Karnataka High Court
Ramappa @ Parashuramappa vs Smt. Lakshmidevi , on 13 November, 2013
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
RSA. No.6135/2011 (DECLN.)
BETWEEN:
Ramappa @ Parashuramappa,
S/o Balappa Dalawai @ Setsanadi,
Age: 57 years, Occ: Agril.
R/o Budagumpa village,
Tq: Yalburga,
Dist: Koppal-583 231. ... APPELLANT
(By Sri.Rajashekhar Gunjalli, Adv. for appellant)
AND:
Smt.Lakshmidevi,
W/o Bheemaraddi,
Age: 41 years, Occ: Agril.
R/o Budagumpa village,
Tq: Yalburga,
Dist: Koppal-583 231. ... RESPONDENT
This RSA is filed under Section 100 of CPC, praying
to set-aside the judgment and decree passed by the
learned Fast Track Court-II, Koppal, in R.A.No.28/2010
dated 8.8.2011 confirming the judgment and decree
passed by the learned Civil Judge (Sr.Dn) & JMFC, at
Yalburga, in O.S.No.81/2006 dated 31.3.2010, and etc.
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This RSA coming on for Orders this day, the Court
delivered the following:
JUDGMENT
This second appeal is by the plaintiff in the suit challenging the concurrent judgments of the courts below, in dismissing his suit brought for the relief of declaration, possession and mesne profits.
2. Heard the learned Counsel for the appellant and perused the judgments and decrees of the Courts below.
3. It is the case of the plaintiff, that one Andappa S/o Andappa Setsandi @ Dalawai resident of Budagumpa was the owner and possessor of the suit lands which were inam lands granted by the Assistant Commissioner, Koppal, in his favour. Plaintiff's father Balappa and his uncle Andappa are two sons of said Andappa and they are direct brothers. Since the father of plaintiff, viz., Balappa was looked after by one Lachamappa @ Lakshmappa Setasandi, as the said Lachamappa had no issues, the name of the father of Balappa has been entered as :3: Lachamappa @ Lakshmappa Setasandi instead of Balappa S/o Andappa Setasandi. Lachamappa @ Lakshmappa Setasandi and father of Balappa i.e. Andappa Setasandi are cousin. It is further pleaded that Andappa S/o Andappa Setasandi was unmarried and living with plaintiff and plaintiff was looking after him. When Andappa had been to the house of his sister's daughter at Lingadalli village in Gangavathi Taluk, he died there on 27.10.1994 and his funeral ceremony took place at Lingadalli. It is pleaded that after the death of Andappa plaintiff is the only successor to the estate of deceased Andappa Setasandi. Plaintiff's father Balappa died 12 years prior to the death of Andappa. Therefore, plaintiff alone succeeded to the suit properties of Andappa which were granted by the Assistant Commissioner in favour of Andappa. The defendant has no right, title or interest of whatsoever over the suit properties. In the month of May 2002 when plaintiff has gone to Chandragiri in Maharashtra State for earning livelihood, the defendant misusing his absence in the village illegally and unlawfully taken the possession of the :4: suit land by making encroachment of suit properties forcibly without having any right. Since May 2002 the defendant is in possession of the suit lands. In the first week of October 2004, plaintiff returned to Budagumpa and came to know the illegal act of the defendant from adjacent land holders. Thereafter, the plaintiff requested the defendant to hand over possession of the suit land in his favour. The defendant did not heed to his request and contended that she has purchased the suit properties from Andappa S/o Andappa Setasandi through registered sale deed. The plaintiff verified the records and came to know that the defendant with the help of henchmen created bogus sale deed purporting to be executed by Andappa Setasandi. In fact Andappa Setasandi has not executed any sale deed i.e. document No.890/94-95 on 15.2.1995 in favour of defendant. Andappa S/o Andappa Setasandi died on 27.10.1994 at Lingadalli in Gangavathi Taluk. Therefore, sale deed is void ab initio and not binding on the plaintiff. Therefore, he was constrained to file the suit :5: for declaration of possession and mesne profits in respect of the suit properties.
4. The defendant after entering appearance, filed written statement denying the averments made in the plaint as false and concocted and contended that the description of the suit properties shown by the plaintiff is not correct. The suit lands were re-granted to Andappa S/o Andappa Setasandi by the Assistant Commissioner, Koppal, under the Inam Abolition Act. Andappa was the owner and possessor of the suit lands. It is denied that Andappa S/o Andappa Setasandi is the brother of Balappa and paternal uncle of plaintiff. It is further denied that father of plaintiff Balappa was looked after by Lachammappa, therefore the father name of Balappa has been mentioned as Lachmappa. The defendant denies that Andappa was living with plaintiff and plaintiff was looking after him. It is also denied that Andappa died on 27.10.1994. It is contended that Andappa was alive till 1995. It is also denied that plaintiff is successor to the :6: estate of Andappa. It is contended that Andappa due to family necessities sold the suit lands during his life time as nobody was maintaining him. It is denied that after the death of Andappa the defendant came in possession of the suit land in the month of May 2002 by misusing the absence of plaintiff. It is contended that she has purchased the suit lands on 15.2.2005 for consideration of Rs.35,000/- from Andappa S/o Andappa and since then she has been in possession and enjoyment of the suit land. With these averments defendant prayed for dismissal of the suit.
5. The Trial Court based on the pleadings of the parties has framed the following issues for its consideration:
1. Whether the plaintiff proves that the suit properties were regranted to the father of the plaintiff Balappa Setasandi by the land tribunal, Yelburga?
2. Whether the plaintiff proves that he is the only successor to Andappa S/o Andappa Setasandi, who is the real brother of plaintiff's father?:7:
3. Whether the plaintiff proves that the defendant has illegally taken possession of the suit land during May 2002, and forcibly, with the help of her henchman?
