Karnataka High Court
Basappa Tegirinatele vs Hanumappa Baithal on 2 July, 2021
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 02ND DAY OF JULY, 2021
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
R.S.A No.3015/2006 (DEC & INJ)
BETWEEN:
BASAPPA TEGIRINATELE
S/O. KRISHNAPPA
AGED ABOUT: 70 YEARS
AGRICULTURIST
R/O YERADONI VILLAGE NEAR KARTGI
TQ: GANGAVATHI
SINCE DECEASED BY LRS
1a) KRISHTAPPA @ KRISHNAPPA
S/O. LATE BASAPPA
AGE: 52 YEARS
OCC: AGRICULTURE
1b) MARADAPPA S/O LATE BASAPPA
AGE: 38 YEARS, OCC: AGRICULTURE
BOTH R/O YARADONI VILLAGE NEAR
KARTGI, TQ: GANGAVATI. ... APPELLANTS
(BY SRI.SHIVAKUMAR KALLOOR, ADVOCATE)
(THROUGH V/C)
AND:
1. HANUMAPPA BAITHAL
S/O. LATE HANUMAPPA
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE
SINCE DECEASED BY LRS.
2
1a) YAMANAMMA
W/O LATE HANUMAPPA BAITHAL
AGE 55 YEARS
OCC: HOUSEHOLD
1b) RENUKAMMA
D/O LATE HANUMAPPA BITHAL
W/O VIRUPANNA NAIK
BOTH R/O RAGALPARVI
TQ: SINDHANUR
DIST: RAICHUR.
1c) VENKATESH S/O HANUMAPPA
AGE: 28 YEARS, OCC: AGRICULTURE
R/O KALMANGI VILLAGE,
TQ: SINDHANUR
DIST: RAICHUR.
2. HANUMAPPA BAVITHAL
S/O LATE THIMMAPPA
AGED ABOUT: 45 YEARS
OCC: AGRICULTURE NAYER
R/O. KALMANGI VILLAGE
TQ: SINDHANUR.
3. SMT. PAMPAMMA
W/O LATE BAVITHAL KRISTAPPA
AGED ABOUT 48 YEARS, OCC: HOUSEHOLD
& AGRIL.
R/O KALMANGI VILLAGE
TQ: SINDHANUR
4. RAMANNA
S/O LAGE BAVITHAL KRISTAPPA
AGED ABOUT: 34 YEARS,
OCC: AGRICULTURE
R/O KALMANGI VILLAGE
TQ: SINDHANUR.
3
5. THIMMAPPA
S/O LATE KRSTAPPA BAVITHAL
AGED ABOUT 21 YEARS
OCC: AGRICULTURE
R/O KALMANGI VILLAGE
TQ: SINDHANUR.
... RESPONDENTS
(BY SMT. HEMA.L.K., ADVOCATE FOR R1 (A) TO
R1(C) AND R2 TO R5)
(THROUGH V/C)
*****
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT & DECREE DATED 20.01.2006
PASSED IN R.A.NO.14/2004 ON THE FILE OF THE ADDL.
DISTRICT JUDGE & PRESIDING OFFICER, FAST TRACK
COURT-IV, RAICHUR, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
15.12.2003 PASSED IN O.S.NO.130/1996 ON THE FILE OF
THE ADDL. CIVIL JUDGE (SR.DN.), RAICHUR.
THIS REGULAR SECOND APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR
"PRONOUNCEMENT OF JUDGMENT" THIS DAY, THE COURT
DELIVERED THE FOLLOWING;
JUDGMENT
The above stated Regular Second Appeal is filed under Section 100 of CPC by the appellant/defendant challenging the judgment and decree passed in 4 R.A.No.14/2004 dated 20.01.2006 passed by the Court of Addl. District Judge and Presiding Officer, FTC-IV, Raichur (hereinafter referred to as First Appellate Court) which set aside the judgment and decree passed in O.S.No.130/1996 dated 15.12.2003 passed by the Court of Addl.Civil Judge (Sr.Dn), Raichur (hereinafter referred to as Trial Court).
