Karnataka High Court
Sri Munireddy vs Sri Muniraju on 21 February, 2024
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RSA.No.700/2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO 700/2009 (PAR)
BETWEEN:
SRI MUNIREDDY
S/O K.C.YELLA REDDY
AGED ABOUT 40 YEARS
R/AT KITHAGANUR VILLAGE
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK-576 101.
BANGALORE URBAN DISTRICT.
...APPELLANT
(BY SRI. P.M. SIDDAMALLAPPA, ADVOCATE)
AND:
1. SRI.MUNIRAJU
S/O CHIKKAPPAIAH
AGED ABOUT 32 YEARS
R/AT BHATTARAHALLI VILLAGE
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK-576101.
BANGALORE URBAN DISTRICT.
2. SRI CHIKKAPPAIAH
S/O LATE KEMPAIAH
AGED ABOUT 70 YEARS
(VIDE ORDER DATED:08.02.2024
RESPONDENT NO.2 BY LRS ON
RECORDED 1, 3 TO 6)
3. SRI DODDABACHAPPA
S/O CHIKKAPPAIAH
AGED ABOUT 40 YEARS
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RSA.No.700/2009
4. SRI KRISHNAPPA
S/O CHIKKAPPAIAH
AGED ABOUT 37 YEARS,
5. SRI RAMACHANDRA
S/O CHIKKAPPAIAH
AGED ABOUT 28 YEARS
6. SRI KANTHARAJU
S/O CHIKKAPPAIAH
AGED ABOUT 25 YEARS
ALL ARE R/T BHATTARAHALLI VILLAGE
BIDARAHALLI HOBLI
BANGALORE EAST TALUK-576101
BANGALORE URBAN DISTRICT.
...RESPONDENTS
(BY SRI. SHANKARA, ADVOCATE FOR
SRI M.S. VISHWANATHA, ADVOCATE FOR R1 TO R6;
LR'S OF R2 ARE ALREADY ON RECORD AS R1, R3 TO R6)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DATED 7.11.2008
PASSED IN R.A.NO.46/2005 THE FILE OF THE I/C II ADDL.
DISTRICT JUDGE, BANGALORE RURAL DISTRICT, BANGALORE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 25.9.2004 PASSED IN O.S.NO.709/2002
ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.)
BANGALORE RURAL DISTRICT, BANGALORE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
08.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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RSA.No.700/2009
JUDGMENT
Appellant/defendant No.6 feeling aggrieved by
judgment of First Appellate Court on the file of
II Addl.District Judge, Bangaluru Rural District, Bangaluru, in
R.A.No.46/2005, dated 07.11.2008 in confirming the judgment
and decree of Trial Court on the file of II Addl.Civil Judge
(Sr.Dn.), Bengaluru Rural District, Bengaluru in
O.S.No.709/2002 dated 25.09.2004 preferred this appeal.
2. Parties to the appeal are referred with their
ranks as assigned in the Trial Court for the sake of
convenience of discussion.
3. The factual matrix leading to the case of
plaintiff can be stated in nutshell to the effect that plaintiff
and defendant Nos.1 to 5 are the members of joint family
and they are in possession and enjoyment of the suit
schedule property jointly. The suit schedule property was
originally belongs to Government and the same was
classified as Service Inamthi land. One Sri.Kempaiah, the
grand father of plaintiff and Kempaiah's brother were in
service as Thotis under the service of Village Office and
the same was regranted in favour of Kempaiah and his
brother in the year 1967-68 as per the order of Assistant
Commissioner, Doddaballapura, Sub-Division, Bengaluru in
case No.VOA (M)/50/67-68 among other lands was
regranted in favour of Kempaiah and his brother. The
grand father of plaintiff i.e., Kempaiah died leaving behind
Chikkananjappa, Chikkappaiah and Laghumaiah. The
second son Chikkappaiah died leaving behind
Doddabachappa, Krishnappa, Ramachandra, Kantharaju
and Muniraju. The last son Laghumaiah died leaving
behind Jayaram, Chikkabachappa, Narayanaswamy and
Manjunath. On account of financial difficulties plaintiff
along with defendant Nos.1 to 5 sold 20 guntas of land in
survey No.96 in favour of Y Muniraju on 24.11.1995 to
which the plaintiff was one of the attesting witness. The
said land is adjoining to the suit schedule property. The
defendant No.6 is claiming that he has purchased the suit
schedule property under registered sale deed executed by
the power of attorney of defendant No.1. On enquiry in the
Sub-registrar office, plaintiff came to know that the power
of attorney holder without the knowledge of defendant
No.1 executed the sale deed in favour of defendant No.6.
