Karnataka High Court
Surappa vs Bandappa S/O Surappa Since Dead By Lrs on 27 February, 2024
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RSA No. 160 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.160 OF 2013 (DEC/INJ)
BETWEEN:
SURAPPA, S/O CHIKKANNA,
SINCE DEAD BY LRS.
1. SMT. MALLAMMA,
W/O LATE SURAPPA,
AGED BOUT 55 YEARS,
RESIDENT OF KOLUME PALYA,
GOVINDAPURA MAJARA, MADAKASIRA TALUK,
ANANTHAPURA DISTRICT,
ANDHRA PRADESH STATE.
2. SMT. LAKSHMIDEVI,
W/O NAGENDRA,
AGED ABOUT 30 YEARS,
Digitally signed
by R DEEPA RESIDENT OF RAJAVANTHI HOSAKOTE,
Location: HIGH PAVAGADA TALUK, TUMKUR DISTRICT.
COURT OF
KARNATAKA 3. SMT. SAROJAMMA,
W/O THIMMARAJU,
AGED ABOUT 28 YEARS,
RESIDENT OF CHITTAGANAHALLI,
PAVAGADA TALUK, TUMKUR DISTRICT.
4. SHANKARALINGAPPA,
S/O LATE SURAPPA,
AGED BOUT 25 YEARS,
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RSA No. 160 of 2013
RESIDENT OF KOLUME PALYA,
GOVINDAPURA MAJARA, MADAKASIRA TALUK,
ANANTHAPURA DISTRICT,
ANDHRA PRADESH STATE.
5. SMT. RADHAMMA,
W/O RAMAKRISHNA,
AGED ABOUT 22 YEARS,
RESIDENT OF BYADANURU,
PAVAGADA TALUK, TUMKUR DISTRICT.
6. LAKSHMINARAYANA,
S/O LATE SURAPPA,
AGED ABUT 22 YEARS,
RESIDENT OF KOLUME PALYA,
GOVINDAPURA MAJARA, MADAKASIRA TALUK,
ANANTHAPURA DISTRICT,
ANDHRA PRADESH STATE.
...APPELLANTS
(BY SRI. A.V. GANGADHARAPPA, ADVOCATE)
AND:
BANDAPPA, S/O SURAPPA,
SINCE DEAD BY LRS.
SMT. MARAKKA, W/O BANDAPA,
SINCE DEAD BY LRS.
1. RANGAPPA,
S/O BANDAPPA,
AGED ABOUT 52 YEARS,
R/O MUDDAREDDY PALYA,
MADAKASIRA TALUK, ANANTHAPURA DISTRICT,
ANDHRA PRADESH - 515 301.
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RSA No. 160 of 2013
2. SMT. RANGAMMA,
D/O BANDEPPA, W/O KARIYAPPA,
AGED ABOUT 50 YEARS,
R/O DODDAGALIHALLI, MADAKASHIRA TALUK
ANANTHAPURA DISTRICT,
ANDHRA PRADESH - 515 301.
3. SMT JAYAMMA,
D/O BANDEPPA & W/O SHESHADRI,
AGED ABOUT 48 YEARS,
R/O GAMPALAHALLI, MADHUGIRI TALUK,
TUMKUR DISTRICT - 572 132.
4. SMT. MUDDUGANGAMMA,
D/O BANDEEPA & W/O KRISHNAPPA,
AGED ABOUT 40 YEARS,
R/O KANGANAHALLI, SIRA TALUK,
TUMKUR DISTRICT - 572 137.
5. NAGANNA,
S/O KUMBARA ERANAGAPPA,
SINCE DEAD BY HIS LRS.