2. The suit filed by the plaintiff for declaration AND permanent injunction is dismissed and further ordered and decreed that the appellant/defendant is declared as absolute owner and in possession of the scheduled land to the extent of 15 acres and 06 guntas. Against this, the plaintiffs have preferred Regular Appeal before the First Appellate Court and the First Appellate Court has decreed the suit of the plaintiffs and declared that the respondents/plaintiffs are owners and in possession of land to an extent of 30 acres and 13 guntas. Therefore, the defendant has preferred the present appeal. Brief Facts:
Pleadings of the plaintiffs:5
3. The respondents/plaintiffs have filed the suit for decree of declaration of ownership and permanent injunction in respect of the suit land bearing Sy.No.239 totally measuring 30 acres and 13 guntas at Taluk Sindhanur, District Raichur and have consequently rectification of record of rights in the name of the respondents/plaintiffs. As admitted by both the appellants and respondents, the family pedigree is extracted below for the sake of convenience:
Thimappa Krishtappa Hanumappa (Father of Defendant) (Father of Plaintiff No.1) (dead) (dead) Basappa (Defendant) Ayyamma (dead) Thimmappa Hanumappa Kristappa Gouramma (dead) (dead) (Pltf.No.1) (dead) Hanumappa (Pltf.No.2) Pampamma Ramanna Thimmanna (wife)(Pltf.No.3) (Son)(Pltf.No.4) (Son)(Pltf.No.5)
4. It is stated that the original propositus Sri. Thimmappa has two sons namely Krishtappa and Hanumappa. It is stated that the above Krishtappa died 6 bachelor. Therefore, another son Hanumappa had been bequeathed the entire suit schedule property of 30 acres and 13 guntas. The said Hanumappa, S/o. Thimmappa had three sons namely Thimmappa who is called as junior Thimmappa (father of plaintiff No.2), Hanumappa (Plaintiff No.1) and Krishtappa (husband of PW.3) (hereinafter this Krishnappa is referred as junior Krishnappa) has two sons Plaintiff Nos.4 and 5. It is stated that the plaintiff No.2 is son of Thimmappa.
5. It is stated that the Krishtappa (senior) son of Thimmappa died bachelor. Therefore, the plaintiffs being the legal heirs of Hanumappa S/o. Thimmappa (senior) had got divided the suit schedule properties about fifteen years back in three equal parts by allotting themselves and accordingly they have been enjoying the suit property as per their share.
6. It is further stated that the appellant/defendant is stranger to the suit schedule properties. The appellant/defendant is permanent resident of Yeradoni Village Taluk Gangavati and he had never stayed and lived at Kalmangi Village where the suit 7 schedule lands are situated. Therefore, the appellant/defendant is no way concerned with the suit schedule property. It is stated that the appellant/defendant even stranger to the family of the respondents/plaintiffs but behind back of the respondents/plaintiffs and without knowledge of them has got mutated the lands in his name in the record of rights and the said mutation is illegal mutation. Further, stated that on the basis of entries in the revenue records, the appellant/defendant started interfering with the possession of suit schedule properties of the respondents/plaintiffs. Therefore, the respondents/plaintiffs have filed a suit for declaration and permanent injunction against the appellant (defendant herein) for seeking declaration and ownership to the entire extent of suit schedule properties measuring 30 acres 13 guntas and consequently relief for permanent injunction.
Pleadings of the defendant:
7. The appellant/defendant had filed written statement before the Trial Court and admitted that the family pedigree described in the plaint is true except the 8 pleading that Krishtappa (senior) died bachelor. The family pedigree flows from Thimmappa as described above is admitted by the appellant/defendant. But it is the contention of the appellant/defendant that Krishtappa (senior) had wife by name Balamma and he is the son of said Krishtappa and Balamma. Therefore, the appellant/defendant had denied the averments in the plaint that Krishtappa died bachelor. It is contended that the appellant/defendant is the son of Krishtappa and Balamma is his mother. It is further stated that after the death of his father Krishtappa, his mother Balamma left the Kalmangi village due to harassment given by the family members of the plaintiffs. Therefore, she left the Kalamangi village and started living in her parent house at Yeradoni village.