The plaintiff is not party to the said sale deed, therefore
the plaintiff was constrained to institute the suit on hand
for the relief claimed in the suit.
4. In response to the suit summons the defendant
Nos.1 to 6 have appeared through their counsel. However,
none of them have filed any written statement. The Trial
Court on the basis of evidence of PW.1 and the documents
at Exs.P.1 to 9 decreed the suit of plaintiff and granted the
relief of partition and separate possession of 1/6th share of
plaintiff in the suit schedule property and held that the
registered sale deed dated 26.09.2000 in favour of
defendant No.6 is not binding to the share of plaintiff.
5. Defendant No.6 has challenged the said
judgment and decree before First Appellate Court on the
file of II Addl.District Judge, Bengaluru Rural District in
R.A.No.46/2005. The First Appellate Court after hearing
the arguments of both sides and on
re-appreciation of material placed on record vide judgment
dated 07.11.2008 dismissed the appeal and confirmed the
judgment and decree of Trial Court.
6. Appellant/defendant No.6 challenged concurrent
finding of both the Courts below, in the present appeal
contending that the suit came to be decreed ex-parte. The
Courts below have not properly appreciated the evidence
on record. The defendant Nos.1 to 5 deliberately did not
contest the claim of plaintiff only with an intention to
negate the registered sale deed dated 26.09.2000
executed in favour of defendant No.6. Just because the
defendants have not filed written statement cannot be a
ground to decree the suit of plaintiff. The Trial Court has
not given opportunity to defendant No.6 to file written
statement and First Appellate Court was not justified in
rejecting the claim of defendant No.6 seeking permission
to file written statement, since no application with written
statement was filed. Therefore, opportunity for allowing
the appeal and to set aside the judgment of both the
Courts below and to dismiss the suit of plaintiff.
7. In response to the notice of appeal, respondent
Nos.1 to 6 have appeared through their counsel.
Respondent No.2 during pendency of the appeal was
reported to be dead and learned counsel for appellant filed
memo dated 08.02.2024 stating that respondent Nos.1, 3
to 6 are already on record as legal heirs of deceased
respondent No.2.
8. This Court by order dated 23.09.2010 has
admitted the appeal to consider the following question of
law:
1) When the serious question of title as
also the right in respect of suit schedule
property is the main issue that had
arisen for consideration, was the trial
court right in decreeing the suit only on
the basis of ocular testimony of PW.1
and mutation in the revenue records in
the absence of proof regarding the
grant by the Government?
2) Can the decree granting 1/6th share in
the schedule property in favour of the
respondent-plaintiff is sustainable in the
absence of specific issue as to whether
the properties were granted to the
father of the plaintiff and the father of
defendants?
9. Heard the arguments of both sides.
10. On perusal of Trial Court records and the
evidence of PW.1 and documents at Exs.P.1 to 9, it would
go to show that, suit property was originally belongs to
Government and the same was classified as service
Inamthi land. One Kempaiah grand father of the plaintiff
and his brothers were in service of Thoti under service of
Village Office and the same was regranted in favour of
Kempaiah and his brother in the year 1967-68 as per the
order of Assistant Commissioner, Doddaballapur Sub
Division, Bengaluru in case No.VOA (M)/50/67-68 among
other lands. There was non alienation clause for 15 years
without the permission of Assistant Commissioner,
Doddaballapur Sub-Division, Bengaluru.
11. Plaintiff who is the son of defendant No.1
claiming his right of 1/6th share in suit schedule property
by way of partition. The propositus Kempaiah died on
13.04.1980 leaving behind his three sons Chikkananjappa,
Chikkappaiah and Lagumaiah. On the death of Kempaiah
his three sons have effected partition and each of them
have got 38 guntas of land in survey No.96 of Kithaganoor
village, Bidarahalli Hobli, Bengaluru evidenced under
mutation register extract Ex.P.1. The plaintiff has
specifically pleaded in para 6 of the plaint that plaintiff
along with defendant Nos.1 to 5 sold 20 guntas of land in
survey No.96 in favour of defendant No.6 Munireddy under
registered sale deed dated 24.11.1995. The said
transaction is evidenced in the nil encumbrance certificate
produced at Ex.P.4. Plaintiff is also signatory to the said
sale deed. Therefore, the alienation to the extent of 20
guntas of land under registered sale deed dated
24.11.1995 cannot be questioned by plaintiff. The claim is
for remaining extent of land is 18 guntas in survey No.96
of Kithaganoor village, Bidarahalli Hobli, Bengaluru, which
was fallen to the share of Chikkappaiah, evidenced under
mutation extract Ex.P.1.
