Karnataka High Court
Sri. G Chandrashekar vs Sri. Siddaraju on 31 May, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.116/2018 (PAR)
BETWEEN:
1. SRI. G. CHANDRASHEKAR
S/O LATE GANGASIDDAIAH,
AGED ABOUT 35 YEARS
R/O KALLAHALLI MAJURE,
HALASINAMARADAPALYA VILLAGE,
KESARAMADU POST-572140
URDIGERE HOBLI,
TUMAKURU TALUK
TUMAKURU DISTRICT. ... APPELLANT
(BY SRI V.B.SIDDARAMAIAH, ADVOCATE)
AND:
1. SRI. SIDDARAJU
S/O LATE KARESIDDAIAH
AGED ABOUT 53 YEARS
R/O KALLAHALLI VILLAGE-572140
URDIGERE HOBLI,
TUMAKURU TALUK
TUMAKURU DISTRICT. ... RESPONDENT
(BY SRI T.GOVINDARAJA, ADVOCATE)
THIS R.S.A. IS FILED UNDER ORDER XLII RULE 1 R/W
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 10.10.2017 PASSED IN R.A.NO.38/2014 ON THE FILE OF
THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM TUMAKURU
2
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 27.01.2014 PASSED IN O.S.NO.289/2007
ON THE FILE OF THE III ADDL. CIVIL JUDGE AND JMFC-1V
TUMAKURU.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.05.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This second appeal is filed against the reversal of
judgment passed by the First Appellate Court in R.A.No.38/2014
granting the relief of permanent injunction reversing the
judgment and decree passed by the Trial Court in
O.S.No.289/2007.
2. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for the
convenience of the Court.
3. The factual matrix of the case of the plaintiff while
seeking the relief of permanent injunction in the plaint is that the
suit schedule property is the land bearing Sy.No.13/1 measuring
1 acre 37 guntas out of 14 acres 38 guntas situated at Kallahalli
Village, Urdigere Hobli, Tumakuru Taluk bounded on East-
property of Prakashaiah, S/o. Siddabasavaiah, West-property of
Hallappa, North-property of Chowdaiah, Palanethraiah and
South-Road and Village limits. It is contended that the father of
the plaintiff namely Gangasiddaiah has purchased the suit
schedule property from the said Yelavaiah for valuable
consideration under a registered sale deed dated 27.01.1970.
All the revenue records were made out in the name of the father
of the plaintiff and during his life time, he was in possession and
enjoyment of the suit schedule property along with his family
members. After his death, the plaintiff has succeeded the suit
schedule property by inheritance and continued possession and
enjoyment of the suit schedule property. He is cultivating the
suit schedule property and raising crops and also paying revenue
to the Government. But, after the death of his father, he has
not taken any steps for change of revenue entries in his favour
for long time and the revenue entries are still continued in the
name of the father of the plaintiff and he has filed an petition for
change of revenue entries and the same is pending
consideration. It is contended that the defendant is no way
concerned to the suit schedule property or to Yelavaiah or to the
family of the plaintiff. The defendant made an attempt to put up
structure in the suit schedule property and hence, suit is filed for
the relief of permanent injunction.
4. In pursuance of the suit summons, the defendant
appeared and filed the written statement. In the written
statement, it is contended that the averments made in the
plaintiff are false and his defence is that as per Nowkari
Barabardar, originally the land in Sy.No.13/3 of Kallahalli Village,
Urdigere Hobli, Tumakuru Taluk measuring 14 acres 33 guntas
including 5 guntas of Karab land are Talavarike Inam Land. The
Government has granted the said land to Huchcha @
Huchchaiah, Karesidda @ Ammattura, Badapalli, Marisidda and
Chikkasidda. The land measuring 3 acres 27 guntas was granted
in the name of Huchcha @ Huchchaiah and he was in possession
of the same. The boundary to the said property is East-land of
Ranukaradhya, West-land of Revaiah, S/o. Papaiah and
Anthuraiah, North-field of Chowdappa and South-field of
Doddaramaiah. After his death, his son Hallappa was in
possession of the same. Hallappa had a wife by name
Marikenchamma. Since Hallappa and Marikenchamma had no
issues, they adopted the defendant as their adopted son. They
have given the lands to an extent of 1.39¼ guntas to the
defendant under Vyavastapatra dated 11.05.1977. The
remaining land of 2.22¾ was in the possession of Hallappa. Out
of the said extent of land, Hallappa executed an agreement of
sale to Revannasiddaiah, S/o.Karesidda @ Ammattura on
04.06.1998 for an extent of 1.04¾ guntas. The remaining extent
of 0.23 guntas was bequeathed to the defendant by executing
the Will dated 21.06.1999. Hallappa died on 27.09.2004.
