Karnataka High Court
Smt. Kumbar Sushmitha W/O. Kumbar ... vs 1A) Dodda Ningappa S/O Late Barmappa on 28 June, 2024
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RSA No. 101113 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 101113 OF 2022 (DEC/INJ-)
BETWEEN:
SMT. KUMBAR SUSHMITHA
W/O KUMBAR RAMALINGAPPA
AGE: 25 YEARS, OCC: AGRICULTURIST,
R/O G.KODIHALLI VILLAGE, H.B.HALLI TALUK,
BALLARI DIST.
...APPELLANT
(BY SRI ARAVIND D. KULKARNI, ADVOCATE)
AND:
SRI K.BHARMAPPA S/O LATE NAGAPPA
SINCE DEAD LRS
1. DODDA NINGAPPA S/O LATE BARMAPPA
AGE: ABOUT MAJOR,
R/O. G.KODIHALLI VILLAGE,
Digitally signed H.B.HALLI TALUK, BALLARI DIST.
by SAROJA
HANGARAKI
2. SANNA NINGAPPA S/O LATE BARMAPPA
Location: HIGH AGE. ABOUT MAJOR,
COURT OF R/O. G.KYADIGIHALLI VILLAGE,
KARNATAKA
H B HALLI TALUKA, BALLARI DIST.
DHARWAD
BENCH
DHARWAD 3. GUDADARAJA S/O LATE BARMAPPA
AGE: ABOUT MAJOR,
R/O. MYLARA LINGESHWAR NILAYA,
H B HALLI TALUK, BALLARI DIST.
4. KOTRAMMA W/O YAGGAJJA
D/O LATE BARMAPPA, AGE: MAJOR,
R/O. G.KODIHALLI VILLAGE,
H.B. HALLI TALUK, BALLARI DIST.
5. UMADEVI W/O MADDANEPPA
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RSA No. 101113 of 2022
D/O LATE BARMAPPA, AGE. MAJOR,
R/O. METRI VILLAGE, H.B. HALLI TALUK,
BALLARI DIST.
MAHADEVAKKA D/O LATE BARMAPPA
SINCE DEAD BY LRS
6. NAGARAJA S/O LATE MAHADEVAKKA
C/O DODDA NINGAPPA, AGE. MAJOR,
R/O. MYLARA LINGESHWARA NILAYA,
NEAR POST, OFFICE H.B. HALLI TALUK,
BALLARI DIST.
7. SHIVARAJA S/O LATE MAHADEVAKKA
C/O DODDA NINGAPPA, AGE. MAJOR,
R/O. MYLARA LINGESHWARA NILAYA,
NEAR POST OFFICE, H.B.HALLI TALUK,
BALLARI DIST.
8. RUKMINI D/O LATE MAHADEVAKKA
C/O DODDA NINGAPPA
AGE: MAJOR, R/O MYLARA LINGESHWARA
NILAYA, NEAR POST OFFICE,
H.B.HALLI TALUK, BALLARI DIST.
9. PUSHPA D/O LATE MAHADEVAKKA
C/O DODDA NINGAPPA, AGE. MAJOR,
R/O. MYLARA LINGESHWARA NILAYA,
NEAR POST OFFICE, H.B. HALLI TALUK,
BALLARI DIST.
...RESPONDENTS
(BY SRI SHRIHARSH A. NEELOPANT, ADV. C/R1 AND 3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
THAT THE JUDGMENT AND DECREE IN O.S.NO.36/2011 DATED
19.12.2014 PASSED BY CIVIL JUDGE AND JMFC, H.B.HALLI BE SET
ASIDE AND THE JUDGMENT AND DECREE IN R.A.NO.49/2016 DATED
19.02.2020 PASSED BY SENIOR CIVIL JUDGE AND JMFC, H.B.HALLI
BE SET ASIDE AND SUIT O.S.36/2011 BE DISMISSED AND THAT
ALTERNATIVELY IT IS PRAYED THAT THE HONOURABLE COURT BE
PLEASED TO PASS AN ORDER OF REMAND, AND MATTER BE
REMANDED TO THE TRIAL AOCUT OR TO F.A.C. TO PROPERLY FRAME
ISSUES ON RIGHTS OF APPELLANT AND HOLD THE TRIAL AND
DECIDE THE CASE AFTER TRIAL. IN THE ALTERNATIVE MATTER BE
REMANDED ANY OTHER APPROPRIATE GROUND DEEMED FIT.
