Karnataka High Court
Seenappa vs Shivappa on 21 October, 2024
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RSA No. 1485 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1485 OF 2021
BETWEEN:
1. SEENAPPA
DEAD BY HIS LEGAL REPRESENTATIVES
1(A) PAPAMMA
AGED 68 YEARS,
W/O LATE SEENAPPA
1(B) NARASIMHAPPA
S/O LATE SEENAPPA,
AGED ABOUT 48 YEARS
1(C) MANJULA
Digitally signed D/O LATE SEENAPPA
by R DEEPA AGED ABOUT 38 YEARS
Location:
HIGH COURT 1(D) SARASAMMA
OF AGED 62 YEARS,
KARNATAKA D/O LATE SEENAPPA
1(E) NARESH BABU
AGED 32 YEARS,
S/O LATE PRAKASH
GRAND SON OF LATE SEENAPPA
1(F) JYOTHI
AGED 28 YEARS,
D/O LATE PRAKASH
GRAND D/O LATE SEENAPPA
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RSA No. 1485 of 2021
1(G) KRISHNA
AGED 45 YEARS,
S/O LATE SEENAPPA,
1(H) NARAYANASWAMY AND BABU
S/O LATE SEENAPPA
AGED ABOUT 43 YEARS
ALL ARE R/AT CHOWDESHWARI OONI
RAILWAY STATION ROAD
NAKKUNDIPETE
CHINTAMANI CITY.
2. RAMACHANDRA
AGED ABOUT 60 YEARS
S/O PAPANNA
3. VENKATESHAPPA
AGED 56 YEARS,
S/O LATE PAPANNA
PETITIONERS No.2 & 3 ARE
R/AT AGRAHARA, BEHIND PATALAMMA TEMPLE,
CHINTAMANI CITY.
...APPELLANTS
(BY SRI. B R VISWANATH., ADVOCATE)
AND:
1. SHIVAPPA
DEAD BY HIS LEGAL REPRESENTATIVES
1(A) SAVITHRAMMA
AGED 53 YEARS,
W/O LATE SHIVAPPA
1(B) BHARATHI
D/O LATE SHIVAPPA
AGED ABOUT 32 YEARS
1(C) PADMA
AGED 38 YEARS, D/O LATE SHIVAPPA
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RSA No. 1485 of 2021
1(D) MURTHY
AGED 36 YEARS,
S/O LATE SHIVAPPA
1(E) SHOBHA
AGED 34 YEARS,
D/O LATE SHIVAPPA
2. MUNIRATHNAPPA
AGED 53 YEARS,
S/O LATE ANJAPPA
3. SUDARSHAN BABU
AGED 51 YEARS,
S/O LATE ANJAPPA
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 20.12.2019 PASSED IN
RA No.44/2012 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, CHINTAMANI DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 03.04.2012
PASSED IN OS No.21/2010 ON THE FILE OF PRINCIPAL CIVIL
JUDGE AND JMFC , CHINTAMANI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants
challenging the judgment and decree dated 20.12.2019
passed in R.A.No.44/2012 by the learned Senior Civil
Judge and JMFC, Chinthamani and the judgment and
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decree dated 03.04.2012 passed in O.S.No.21/2010 by
the learned Prl. Civil Judge and JMFC, Chintamani.
2. For convenience, parties are referred to as per
their ranking before the trial Court. The appellant
Nos.1(a) to 1(h) are the legal representatives of deceased
plaintiff No.1, appellant No.2 and 3 are the plaintiff Nos.2
and 3. Respondent Nos.1(a) to 1(e) are the legal
representatives of deceased defendant No.1; respondent
Nos.2 and 3 are defendant Nos.2 and 3. The plaintiffs filed
a suit for declaration of title and permanent injunction
against the defendants.
3. The brief facts leading rise to the filing of this
appeal are as follows:
It is the case of the plaintiffs that the plaintiffs are
the absolute owners in actual possession and enjoyment of
the property bearing Sy.No.99/1 measuring 34 guntas,
including two guntas of karab and Sy.No.100/1 measuring
13 guntas, including two guntas of karab, both situated at
Nekkundi Village, Kasaba Village, Chintamani Taluk. It is
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contended that one Nagappa, who was the father of
plaintiff No.1 and grandfather of plaintiff Nos.2 and 3,
purchased the suit schedule properties from its clear lawful
owner, Purohit Venkatarama Sastry, under a registered
sale deed dated 08.10.1936 for a valuable consideration.
After purchasing the same, Nagappa and his family
members were in joint possession and enjoyment of the
properties. They paid kandayam to the Government
regularly. The defendants do not have any right, title or
interest over the schedule properties, and surreptitiously
got the katha in respect of the suit schedule properties by
way of pavathi varasu by colluding with the revenue
authorities. The use of illegal entries in the RTC, the
defendants tried to interfere with the suit schedule
properties and dispossess them from the suit schedule
properties, but the defendants did not give any heed to
the request made by the plaintiffs. Hence, a cause of
action arose for the plaintiffs to file a suit for declaration
and permanent injunction.
