Karnataka High Court
Shri Krishnappa vs Shri Bhuthanna on 29 July, 2024
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RSA No. 1354 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.1354 OF 2012 (INJ)
BETWEEN:
1. SHRI KRISHNAPPA
S/O SHRI RANGAPPA @ KATTE RANGAPPA
AGED ABOUT 66 YEARS
2. SHRI RAMANNA
S/O RANGAPPA @ KATTE RANGAPPA
AGED ABOUT 61 YEARS
BOTH ARE AGRICULTURIST
R/O ATHIMAGGE VILLAGE
MADADAKERE HOBLI,
TQ:HOSADURGA - 577527
...APPELLANTS
(BY SRI. ASHOK R KALYANASHETTY, ADVOCATE)
Digitally signed
by R DEEPA AND:
Location: HIGH
COURT OF 1. SHRI BHUTHANNA
KARNATAKA S/O RANGAPPA @ KATTE RANGAPPA
AGED ABOUT 77 YEARS
OCC: RTD. GANGMAN,
R/O KUMBARA BEEDI,
SRIRAMPURA,
TQ:HOSADURGA TALUK - 577 527
2. SHRI PARANNA
S/O SHRI RANGAPPA @ KATTE RANGAPPA
AGED ABOUT 46 YEARS
OCC:AGRICULTURIST,
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RSA No. 1354 of 2012
R/O ATHIMAGGE,
HOSADURGA TALUK - 577 527
...RESPONDENTS
(BY SRI. M G VYKUNTASWAMY, ADVOCATE FOR R1
R2 - SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 31.3.2012 PASSED IN
R.A.NO.55/2006 ON THE FILE OF ITINERARY SENIOR CIVIL
JUDGE, HOSADURGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 4.11.2003
PASSED IN OS.NO.131/2003 ON THE FILE OF PRINCIPAL CIVIL
JUDGE (JR.DN.), HOSADURGA.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 31.03.2012,
passed by the Itinerary Senior Civil Judge, Hosadurga in
R.A.No.55/2006, confirming the judgment and decree
dated 04.11.2003 passed by the Principal Civil Judge
(Jr.Dn.) in O.S.No.131/2003.
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For the sake of convenience, parties are referred to
as per their ranking before the trial Court. The appellants
are the plaintiffs and the respondents are the defendants.
2. The brief facts leading rise to filing of this
appeal are as under:
Plaintiffs filed a suit for declaration of ownership in
possession of suit land and permanent injunction
restraining the defendants from interfering with the
peaceful possession and enjoyment of the suit schedule
property by the plaintiffs. It is the case of the plaintiffs
that one Rangappa alias Katte Rangappa was the
propositus. He had a wife by name Sankamma and both
had children namely Paramma, Bhoothanna - defendant
No.1, Gowramma, Krishnappa - plaintiff No.1,
Lakshmidevi, Ramanna - plaintiff No.2, Paranna -
defendant No.2. The father of the plaintiffs and
defendants No.1 and 2 died during the year 1989. The
mother of the plaintiffs died about 10 years prior to the
death of father of the plaintiffs and the defendants. There
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was no ancestral property of deceased Rangappa. A dry
land measuring 3 acres 32 guntas bearing Sy.No.184
situated at Attimage Village was granted in favour of the
father of plaintiffs and he was enjoying the said property
during his lifetime. After his death, plaintiffs and
defendants are enjoying the said property jointly. The
defendant No.1 went out of the family about 40 years ago
and joined service at Srirampura and the father of the
plaintiffs got sanctioned 2 acres of land in the name of
defendant No.1 at Sadarahalli Village. At that time, he
went out of the joint family. As there was no joint family
property, the defendant No.1 agreed that he will take
Sadarahalli land to his share and further he agreed that
the property bearing Sy.No.184 measuring 3 acres 32
guntas of Attimage village should be enjoyed by the father
of the plaintiffs, defendant No.2 and plaintiffs only. After
the death of their father, the plaintiffs and defendant No.2
should enjoy the suit property jointly. The defendant No.1
sold the land situated at Sadarahalli village. The plaintiff
purchased a house at Srirampura village and the same
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was registered in the name of wife of defendant No.1.
