Karnataka High Court
Sri H.J. Sathynarayana vs H.J. Padmanabha on 4 June, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 1176 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 1176 OF 2013 (DEC)
BETWEEN:
SRI. H.J. SATHYNARAYANA,
S/O ANANTHA ACHAR,
AGED ABOUT 70 YEARS,
R/O 1ST CROSS, VIDYANAGAR,
SIRSI TOWN, KARWAR DISTRICT.
...APPELLANT
(BY SRI. NARAYAN MAYYAR, ADVOCATE FOR
SRI. S.R. HEGDE HUDLAMANE, ADVOCATE)
AND:
1. H.J. PADMANABHA,
S/O ANANTHA ACHAR,
AGED ABOUT 59 YEARS,
Digitally signed
by R/O BRAHAMANARA BEEDI,
NARAYANAPPA ANAVATTI VILLAGE, SORABA TALUK,
LAKSHMAMMA
Location: HIGH SHIVAMOGGA - 577 201.
COURT OF
KARNATAKA
2. SMT. H.J. SUNDARA BAI,
W/O ANANTHA ACHAR,
AGED ABOUT 72 YEARS,
SINCE DEAD REPRESENTED BY R1.
...RESPONDENTS
(BY SRI. R. GOPAL, ADVOCATE FOR R1 AND R2;
VIDE ORDER DATED 17.01.2024, R1 IS LR'S
OF DECEASED R2)
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RSA No. 1176 of 2013
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 24.4.2013 PASSED IN
R.A.NO.194/2011 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT-II, SHIMOGA, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 11.11.2009
PASSED IN OS.NO.88/2007 ON THE FILE OF CIVIL JUDGE
(SR.DN.) AND JMFC, SORAB.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
a. To set aside the Judgment and Decree made in
R.A.NO.194/2011, passed by the District and Sessions Court,
Shimoga, In the Court of Fast Track - II Shimoga, dated
24.4.2013, their by confirming the Judgment and Decree
passed by Civil Judge (Sr.Div) & J.M.F.C. Sorab made in
O.S.NO.88/2007 dated 11.8.2009, and kindly grant the prayer
made in the said suit.
b. Issue such other incidental relief which may be deemed fit
on the facts and circumstances of the case and also for cost.
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RSA No. 1176 of 2013
JUDGMENT
1. The appellant is before this Court challenging the
judgment dated 11.08.2009 in O.S.No.88/2007 by the
Civil Judge (Sr.Div) & J.M.F.C, Sorab, which has been
confirmed by the judgment dated 24.04.2013 in
R.A.No.194/2011 by the District and Sessions Judge,
Shivamogga.
2. The appellant, who was a plaintiff in the said suit, had
sought for relief of declaration and possession of the suit
schedule property, claiming that the said property
originally belongs to Aryara Sanna Mallappa, which has
been mortgaged in favour of Narasimha Achar on
10.01.1931. Despite such a usufructory mortgage having
been executed, the possession of the land was not
handed over and subsequently, Aryara Sanna Mallappa
executed a sale deed in favour of the plaintiff on
07.12.1991 and the plaintiff was put in possession
thereon. It is on that basis, it is contended that the
plaintiff is the owner of the property in possession
thereof, which was interfered with by the defendants and
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resulting in his dispossession. It is in that background
the aforesaid suit for declaration and possession was
filed.
3. The Trial Court dismissed the said suit taking into
consideration the plaint and written statement filed, the
affidavits filed in lieu of evidence and the evidence
recorded, observing that the documents, which have
been produced have not been marked as evidence and
there is nothing on record to indicate the title of the
plaintiff. Challenging the same R.A.No.194/2011 was filed
contending that plaintiff was not informed about the
various dates on which adjournment was taken by the
advocate, and it is in that background the plaintiff could
not prosecute the matter. In the said appeal, evidence
was led by the plaintiff and certain documents were
marked. The defendants led their evidence and marked
Exs.D1 to 76.
4. In the First Appellate Court proceedings, the plaintiff was
confronted with a handwriting expert report, which came
to be marked as Ex.R1. The said handwriting expert
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report having been submitted in C.C.No.250/1995, which
had been initiated by the defendants for alleged forgery
of the sale deed of the year 1981 claimed by the plaintiff.
5. The First Appellate Court taking into consideration the
said report and also the fact that the plaintiff had no
satisfactory explanation and any reasons for the delay in
prosecuting the matter and having considered that Aryara
Sanna Mallappa had expired in the year 1942 and as
such, held that the question of execution of the sale deed
in favour of the plaintiff in the year 1981 would not arise.
Thus, on merits also, the First Appellate Court has given
a finding that the plaintiff was not able to establish his
title.
6. Be that as it may, the First Appellate Court dismissed the
appeal on the ground that the plaintiff was not diligent in
prosecuting the matter and there is no satisfactory
explanation for the delay in preferring the appeal. It is
challenging these findings that the appellants are before
this Court.
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7. Learned counsel for the appellant / plaintiff would submit
that it is only on account of his Lawyer not having
informed the dates of hearing, that the plaintiff could not
be present for marking of the documents that he submits
that the plaintiff has a good case on merits, the First
Appellate Court ought to have taken into consideration
the above submission and remanded the matter to the
Trial Court for granting permission to lead evidence, mark
documents so that the judgment could be passed on
merits of the matter.