5(A). SMT. SAKAMMA,
W/O LATE NAGANNA,
RESIDENT OF MUDDAREDDY PALYA,
MADAKASIRA TALUK,
ANANTHAPURA DISTRICT,
ANDHRA PRADESH - 515 301
...RESPONDENTS
(R1, R3, R4 ARE SERVED;
VIDE ORDER DATED 02.06.2015, SERVICE OF NOTICE TO R2
IS HELD SUFFICIENT;
VIDE ORDER DATED 07.06.2016, SERVICE OF NOTICE TO
R5(A) IS HELD SUFFICIENT)
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RSA No. 160 of 2013
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DATED 10.10.2012 PASSED IN
R.A.NO.100/2006 ON THE FILE OF THE ADDL. SENIOR CIVIL
JUDGE & JMFC., MADHUGIRI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 12.6.2006
PASSED IN OS.NO.332/1991 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN) MADHUGIRI.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 10.10.2012
passed in R.A.No.100/2006 by the Additional Senior Civil
Judge and JMFC at Madhugiri, confirming the judgment
and decree dated 12.06.2006 passed in O.S.No.332/1991
by the Principal Civil Judge (Junior Division), Madhugiri.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial Court. The
appellants are the legal heirs of plaintiff and respondents
No.1 to 4 are the legal representatives of defendant No.1
and respondent No.5 is defendant No.2.
3. The brief facts leading rise to filing of this appeal
are as under:
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The plaintiff filed the suit for declaration of title and
permanent injunction in respect of suit schedule property.
It is the case of the plaintiff that he is the absolute owner
of land bearing Sy.No.86/2 measuring 2.17 acres which
contains trees of Honge, Neem, Nerale, Mango, Tamarind
and Coconut etc., It is contended that defendant No.1 had
tamarind tree on the South West corner of his land bearing
Sy.No.86/1, he had cut the tree in the year 1985 and now
illegally attempting to interfere with the plaintiffs' peaceful
possession and enjoyment of tamarind tree situated in the
North Western corner of the suit land. The plaintiff
requested the defendant not to interfere, but defendant
No.1 did not give heed to the request made by the plaintiff
hence, cause of action arose for the plaintiff to file a suit
for declaration of title and perpetual injunction.
4. Defendant Nos.1 and 2 filed written statement
contending that the plaintiff is not in possession and
enjoyment of the suit land and more particularly, the
disputed tamarind tree. It is contended that there are
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number of trees in the suit land out of which there is one
tamarind tree which belongs to defendant No.1 and denied
that in the year 1985, defendant No.1 has cut the
tamarind tree which was situated in land bearing
Sy.No.86/1. It is contended that there was registered
document i.e., exchange deed dated 22.09.1975 executed
between the plaintiff and defendant No.1 for having
exchanged some of the properties and as per the said
document, the disputed tamarind tree belongs to
defendant No.1. It is further contended that the plaintiff
has agreed that defendant No.1 is the owner of said
tamarind tree. The existence of the said tree on North
Western corner of the suit property is denied, plaintiff is
claiming the right over the tamarind tree situated in the
land of defendant No.1. On these grounds, sought for
dismissal of the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues and additional
issues:
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1) Whether plaintiff proves that he is owner of the
suit property?
2) Whether plaintiff proves that he is in possession
of suit property as on the date of suit?
3) Whether cause of action arose to file this suit?
4) Whether suit is not maintainable?
5) Whether court fee paid is insufficient?
6) Whether suit is bad for non-joinder of
necessary parties?
7) Whether plaintiff is entitled for the reliefs
sought for?
8) What order and decree?
Additional Issue
1) Whether the defendant No.1 prove that by
virtue of the exchange deed, he acquired title over
the disputed tamarind tree?
6. In order to prove the case of the plaintiff, the
plaintiff examined himself as PW-1 and got examined two
witnesses as PW-2 & PW-3 and got marked 2 documents
as Ex.P-1 and P-2. Defendants have examined 4
witnesses as DW-1 to DW-4 and got marked 15
documents as Ex.D-1 to D-15. The trial Court after
considering the oral and documentary evidence of the
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parties, answered issue Nos.1, 2, 3 and 7 in the
affirmative and issue Nos.4, 5 and 6 in the negative and
issue No.8 as per the final order. The suit of the plaintiff
was decreed and the plaintiff was declared as owner and
possessor of the suit property and the defendants were
restrained by an order of temporary injunction from
interfering with the peaceful possession and enjoyment of
the suit schedule property.