4. Whether the plaintiff proves that the sale deed dated 15.2.1995 is void-ab-initio?
5. Whether the plaintiff proves that he lost Rs.24,000/- income per year, from the lands for the last 3 years, and he is entitled to recover the mesne profits and is entitled to recover possession of the suit lands?
6. Whether the defendant proves that she has been in continuous possession of suit property for more than statutory period, uninterruptedly, and the suit is not maintainable?
7. To what relief's the parties are entitled?
8. What order?
6. The plaintiff in order to prove his case, has examined himself as PW.1 and examined 4 witnesses as PWs.2 to 5, and documents produced on behalf of plaintiff were marked as Ex.P.1 to P.12. On behalf of defendant, husband of defendant and two more persons were examined as DWs.1 to 3 and the documents produced on behalf of defendant were marked as Ex.D.1 to D.13. :8:
7. The material on record discloses that plaintiff's grandfather Andappa S/o Andappa Setasandi had 4 sons and 2 daughters. They are, (1) Balappa (father of plaintiff), (2) Andappa (father of defendant), (3) Channappa and (4) Yellappa, (5) Yellavva, and (6) Ambavva. The plaintiff who was examined himself as PW.1 has admitted at para-7 of his evidence that among the brothers and sisters of his father, Yellappa died in 1994, Channappa died in 1992, Ambavva died in 2002 and Yellavva died in 2008. Therefore, on 30.10.06 - the date on which the plaintiff has instituted the suit, his maternal aunt Yallavva was alive and he could not have pleaded in the plaint that he is the only successor entitled to succeed to the estate of his uncle Andappa and thereby he has suppressed the material fact.
8. Admittedly, he has not impleaded either Yellavva or her daughters or sons as party to the suit. As per the entry-II of Class-II of Schedule it is sons, daughter's son, son's daughters daughters, brother, sister :9: in the absence of persons appearing in entry-I to succeed to the properties. Plaintiff being the brother's son comes under entry-IV. The brothers of Andappa, son of Andappa are dead prior to Andappa, his sisters Yellawwa and Ambavva are alive and they got preference over the plaintiff because they come in entry-II. Plaintiff come under entry-IV of the schedule. Therefore, plaintiff is not the successor to the estate of deceased Andappa during the life time of Yellavva and Ambavva - the sisters of Andanappa. Considering this material aspect of the matter, the Trial Court is justified in answering issue No.2 whether the plaintiff proves that he is the only successor to Andappa S/o Andappa Setasandi who is the real brother of plaintiff's father, in the negative.
9. Admittedly, Andappa is permanent resident of Budagumpa village in Yelburga Taluk of Raichur District. But he is shown to have died at Lingadalli village of Gangavathi Taluk. To substantiate his contention he relied upon Ex.P.8, death certificate issued by the Tahasildar, : 10 : Gangavathi Taluk, and the evidence of PW.3. Whereas, defendant in support of her contention that Andappa was alive upto 1995 and he had sold the suit property in her favour through a registered sale deed dated 15.2.1995 at Ex.D.2 relied on evidence of DWs.2 and 3.
PW.1 has stated in his evidence that at the time of giving information of death of Andappa to the Registrar of Births and Deaths, he has stated Andappa was permanent resident of Budagumpa village, Yelburga Taluk of Raichur District. In Ex.P.8 death certificate Andappa's permanent residence is shown as Lingadalli village of Gangavathi Taluk. The sale deed Ex.D.2 was executed by Andappa in favour of defendant on 15.2.1995. The plaintiff except denying the sale deed as concocted has not made any effort to disprove the sale deed. The Trial Court considering this material aspect has held that plaintiff has failed to prove that Andappa died on 27.10.1994 as per the date mentioned in the death certificate Ex.P.8. When Andappa is a permanent resident of Budagumpa village of : 11 : Yelburga taluk and Raichur District, merely because he was shown to have been died in Lingadalli village when he was alleged to have been to his sister's daughter's house, the Tahasildar Gangavathi, would not have issued the alleged death certificate as per Ex.P.8 and on what basis the same was issued no evidence is placed to that effect.
10. The plaintiff in his evidence has stated that when he had gone to Chandragiri in 2002 to earn his livelihood he has entrusted the suit lands to Shivappa Harijan for cultivation and defendant taking undue advantage of his absence, has illegally and unlawfully taken possession of the suit lands during May 2002. PW.5 examined on behalf of plaintiff in his cross-examination has clearly stated that from 1994 to 1998 plaintiff was in Budagumpa. He has visited Lingadalli on the occasion of death of Andappa about 5 years back. His evidence was recorded on 6.1.2010. Therefore, his evidence goes to show that Andappa died during 2005 and it is contrary to the evidence of plaintiff that Andappa died in 1994 prior to : 12 : execution of sale deed Ex.D.2 in favour of defendant. The Trial Court considering this has held that defendant has come into possession of the suit land on the basis of a registered sale deed Ex.D.2 dated 15.2.95 executed by Andappa in her favour.
11. The Trial Court considering the above aspect of the matter, answering issue Nos.1 and 6 in the affirmative, 2 to 5 and 7 in the negative dismissed the suit. The lower appellate court on re-appreciation of entire oral and documentary evidence on record has dismissed the appeal preferred by plaintiff confirming the judgment and decree of the Trial Court.
12. I have carefully gone through the judgments of both the courts below and I do not find any illegality or infirmity warranting my interference, more over, there is no substantial question of law which arises for my consideration in this second appeal.
Accordingly, the appeal is dismissed as devoid of merits.
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Consequently, the application I.A.1/13 for condoning the delay in filing is also rejected.
No order as to costs.
SD/-
JUDGE sub/-