Thereby, the defendant and Revannasiddaiah are in possession
of the entire extent of 3 acres 27 guntas respectively and
therefore, Helavaiah had no right on the suit schedule property.
As per M.R.No.10/91-92 dated 15.11.1991, no Hissa was
entered in the name of Helavaiah in respect of the land in
Sy.No.13/1 of Kallahalli Village. Neither the plaintiff, his father
nor Helavaiah were in possession and enjoyment of the suit
schedule property as owners thereof. Hence, prayed the Court
to dismiss the suit.
5. The Trial Court, based on the pleadings of the
parties, framed the following issues:
1. ªÁ¢AiÀÄÄ vÁ£ÀÄ zÁªÁ zÁR°¹zÀ ¢£ÀzÀAzÀÄ zÁªÁ
µÉqÀÆå¯ï ¸ÀéwÛ£À ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°èzÉÝãÉA§ÄzÀ£ÀÄß
¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉà ?
2. ªÁ¢AiÀÄÄ zÁªÁ µÉqÀÆå¯ï ¸ÀéwÛ£À°è ¥ÀæwªÁ¢AiÀÄ
ºÀ¸ÀÛPÉëÃ¥ÀªÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉà ?
3. ªÁ¢AiÀÄÄ zÁªÉAiÀÄ°è PÉýgÀĪÀ ¥ÀjºÁgÀUÀ¼À£ÀÄß
ºÉÆAzÀ®ºÀðjgÀĪÀgÉà ?
4. DYÉ Õ CxÀªÁ rQæ K£ÀÄ ?
6. The plaintiff to prove his case, examined himself as
P.W.1 and examined two witnesses as P.Ws.2 and 3 and got
marked the documents as Exs.P1 to P11. On the other hand,
the defendant examined himself as D.W.1 and got marked the
documents as Exs.D1 to D7.
7. The Trial Court having considered both oral and
documentary evidence placed on record, answered all the issues
as 'affirmative', in coming to the conclusion that the plaintiff has
been in possession of the suit schedule property and defendant
made an attempt to interfere with the possession of the plaintiff
and granted the relief of permanent injunction, in coming to the
conclusion that the defendant, who is claiming right in respect of
the suit schedule property is not the property of the defendant
and his property is different.
8. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed before the First Appellate Court in
R.A.No.38/2014. The First Appellate Court, on re-appreciation of
both oral and documentary evidence placed on record and also
the grounds urged in the appeal memo, formulated the following
points:
1. Whether the plaintiff proved that he is in lawful
possession and enjoyment of the suit schedule
property as on the date of filing of the suit?
2. Whether there is interference by the defendant
as alleged?
3. Whether the appeal is fit to be allowed?
4. What Order?
9. The First Appellate Court on re-appreciation of both
oral and documentary evidence placed on record, comes to an
other conclusion that the plaintiff has not proved that he is in
lawful possession and enjoyment of the suit schedule property as
on the date of filing of the suit and there was no interference by
the defendant and allowed the appeal by setting aside the
judgment and decree of the Trial Court answering point Nos.1
and 2 as 'negative and point No.3 as 'affirmative'. Hence, the
present second appeal is filed before this Court.
