Karnataka High Court
Sri.Gangavenkataiah vs Smt.Mangalamma on 9 September, 2024
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NC: 2024:KHC:36586
RSA NO.510 OF 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.510 OF 2024 (DEC/INJ)
BETWEEN:
1. SRI. GANGAVENKATAIAH
S/O LATE GIRIYAPPA
AGED ABOUT 90 YEARS.
2. SMT. LAKSHMIDEVAMMA
W/O LATE GOVINDARAJU
AGED ABOUT 71 YEARS.
3. SRI. NAGARAJU
S/O LATE GIRIYAPPA
AGED ABOUT 66 YEARS.
4. SRI. SHIVANNA
S/O LATE GIRIYAPPA,
AGED ABOUT 60 YEARS.
ALL ARE RESIDING AT:
Digitally signed by MUTHASANDRA VILLAGE,
SHARMA ANAND
CHAYA KASABA HOBLI, TUMAKURU TALUK,
Location: High Court
of Karnataka TUMAKURU DISTRICT - 572 104.
...APPELLANTS
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)
AND:
1. SMT. MANGALAMMA
W/O BALARAJAU
AGED ABOUT 34 YEARS,
R/AT NAVILAHALLI VILLAGE,
SWADENAHALLI POST
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RSA NO.510 OF 2024
KASABA HOBLI, TUMAKURU TALUK,
TUMAKURU DISTRICT - 572 104.
2. SRI. N.D. RAJANNA
S/O LATE DODDAIAH
AGED ABOUT 51 YEARS.
3. SRI. NARASIMHAMURTHY
S/O GANGANARASAIAH
AGED ABOUT 46 YEARS.
4. SRI. KRISHNAIAH
S/O LATE GIRIYAPPA
AGED ABOUT 46 YEARS.
5. SRI. KUMARA
S/O LATE GIRIYAPPA
AGED ABOUT 44 YEARS.
RESPONDNETS NO.2 TO 5 ARE
R/AT MUTHASANDRA VILLAGE,
KASABA HOBLI, TUMAKURU TALUK,
TUMAKURU DISTRICT - 572 104.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER ORDER
XLII RULE 1 READ WITH SECTION 100 OF CODE OF CIVIL
PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED
20TH FEBRUARY, 2024 PASSED IN REGULAR APPEAL No.53 OF
2020 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND CJM., TUMAKURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 05TH
FEBRUARY, 2018 PASSED IN ORIGINAL SUIT No.295 OF 2012
ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC,
TUMAKURU.
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RSA NO.510 OF 2024
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is filed by the plaintiffs 1 to 4, challenging
the judgment and decree dated 20th February, 2024 passed in
Regular Appeal No.53 of 2020 on the file of the Principal Senior
Civil Judge and CJM., Tumakuru (for short, hereinafter referred
to as 'First Appellate Court'), dismissing the appeal and
confirming the judgment and decree dated 05th February, 2018
passed in Original Suit No.295 of 2012 on the file of the II
Additional Civil Judge and JMFC., Tumakuru (for short,
hereinafter referred to as 'Trial Court'), wherein the suit filed by
the plaintiffs came to be dismissed.
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. It is the case of plaintiffs that, one Giriyappa, is the
absolute owner in possession of the suit schedule 'A' property
having acquired the same as per registered Sale Deed (Exhibit
P18). It is further stated in the plaint that the Phodi has been
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RSA NO.510 OF 2024
effected in respect of land bearing Survey No.59/4P3
measuring 3 acres situate at Muthasandra Village, Kasaba
Hobli, Tumakuru and same was re-numbered as Survey
No.59/6 measuring 11 guntas and Survey No.59/7 measuring
2.29 acres. It is also stated in the plaint that the Surveyor had
measured the land pertaining to the late Giriyapa and fixed
Haddubasthu, however, at the time of survey, the defendants
refused to sign the mahazar and therefore, the plaintiffs have
filed Original Suit No.295 of 2012 stating that the defendants
have no right in respect of suit schedule property.
