Karnataka High Court
Sri. N. Chalapathi vs Sri. Jayaramareddy on 5 September, 2024
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RSA NO.461 OF 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.461 OF 2024 (DEC/INJ)
BETWEEN:
1. SRI. N. CHALAPATHI
S/O LATE NARAYANAPPA
AGED ABOUT 63 YEARS.
2. SRI. RAMAKRISHNA REDDY
S/O JAYARAMA REDDY
AGED ABOUT 64 YEARS.
3. SRI. SHIVAPPA
S/O GANTAPPA
AGED ABOUT 61 YEARS.
4. VENKATESHAPPA
SINCE DEAD BY LR'S.
4(a). SMT. MUNIYAMMA
W/O LATE VENKATESHAPPA
Digitally signed by
SHARMA ANAND AGED ABOUT 60 YEARS.
CHAYA
Location: High
Court of Karnataka 4(b). SRI. CHANDRAPPA
S/O LATE VENKATESHAPPA
AGED ABOUT 40 YEARS.
5. SRI. R.K. SUBRAMANI
S/O KONAPPA,
AGED ABOUT 50 YEARS.
6. SRI. RAMAKRISHNAPPA
S/O LATE GOVINDAPPA
AGED ABOUT 66 YEARS.
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RSA NO.461 OF 2024
ALL ARE RESIDING AT:
RAYASANDRA VILLAGE,
VENGASANDRA POST,
KYASAMBALLI HOBLI,
K.G.F. TALUK - 563116.
...APPELLANTS
(BY SRI. PRADEEP H.S., ADVOCATE)
AND:
SRI. JAYARAMAREDDY
S/O LATE OBALA REDDY,
AGED ABOUT 56 YEARS,
R/AT RAYASANDRA VILLAGE,
KYASAMBALLI HOBLI,
KGF TALUK - 563116.
...RESPONDENT
(BY SRI. VIJAYA KUMAR K., ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE
JUDGEMENT AND DECREE DATED 14TH DECEMBER, 2023
PASSED IN REGULAR APPEAL NO.113 OF 2021 ON THE FILE OF
III ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR
(SITTING AT K.G.F), ALLOWING THE APPEAL AND SETTING
ASIDE THE PARAGRAPH 16 OF THE JUDGEMENT AND DECREE
DATED 26TH MAY, 2021 PASSED IN ORIGINAL SUIT NO.394 OF
2013 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC.,
KGF.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
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RSA NO.461 OF 2024
ORAL JUDGMENT
This Regular Second Appeal is filed by the plaintiffs,
challenging the judgment and decree dated 14th December,
2023 passed in Regular Appeal No.113 of 2021 on the file of
the III Additional District and Sessions Judge, Kolar (sitting at
K.G.F) (for short, hereinafter referred to as 'First Appellate
Court'), allowing the appeal and setting aside the paragraph
No.16 of judgment and decree dated 26th May, 2021 passed in
Original Suit No.394 of 2013 on the file of the II Additional
Civil Judge and JMFC., K.G.F. (for short, hereinafter referred to
a 'Trial Court').
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and ranking
before the Trial Court.
3. The Original Suit No.394 of 2013 is filed by the
plaintiffs in a representative character, seeking relief of
declaration of title, recovery of possession and mandatory
injunction in respect of the suit schedule property. It is averred
in the plaint that the suit schedule property bearing Survey
No.85/4 of Rayasandra Village, Kyasamballi Hobli, Bangarpet
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Taluk is a Kharab land and villagers have installed idols long
ago and have constructed the Temple in the land in question.
Therefore, it is the case of the plaintiffs that the land bearing
Survey No.85/4 of Rayasandra Village is a Government land
and as such, the defendant has no right, title and interest over
the suit schedule property. Hence, the plaintiffs have presented
the above suit.