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RSA No. 101113 of 2022
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed by the defendant
under Section 100 of Code of Civil and Procedure, 19081
challenging the judgment and decree dated 19.02.2020
passed in R.A No.49/2016 by the Senior Civil Judge and
JMFC, Hagaribommanahalli2 and the judgment and decree
dated 19.12.2014 passed in O.S No.36/2011 by the Court
of the Civil Judge and JMFC3, H.B.Halli, whereunder, the
suit for declaration and injunction has been decreed by the
Trial Court which has been upheld by the First Appellate
Court.
2. The parties will be referred to as per their
ranking before the Trial Court, for the sake of
convenience.
3. It is the case of the plaintiff that he is the
owner in possession and an enjoyment of the suit property
Hereinafter referred to as 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
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bearing survey No.150/A measuring 3 acres 13 cents and
also another property bearing survey No.153 measuring
62 cents, having purchased the same vide registered Sale
Deed dated 30.06.1969 for a total sale consideration of
₹1,500/-. That subsequent to the date of purchase, the
plaintiff has been in possession and enjoyment of the suit
property without any let or hindrance from anyone. That
the defendant's mother-in-law by name Gangavva is the
owner of the land measuring 17 cents in survey No.150/A,
which is adjacent to the suit property land. That the
defendant who has no manner of right, title or interest in
the suit property, created a false partition deed and on the
strength of the same mutated her name in respect of the
entire land in survey No.150/A behind the back of the
plaintiff.
4. It is further case of the plaintiff that the
defendant has right only over 17 cents land belonging to
her mother-in-law and not over the entire survey number.
That taking advantage of illegal entries in the mutation,
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the defendant is attempting to dig a borewell in the suit
property belonging to the plaintiff. Hence, the plaintiff filed
a suit for declaration of title and for permanent injunction
against the defendant.
5. The defendant entered appearance through her
counsel and filed written statement wherein the plaint
averments have been denied. It is contended that the suit
Survey No.150 which totally measures an extent of 7.26
acres originally belongs to one Sri.Kumbara Mahadevappa
and Sri.Ramalingappa. That the said Ramalingappa had no
male issues and he hence took Bharamappa, the husband
of his last daughter Gangavva as illatum son-in-law and
consequently the said Bharamappa managed the
properties of Sri.Ramalingappa.
6. It is further the contention of the defendant
that her mother-in-law Late Smt.Ganagavva was in
peaceful possession and enjoyment of the suit property till
her death and after her death the name of the defendant
was mutated in the revenue records and as such the
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defendant is in peaceful possession and enjoyment of the
suit property. That taking undue advantage of the similar
names, the plaintiff is trying to dispossess the defendant
from the said land. It is further contended that the
mother-in-law of the defendant Late Smt.Gangavva
received the suit property and other properties from her
mother late Basavanyamma through registered Gift Deed
dated 24.12.1974. That since the suit property originally
belongs to her mother-in-law, the plaintiff is not in
possession of the same. Hence, the defendant sought for
dismissal of the suit.
7. The Trial Court, based on the pleadings of the
parties, framed the following issues:
"1. Whether plaintiff proves that he is the owner in
possession of the suit schedule property?
2. Whether the plaintiff proves the alleged
interference?
3. Whether the plaintiff is entitled to the relief of
permanent injunction?
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4. Whether the plaintiff is entitled to the relief
sought?
5. What order or decree?"
8. The Special Power of Attorney Holder of plaintiff
has been examined as PW.1 and three witnesses as PW.2
to PW.4. Ex.P.1 to Ex.P.13 have been marked in evidence.
The Special Power of Attorney Holder of defendant has
been examined himself as DW.1 and two witnesses as
DW.2 and DW.3. Ex.D.1 to Ex.D.7 have been marked in
evidence.
9. The Trial Court by its judgment and decree
dated 19.12.2014 decreed the suit and passed the
following order:
" Suit of the Plaintiff is decreed with cost.
It is hereby declared that the plaintiff is the
absolute owner in possession of the suit schedule
property.
Defendant and all persons claiming through her
are hereby restrained by way of permanent
injunction from digging bore well in the suit land,
from interfering in any manner with the plaintiffs
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peaceful possession and enjoyment of the suit
schedule property and from dispossessing him from
the same.
Draw decree accordingly."
10. Being aggrieved, the defendant preferred R.A
No.49/2016. The plaintiff entered appearance in the said
appeal and contested the same. During the pendency of
the appeal, the original plaintiff died and his legal
representatives have been brought on record and they
contested the appeal filed by the defendant.