12. The another 38 guntas of land has been sold to
defendant No.6 Y Munireddy under registered sale deed
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dated 26.09.2001. The nil encumbrance certificate
produced at Ex.P.7 would go to show that 36 guntas of
land has been sold by Chikkappaiah and Laghumaiah
under registered sale deed dated 27.09.2001. Defendant
No.6 is claiming that he has purchased 18 guntas of land
under registered sale deed. The plaintiff has pleaded to
that effect in para 8 of the plaint that 18 guntas of land
has been sold through power of attorney K M Rajendran
s/o M.Krishnamurthy being GPA holder of defendant No.1.
Plaintiff is claiming that he is not party to the said sale
deed and same is not binding on his share. Defendant
Nos.1 to 5 who have sold the land to defendant No.6
though have appeared through their counsel did not file
any written statement. In other words they joined their
hands with plaintiff to claim partition in the remaining 18
guntas of land in spite of they having executed the sale
deed.
13. The defendant No.6 though has appeared
through counsel, but has not filed any written statement.
The right of purchaser of suit property under registered
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sale deed is involved. The Trial Court as well as First
Appellate Court has proceeded to believe uncorroborated
testimony of PW.1 in holding that plaintiff has got right of
1/6th share in the suit property. The issue of title has not
at all been considered just because there was no written
statement filed by defendants. Both the Courts below
proceeded to believe the version of PW.1 and granted the
relief of partition and separate possession of 1/6th share of
plaintiff.
14. The First Appellate Court has rejected the claim
of defendant No.6 seeking opportunity to file written
statement on the premises that defendant No.6 did not file
application along with written statement. Therefore, the
First Appellate Court found lack of bona fied in the claim of
defendant No.6 in seeking opportunity to file the written
statement and to contest the suit. The judgment of First
Appellate Court proceeds on the premises that when
defendants have not filed any written statement, there is
no reason to disbelieve the oral testimony of PW.1 and as
such granted the decree of partition and separate
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possession of 1/6th share of plaintiff. When the serious
question of title is involved and even according to the case
of plaintiff, the defendant Nos.1 to 5 have already
executed the sale deed in favour of defendant No.6, then
both the Courts below could not have proceeded to rely
only on the oral testimony of PW.1 in granting the relief
partition and separate possession claimed by plaintiff. It
was within the knowledge of plaintiff that the defendant
through GPA holder K.M.Rajendran s/o M.Krishnamurthy
have sold the remaining 18 guntas of land in favour of
defendant No.6 and he is disputing in the said suit
regarding the authority of the vendor being GPA holder to
execute the sale deed in favour of defendant No.6 should
have examined the GPA holder to prove his authority in
executing the sale deed in favour of defendant No.6.
Therefore, under these circumstances the right to
immovable property which has been already sold to
defendant No.6 has not been properly appreciated by both
the Courts below without deciding the issue of title has
erroneously proceeded to decree the suit of plaintiff on the
premises that defendants have not filed any written
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statement. Therefore, opportunity is required to be given
to defendant No.6 to file written statement with certain
conditions and to co-operate for the disposal of the suit at
an earliest. Consequently, the substantial question of law
are answered accordingly. Consequently, proceed to pass
the following.
ORDER
Appeal filed by appellant/defendant No.6 is hereby
allowed.
The judgment of First Appellate Court on the file of
II Addl.District Judge, Bengaluru Rural district, Bengaluru
in R.A.No.46/2005 dated 07.11.2008 in confirming the
judgment and decree of Trial Court on the file of
II Addl.Civil Judge (Sr.Dn.), Bengaluru Rural district in
O.S.No.709/2002 dated 25.09.2004 are hereby set aside.
The matter is remanded to Trial Court for disposal of
the same in accordance with law.
Appellant/defendant No.6 is directed to pay cost of
Rs.5,000/- payable to plaintiff/respondent No.1.
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The defendant No.6 has to file written statement
within a period of one month from the date of receipt of
records by the Trial Court.
In order to avoid further delay, the parties who have
appeared through their counsel are directed to appear
before Trial Court on 19.03.2024 to receive further
instructions.
Parties are directed to co-operate with the Trial Court
for disposal of the case on top priority as expeditiously as
possible.
Registry to send back the records to Trial Court with
a copy of this order.
SD/-
JUDGE
GSR