10. The main contention of the learned counsel for the
appellant/plaintiff before this Court is that the First Appellate
Court committed an error in not considering the sale deed which
is marked as Ex.P8 and also the other documents which have
been produced as Exhibit 'P' series. It is also contended that the
First Appellate Court failed to take note of evidence of P.Ws.2
and 3, who have categorically deposed with regard to the
possession of the plaintiff. It is further contended that when the
document of sale deed is of the year 1970, there is a
presumption under Section 90 of the Indian Evidence Act and
the Trial Court has drawn the presumption, but the First
Appellate Court committed an error in reversing the findings of
the Trial Court, inspite of the fact that D.W.1 has admitted in his
cross-examination that Inam land belongs to aforesaid five
persons Barabardars and further admissions that he has
questioned the grant that the grant is not correct. But, he has
stated that he did not know that whether he has filed an appeal
or not and the First Appellate Court wrongly re-appreciated the
evidence available on record.
11. This Court having considered the grounds urged in
the second appeal, at the time of admitting the appeal, framed
the following substantial questions of law:
1. Whether the First Appellate Court is justified in
ignoring the finding recorded by the Trial Court
on issue No.2 in O.S.No.298/2007?
2. Whether the First Appellate Court was justified
in interfering with the judgment and decree
passed by the Trial Court as per Order 41, Rule
31 of CPC?
3. Whether the First Appellate Court was justified
in drawing the inference under Section 90 of
Indian Evidence Act with regard to Ex.P8?
12. Learned counsel for the appellant/plaintiff in his
argument would vehemently contend that suit is filed only for
the extent of land measuring 1 acre 37 guntas based on the sale
deed executed by one Yelavaiah in favour of the father of the
plaintiff on 27.01.1970 in terms of Ex.P8. It is not in dispute
that the property in Sy.No.13/1 measuring 14 acres 28 guntas is
Talavarike Inam Land, excluding 5 guntas of karab land.
Learned counsel also would vehemently contend that defendant
claims right in respect of the suit schedule property based on
Vyavastapatra dated 11.05.1977 i.e., Ex.D1 and contend that
Exs.P8 and Ex.D1 are the important documents to resolve the
issues involved between the parties. The property was sold in
the year 1970 and Hallappa cannot make any Vyavastapatra in
the year 1977. Learned counsel also brought to notice of this
Court the genealogical tree which is marked as Ex.P11 and
propositus of the family of the plaintiff is one Chikkarevaiah, who
had married Smt. Venkatanarasamma. The said Chikkarevaiah
had seven children. The father of the plaintiff is the sixth child
of said Chikkarevaiah and Smt. Venkatanarasamma. Learned
counsel would vehemently contend that sale deed of the year
1970 is a more than 30 year old document and the Court has to
draw presumption and the Trial Court has drawn presumption
under Section 90 of the Indian Evidence Act.
13. The counsel would further contend that the sale deed
of the year 1970 has not been challenged and brought to notice
of this Court that in the documents at Exs.P1 to P7, the name of
grand-father of the plaintiff and Gangasiddaiah i.e., the name of
father of the plaintiff is found and so also in Exs.P9 and Ex.P10.
Learned counsel would vehemently contend that even the
document which has been filed by the defendant as Ex.D7 helps
the plaintiff, wherein also the name of the vendor of the plaintiff
is found and the Trial Court has given the reasoning that plaintiff
has been in possession of the suit schedule property, even
though revenue entries are not changed in his name and his
father name and grand-father name is found in the revenue
entries. However, the First Appellate Court committed an error in
reversing the findings of the Trial Court, in coming to the
conclusion that suit schedule property comes within the area of 3
acres 27 guntas which is claimed by the defendant. Learned
counsel appearing for the appellant also brought to notice of this
Court that he has filed an application under Order 41 Rule 27 of
CPC seeking permission of this Court to produce additional
documents i.e., the grant, order passed by the Tahsildar and
RTC Extracts and those documents are subsequent documents
which are necessary for deciding the issue involved between the
parties.