During the month of January 1980, panchayat was
conveyed in the presence of the father of plaintiffs and
others and in the said panchayat, the defendant No.1
agreed that he will not demand any share in the property
Sy.No.184. Defendant No.2 and plaintiffs lived together
during the year 1980. The defendant No.2 went out of the
family by taking 1/3rd share in the property bearing in
Sy.No.184 and the plaintiffs are enjoying the remaining
land in the said survey number jointly. After the death of
father of the plaintiffs, the plaintiffs continued in the joint
family and they purchased the suit schedule property
under registered sale deed dated 18.07.1980 from one
Dyamaiah, S/o Galirangaiah for valuable consideration.
Ever since the date of purchase, the plaintiffs are enjoying
the suit schedule property in their own right as absolute
owners by paying the land revenue to the Government.
The defendants absolutely have no manner of right, title,
interest or possession over the suit schedule property.
The defendant No.2 filed a suit against defendant No.1 and
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plaintiffs in O.S.No.95/2002 seeking for partition in the
suit schedule property and other properties. After the
service of summons, panchayat was conveyed in the
village. In the said panchayat, defendants No.1 and 2
agreed that they will not claim any right over the suit
schedule property and defendants took signatures of the
plaintiffs saying that they will file some application and the
defendant No.1 agreed that he has no right over the suit
schedule property. The plaintiffs recently came to know
that defendants No.1 and 2 in order to defeat and defraud
the right of the plaintiffs over the suit schedule property,
concocted some false facts and without the knowledge of
the plaintiffs, obtained a preliminary decree, by decreeing
the suit having 1/4th share in the suit schedule property
and other properties, except the house. It is contended
that the decree passed is bogus and is behind the back of
the plaintiffs and is a collusive decree. It is contended
that the acts of the defendants is illegal and highhanded.
The defendants are denying the right, title, interest and
possession of the plaintiffs over the suit schedule property.
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Hence cause of action arose for the plaintiffs to file the suit
for declaration and permanent injunction.
3. Defendant No.1 filed written statement
admitting that the father of the plaintiffs and the
defendants died during the year 1989 and mother of the
plaintiffs died 10 years prior to the death of father of the
plaintiffs and defendants and denied the entire averments
made in the plaint and it is contended that the suit of the
plaintiffs is not maintainable in law as the matter is
already decided in O.S.No.95/2002 by the learned
Principal Civil Judge (Jr.Dn.), Hosadurga as the suit
schedule property is the joint family property of the
plaintiffs and defendants. It is contended that the
defendant No.1 is the first son to his father Rangappa.
Plaintiffs and defendants No.1 and 2 constituted a Hindu
undivided joint family. It is contended that the defendant
No.1 with great difficulty, got a job of gangman for a
meager salary and started to live in Srirampura village by
doing his work along with his family and living with great
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difficulty. It is contended that the wife of defendant No.1,
namely, Gowramma had purchased a house in her name
situated at Srirampura village and as such the said house
is her self-acquired property. The plaintiffs and defendant
No.2 in order to grab the property of the wife of defendant
No.1, and share of defendant No.1, filed a suit in
O.S.No.95/2002 on the file of Principal Civil Judge (Jr.Dn.)
Hosadurga. The defendant No.1 appeared in the said suit
and filed written statement and the said suit was decreed
holding that the plaintiff in the said suit is entitled for
partition and separate possession of his 1/4th share in item
No.1 and 2 of suit schedule properties by metes and
bounds. The suit schedule item No.2 property in O.S.No.
95/2002 is the suit schedule property in the present suit.
It is contended that the suit is filed only with an intention
to harass the defendants and hence prayed to dismiss the
suit against the defendant No.1.
4. Defendant No.2 filed separate written
statement reiterating the written statement averments
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filed by defendant No.1. It is contended that the suit
schedule property is the self-acquired property of the
plaintiffs as they have purchased the suit schedule
property under registered sale deed independently and
they are also in possession and enjoyment of the suit
schedule property independently and exclusively ever
since the date of sale deed. It is contended that the
defendant No.2 has absolutely no right over the property
and hence prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
(1) Whether the plaintiffs prove that they are the
owners of suit property?