8. Learned counsel for the defendants would however,
submit that the entire suit is false, a frivolous expedition,
which is an abuse of process of law. The plaintiff, being
the stepbrother of the defendants, has fabricated the sale
deed, to claim, the title and possession of the property
which has been allotted to the defendants under a
partition deed, which has been admitted. His submission
is also that once earlier in the year 1981 itself, the
plaintiff had sought to interfere with the possession of
the defendants, resulting in the defendants filing a suit in
O.S.No.260/1991 seeking for injunction against the
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plaintiff, which was also granted, the appeal in
R.A.No.42/1997 came to be dismissed, and
R.S.A.No.930/2000 thereon also came to be dismissed.
9. The above three concurrent judgments would reflect that
the defendants are in possession of the property from
way back in the year 1991 and the question of the
plaintiff now contending that the plaintiff has been
dispossessed in the year 2001 is completely false and
frivolous one, made post the disposal of
R.S.A.No.931/2000, hence, he submits that there is no
substantial question of law, which arises in the present
matter, the Trial Court has dealt with the matter on the
facts, which has been established and there being no
substantial question of law, the appeal would be liable to
be dismissed.
10. Heard the learned counsel for the appellant, learned
counsel for the respondents and perused papers.
11. It is not in dispute that the property originally belonged
to Aryara Sanna Mallappa, who had executed usufrcutory
mortgage in favour of Narasimha Achar, the grandfather
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of plaintiffs and defendants on 10.01.1993. Though it is
contended otherwise, the First Appellate Court has taken
into consideration that the said Aryara Sanna Mallapa
expired in the year 1942, the claim of the plaintiff is that
a sale deed came to be executed in favour of the plaintiff
by the said Aryara Sanna Mallappa on 07.12.1991 and he
was in possession of the property. This contention of the
plaintiff being put in possession would have to be taken
into consideration along with the earlier round of litigation
commencing from the filing of O.S.No.260/1991.
12. As far as back in the year 1991 itself, the defendants had
filed a suit against the plaintiff claiming interference with
their possession by the plaintiff. The said suit came to be
decreed in favour of the defendants and an order of
injunction granted in favour of the defendants against the
plaintiff restraining the plaintiff from interfering with the
possession of the defendants. An appeal having been
filed by the plaintiff in R.A.No.42/1997 came to be
dismissed, the second appeal filed in R.S.A.No.931/2001
also came to be dismissed on 29.01.2001.
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13. While so dismissing the second appeal, this Court
observed that if at all the plaintiff had a right over the
property, he could file necessary suit for declaration of
title and restoration of possession.
14. However, the plaintiff has chosen to file a suit for
declaration of title and restoration of possession, claiming
that the plaintiff had been dispossessed of the property in
the year 2001. As far back as on 03.04.1991 in
O.S.No.260/1991, the Trial Court had confirmed the
possession of defendants and held that the plaintiff was
not in possession. These aspects have been considered
by the First Appellate Court, due to which before the Trial
Court, the plaintiff did not lead any evidence.
15. The contention of the learned counsel for the plaintiff now
that the Advocate did not inform him of the adjournments
and the proceedings before the Trial Court, cannot be
believed since on enquiry, he submits that the plaintiff
has not taken any action against his advocate.
16. It is very easy for the plaintiff or the appellant before this
Court to make allegations against a counsel, who is not
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present before this Court. If at all the plaintiff had taken
any action against his counsel for negligence or otherwise
or disciplinary proceedings before the Bar Council, it
would have been available for that counsel to defend
himself against such allegations. No such proceedings
having been initiated it cannot now be contended that the
lawyer was negligent or otherwise.
17. Be that as it may, even on perusal of the judgment of the
First Appellate Court as also the order sheet of the Trial
Court, it indicates that the matter has been adjourned on
as many as 18 times for the purpose of evidence of the
plaintiff, which was not led. The other reason given by
the plaintiff is that his daughter was not well and she was
residing at Rathnagiri. The First Appellate Court has also
dealt with the said matter, observing that she started
residing in Rathanagiri in the year 2011, much
subsequent to the dismissal of the suit on 11.08.2009
and has disbelieved the statement made by the plaintiff.
18. Thus, both grounds which have been urged by the
appellant are statements of facts, which have been
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considered by the First Appellate Court, and there is no
substantial question of law, which would arise to be
considered in the present matter.
19. Insofar as the sale deed is concerned, the First Appellate
Court has taken into consideration the Ex.R1, the
handwriting report filed in C.C.No.260/1991 and has held
that the signature of Aryara Sanna Mallappa has been
fabricated. If that be so, the very sale deed dated
07.12.1991 relied upon by the plaintiff to try and
establish his title is negated by the said elements. Thus,
even on merits, the plaintiff not being able to establish
his title over the property, the possession having already
been vested with the defendants in the year 1991, there
being no substantial question of law that would arise for
consideration, the above appeal is dismissed at the
admission stage.
Sd/-
JUDGE
GJM
CT: BHK