14. Per contra, learned counsel for the
respondent/defendant would vehemently contend that
presumption cannot be drawn and the boundaries stated are not
correct. Learned counsel would vehemently contend that the
name of Yelavaiah is not found in Ex.D6 which discloses grant of
land in favour of five Barabardars, but the plaintiff was not
cultivating the land at any point of time and the defendant also
deny the very title. Learned counsel also brought to notice of
this Court the contention taken in the written statement denying
the title as well as the possession. Learned counsel would
vehemently contend that presumption has to be drawn in
respect of Ex.D1 which is also a registered document of the year
1977. The counsel would further contend that when
Vyavastapatra has been executed in terms of Ex.D1 and Will has
also been executed in favour of the defendant, he derives title in
respect of the suit schedule property. Learned counsel also
would vehemently contend that relationship is not in dispute and
the First Appellate Court has rightly re-appreciated the material
available on record and it does not require any interference.
15. Having heard the learned counsel for the appellant
and learned counsel for the respondent and in keeping the
grounds urged in the second appeal as well as the substantial
questions of law, this Court has to appreciate the material
available on record, since there is a divergent finding. The Trial
Court has granted the relief of permanent injunction and the
same is reversed by the First Appellate Court. This Court, while
admitting the appeal framed the first substantial question of law
whether the First Appellate Court is justified in ignoring the
finding recorded by the Trial Court on issue No.2 in
O.S.No.298/2007. The issue No.2 framed by the Trial Court is
whether the defendant has interfered with the possession of the
plaintiff and second substantial question of law framed by this
Court is whether the First Appellate Court was justified in
interfering with the judgment and decree passed by the Trial
Court as per Order 41, Rule 31 of CPC. These two substantial
questions of law are interconnected to each reversing the
findings of the Trial Court and also with regard to the
interference is concerned. Hence, they are taken up together for
re-appreciation of material available on record.
16. It is the case of the plaintiff that his father had
purchased the property in terms of Ex.P8 i.e., the sale deed
dated 27.01.1970 to an extent of 1 acre 37 guntas. Admittedly,
the sale has not been questioned by the defendant, but he says
that he came to know about the same only after filing of the
suit. On the other hand, it is the contention of the defendant
that the land which is in dispute is Talavarike Inam Land
measuring 14 acres 33 guntas, excluding 5 guntas of karab land
and both the parties not dispute the said fact. The total extent
of land i.e., 14 acres 33 guntas is Talavarike Inam Land. It is
the contention of the plaintiff that the vendor of the plaintiff is
also the branch of Barabardars and claim of the defendant is also
that one of the Barabardars Huchcha @ Huchchaiah has got 3
acres 27 guntas in terms of the grant. He had a son by name
Hallappa, who had no issues and defendant is the foster son and
hence, Vyavastapatra was made in his favour in terms of Ex.D7
and he also claims that Will has been executed in respect of
remaining extent of 23 guntas of land which was remaining with
said Hallappa and the said Hallappa passed away. The
defendant claims that 1 acre 37 guntas comes within the area of
3 acres 27 gunts which is in his possession and also the other
persons, who are having the sale agreement from the said
Hallappa.
17. Now the crux of the issue is with regard to whether
the plaintiff was in possession as on the date of filing of the suit,
since suit is filed only for the relief of permanent injunction and
not claimed any title. Though dispute is made with regard to the
title is concerned, the scope of the second appeal is very limited
with regard to the possession is concerned, since suit is filed for
permanent injunction. It has to be noted that defendant claims
right based on Vyavastapatra in terms of Ex.D7 and plaintiff
claims lawful possession in terms of sale deed dated 27.01.1970
i.e., as per Ex.P8. No doubt, the document of Ex.P8 was
executed in the year 1970, it is also to be noted that suit was
filed in the year 2007. It is the contention of the plaintiff that
two days prior to filing of the suit, defendant made an attempt to
interfere with the possession of the plaintiff and attempted to
put up construction and the same has been resisted. It has to
be noted that plaintiff claims possession based on the sale deed
i.e., Ex.P8. On the other hand, the defendant claims possession
contending that the suit schedule property comes within the area
of 3 acres 27 guntas.