(2) Whether the plaintiffs prove that they are in
possession of suit property?
(3) Whether the plaintiffs prove that the
preliminary decree passed in
O.S.No.95/2002 is not binding on the right
of plaintiffs?
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(4) Whether the suit of the plaintiffs is not
maintainable in law?
(5) Whether the plaintiffs are entitled for decree
as prayed for?
(6) What order or decree?
6. In order to prove the case of the plaintiffs, the
plaintiff No.1 examined himself as PW-1 and plaintiff No.2
was examined as PW-2 and examined one witness as PW-
3 and got marked 4 documents as Exs.P1 to P4. In
rebuttal, defendant No.1 was examined as DW-1 and
defendant No.2 was examined as DW-3 and got examined
one witness as DW-2 and got marked 2 documents as
Exs.D1 and D2. The trial Court after assessing the oral
and documentary evidence of the parties, answered issue
Nos.1 to 5 in the negative and dismissed the suit of the
plaintiffs with cost.
7. The plaintiffs aggrieved by the judgment and
decree passed in the above said suit, filed an appeal in
R.A.No.55/2006 on the file of the Itinerary Senior Civil
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Judge, Hosadurga. The First Appellate Court, after hearing
the parties, has framed the following points for
consideration:
(1) Whether the appellants proved that, they are
the absolute owners and possessors of suit
schedule property and judgment and
decree passed in O.S.No.95/2002 is
collusive and not binding on them?
(2) Whether the judgment and decree of the trial
Court is illegal, perverse, erroneous and
called for interference of this Court?
(3) What order?
8. The First Appellate Court, on re-assessing the
oral and documentary evidence, answered point No.1 and
2 in the negative and point No.3 as per the final order and
consequently dismissed the appeal filed by the plaintiffs
with cost, confirming the judgment and decree passed by
the trial Court. The plaintiffs, aggrieved by the judgment
and decree passed by the courts below, have filed this
second appeal.
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9. This court admitted the appeal on 05.08.2019,
to consider the following substantial questions of law :
(1) Whether the court below is right in
decreeing the suit inspite of defendant
No.2, who is the plaintiff in O.S.No.95/2002
has admitted the ownership of the
appellants in the written statement filed in
O.S.No.131/2003?
The decree mentioned in substantial
question No.1 is typographical error, it has
to be read as dismissing the suit.
(2) Whether the court below is right in
rejecting the suit for injunction when the
possession of the appellants is not disputed
by the parties?
10. Heard learned counsel for the parties.
11. Learned counsel for the plaintiffs submits that
the suit land was purchased by the plaintiffs under the
registered sale deed and record of rights stands in the
name of plaintiffs. Hence the suit property is in exclusive
possession of the plaintiffs. Hence he submits that the
suit property is the self acquired property of the plaintiffs
and he submits that by mistake the suit property was
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included in O.S.No.95/2002 and the said aspect was not
considered by the courts below and passed the impugned
judgments. He submits that the impugned judgments are
arbitrary and erroneous. Hence, on these grounds, prays
to allow the appeal.
12. Learned counsel for the defendants supports
the impugned judgments and prays to dismiss the appeal.
13. Perused the records and considered the
submissions of learned counsel for the parties.
14. Substantial question of law No.1: The plaintiffs
in order to substantiate their case plaintiff No.1 was
examined as PW.1 and he has reiterated the plaint
averments in the examination in chief and further in order
to prove that the suit schedule property was purchased
under the registered sale deed marked as Ex.P1. Ex.P2 is
the RTC extract. Ex.P3 is the certified copy of the
preliminary decree passed in O.S.No.95/2002. Ex.P4 is
the patta receipt.