11. The First Appellate Court framed the following
points for consideration:
"i. Whether the appellant/defendant has proved her
right, title and interest as well as possession over
the suit schedule property?
ii. Whether the impugned judgment and decree is
capricious, perverse and calls the interference by
this Court?
iii. Whether the appellant/defendant made out
grounds to permit her to produce the additional
evidence before this court, as sought for?
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iv. What order?"
12. During pendency of the first appeal, the
appellant filed an application under Order XLI Rule 27 of
the CPC. The First Appellate Court by its judgment dated
19.02.2020, dismissed the application filed under Order
XLI Rule 27 of CPC as well as the appeal filed by the
defendant and confirmed the judgment and decree passed
by the Trial Court. Being aggrieved, the present second
appeal is filed.
13. Learned counsel for the appellant vehemently
contends that both the Courts erred in holding that the
plaintiff is the owner of the suit property despite non-
production of the original Title Deed. That despite the
defendant producing the registered Gift Deed (Ex.D.4)
showing her title, both the Courts erred in holding that the
plaintiff is the owner of the suit property. Hence, he seeks
for allowing of the above appeal and granting of the reliefs
sought for.
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14. Per contra, learned counsel for respondents
seeks for dismissal of the above appeal and contends that
both the Courts have concurrently held that the plaintiff is
the owner of the suit property and in possession. Hence, it
is contended that the concurrent findings recorded by the
Trial Court and the First Appellate Court are not liable to
be interfered with by this Court in the preset second
appeal.
15. The submissions of both the learned counsels
have been considered and material on record has been
perused.
16. The Trial Court while considering Issue No.1 has
recorded the following findings:
i. The Special Power of Attorney Holder and son of
the plaintiff has been examined as PW.1 and to
prove that the plaintiff is the owner and in
possession of the suit property, the plaintiff has
mainly relied upon the registered Sale Deed
dated 30.06.1969 (Ex.P.1), wherein the suit
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property measuring 3 acres 13 cents was sold
to the plaintiff by Ramalingappa and Ningappa
for a valuable consideration of ₹1,500/-;
ii. PW.2 to PW.4 are the witnesses who have
supported the case of the plaintiff and have
further stated that the plaintiff has been in
peaceful possession of the suit property ever
since the date of purchase and defendant tried
to dig a borewell in the suit property belonging
to the plaintiff and threatened to dispossess the
plaintiff from the same. Though the said
witnesses have been cross-examined, nothing
contrary has been elicited so as to dent the case
of the plaintiff;
iii. The Special Power of Attorney Holder of the
defendant has been examined as DW.1 and has
marked a registered Gift Deed dated
24.12.1974 (Ex.D.4). However, the defendant
has not placed any evidence either oral or
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documentary to show that the Gift Deed dated
24.12.1974 has been executed by
Smt.Basavanyamma in favour of her daughter
Smt.Gangavva who is the mother-in-law of the
defendant;
iv. The defendant has not placed any evidence,
either oral or documentary on record to show
that the Smt.Gangavva is her mother-in-law
and late Basavanyamma is mother of
Gangavva;
v. The defendant relied on the RTC wherein her
name is entered in respect of the entire 3 acres
13 cents. However, nothing is placed on record
on the basis of which her name was entered in
the RTC;
vi. The plaintiff has produced MR No.112/08-09
wherein 3 acres 13 cents in the suit survey
number is mutated in the name of the
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defendant pursuant to the partition dated
03.02.2009;
vii. Certain doubt arises with regard to genuineness
of Ex.P.6 mutation entry and also the entry of
the defendant's name in the RTC pertaining to
the suit survey number;
viii. It is beyond imagination as to why defendant's
name entered in the RTC in respect of 3 acres
13 cents ignoring Ex.P.1 registered Sale Deed
executed by Ramalingappa and Ningappa in
favour of the plaintiff in respect of 3 acres 13
cents;
ix. The alienation made in favour of the plaintiff
seems to be not in dispute as both DW.1 and
DW.2 clearly admitted during their cross-
examination that Ramalingappa and Ningappa
executed the registered sale deed in favour of
the plaintiff in respect of the suit property;
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17. Taking note of the evidence on record Trial
Court has recorded a finding that the plaintiff has
sufficiently proved that he is in possession of the suit
property. The Trial Court while considering issue No.2 has
answered the same in the affirmative by holding that the
defendant has interfered with the possession of the
plaintiff over the suit property.