7. The defendants, aggrieved by the judgment and
decree dated 29.06.1999, preferred an appeal in
R.A.No.155/1999 on the file of Civil Judge (Senior
Division), Madhugiri. The First Appellate Court, after
hearing the parties, has framed the following points for
consideration:
1) Whether the trial Court erred in not
considering the document Ex.D-3 Adalu
Badalu patra (Exchange Deed)?
2) Whether the trial Court erred in not framing
proper issues in this suit?
3) Whether the judgment and decree under
appeal or contrary to the law and evidence on
record?
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4) Whether there are any grounds for this Court
to interfere with the Judgment and decree
under appeal?
5) What order or decree?"
8. The First Appellate Court, on re-appreciating the
oral and documentary evidence, answered point Nos.1 to 4
in the affirmative and point No.5 as per the final order.
Consequently, the judgment and decree dated 29.06.1999
passed in O.S.No.332/1991 was set aside and the matter
remanded to the trial Court for fresh disposal in
accordance with law on merits in the light of the
observations made in the judgment after affording an
opportunity to both the parties. After remand, none of the
parties have led any evidence on the additional issue.
9. The trial Court on assessment of oral and
documentary evidence, answered additional issue No.1 in
the affirmative and consequently, modified the judgment
and decree dated 29.06.1999 wherein, it is ordered and
declared that the plaintiff is the owner in possession of the
suit schedule property except the tamarind tree in dispute
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and further the defendants are restrained by a decree of
temporary injunction from interfering with the plaintiff's
peaceful possession and enjoyment of the suit land except
tamarind tree situated in South West corner of
Sy.No.86/1.
10. The plaintiff aggrieved by the judgment and
decree passed by the trial Court dismissing the suit in
respect of tamarind tree situated in South West corner of
land bearing Sy.No.86/1, preferred an appeal in
R.A.No.100/2006 on the file of Additional Senior Civil
Judge, Madhugiri.
11. The First Appellate Court, after hearing the
arguments from learned counsel for the parties, framed
the following points for consideration:
1) What is the situation of the tamarind
tree?
2) Whether the impugned Judgment and
Decree requires interference by this
Court?
3) What order or decree?
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12. The First Appellate Court, on assessment of oral
and documentary evidence, answered point No.1 in the
affirmative in favour of defendant, point No.2 in the
negative and point No.3 as per the final order. The appeal
was dismissed confirming the judgment and decree dated
12.06.2006 in O.S.No.332/1991 by the Principal Civil
Judge (Junior Division), Madhugiri. The plaintiff,
aggrieved by the judgment and decree passed by the
Courts below, has filed this second appeal. Though notice
was issued to the respondent, in spite of service of notice
none appears for the respondent.
13. Heard learned counsel for the plaintiff.
14. Learned counsel for the plaintiff submits that the
plaintiff has denied the execution of an exchange deed
that is Ex.D-3 and submitted that a Court Commissioner
was appointed by the trial Court and he has submitted the
Commissioner's report disclosing that the said tamarind
tree was situated in the land of the plaintiff and both the
Courts below have overlooked the Commissioner's report
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and has committed an error and dismissed the suit. He
also submitted that Exchange Deed does not pertain to the
suit schedule property but, it pertains to other property.
The said aspect was not properly considered by the Courts
below and thereby there is an error in passing the
impugned judgments. Hence, on these grounds, he prays
to allow the appeal.
15. This court admitted the appeal on 21.07.2016,
to consider the following substantial questions of law:
1. Were the Courts below justified in rejecting
the relief of declaration and injunction in
respect of Tamarind tree which is in dispute,
when the Courts below concurrently held that
the plaintiff has proved his ownership in
respect of suit schedule property and granted
injunction in respect of Sy.No.86/1 which is
the subject matter of the suit property?
2. Were the Courts below justified in not taking
into consideration the report submitted by the
Assistant Director of Land Records who was
appointed as Court Commissioner and
submitted the report stating that the disputed
tamarind tree is situated within the property
belonging to the plaintiff-appellant?
3. Whether the lower Appellate Court is justified
in confirming the judgment and decree of the
trial Court without following the mandatory
procedure as contemplated under Order 41
Rule 31 of Code of Civil Procedure, 1908?