4. On service of notice, defendant entered appearance
and filed detailed written statement and took up a contention
that the suit schedule property has been granted in favour of
the father of the defendant-Obala Reddy under Section 9 of
Mysore Religious and Charitable Inam Abolition Act. It is also
stated that, originally the land bearing Survey No.9/2
measuring 20 guntas and Survey No.10/4 measuring 18 guntas
situate adjacent to each other and the above two survey
numbers are renumbered as new Survey No.85/4 and as such,
it is the case of the defendant that the suit is not maintainable
as the defendant is in cultivation of the land bearing Survey
No.85/4. Accordingly, he sought for dismissal of suit.
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5. On the basis of pleadings on record, the Trial Court
framed issues for its consideration.
6. In order to prove their case, plaintiffs have examined
eight witnesses as PW1 to PW8 and got marked 15 documents
as Exhibits P1 to P15. On the other hand, defendant examined
himself as DW1 and got marked 17 documents as Exhibits D1
to D17.
7. The Trial Court, after considering the material on
record, by judgment and decree dated 26th May, 2021,
dismissed the suit, however at Paragraph 16, the Trial Court
observed that the Government may recover the suit schedule
property from the defendant in accordance with law, if the
same is needed by the Government. Being aggrieved by the
Paragraph 16 of the judgment and decree passed by the Trial
Court, the defendant has preferred Regular Appeal No.113 of
2021 before the First Appellate Court and the appeal was
resisted by the plaintiffs. The First Appellate Court, after
considering the material on record, by its judgment and decree
dated 14th December, 2023, allowed the appeal and set-aside
the observation made by the Trial Court at Paragraph 16 in
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judgment and decree dated 26th May, 2021. Being aggrieved
by the same, plaintiffs preferred this Regular Second Appeal.
8. Heard Sri. Pradeep H.S., learned counsel appearing
for appellants and Sri. Vijaya Kumar K., learned counsel
appearing for the respondent.
9. Sri. Pradeep H.S., learned counsel appearing for
appellants submitted that the suit schedule property belongs to
Government and as such, the defendant has no right over the
same. He also argued that the Trial Court has not properly
appreciated Exhibits D6 and D7 produced by the defendant to
claim ownership in respect of suit schedule property. He also
submitted that the defendant has committed fraud in grabbing
the suit schedule property and therefore, the interference be
called for in this appeal. In this regard, he refers the judgment
of Hon'ble Apex court in the case of RAM KUMAR vs. STATE
OF UTTAR PRADESH AND OTHERS reported in 2022 LiveLaw
(SC) 806 and in the case of SURESH LATARUJI RAMTEKE vs.
SAU. SUMANBAI PANDURANG PETKAR AND OTHERS
reported in 2023 LiveLaw (SC) 821 and submitted that both the
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Courts below have not properly considered the material on
record.
10. Per contra, Sri. Vijaya Kumar K., learned counsel
appearing for the respondent invited the attention of the Court
to the finding recorded by the Trial Court and submitted that
the Trial Court has dismissed the suit, however, at Paragraph
16 of the judgment and decree, the Trial Court committed an
error in making observation that the Government may recover
the suit schedule property from the defendant in accordance
with law. In this regard, the defendant has preferred appeal
before the First Appellate Court under Section 96 of the Code of
Civil Procedure and same has been allowed. He emphasised
that the plaintiffs without filing first appeal under Section 96 of
the Code of Civil Procedure, challenged the dismissal of suit and
therefore,, plaintiffs cannot be permitted to urge grounds on
the merits of the case in second appeal under Section 100 of
Code of Civil Procedure. Accordingly, he places reliance on
judgment of Hon'ble Apex Court in the case of SURESH
LATARUJI RAMTEKE (supra) and argued that, even if
observation has been made by the court below on finding the
fact, unless there is culpable erroneous finding, same cannot be
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interfered with under Section 100 of the Code of Civil Procedure
and as such, sought for dismissal of the appeal.