8. Further the appellant/defendant had filed a counter claim under order VIII Rule 1 read with Rule 6(a) and 6(b) of CPC that he is the son of Krishtappa (senior) and Balamma and denied the fact that Krishtappa died bachelor. Therefore, it is contended in the counter claim that the appellant/defendant is entitled for half share in 9 the suit schedule properties and accordingly got entered his name in revenue records i.e. 15 acres 06 guntas which extent is half of the total land. Further, it is contended that the respondents/plaintiffs have got mutated their names to the entire extent of land and after coming to know this fact, they have filed application before the revenue authorities and also the Assistant Commissioner, Lingasugur (hereinafter referred to as Assistant Commissioner for the sake of convenience) in an appeal under Section 136(2) of Karnataka Land Revenue Act, 1964 had restored the name of the appellant/defendant in the revenue records by accepting the contention of the appellant/defendant that Krishtappa (senior) did not die as bachelor and admitted themselves by the respondents/plaintiffs in the objection filed before the Assistant Commissioner stating that Balamma is the wife of Krishtappa and the appellant/defendant is the son of said Krishtappa and Balamma. Therefore, with these pleadings, the appellant/defendant has preferred the counter claim in his written statement apart from denying 10 the averments in the plaint so far as Krishtappa died bachelor.
9. Based on the pleadings of both the parties, the Trial Court has framed the following issues:
1. Whether plaintiffs prove that Hanumappa S/o Hanumappa has only succeeded to suit property as alleged in para No.7 of the plaint?
2. Whether plaintiffs prove that partition as alleged in para No.4 and 5 has taken place between them only?
3. Whether defendant proves that he is the son of Kristappa S/o Thimmappa as alleged?
4. Whether defendant proves that his father had wife namely, Balamma and he is the only male issue to his father and there were two female issues to his father as alleged in para No.6 of the written statement and as shown in pedigree stated in counter claim?
5. Whether plaintiffs prove that they are enjoying suit property in three equal parties from the last 15 years to the date of filing of the suit as alleged in para No.4 and 5 of the plaint and now also they are in enjoyment of suit property?
6. Whether defendant proves that partition between himself and plaintiff No.1 and 11 Krishtappa has taken place in the year 1970 as alleged in para No.4 of the written statement and further proves that he got his half share in the suit property?
7. Whether defendant proves that he is in possession of the suit property to the extent of half i.e. 15 acres 06 guntas lying to the west of plaintiffs share, from the year 1970?
8. Whether plaintiffs prove their exclusive ownership and possession in respect of suit property as alleged?
9. Whether plaintiffs prove alleged interference and obstruction by the defendant?
10. Whether defendant proves his exclusive possession over the property to the extent of half ie. 15 acres 06 guntas lying towards west of the plaintiffs share and towards east as alleged as on the date of suit?
11. Whether defendant proves alleged intereference and obstruction by the plaintiffs?
12. Whether plaintiffs are entitled to the reliefs sought for?
13. Whether defendant is entitled the reliefs sought for in his counter claim made in the written statement?
14. What order and decree?12
10. The respondents/plaintiffs have adduced oral and documentary evidence as PW.1 to PW.4 and got marked documents as Ex.P1 to Ex.P8 and on the other hand, the respondents examined as DW.1 to DW.5 and got marked documents as Ex.D1 to Ex.D.35. The Trial Court has dismissed the suit of the respondents/plaintiffs and has decreed the counter claim of the appellant/defendant and declared the appellant/defendant as absolute owner and actual possession of the suit lands to the extent of 15 acres 06 guntas and accordingly issued permanent injunction.
Findings of the Trial Court:
11. The Trial Court had come to the conclusion based on the documentary evidence that the respondents/plaintiffs have filed objection in the revenue appeal filed before the Assistant Commissioner wherein they have pleaded that Krishtappa (senior) had son by name Basappa and therefore he was not a bachelor.