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4. Were the Courts below justified in taking into
consideration the Exs.P3 and P15-Deeds of
exchange which are not admissible in
evidence?
5. Were the Courts below justified in decreeing
the suit of the plaintiff in the facts and
circumstances of the present case?
16. Substantial question of law Nos.1 to 5: All
these substantial questions of law are interlinked with
each other and they are taken together for common
discussion in order to avoid the reputation of facts. It is
the case of the plaintiff that, the plaintiff is the owner in
lawful possession of suit schedule property and the suit
schedule property is the ancestral property of the plaintiff.
The plaintiff has grown the trees in suit land i.e., Honge,
Neem, Mango, Tamarind and Coconut trees. The plaintiff
is enjoying the said trees. It is further contended that the
defendant had a tamarind tree in the South Western
corner of land bearing Sy.No.86/1 and they have cut the
same during the year 1985. While taking advantage of
the situated land, the defendant is attempting to interfere
with the plaintiff's possession and enjoyment of tamarind
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tree and other trees situated in North western corner of
the suit land. It is further contended that the defendants
have no right, title or interest over the tamarind trees and
other trees situated in suit land. In spite of that they are
attempting to harvest the tamarind trees and remove
other trees in suit land.
17. The defendants have filed the written statement
denying the ownership of the plaintiff over the suit
schedule property especially in respect of tamarind tree.
It is denied that there was no tamarind tree in land
bearing Sy.No.86/1, the said tree is situated in land
bearing Sy.No.86/2 which belongs to defendant No.1 and
further, the defendants have denied the interference over
the suit schedule property. It is contended that defendant
No.1 has all the right to harvest the tamarind, fruits etc.,
and also admitted that defendant No.1 had tamarind tree
in South Western corner of the land bearing Sy.No.86/1
and there was Exchange Deed dated 22.09.1975 for
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having exchanged some property, including disputed
tamarind tree, as per the said document.
18. From the perusal of the recital of Exchange
Deed, it discloses that the plaintiff had agreed that
defendant No.1 is the owner of said tamarind tree. The
plaintiff is claiming the tamarind tree which is situated in
land bearing Sy.No.86/2.
19. On the basis of the pleadings of the parties, the
trial Court has recorded findings on issue Nos.1 to 3 and 7
in the affirmative and issue Nos.4 to 6 in the negative and
decreed the suit of the plaintiff vide judgment dated
29.06.1999. Defendant No.1 aggrieved by the judgment
and decree passed by the trial Court has preferred an
appeal in R.A.No.155/1999 which came to be allowed by
the judgment dated 24.09.2005 and the First Appellate
Court has remanded the matter to the trial Court for fresh
disposal in accordance with law and to frame additional
issue as to whether defendant No.1 proved that by virtue
of the Exchange Deed dated 22.09.1975, he acquired the
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title over the disputed tamarind tree. After remand, the
trial Court has framed an additional issue as directed by
the First Appellate Court in R.A.No.155/1999. Defendant
No.1 has filed an application i.e., I.A.No.6 calling upon the
plaintiff to produce the Exchange Deed dated 22.09.1975.
The trial Court, by order dated 07.07.1995, allowed the
said application and directed the plaintiff to produce the
original Exchange Deed. In spite of the said order,
plaintiff has not produced the original Exchange Deed.
Defendant No.1 has produced the certified copy of the
Exchange Deed and the same is marked as Ex.D-3.
20. From the perusal of the records, it is seen, the
dispute is in regard to the tamarind tree. It is the case of
the plaintiff that the said tamarind tree is situated in land
bearing Sy.No.86/1 and it is the defence of the defendant
that the said tamarind tree is situated in land bearing
Sy.No.86/2 and further, the plaintiff in order to prove his
case, examined himself as PW-1 and reiterated the plaint
averments in examination-in-chief and further, from the
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perusal of the records the only dispute is in regard to the
tamarind tree and there is no dispute in regard to the
ownership of the plaintiff in respect of land bearing
Sy.No.86/2.