18. This Court would like to rely upon the document of
Ex.P1 i.e., RTC of the year 2006-2007, wherein it is clearly
mentioned that total extent of land is 14 acres 28 guntas. On
perusal of Column No.12, it is seen that there are many
cultivators and the name of the father of the plaintiff is found as
Gangasiddaiah and area which is in his possession has not been
stated in Ex.P1 and even in respect of other cultivators also,
specific area of extent of land which they are in possession has
not been shown and it is a joint cultivation. But, the First
Appellate Court committed an error in reversing the findings of
the Trial Court stating that specific area is not disclosed. It has
to be noted that in Column No.9, it is specifically mentioned that
the same is a Talavarike Inam Land. As per Column No.10 of
said RTC, the possession is with Helavaiah, who is the vendor of
the plaintiff and the name of the vendor of the plaintiff is found
in Column No.10 and in Column No.12, along with the other
cultivators, the name of the father of the plaintiff is also found.
19. It is also important to note that plaintiff has
produced the document of tax paid receipts in terms of Exs.P2 to
P7 and these are the tax paid receipts which show that father of
the plaintiff has paid revenue to the Government, even prior to
the filing of the suit. The document at Ex.P8 also discloses
availing of loan and when the vendor could not pay the loan
amount, he had executed the sale deed. It is also important to
note that the document at Ex.P9 i.e., RTC Extract for the year
1985-1986 also discloses the name of the vendor of the plaintiff
and also the name of the vendor and in Column No.10 also, the
name of the vendor of the plaintiff is shown. The document at
Ex.P10 is also RTC Extract for the year 2008-2009 and the name
of the father of the plaintiff is found in cultivators column and in
Column No.10, name of the vendor of the father of the plaintiff is
also shown.
20. No doubt, learned counsel for the appellant/plaintiff
brought to notice of this Court the genealogical tree which is
marked as Ex.P11 and the same shows that the plaintiff is son of
Gangasiddaiah and no dispute with regard to the fact that
plaintiff is son of Gangasiddaiah. It has to be noted that on the
other hand, the defendant has produced the document of Ex.D1
i.e., Vyavastapatra and also produced Will registered in his
favour, tax paid receipts i.e., Ex.D3, genealogical tree i.e., Ex.D4
and death certificate of Hallappa i.e., Ex.D5 and Undertaking of
defendant i.e., Ex.D6 and RTC Extract i.e., Ex.D7. It is the claim
of the plaintiff that plaintiff is in possession and enjoyment of the
property and the very document produced by the defendant i.e.,
Ex.D7 is of the year 2012-2013 and even subsequent to the
filing of the suit also, name of the father of the plaintiff is found
and this document is helpful to the plaintiff as contended by the
learned counsel for the plaintiff and no documents are produced
before the Court by the defendant to show that defendant is in
possession of the suit schedule property. Though the defendant
filed one RTC Extract which is marked as Ex.D7, the said RTC
Extract supports the case of the plaintiff and not supports his
case, since his name is not found in the said RTC.
21. I have already pointed out that suit is filed for the
relief of permanent injunction and not for the relief of
declaration. The Court has to take note of possession as on the
date of filing of the suit and has to decide the same based on
preponderance of probabilities. The documents produced before
the Court by the plaintiff clearly discloses that the possession is
with the father of the plaintiff and now he is no more and it is an
admitted fact that subsequently, revenue entries are not
changed in the name of the plaintiff. It is also the specific case
of the plaintiff that after the death of his father, he did not enter
his name, but he has filed an application and the same is
pending for consideration. The Trial Court comes to the
conclusion that the plaintiff is in possession having considered
the documents of Exhibit 'P' series, including the sale deed as
well as the RTC Extracts. No doubt, Mutation Register and
Khatha Certificates are not produced, but the name of the father
of the plaintiff is found in the RTC Extract of the year 1985-1986
which is marked as Ex.P9 and the other documents also disclose
the name of vendor of the father of the plaintiff and also the
name of father of the plaintiff.