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15. In the course of cross examination, PW.1
admitted that plaintiff No.2 and defendant No.2 were
attending the proceedings of O.S.No.95/2002. Though the
plaintiffs have taken a defence that the defendants have
taken signature on the blank paper, as PW.1 has admitted
that plaintiffs and defendant No.2 were attending the
proceedings of O.S.No.95/2002 and the contention of the
plaintiffs that the signature obtained on the blank paper
stands disproved. He admits that the suit schedule
property is the joint family property of the plaintiffs and
defendants. He also admits that said suit schedule
property was the subject matter of suit in
O.S.No.95/2002. He admits that the plaintiffs and
defendants were the parties in the said suit and the said
suit was decreed vide judgment dated 10.10.2002. From
the perusal of Ex.P3, i.e, certified copy of preliminary
decree passed in O.S.No.95/2002 discloses that the
plaintiffs therein is entitled for partition and separate
possession of his 1/4th share in the suit schedule item
Nos.1 and 2 by metes and bounds. If the defendants
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failed to give 1/4th share by partition and separate
possession in the suit schedule properties and item Nos.1
and 2 by metes and bounds to the plaintiffs and the
plaintiffs are entitled to proceed in accordance with law to
get the separate possession of item Nos.1 and 2 of the suit
properties. Further, item No.2 is the suit schedule
property in the present suit. Further, plaintiff No.2 was
examined as PW.2 and he has deposed in the same line of
PW.1.
16. In rebuttal, the defendant No.1 was examined
as DW.1 and he has reiterated the written statement
averments in the examination-in-chief and in order to
prove his defence he has produced the written statement
filed in O.S.No.95/2002 marked as Ex.D1 and Ex.D2 is the
death certificate. The death certificate of Rangappa, who
died on 14.10.1989 leaving behind the plaintiffs and the
defendants. From the perusal of the judgment passed in
O.S.No.95/2002, that 1/4th share is granted in Sy.No.184
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and Sy.No.31/P. The judgment and preliminary decree
passed in O.S.No.95/2002 has attained finality.
17. The plaintiffs without challenging the judgment
and preliminary decree passed in the suit O.S.No.95/2002
filed this instant suit. The defendant No.2 has filed the
written statement admitting that the suit schedule
property is the self acquired property of the plaintiffs.
Defendant No.2 having colluded with the plaintiffs filed the
written statement admitting the ownership of the plaintiffs
in order to overcome the preliminary decree passed in
O.S.No.95/2002. Merely the defendant No.2 admitted the
ownership of the plaintiffs in the written statement is not a
ground to decree the suit of the plaintiffs. The trial Court
on considering the preliminary decree passed in
O.S.No.95/2002 has rightly held that the plaintiffs have
failed to prove that they are the absolute owners of the
suit schedule property and rightly dismissed the suit. The
first Appellate Court on re-appreciation of evidence
dismissed the appeal. Both the courts below have
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concurrently recorded the finding of fact that the plaintiffs
have failed to establish their ownership over the suit
schedule property and also judgment and preliminary
decree passed in O.S.No.95/2002 is a collusive decree.
18. As observed above, plaintiff Nos.1 and 2 have
participated in the above said suit and the said suit was
disposed of vide judgment dated 10.10.2002. The
plaintiffs have not challenged the judgment and
preliminary decree by filing an appeal, on the contrary,
has filed this suit seeking for a relief of declaration that
judgment and preliminary decree is a collusive. If at all, if
the defendant No.2 played a fraud and obtained a
preliminary decree the plaintiffs ought to have approached
the same Court for recalling the judgment and preliminary
decree. The plaintiffs have not exhausted the efficacious
remedy available to them. Hence, the suit filed by the
plaintiffs is not maintainable. In view of the above
discussion, substantial question No.1 is answered in the
affirmative.
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19. Substantial question No.2: As this Court has
held that the plaintiffs have failed to establish that they
are the absolute owners and in possession of the suit
property and no documents produced to establish that the
plaintiffs are in possession and enjoyment of the suit
schedule property. Though the plaintiffs have contended
that they are in possession of the suit schedule property,
but defendant No.1 filed the written statement denying the
possession of the plaintiffs over the suit schedule property.
In order to substantiate the case of the plaintiffs, the
plaintiffs have not examined adjacent owners of the suit
land to establish their possession over the suit schedule
property. In the absence of records the trial Court is
justified in dismissing the suit for injunction. Hence, in
view of above discussion, I answer substantial question
No.2 in the affirmative.
20. In view of the above discussion, I proceed to
pass the following:
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ORDER
The appeal is dismissed confirming the
judgments and decree passed by the courts
below.
No order as to the costs.
SD/-
(ASHOK S. KINAGI)
JUDGE
RD, SKS