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4. The defendants filed a written statement
claiming that Nagappa and his sons sold the suit schedule
properties in favour of Gowramma, and the said
Gowramma mortgaged the same in favour of Obaiah. In
turn, the daughter of Gowramma, namely Parvathamma,
mortgaged the property from Obaiah through a deed of
redemption dated 18.01.1996. The defendants claimed
that Nagappa also executed a registered rectification deed
on 10.09.1971. It is contended that Parvathamma had a
right, title or interest and lawful possession over the
scheduled properties, and all the revenue records were in
the name of Parvathamma. After her demise, the revenue
entries mutated in the defendants' name and continued
the possession and enjoyment of the suit schedule
properties they inherited from their mother,
Parvathamma. It is contended that against the revenue
entries made in favour of the defendants, the plaintiffs
preferred an appeal before the Assistant Commissioner,
Chikkaballapura, in R.A.No.16/2007-08. The said appeal
was dismissed on 25.09.1999. The said Nagappa died on
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10.09.1971. In view of the execution of the registered sale
deed, the plaintiffs and others have no right, title or
interest over the suit schedule properties. Hence, prays to
dismiss the suit.
5. The Trial Court, based of the above said
pleadings, framed the issues.
6. The plaintiffs, to prove their case, plaintiff No.1
was examined as PW.1, two witnesses were examined as
PW.2, and PW.3, and 13 documents were marked as
Exs.P1 to P13. On the other hand, defendant No.2 was
examined as DW.1 and marked 17 documents as Exs.D1
to D17. The trial Court, after recording the evidence,
hearing on both sides and after assessment of oral and
documentary evidence, dismissed the suit of the plaintiffs
with a cost of Rs.3,000/- vide judgment dated 03.04.2012.
The plaintiffs, aggrieved by the judgment and decree
passed in O.S.No.21/2010, preferred an appeal in
R.A.No.44/2012 on the file of learned Senior Civil Judge
and JMFC, Chinthamani.
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7. The First Appellate Court, after hearing the
parties, has framed the points for consideration.
8. The First Appellate Court, on re-assessment of
oral and documentary evidence, dismissed the appeal with
a cost of Rs.5,000/- and confirmed the judgment and
decree passed by the trial Court. The plaintiffs, aggrieved
by the impugned judgments, have filed this regular second
appeal.
9. Heard the learned counsel for the plaintiffs.
10. Learned counsel for the plaintiffs submits that
the defendants have no right, title or interest over the suit
schedule properties. He submits that the defendants are
not in possession of the suit schedule properties. He
submits that neither of the courts below has not properly
appreciated the material placed on record. He submits that
the impugned judgments passed by the courts below are
arbitrary and erroneous. Hence, on these grounds, he
prays to allow the appeal.
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11. Perused the records and considered the
submissions of learned counsel for the plaintiffs.
12. The plaintiffs to prove their case, plaintiff No.1
was examined as PW.1. He has reiterated the plaint
averments in the examination-in-chief and marked the
documents, i.e., Ex.P1 is the genealogical tree, Exs.P2 to 7
are the RTC extracts, Exs.P8 to P10 are the mutation
extract, Ex.P11 is the record of right, Ex.P12 is the index
of land, Ex.P13 is the certified copy of the sale deed dated
08.10.1936, which discloses that Nagappa had purchased
the property under Ex.P13. During cross-examination,
PW.1 admitted his signature on Ex.P13 (Ex.D1, i.e.,
original registered sale deed), wherein PW.1, having
signed on Ex.D1, cannot take a 'U' turn and denied the
execution of Ex.D1. Further, the plaintiffs have not sought
the relief of the cancellation of Ex.D1. Further, the
plaintiffs have suppressed the execution of Ex.D1. The
plaintiffs have not pleaded either in the plaint or in the
examination-in-chief of PW.1. The plaintiffs have sought
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the relief of declaration of title and injunction. The
plaintiffs have not come to the Court with clean hands.
The plaintiffs have suppressed the signature of plaintiff
No.1 on Ex.D1.
13. In rebuttal, defendant No.2 was examined as
DW.1. He reiterated the written statement averments in
the examination in chief and got marked documents, i.e.,
Ex.D1 is the original registered sale deed, Ex.D2 is the
registered mortgage deed dated 30.04.1950, which
discloses that Nagappa mortgaged the suit schedule
properties in favour of Obaiah, Ex.D3 is the registered
redemption deed dated 18.01.1996, which discloses that
the suit schedule properties were redeemed, Ex.D4 is the
rectification deed dated 10.09.1971, Ex.D5 is the order of
Assistant commissioner, which discloses that the plaintiffs
have challenged the entries made in the names of the
defendants and the said appeal was dismissed by the
Assistant Commissioner, Exs.D6 to D14 are the RTC
extracts and mutation extracts, Ex.D15 is the patta receipt
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book, Ex.D16 is the mutation register extract, Ex.D17 is
the RTC extract.
14. Admittedly, the defendants have purchased the
properties under Ex.D1, and there was a mistake in the
survey number in Ex.D1, and the rectification deed was
executed as Ex.D4. The plaintiffs have not challenged the
rectification deed executed as per Ex.D4. As Gowramma
had mortgaged the suit schedule properties in favour of
Obaiah, the trial Court, considering the entire evidence on
record, was justified in dismissing the suit, holding that
the plaintiffs had not approached the Court with clean
hands and suppressed the material facts. The First
Appellate Court, on reassessment of the oral and
documentary evidence, was justified in recording its
finding that the plaintiffs are not the absolute owners of
the suit schedule properties. Hence, the question of
interference by the defendants would not arise, and the
appeal would be dismissed, confirming the judgment and
decree passed by the trial court. Both the courts below
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were justified in passing the impugned judgments. I do
not find any error in the impugned judgments or any
substantial question of law that arises for consideration in
this appeal.
15. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is dismissed.
Sd/-
(ASHOK S.KINAGI)
JUDGE
ssb