22. It is also important to note that the First Appellate
Court while reversing the judgment of the Trial Court comes to
an other conclusion that suit schedule property comes within the
area of 3 acres 27 guntas of land. During the course of cross-
examination of D.W.1, when suggestion was made that suit
schedule property not comes within the area of 3 acres 27
guntas, he categorically admits that suit schedule property not
comes within the area of Sy.No.13/1. He also admits that except
his land to the extent 2 acres 22 guntas, he cannot tell who are
all in possession of the property and admits that the plaintiff is in
possession of the property in respect of Karesidda @ Ammattura
and he is aware of the same. Once, he has given such an
admission, now, the defendant cannot contend that plaintiff is
claiming relief of permanent injunction in respect of 1 acre 37
guntas in the area of 3 acres 27 guntas of land which is in his
occupation and the First Appellate Court committed an error in
coming to the conclusion that the plaintiff is claiming possession
in respect of 1 acre 37 guntas of land out of 3 acres 27 guntas of
land which has been claimed by the defendant and the said
finding is erroneous. The First Appellate Court also committed an
error in coming to the conclusion that the Trial Court has
committed an error, but the Trial Court has given a definite
finding that both the property of the plaintiff and the defendant
are different and the admission on the part of D.W.1 has not
been discussed by the First Appellate Court and erroneously
comes to the conclusion that plaintiff is claiming possession in 3
acres 27 guntas of land. Hence, the very approach of the First
Appellate Court is erroneous in reversing the findings of the Trial
Court. Therefore, I answer both these substantial questions of
law accordingly.
23. The third substantial question of law is with regard to
drawing of presumption is concerned. Admittedly, the plaintiff is
relying upon the document of Ex.P8 which is of the year 1970
and the same is a 30 year old document and the Court can draw
presumption with regard to the said document. Hence, the Trial
Court has rightly drawn the presumption. Therefore, this Court
has framed a substantial question of law with regard to the
presumption is concerned. It is the contention of the learned
counsel for the respondent that presumption cannot be drawn,
but learned counsel appearing for the respondent claims
presumption in respect of the document at Ex.D1 which is of the
year 1977. The suit is filed in 2007 and the document at Ex.P8 is
older than the document at Ex.D1 and hence, the Trial Court has
not committed any error in drawing the presumption. Therefore,
the third substantial question of law is answered accordingly.
24. Now the other question before this Court is with
regard to consideration of application filed under Order 41 Rule
27 of CPC seeking production of additional documents. The
plaintiff has produced some documents as additional documents
i.e., grant of very same land in favour of the plaintiff, order
passed by the Tahsildar dated 25.02.2022 during the pendency
of this second appeal and RTC Extracts. It is to be noted that
suit is filed only for the relief of bare injunction and not for title
and these documents are subsequent documents. Learned
counsel appearing for the respondent/defendant has also filed
objections to the said application. I have already pointed out
that now these documents are not necessary for consideration,
since suit is filed only for bare injunction. Admittedly, the order
passed by the Tahsildar i.e., additional document which is sought
to be produced is subject to the result of M.A. (VOA) 20/2000,
M.A. (VOA) 21/2000 and M.A. (VOA) 24/2000 and the same
have also not attained its finality and the same are subject to
the appeal and these documents are not relevant for
consideration of germane issues whether the plaintiff was in
possession of the suit schedule property as on the date of filing
of the suit. Hence, I do not find any ground to entertain the
application filed under Order 41 Rule 27 of CPC.
25. In view of the discussion made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
(ii) The judgment and decree of the First Appellate
Court passed in R.A.No.38/2014 dated
10.10.2017 on the file of I Additional Senior
Civil Judge and CJM, Tumakuru is set aside and
consequently, the judgment and decree of the
Trial Court passed in O.S.No.289/2007 dated
27.01.2014 on the file of III Additional Civil
Judge and JMFC-IV at Tumakuru is restored.
(iii) The application I.A.No.1/2024 filed under
Order 41 Rule 27 of CPC for production of
additional documents is rejected.
Sd/-
JUDGE
ST
