Karnataka High Court
Mallamma vs Jayamma on 3 February, 2025
Author: K.Natarajan
Bench: K.Natarajan
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RSA No. 844 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR SECOND APPEAL NO. 844 OF 2015 (INJ)
BETWEEN:
MALLAMMA
W/O LATE SANNA NANAJAPPA,
AGED ABOUT 81 YEARS,
MEGALA KERI EXTENSION,
CHANNARAYA PATNA TALUK,
HASSAN DISTRICT - 573 006.
...APPELLANT
(BY SRI. K R LINGARAJU, ADVOCATE)
AND:
1. JAYAMMA
W/O LATE C. LINGAPPA,
AGED ABOUT 71 YEARS,
MEGALAKERI EXTENSION,
CHANNARAYA PATNA TALUK,
HASSAN DISTRICT - 573 116.
Digitally signed by
VEDAVATHI A K 2. BHAGYAMMA
Location: High W/O RAJEGOWDA,
Court of
Karnataka D/O LATE LAKKAPPA,
AGED ABOUT 51 YEARS,
3. ARJUNA
S/O RAJEGOWDA,
AGED ABOUT 25 YEARS,
4. BHAVANI
D/O RAJEGOWDA,
AGED ABOUT 23 YEARS,
5. HEMARAJU
S/O LAKKAPPA,
AGED ABOUT 51 YEARS,
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RSA No. 844 of 2015
6. PANDU
S/O LAKKAPPA,
AGED ABOUT 46 YEARS,
7. SUKANYA
W/O SUNDRESHA,
AGED ABOUT 53 YEARS,
RESPONDENTS No. R1 TO R7,
ALL ARE RESIDING AT
MEGALAKERE EXTENSION,
CHANNARAYAPATNA TOWN,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT - 573 116.
8. RATHNAMMA
W/O SHIVANNA
AGED ABOUT 56 YEARS,
R/O SOLLEPURA VILLAGE & POST,
KIKKERI HOBLI, K.R.PET TALUK,
MANDYA DISTRICT - 572 006.
9. RANGAPPA
S/O LATE NANJAPPA,
AGED ABOUT 66 YEARS,
MEGALKERI EXTENSION,
CHANNARAYAPATNA TOWN,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT - 573 116.
...RESPONDENTS
(BY SRI. H. N. MANJUNATH PRASAD, ADVOCATE FOR R1, R2,
R4, R6 TO R8 ARE SERVED AND UNREPRESENTED;
VIDE ORDER DATED 24.08.2023 APPEAL AGAINST R5
AND R9 SHALL STANDS DISMISSED AND R3 ALSO
DISMISSED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 23.01.2015 PASSED IN
R.A.NO.229/2014 (OLD R.A.NO.9/2014) ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT,
CHANNARAYAPATNA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 11.12.2013
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RSA No. 844 of 2015
PASSED IN O.S NO.348/2014 ON THE FILE OF THE ADDL.
CIVIL JUDGE AND JMFC., CHANNARAYAPATNA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
This appeal is filed by the appellant-defendant No.1 under
Section 100 of CPC., for setting aside the judgment and decree
passed by the Addl. Civil Judge an JMFC, Channarayapattana,
in OS.No.348/2004 and the same was upheld by the First
Appellate Court in R.A.No.229/2014 (new) (Old R.A.No.9/2014)
dated 23.01.2015, for having granted perpetual injunction as
against the appellant as well as respondents.
2. Heard the arguments of learned counsel for the
appellant as well as learned counsel for the respondent No.1
and other respondents are served, unrepresented.
3. The appellant is the defendant No.1 and the
respondent No.1 is the plaintiff and respondent Nos.2 to 7 are
the defendant Nos.2(b) to (h) before the trial Court. The rank
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of the parties is retained as before the trial court, for the sake
of convenience.
4. The case of the plaintiff before the Trial Court is that,
one Nanjappa had four children namely 1) Sanna Nanjappa 2)
Lingappa 3) Lakkappa 4) Rangappa. The suit schedule property
measuring east to west 43 ft., north to south 14 ft., situated at
Megalakeri layout, comes under Channarayapattana taluk,
Hassan District, fallen to the share of Nanjappa. And after
death of the Nanjappa, four children were divided the property
into four pieces of sites measuring 10 3/4 feet X 14 feet each.
The plaintiff husband Lingappa got first share which is on the
corner side i.e., the south east site, the remaining children
were got other three portions, the same measurement but the
defendants were trying to interfere claiming the portion allotted
to the plaintiff husband. Therefore, the plaintiff filed the suit for
perpetual injunction against the defendants.
5. The defendant No.1 appeared through their counsel
and filed written statement and the defendant No.3 also filed
written statement contending that the plaintiff claimed the 1st
portion on the corner side, south east was fallen to share of
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husband of respondent No.1 -Sanna Nanjappa who is the elder
son of Nanjappa, and the other portions given to other children
of Nanjappa but the appellant by taking advantage of dismissal
of the suit filed by the defendant No.3 -Rangappa and
Mallamma in the year 1988, which was dismissed for non
prosecution. Thereafter, plaintiff got mutated their name in the
revenue records and they claimed right over the property.
Therefore, prayed for dismissal of the appeal. The defendant
No.3 also taken similar contention.
6. Based on the above pleadings, the Trial court framed
the following issues;
1) Whether the plaintiff proves that she is the lawful
owner in possession and enjoyment over the suit
schedule property as on the date of filing of the suit?
2) Whether the plaintiff further proves that the
defendants are interfering with her peaceful
possession and enjoyment over the suit schedule
property?
