. Having perused the documents available on record it
discloses that the plaintiff has filed a memo stating that original
documents are produced in O.S.No.139/1998 and the judgment
passed in O.S.No.139/1998 is challenged in R.A.No.62/2002.
But both the suits i.e., O.S.Nos139/1998 and 500/1993 are in
respect of very same Sy.No.35/3a. The present suit is filed by
the subsequent purchaser from one Holiyappa who claims that
gift deed was executed in his favour by his mother Ningamma.
On the other hand, Honnamma who is the granddaughter of
Gangappa had filed another comprehensive suit in
O.S.No.139/1998. This suit is against the judgment passed in
O.S.No.500/1993. The suit in O.S.No.500/1993, the plaintiff in
O.S.No.139/1998 is defendant No.1 and also two other
defendants for the relief of declaration and permanent
injunction. It has to be noted that when two suits are filed in
respect of very same Sy.No.35/3a, the Trial Court ought to have
clubbed the same and recorded the common evidence but not
done the same and individually decided the suits. The First
Appellate Court also taken note of the suit filed in
O.S.No.139/1998 which is a comprehensive suit. When the
present suit is filed for the relief of permanent injunction, the
Court has to look into the fact that whether the plaintiff is in
possession of the suit schedule property as on the date of filing
of the suit and whether there was any interference in respect of
the suit schedule property by the defendants. I have already
pointed that defendant No.1 only filed the written statement and
other defendants have adopted the same.
13. It is not in dispute that the plaintiff has relied upon
the registered sale deed dated 23.01.1993. It is also the case of
defendant No.1 that the said Holiyappa has no right to sell the
suit schedule property and the suit schedule property was given
in her favour by way of Will in the year 1981 itself. The plaintiff
in his evidence contended that he has purchased the suit
schedule property from Holiyappa on 23.01.1993 and the same
is in his possession and the defendants have no right over the
same. When PW1 was subjected to cross-examination, he
categorically admitted that he did not verify that how his vendor
got the property and also he did not enquire with him that how
he got the property. In the cross-examination, a suggestion was
made that defendant No.1 was growing crop in the suit schedule
property but the said suggestion was denied and also denied the
possession of the defendant No.1 in the cross-examination. But
PW1 in his cross-examination claims that he is in possession and
in order to prove the same, he has examined one witness as
PW2 who reiterates the evidence of PW1. PW2 also in his cross-
examination categorically admits that prior to the possession of
the property by the plaintiff, he do not know who was in
possession of the property. The evidence of PW2 is clear that he
does not know who was in possession prior to the possession of
the plaintiff. It is also important to note that in the cross-
examination he categorically admits that he has no land of his
own near the suit schedule property and also he categorically
admits that the plaintiff had taken him for coolie work and he
had gone there once and thereafter he has not at all gone there.
Hence, it is clear that PW2 is a coolie of PW1 and he says that he
had gone only once but he claims that the plaintiff is in
possession of the suit schedule property. Thus, the Court has to
look into the fact that whether his evidence can be considered as
credible evidence. The said fact is also taken note by the First
Appellate Court while considering the evidence of PW1 and PW2
in paragraph 19.
14. The other witness is PW3. He also claims that the
suit schedule property was in possession of Holiyappa and the
plaintiff has purchased the same from Holiyappa. This witness
also in the cross-examination admits that he does not know his
survey number property. But he deposed with regard to the suit
schedule property and in the cross-examination, he admits that
he is having the habit of consuming alcohol and on the date of
giving evidence also he came in a drunken stage. Hence, the
First Appellate Court comes to the conclusion that his evidence is
not a credible evidence.
15. The Trial Court also taken note of the evidence of
DW1 wherein she claims that the property was gifted to her and
her father's name is Holiyappa and grandfather is Gangappa.
The suit schedule property is in her possession and it has come
to her from her mother through Will. Defendants also mainly
relies upon the document at Ex.D1 which is the certified copy of
the judgment passed in M.A.No.50/1983 and other documents at
Ex.D2 to D4 are against the documents at Ex.P1 to P8. No
doubt, Ex.P1 is the sale deed under which the plaintiff had
purchased the property from Holiyappa. It is admitted by the
plaintiff in his cross-examination that he is a doctor. The Trial
Court fails to take note of the answer elicited from the mouth of
PW1 that he is the doctor by profession. But in the cross-
examination he also admitted that same is not mentioned in the
sale deed but he categorically admits that he never did any
agricultural work.