21. The First Appellate Court in R.A.No.155/1999
has recorded a finding upon the recital in Ex.D-3 "Adalu
Badalu Patra" and has discussed that as per Ex.D-3 there
is a Exchange Deed and it was executed by plaintiff in
favour of defendant No.1 during the year 1975 on
22.09.1975. So, the plaintiff cannot deny the execution of
Exchange Deed. Ex.D-3, Exchange Deed, was a registered
document. As per the Exchange Deed, the disputed
tamarind tree is situated in land bearing Sy.No.86/1
belonging to defendant No.1 and the same was admitted
by the plaintiff in Ex.D-3. It is not open to the plaintiff to
contend that Ex.D-3, registered exchange deed is not
acted upon. Further, it is pertinent to note that the Courts
below has compared the signature found on Ex.D-1
Vakalat with the disputed signature. The Courts below
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have opined that the disputed signature and admitted
signature are quite similar and there is almost near
accuracy between those signatures. Therefore, the Courts
below have formed an opinion that the signature at Ex.D-
15(a) is affixed by the plaintiff himself. Apart from that, it
is also pertinent to note that the present defendants filed
I.A.No.6 under Order 11 Rule 14 of Code of Civil Procedure
calling upon the plaintiff to produce the original exchange
deed dated 22.09.1975, as already pointed out by me in
my foregoing discussion that admission made by the
plaintiff in the objection filed to the application itself goes
to show that he has admitted the execution of Ex.D-3
Exchange Deed. Therefore, I am of the view that any
quantum of evidence denying the execution of Ex.D-3 will
not come to the rescue of plaintiff. But, the Courts below
have overlooked this initial document Ex.D-3 Exchange
Deed on the ground that original is not produced. When
the plaintiff has not denied the execution of Ex.D-3 in
favour of defendant and produced the certified copy of the
same, as per Ex.D-3 defendant No.1 has raised the
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objection of non-production of original document which
does not play any vital role in this case, as the First
Appellate Court has already recorded a finding in respect
of Ex.D-3 and also recorded a finding that the said
tamarind tree is situated in land bearing Sy.No.86/1
belongs to defendant No.1. Though the First Appellate
Court has remanded the matter to the trial Court for
limited purpose on the additional issue, though the parties
have not led any evidence, if the First Appellate Court has
already recorded a finding on Ex.D-3 Exchange Deed, and
the said finding has not been challenged by the plaintiff,
the said finding has attained finality.
22. On an application filed before the trial Court to
appoint a Court Commissioner to inspect the land, the said
application came to be allowed. Thereafter, the ADLR was
appointed, i.e., Court Commissioner and he has executed
commission warrant as per memo of instructions. The
Court Commissioner before executing the Commission
warrant, has issued the notice to the son of defendant
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No.1, who is not an interested party. No reasons re
assigned for non-issuing notice to the defendant No.1,
though defendant No.1 was available and for the reasons
best known to him and this act of the Court Commissioner
clearly discloses that he has colluded with the plaintiff and
hastily served the notice on the son of defendant No.1 and
has drawn the sketch and submitted the same to the
Court. Defendant No.1 has filed objection to the
Commissioner's report, the plaintiff has not taken steps to
examine the Court Commissioner in order to prove the
sketch and his report. There is non examination of the
Court Commissioner and non consideration of the
objections filed by the defendant No.1 to the
Commissioner's report before the trial Court. The trial
Court was justified in dismissing the suit placing reliance
on Ex.D-3 and held that said tamarind tree situated in land
belongs to defendant No.1 and also that First Appellate
Court in R.A.No.155/1999 has affirmed the findings
recorded on issue Nos.1, 2, 3 and 7. In view of the same,
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the defendants have established that the said tamarind
tree is situated in the land of defendants.
23. In view of the above discussion, I answer the
substantial questions of law in negative and consequently I
proceed to pass the following order:
ORDER
i. The appeal is dismissed.
ii. The judgments and decrees passed by the
trial Courts in O.S.No.332/1991 by the
Principal Civil Judge (Junior Division),
Madhugiri and R.A.No.100/2006 by the
Additional Senior Civil Judge and JMFC at
Madhurigi, are hereby confirmed.
iii. No order as to costs.
Sd/-
JUDGE
SRA
CT: BHK