4. On service of notice, defendants entered appearance
and filed detailed written statement, stating that the said
Giriyappa was working in the Police Department and in that
capacity, the plaintiffs are interfering with the defendants. It is
also contended that the defendants have not encroached the
land belonging to the plaintiffs and accordingly sought for
dismissal of the suit.
5. On the basis of pleadings on record, the Trial Court
framed issues for its consideration.
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6. In order to prove their case, plaintiffs have examined
three witnesses as PW1 to PW3 and got marked 20 documents
as Exhibits P1 to P20. On the other hand, defendants examined
two witnesses as DW1 and DW2 and got marked 11 documents
as Exhibits D1 to D11.
7. The Trial Court, after considering the material on
record, by judgment and decree dated 05th February, 2018,
dismissed the suit. Being aggrieved by the same, plaintiffs 1 to
4 have preferred Regular Appeal No.53 of 2020 before the First
Appellate Court and same was resisted by the defendants. The
First Appellate Court, after re-appreciating the material on
record, dismissed the appeal, consequently confirmed the
judgment and decree passed in Original Suit No.295 of 2012.
Being aggrieved by the same, plaintiffs 1 to 4 preferred this
Regular Second Appeal.
8. Heard Sri. V.B. Siddaramaiah, learned counsel
appearing for appellants.
9. Sri. V.B. Siddaramaiah, learned counsel appearing for
appellants contended that, both the Courts below have not
properly appreciated the Sale Deed dated 06th April, 1955 said
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to have been executed in favour of late Giriyappa. He further
contended that, both the Courts below ought to have
considered the fact that the Deputy Director of Land Records
has set-aside the Phodi made in respect of the land bearing
Survey Nos.59/4, 59/6 and 59/7 and that apart, the
encumbrance certificate shows that the said Giriyappa has
acquired the property as per registered Sale Deed dated 06th
April, 1955 in Survey No.59/4 to an extent of 4 acres 17 guntas
situate at Muthasandra Village, Kasaba Hobli, Tumakuru and as
such, the dispute is only in respect of the measurement of 'A'
and 'B' schedule property. Accordingly, he sought for
interference of this Court.
10. In the light of the submission made by learned
counsel appearing for appellants, it is not in dispute that the
plaintiffs have filed suit seeking relief of declaration with
consequential relief of permanent injunction. The plaintiffs
have produced Exhibit P18 to establish that, late Giriyappa had
acquired the suit schedule 'B' property, however, the said
document is in respect of Survey No.59/3 and not the land
bearing Survey No.59/4 of Muthasandra Village, Kasaba Hobli,
Tumakuru Taluk. Perusal of the finding recorded by the Trial
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Court, makes it clear that, Exhibit D1-Sale Deed dated 09th
January, 1955 is in respect of land bearing Survey No.59/3
situate towards Western side measuring to an extent of 1 acre
20 guntas and said Sale deed has been executed by late
Giriyappa (father of the plaintiffs 1 and 3 to 6) in favour of one
Kempanarasaiah. Therefore, I am of the view that the finding
recorded by the Trial Court is just and proper as the plaintiffs
have not produced relevant documents to establish that the
plaintiffs have to be declared as owners of the schedule 'B'
property. The First Appellate Court, after re-appreciating the
material on record particularly, the cross-examination of PW1,
had rightly re-appreciated the material on record and confirmed
the judgment and decree passed in Original Suit No.295 of
2012. It is well settled principle in law that, in order to
establish the right in a declaratory suit, it is the duty of plaintiff
to produce the relevant document/title deeds and same has
been considered by this Court in the case of HULLAPPA vs.
STATE OF KARNATAKA reported in ILR 2012 KAR 4958.
Therefore following the law declared by this Court in the
aforementioned case, appeal deserves to be dismissed at the
stage of admission itself, as the appellants have not made out a
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case for formulation of substantial question of law as required
under Section 100 of the Code of Civil Procedure. Accordingly,
Regular Second Appeal is dismissed.
11. However, taking into consideration the arguments
advanced by learned counsel appearing for the appellants, it is
open for the appellants to approach the Revenue Department
for fixing haddubasthu/boundary in respect of land belongs to
the plaintiffs.
SD/-
(E.S.INDIRESH)
JUDGE
ARK