16. This Court also while considering the other connected
appeal taken note of the fact that the property bearing
Sy.No.35/3 belongs to Gangappa. It is also taken note of the
fact that Gangappa had executed a gift deed in favour of his
grandson through his daughter Ningamma and made the
provision in the year 1954 itself in respect of half portion of the
property towards southern side. The said Gangappa retained
remaining half portion of the land in Sy.No.35/3. It is also made
an observation that if Gangappa really intend to give the entire
property to the Ningamma or her son, he would have gifted the
property in entirety. The fact that Holiyappa who is the son of
Gangappa pre-deceased Gangappa is also not in dispute. This
Court also taken note of the fact that the mother of defendant
No.1 i.e., Neelamma was paying the tax in respect of the
remaining property bearing Sy.No.35/3a retained by Gangappa
and the Will was executed in favour of defendant No.1 in the
year 1981 itself by said Neelamma who is the daughter-in-law of
said Gangappa after the death of Gangappa.
17. It is also important to note that the vendor of the
present plaintiff claims title in respect of this property under the
document of gift deed of the year 1983 and already the property
was conveyed in favour of defendant No.1 under the Will in the
year 1981 itself. This Court also taken note of the fact that all
the revenue entries are found in respect of Sy.No.35/3a though
it stands in the name of different persons and the same is
consequent upon mentioning of Sy.No.35/3b in the Will executed
by the mother of defendant No.1. But immediately after the gift
made in favour of defendant No.2, phodi was effected and
retained portion of land by Gangappa is mentioned as
Sy.No.35/3a. There was no testamentary document in favour of
the vendor of the plaintiff by said Gangappa. But the vendor of
the plaintiff claims the title based on the gift deed executed in
the year 1983 by Ningamma. The Ningamma was not having
any right though she is the daughter of Gangappa when the said
Gangappa already made the provision in respect of half of the
portion in favour of her son by executing a gift deed in the year
1954 itself. The material discloses that during the lifetime of
said Gangappa, the suit schedule property was in his possession
and after his death, his daughter-in-law i.e., Neelamma and her
daughter was in possession of the suit schedule property since
her husband already pre-deceased by said Gangappa.
Defendant No.1 is the daughter of said Neelamma. When this
Court considered the fact that comprehensive suit was filed by
defendant No.1 and also the First Appellate Court while
appreciating the evidence taken note of the said fact and in
connected matter also same has been discussed by this Court. In
respect of half portion of the land, on account of death of original
propositus Gangappa, his daughter-in-law who is the wife of his
son Holiyappa and also defendant No.1 who is the
granddaughter of said Gangappa comes under class-I heir under
Section 8 of the Hindu Succession Act, 1956 wherein it discloses
that if son pre-deceased, his children will also come under class-
I heirs. Hence, the document of Will executed in favour of
defendant No.1 by her mother will prevail and the plaintiff relies
upon the document of sale deed of the year 1993 which is
subsequent to the Will and also the title of which the vendor of
the plaintiff claims is also subsequent to the Will. All these
factors were taken note of by the First Appellate Court.
18. It is also specific case of the defendants that vendor
of the plaintiff earlier also filed a suit in O.S.No.216/1983 against
defendant No.1 relating to the suit schedule property and the
same came to be dismissed on the ground that the suit schedule
property was given to defendant No.1 under the registered Will
and she has been in possession of the suit schedule property
since the death of her mother Neelamma who has executed the
Will in favour of defendant No.1. It is also the case of the
parties that the entries in the revenue records are wrongly
mentioned and the said mistake has crept in the registered Will
and as a result, the plaintiff is claiming title over the suit
schedule property based on the sale deed executed on mistaken
entry found in the Will. The First Appellate Court also taken note
of the boundaries which are mentioned in the Will and the
boundaries will prevail. When such being the case, I do not find
any error committed by the First Appellate Court on re-
appreciation of evidence available on record and the Trial Court
committed an error in coming to the conclusion mainly relying
upon the sale deed at Ex.P1 in granting the decree in favour of
the plaintiff for the relief of permanent injunction. The Trial
Court ought to have considered both the suits together when the
claim was made in respect of very same Sy.No.35/3a by both
the parties but considered both the suits independently and
passed separate judgments which led the Trial Court to consider
the material available on record erroneously. When this Court
and the First Appellate Court taken note of the material available
on record together arising out of the appeals in both the suits, I
do not find any error committed by the First Appellate Court in
reversing the finding of the Trial Court. Hence, the First
Appellate Court was justified in holding that the sale deed on
which the appellant had relied, the same does not convey any
right and the First Appellate Court comes to the conclusion that
the material available on record is very clear that the vendor was
not in possession and hence, he cannot convey any possession in
favour of the appellant herein and the First Appellate Court was
justified in applying the same in negating the sale deed of the
appellant since in respect of very same Sy.No.35/3a two suits
are filed and the First Appellate Court appreciated the material
available on record reanalyzing the same. Hence, I answer the
substantial question of law accordingly and no merit in the
appeal to reverse the finding of the First Appellate Court.
19. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SN