3) Whether the 3rd defendant proves that the plaintiff
by colluding with the Municipal officials got changed
the khatha of the suit schedule property into her
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name and on that ground she has started to put up
the construction in the suit schedule property?
4) Whether the plaintiff is entitled for the reliefs
claimed in the suit?
5) What order or decree?
7. On behalf of the plaintiff, the plaintiff herself examined
as P.W.1 and also examined one more witness as P.W.2 and
got marked 18 documents as Ex.P.1 to 18. On behalf of the
1st and 2nd defendant no evidence was led. However, the
defendant No.3 -Rangappa examined as DW.1 and got marked
10 documents as Ex.D.1 to 10. After hearing the arguments the
Trial Court answered the issue Nos.1, 2 and 4 in the affirmative
and issue No.3 in the negative. And finally granted perpetual
injunction against the defendants. By challenging the same, the
appellant herein alone filed the appeal and other two
defendants not filed any appeal. And after hearing the
arguments the first appellate court dismissed the appeal and
confirmed the judgment and decree passed by the Trial Court.
Accordingly, the appellant is before this court.
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8. The learned counsel for the appellant has contended
that the property belongs one Nanjappa is not in dispute.
Among the four children the husband of the appellant was the
first son -Sanna Nanjappa. Third respondent was the fourth son
-Rangappa, the other two children are Lingappa and Lakkappa.
Though sites were divided into four parts, fallen first share to
the appellant's husband who is the elder son, on the south
eastern side. The remaining children are getting share by
ascending order. But the Trial Court without appreciating the
evidence on record, even without any production of the
registered partition deed among them, decreed the suit which
is not correct. It is also contended by the appellant counsel that
the Trial Court passed the judgment only based upon a suit
filed by the Rangappa -third defendant which was dismissed for
non prosecution, based upon the judgment the plaintiff by
taking the advantage got mutated their name in the revenue
records and created the documents without appreciating
evidence and without appointing Commissioner, the Trial Court
come to the conclusion by granting the decree in favour of the
plaintiff, which is not correct and therefore prayed for setting
aside both the judgments.
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9. Per contra learned counsel for the respondent No.1
who is the plaintiff before the Trial Court has supported the
judgments of both the courts.
10. Based upon the pleadings and on perusal of the
records which reveals though the appellant herein taken the
various contention, the first portion i.e., south eastern side was
fallen to the share of her husband Sanna Nanjappa, except
filing the written statement she was not entered into the
witness box, led any evidence or oral or any documentary
evidence. Whereas the defendant No.3-Rangappa who was filed
affidavit, led evidence before the Trial Court contending that he
has already filed a suit before the trial court in OS.No.492/88,
which was dismissed about 10 years back for non prosecution
and thereafter the plaintiff was created the documents by
taking advantage of the dismissal of the suit for non
prosecution but in the cross examination he has admitted that
all the portions were equally divided into four portions and the
defendant No.3 who was examined as DW.1 not disputed he
has filed one more suit as per Ex.P.16 in OS.No.327/2004
which was dismissed by the Trial Court on merits, where the
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Rangappa and Mallamma are the plaintiffs and Jayamma was
the defendant No.1, the Lakkappa was the second defendant.
The suit was filed by both the defendant No.1 as well as 3rd
defendant, which was dismissed on merits by the court.
11. Considering the same the Trial Court based upon the
evidence on record especially the revenue records, tax
assessment register extract, tax paid receipt, license obtained
by the plaintiff for construction of the shops and especially
Ex.P.16 and 17 the judgment and decree passed by the Prl.
Civil Judge, Channarayapattana in OS.No.327/2004 dated
20.11.2004, decreed the suit of the plaintiff in
OS.No.348/2004. On perusal of the judgment the very first
defendant i.e., appellant herein and defendant No.3 were
jointly filed a suit against the plaintiff -Jayamma and Lakkappa
-the second defendant, contest the matter and suit was
dismissed. The Ex.P.16 and 17 i.e., the judgment and decree
suffered by the appellant and respondent No.3 herein in respect
of same schedule property by suppressing the same the
respondent /defendant contested the matter and even filed
appeal before the first appellate court. Where the first appellate
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court dismissed the appeal. The learned counsel contended that
there is no document especially the partition deed produced by
them. There is no registered partition. Of course there is no
dispute in respect of sharing the property into four portions by
the children of Nanjappa. The Rangappa has filed the suit and
suffered the decree and it was dismissed for non prosecution
and thereafter along with the appellant he has filed one more
suit as per Ex.P.16 and suffered the decree. And there is no
appeal to attain the finality. Such being the case, based upon
the suit for injunction the plaintiff required to show lawful
possession regarding allotment of share is not in dispute.
Husband of the plaintiff is the son of the Nanjappa is not in
dispute. The appellant and defendant No.3 already filed suit
and suffered decree. Such being the case suit for injunction,
the plaintiff required to show only lawful possession which is
already shown by the plaintiff in the Trial Court. It is not suit
for declaration or dispute in the title in order to file title deed in
the suit for injunction, such being the case I am of the view
there is no substantial questions of law involved in this appeal.
The appellant and defendant No.3 already suffered decree by
the Trial Court which is attained finality. Such being the case
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once again it cannot claim the same property in suit filed by the
plaintiff for bare injunction. Hence, the appeal is devoid of
merits.
Accordingly, the appeal is dismissed.
The judgment and decree passed by both the courts
below is hereby confirmed.
Sd/-
(K.NATARAJAN)
JUDGE
SRK
CT:SK
