Karnataka High Court
Sri Ningappa vs Sri Chikkanna on 25 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:29334
RSA No. 2503 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2503 OF 2018 (DEC/INJ)
BETWEEN:
1. SRI NINGAPPA
S/O LATE DODDAIAH @ BILIYAPA
AGED ABOUT 58 YEARS,
OCCUPATION: AGRICULTURE
R/O AMMANAGATTA VILLAGE
KASABA HOBLI, GUBBI TALUK
TUMKUR DISTRICT - 572216.
...APPELLANT
(BY SRI. HAREESHA T., ADVOCATE)
AND:
Digitally signed 1. SRI CHIKKANNA
by DEVIKA M S/O LATE KARITHIMMAIAH
Location: HIGH AGED ABOUT 48 YEAR
COURT OF OCCUPATION : AGRICULTURE
KARNATAKA R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
2. SRI EARAIAH
S/O LATE KARITHIMMAIAH
AGED ABOUT 46 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
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RSA No. 2503 of 2018
3. SMT. GOWRAMMA
W/O LATE NANJUNDAPPA
AGED ABOUT 73 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
4. SRI GURUBASAVAIAH
S/O LATE NANJUNDAPPA
AGED ABOUT 53 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
5. SMT. GANGAMMA
D/O LATE NANJUNDAPPA
AGED ABOUT 48 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
6. SRI MARIYANNA
S/O LATE NANJUNDAPPA
AGED ABOUT 43 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
7. SRI SIDDARAMAIAH
S/O LATE NANJUNDAPPA
AGED ABOUT 41 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
8. CHANNABASAVAIAH
S/O LATE C. BASAVAIAH
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RSA No. 2503 of 2018
AGED ABOUT 63 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
9. SRI JAGADISHAIAH
S/O LATE C BASAVAIAH
AGED ABOUT 53 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
10. SRI KUMARAIAH
S/O LATE C BASAVAIAH
AGED ABOUT 38 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
11. THIMMAIAH
S/O LATE ERAIAH
AGED ABOUT 60 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572216.
12. SRI THIMMAIAH
S/O LATE CHIITTAIAH
AGED ABOUT 75 YEARS
OCCUPATION: AGRICULTURE
R/O AMMANAGATTA VILLAGE
KASABA HOBLI, GUBBI TALUK
TUMKUR DISTRICT - 572216.
13. SMT. AMHIKA
D/O LATE THIMMAIAH
AGED ABOUT 35 YEARS
OCCUPATION : AGRICULTURE
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RSA No. 2503 of 2018
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI,
GUBBI TALUK,
TUMKUR DISTRICT - 572216.
14. SMT. LATHA
D/O LATE THIMMAIAH
AGED ABOUT 33 YEARS
OCCUPATION : AGRICULTURE
R/O AMMANAGATTA VILLAGE,
KASABA HOBLI,
GUBBI TALUK,
TUMKUR DISTRICT - 572216.
...RESPONDENTS
(BY SRI. B.R.PRABHULINGA MURTHY, ADVOCATE FOR C/R2;
NOTICE TO R13 AND R14 ARE HELD SUFFICIENT,
VIDE COURT ORDER DATED 09.07.2024)
THIS RSA IS FIELD UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.11.2018
PASSED IN R.A.NO.23/2015 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, GUBBI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 18.07.2014 PASSED IN O.S. NO.211/2004 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE, GUBBI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
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RSA No. 2503 of 2018
ORAL JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant and learned counsel for the
caveator-respondent No.2.
2. The factual matrix of the case of the plaintiffs
before the Trial Court while seeking the relief of declaration and
injunction at the first instance filed the suit against the
defendant Nos.1 and 2. The defendant Nos.1 and 2 are the
sons of original mortgagee. It is also the contention that
plaintiffs are the sons of Karethimmaiah. The suit schedule
property along with other properties had fallen to the share of
Karethimmaiah in the said partition. Said Karethimmaiah was
the absolute owner in possession of suit schedule property.
The plaintiffs have succeeded to the suit schedule property as
class I heirs. After the death of said Karethimmaiah, the
plaintiffs are in possession and enjoyment of the suit schedule
property as absolute owners. One Channegowda had got wife
by name Siddananjamma and the defendants are the sons of
said Siddananjamma. Said Siddananjamma expired few years
back, leaving behind the defendants as her class I legal heirs.
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During the lifetime of above said Karethimmaiah, he executed
an usufructuary mortgage deed, in favour of above said
Siddananjamma under registered mortgage deed dated
16.08.1949 and put the said Siddananjamma in possession of
suit schedule property, the said mortgage was for a period of 5
years. In the year 1959, when the plaintiffs were minors, their
father Karethimmaiah redeemed the mortgage executed in
favour of said Siddananjamma by paying the mortgage amount
to her. In turn, said Siddananjamma returned the original
registered mortgage deed executed in her favour to the
possession of Karethimmaiah, the father of the plaintiffs.