18. The First Appellate Court while considering the
points framed for consideration, has recorded the following
findings:
i. The contention of the plaintiff is that the suit
property originally to Ramalingappa and
Ningappa and jointly they have sold it in favour
of the plaintiff under the registered Sale Deed
dated 30.06.1969. The contention of the
defendant that the entire 7.26 acres in suit
survey number belongs to one Kumbara
Mahadevappa and Ramalingappa. That as
Ramalingappa has no male issues, he has taken
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his daughter's husband as illatum son-in-law
and has looked after the family properties but
the defendant has not specifically whispered in
respect of which extent in the suit survey
number Ramalingappa was the owner;
ii. DW.1 admits that the suit property originally
belongs to Ramalingappa and Ningappa, the
sons of the Sanna Thammappa and in 1969
they have sold the said property in favour of the
plaintiff;
iii. The plaintiff has purchased the suit property
from its earlier owner under the registered sale
deed wherein right, title and interest has been
validly transferred in favour of the plaintiff;
iv. The documentary evidence placed by the
plaintiff clearly discloses the right, title and
interest as well as the possession over the suit
property;
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v. DW.1 has deposed in his affidavit that during
the lifetime of Ramalingappa, he executed a Will
in favour of his minor daughter Gangavva in the
year 1970 represented by her natural mother
Basavanyavva. That later on the said
Basavanyavva executed registered gift deed in
favour of her daughter Gangavva about 40
years ago. If at all, as deposed by DW.2, if
Ramalingappa has executed a Will in favour of
his minor daughter, no right will remain with his
wife Basavanyavva to execute the gift deed;
vi. Further, no evidence is placed on record by the
defendant to show that the Will is executed by
Ramalingappa;
vii. No iota of evidence by the defendant to show
on what capacity or what right Basavanyavva
had to execute the gift deed in respect of 2
acres of property;
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viii. On meticulous verification of the entire evidence
placed on by the defendant, there is absolutely
no passing of right, title or interest in the suit
property by the defendant properly;
ix. The plaintiff had purchased the suit property
under the registered sale deed and nothing will
remain with Ramalingappa and his brother
Ningappa to succeed in property as the legal
heirs. But all of a sudden, as per the partition
deed dated 03.02.2009, the Khata of the suit
property has been effected in the name of the
defendant. Since from the time of alienation,
the suit property remains with the family of the
plaintiff, the defendant never became the
absolute owner by virtue of the partition.
19. The appellant before the First Appellate Court
had sought to produce additional documents. The First
Appellate Court has noticed in its order that the
documents that the appellant wanted to produce were RTC
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extract, MR extract as well as unregistered partition deed
dated 03.02.2009 and unregistered partition agreement
dated 19.06.2008. However, upon appreciation of the oral
and documentary evidence on record, the First Appellate
Court noticed that although the appellant/defendant
contended that the Basavanyavva executed the gift deed
(Ex.D.4) to an extent of 3 acres in Sy.No.150, on going
through the said document, it is held that the gift deed
(Ex.D.4) has been executed in respect of 2 acres in
Sy.No.150. Hence, it is noticed that when no 3 acres of
land was gifted by Basavanyavva through gift deed, the
question of allotment of 3 acres 13 cents in favour of the
defendant in the said survey number does not arise. The
First Appellate Court upon going through the documents
sought to be produced has recorded a finding that even if
the additional documents were taken into consideration
they will not throw any light on the fact in issue between
the parties and hence it was held that the additional
documents are not required to adjudicate the matter.
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20. It is clear and forthcoming from the
aforementioned that both the Courts have recorded
concurrent findings that the plaintiff is the owner of the
suit property having acquired the same vide registered
Sale Deed dated 30.06.1969 (Ex.P.1). Further, as noticed
above, both the Courts have adequately appreciated and
reappreciated the defence put forth by the defendant that
he has acquired valid right, title and interest in the suit
property and have negatived the said contention of the
defendant and held that the plaintiff has demonstrated
that he is the absolute owner in possession and enjoyment
of the suit property.
21. The appellant has failed in demonstrating that
the said concurrent findings of fact recorded by both the
Courts are in any manner contrary to any specific oral or
documentary evidence on record. Hence, the appellant
has failed in demonstrating that any substantial question
of law arises for consideration in the above appeal.
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22. In view of the aforementioned, the above
appeal is dismissed as being devoid of merit at the stage
of admission itself.
Sd/-
JUDGE
Pmp upto para 15
Sh, CT:GSM