11. In the light of the submission made by learned
counsel appearing for the parties and on careful examination of
finding recorded by the Trial Court, the same would indicate
that the plaintiffs claim to be villagers of Rayasandra Village,
Kyasamballi Hobli, K.G.F. Taluk, have filed Original Suit No.394
of 2013 in a representative character, seeking relief of
declaration and recovery of possession in respect of land
bearing Survey No.85/4 of Rayasandra Village, Kyasamballi
Hobli, K.G.F Taluk. It is the case of the plaintiffs that the suit
schedule property is Kharab land belonging to Government and
a Temple has been constructed in the schedule property. On
the other hand, the defendant has produced the documents to
establish that the land in question has been granted in favour
of his father-Obala Reddy as per order passed by the Special
Commissioner for Inam Abolition in case No.691/1962-63 dated
19th June, 1962. The said aspect is reflected in Exhibit D6. The
defendant has also produced Exhibit D5 wherein, originally land
bearing Survey No.9/2 and Survey No.10 were granted by
Special Deputy Commissioner for Inam Abolition, Kolar to Obala
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Reddy with a direction to pay premium to the Government and
pursuant to the same, the lands have been granted to the
father of the defendant, which is evident from Exhibit D16.
12. It is also forthcoming from the Exhibit D7-Report
made by Tahsildar that the defendant is in possession of the
said property after the death of his father and further, the
Exhibit D6-Letter dated 06.04.2013 would establish that the
grant is made in favour of the father of the Defendant. In that
view of the matter, the Trial Court, rightly dismissed the suit
filed by the plaintiffs however, has committed an error in
making observation at Paragraph 16 of the judgment and
decree dated 26th May, 2021. The said finding recorded at
paragraph 16 was challenged by the defendant in Regular
Appeal No.113 of 2021. Undisputably, though the plaintiffs
have suffered decree, have not preferred appeal under Section
96 of Civil Procedure Code nor filed Cross Appeal in Regular
Appeal No.113 of 2021. Therefore, the finding of fact made by
the Trial Court in Original Suit No.394 of 2013 has reached
finality. In that view of the matter, in the absence of the
decree made by the First Appellate Court, reversing the
judgment and decree in Original Suit No.394 of 2013,
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plaintiff/appellants have no locus standi to argue the case on
merits.
13. On perusal of the finding recorded by the First
Appellate Court at Paragraphs 38 and 39 would indicate that
the First Appellate Court had appropriately re-appreciated the
material on record and rightly set-aside the Paragraph 16 of
the judgment and decree dated 26th May, 2021 passed in
Original Suit No.394 of 2013 in respect of recovering the suit
schedule property from the defendant and therefore, the
judgment referred to by learned counsel appearing for
appellants are not applicable to the facts of the case on hand.
It is also well established principle in law that the weakness of
the defendant cannot be considered in a suit for declaration
(See AIR 1998 SC 2352). In a suit for declaration, it is the
duty of the plaintiff to establish his right over the property in
question and though the plaintiffs in the present case have filed
suit in a representative character, it is their duty to establish
that the suit schedule property has not been granted in favour
of father of the defendant. Hence, I do not find any perversity
or illegality in the judgment and decree passed by the Trial
Court. As the appellants were failed to make out a case for
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framing of substantial question of law as required under Section
100 of the Code of Civil Procedure, this appeal deserves to be
dismissed at the stage of admission itself.
14. As the appellant/plaintiffs have not preferred First
Appeal under Section 96 of the Code of Civil Procedure as well
as taking into account the finding made by the First Appellate
Court in respect of Paragraph 16 of the judgment and decree
dated 26th May, 2021 in Original Suit No.394 of 2013, the
application IA.1 of 2024 filed by the appellants under Order XLI
Rule 27 read with Section 151 of the Code of Civil Procedure
cannot be accepted. In the result, I pass the following:
ORDER
Regular Second Appeal is dismissed.
Consequently, application IA.1 of 2024 filed by
the appellants under Order XLI Rule 27 of the Code
of Civil Procedure read with Section 151 of the Code
of Civil Procedure is dismissed.
SD/-
(E.S.INDIRESH)
JUDGE
ARK