Thereby, the said Siddananjamma redeemed the mortgage
made in her favour and put the father of the plaintiffs in
possession of suit schedule property. From that day, the father
of the plaintiffs was in possession and enjoyment of the suit
schedule property as absolute owner thereof. The defendants
having no manner of right, title, interest, possession and
enjoyment over the suit schedule property, taking advantage of
the revenue entries standing in the name of their mother
Siddananjamma, made attempts to interfere with peaceful
possession and enjoyment of the suit schedule property of the
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plaintiffs by denying the title of the plaintiffs. Hence, suit is
filed for the relief of declaration and permanent injunction.
3. The defendants appeared and filed the written
statement. It is their specific case that the plaintiffs without
being in actual possession have filed the suit for title and
possession, which is not maintainable. It is also contended that
during the lifetime of Karethimmaia, he had executed a
registered mortgage deed in respect of suit property on
16.08.1949, since the said date, said Siddananjamma along
with her sons i.e., defendants are in physical possession and
enjoyment of the suit schedule property by planting areca nut
and coconut trees. The said Siddananjamma passed away few
years back and the defendants being the legal heirs are in
possession and enjoyment of the suit schedule property.
4. The Trial Court, having considered the pleadings of
the parties, framed the issues and allowed the parties to lead
evidence. The Trial Court having considered the material on
record, comes to the conclusion that the plaintiffs' father got
redeemed the suit property from Siddananjamma and plaintiffs
are in lawful possession of the suit schedule property and
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defendants are restrained from interfering with peaceful
possession and enjoyment of the suit schedule property by
decreeing the suit.
5. It is also brought to notice of this Court that the
defendant Nos.3 to 6 filed an application to implead themselves
as parties and they have been impleaded as parties to the
proceedings and they did not file any written statement and
contested the matter. Being aggrieved by the judgment and
decree of the Trial Court, an appeal is filed by the defendant
No.4 before the First Appellate Court in R.A.No.23/2015. The
First Appellate Court also having considered the material on
record, confirmed the judgment of the Trial Court. The
appellant also filed I.A.No.VIto implead the subsequent
purchaser as party to the suit and also filedI.A.No.VIIto
produce documents for deciding the appeal. The First Appellate
Court, having considered the material on record, comes to the
conclusion that the Trial Court had provided an opportunity to
defendant No.4 to putforth his case and the Trial Court is
justified in decreeing the suit of the plaintiffs for the relief of
declaration and permanent injunction and answered point
Nos.3 and 4 as 'negative' and in respect of the two applications
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filed, comes to the conclusion that the judgment and decree of
the Trial Court is not illegal and contrary to law and it does not
require any interference and confirmed the judgment of the
Trial Court. Hence, the present second appeal is filed before
this Court
6. The main contention of the learned counsel for the
appellant before this Court is that though defendant Nos.3 to 6
have been impleaded as parties to the proceedings on
13.06.2013, they could not file the written statement and
contest the matter before the Trial Court on the ground that
their mother was not keeping well and they were taking care of
their mother. It is contended that the Trial Court committed
grave error when the application dated 13.06.2013 filed by the
proposed respondents 3 to 6 before the Trial Court was allowed
and ought to have issued summons to defendant Nos.3 to 6 to
serve copy of the pleadings, inspite of it, the Trial Court has
served the copies of pleadings directly to the learned counsel
for the defendants and posted the case for filing written
statement of defendant Nos.3 to 6. Due to non-serving of the
copies of the pleadings of the case, the defendant Nos.3 to 6
could not file their written statement. The Trial Court taking
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advantage of the same, recorded on its file that the written
statement of defendant Nos.3 to 6 is not filed which leads to
miscarriage of justice. It is also contended that suit schedule
property was purchased by their grand-father Chittaiah under
the sale deed dated 10.06.1957. Further, it is the contention
that defendant Nos.3 to 6 are having equal rights over the suit
schedule property and the Trial Court ought to have taken note
of the said fact into consideration while disposing of the matter
and the First Appellate Court failed to consider the grounds
which have been urged while filing an application under Order
41 Rule 27 of CPC seeking permission to produce the document
of the year 1957, redemption of mortgage deed executed by
Siddananjamma in favour of father of the defendants i.e.,
Chittaiah and also other documents along with the application,
but the said application is rejected and the said documents
sought to be produced before the First Appellate Court clinches
the issue between the parties and ought not to have dismissed
the suit and no further opportunity was given to the defendant
Nos.3 to 6 by the Trial Court and the order passed by the First
Appellate Court in dismissing I.A.No.VII is erroneous. Hence,
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this Court has to admit the appeal and frame substantial
question of law.
7. Learned counsel for the caveator-respondent No.2.
would contend that even though the defendant Nos.3 to 6 came
on record in 2013, inspite of the Trial Court granting
opportunity to putforth their case, not placed the documents
before the Trial Court and the Trial Court rightly dismissed the
suit. The First Appellate Court confirmed the same and
rejected the application and while answering point No.4, the
First Appellate Court comes to the conclusion that when an
opportunity was given, no documents were produced by the
appellant and no defence was putforth and even after
exercising due diligence, was not able to produce the
documents before the Trial Court and not made out any case
and rejected the application.
8. Having heard the learned counsel for the appellant
and learned counsel for the caveator-respondent No.2, it is not
in dispute that the property belongs to Karethimmaiah. It is
also not in dispute that mortgage deed was executed in favour
of Smt. Siddananjamma. It is the claim of the plaintiffs before
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the Trial Court that mortgage was redeemed in favour of
Karethimmaiah in the year 1959. On the other hand, it is the
contention of the appellant before this Court and also before
the First Appellate Court that wife of Karethimmaiah had
executed the sale deed in the year 1957 in favour of Chittaiah
with a condition to get it redeem the mortgage from
Siddnanjamma and the amount of Rs.500/- was left with the
purchaser to get it redeem the same. Accordingly,
Siddananjamma on receiving the amount of Rs.500/- had
executed the redemption deed in favour Chittaiah.
9. Learned counsel also would submit that redemption
was executed by Siddananjamma in favour of Chittaiah, who is
the purchaser in terms of Ex.P4. The Trial Court having
considered the material on record, did not consider this
document and did not consider the recital of this document and
the recital in the said document is in favour of Chittaiah and not
in favour of Karethimmaiah. But, the Trial Court comes to the
conclusion in Paragraph No.14 of the judgment that mortgage
deed was redeemed in favour of the father of the plaintiffs.
Hence, the father of the plaintiffs becomes the absolute owner
of the property. This reasoning given by the Trial Court is
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erroneous and did not look into the document of Ex.P4 and the
said redemption deed is executed in favour of Chittaiah and not
in favour of original owner Karethimmaiah, but proceeded in an
erroneous approach that redemption deed was executed in
favour of the father of the plaintiffs and the conclusion arrived
by the Trial Court that the father of the plaintiffs is the absolute
owner of the property in terms of Ex.P4 is erroneous and did
not look into the recital of the document and the document is
registered in favour of Chittaiah in the year 1959, but he had
purchased the property in the year 1957 itself and subsequent
to purchase, got redeemed the property. No doubt, the
appellant herein has not filed any written statement and not
produced any document before the Trial Court, even the
judgmentof the Trial Court is erroneous and there is an error
apparent on the face of records in relying upon the document of
Ex.P4.
10. Apart from that the document of mortgage deed
and sale deed are produced before the First Appellate Court
seeking an opportunity to produce the evidence that already
sale was made in the year 1957 itself and subsequent
redemption document was executed in favour of the appellant
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herein and the First Appellate Court while considering the
document, ought to have considered the application filed under
Order 41 Rule 27 of CPC with regard to the germane issues
involved between the parties and there is lapse on the part of
the appellant in not filing the written statement as well as
producing of these documents before the Trial Court. Even the
Trial Court did not look into the document of Ex.P4 and the said
document produced before the Trial Court shows that the
redemption was executed in favour of Chittaiah. The First
Appellate Court also not looked into the additional document
produced before it and committed an error in dismissing
I.A.No.VII in coming to the conclusion that the appellant has
not made out any ground to invoke Order 41 Rule 27 of CPC.
Hence, it requires reconsideration and the order passed by the
First Appellate Court requires to be set aside regarding
rejection of I.A.No.VII and consequent dismissal of the appeal
requires to be set aside and matter requires to be remanded to
the First Appellate Court to consider the additional evidence
and also allow the parties to file written statement and lead
additional evidence before the First Appellate Court and in view
of lapse on the part of the appellant.
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11. In view of the discussion made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed. The judgment
and decree of the Trial Court and First Appellate
Court are hereby set aside and the matter is
remanded to the First Appellate Court for fresh
consideration on payment of cost of Rs.1,00,000/-.
(ii) The parties and their respective counsels are directed
to appear before the First Appellate Court on
27.08.2024 without expecting any notice from the
First Appellate Court.
(iii) The appellant is directed to file written statement
without one month from 27.08.2024 and thereafter,
the First Appellate Court to frame issues and allow
the parties to lead their evidence to substantiate
their case.
(iv) The suit is of the year 2004 and already 20 years has
elapsed. Hence, the First Appellate Court is directed
to dispose of the matter within six months from
27.08.2024.
(v) The parties and their respective counsels are directed
to assist the First Appellate Court in disposal of the
case within the stipulated period of six months.
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(vi) The appellant is directed to deposit the cost of
Rs.1,00,000/- before the First Appellate Court on or
before 27.08.2024. Out of the amount of
Rs.1,00,000/-, an amount of Rs.50,000/- is payable
to the plaintiffs and the remaining amount of
Rs.50,000/- shall vest with State.
(vii) The Registry is directed to communicate this order to
the First Appellate Court to enable the First Appellate
Court to fix the date of hearing on 27.08.2024.
Sd/-
(H.P.SANDESH)
JUDGE
ST