Therefore, the contention of the respondents/plaintiffs that Krishtappa died bachelor is proved to be false and also further based on the revenue entries including mutation 13 records, it is evident that in the year 1970-71, the name of the appellant had entered in the revenue records being the son of Krishtappa. Therefore, on these findings, the Trial Court has dismissed the suit of the respondents/plaintiffs and decreed the counter claim filed by the defendants. Findings of the First Appellate Court:
12. Being aggrieved by the judgment and decree of dismissing of the suit of the respondents/plaintiffs and decreeing the counter claim of the appellant/defendant, the respondents/plaintiffs have preferred the regular appeal before the First Appellate Court. The First Appellate Court has set aside the judgment and decree of the Trial Court and decreed the suit of the respondents/plaintiffs that the respondents/plaintiffs are owners and in possession of the entire extent of 30 acres 15 guntas land and dismissed the counter claim of the appellant/defendant. The First Appellate Court has assigned reasons that the appellant/defendant has not produced evidence to prove the relationship of him with the Krishtappa (Senior) by producing any independent witnesses. The First Appellate Court has rejected the 14 documentary evidence of the appellant/defendant and Ex.P.26 which is filed before the Assistant Commissioner in RRT Appeal No. 23/1990-91. Ex.D27 which is certified copy of the proceedings of Assistant Commissioner on the ground that they do not contain signatures. Therefore, the First Appellate Court had discarded these documentary evidences in which the respondents/plaintiffs have admitted the relationship with the appellant/defendant with the said Krishtappa. Therefore, on these grounds, the First Appellate Court has dismissed the counter claim of the appellant and decreed the suit of the respondents. As there is divergent findings between the Courts below, the defendant has preferred the present regular second appeal.
Analysis with law:
13. As per Section 100 of CPC, the second appeal has to be considered only on substantial questions of law.
Considering the substantial questions of law in the second appeal does not only meant that it should be having a general importance but also the said substantial questions of law if exchanged between the parties themselves, then 15 the second appeal can be considered. In this regard, where there is a divergent finding between the Courts below, certain amount of consideration of evidence adduced by both the parties are also considered in order to determine the issue of evidence involved in the appeal as per Section 103 of CPC. Therefore, there is totally no bar in the second appeal under Section 100 of CPC of consideration of the evidence adduced before the Trial Court.
14. This Court on 25.07.2017 has framed the following substantial question of law:
"Whether the first appellate Court was right in concluding that the defendant - Basappa, had not proved that he was the son of Krishtappa, and grand son of Hanumappa, and therefore was not entitled to any share in the suit properties and thereby declaring plaintiffs to be the owners in possession of the entire extent of suit properties?"
15. Heard the arguments from the learned counsel appearing for the parties. Learned counsel for the appellant argued that the appellant is the son of Krishtappa (senior) since Krishtappa died not as a bachelor but he was having a wife by name Balamma and the 16 appellant is the son of the said Krishtappa and Balamma. He further submitted that after the death of Krishtappa, his wife Balamma had faced humiliation in the family of the respondents as there is no good terms in the family. Therefore, the appellant's mother Balamma along with the appellant had gone to Yeradoni Village and started to reside in her parents' house. Therefore, by taking advantage of this fact, the plaintiffs behind back of the appellant/defendant had got mutated their names in the revenue records to the extent of 30 acres and 13 guntas. Further, it is stated that even though the defendant was residing in Yeradoni Village but was coming to the Kalmangi village and he is looking after the land to the extent of 15 acres 06 guntas which was inherited through his father's share. Therefore, the relationship of the appellant/defendant to the said Krishtappa is admitted by the respondents/plaintiffs in their objections filed to the appeal which was pending before the Assistant Commissioner and they themselves in their counter before the Assistant Commissioner admitted that the son of Krishtappa by name Basappa died and the present 17 appellant who is also having the name of Basappa as a fake person and wrongly claiming the suit schedule land just to grab the land. Therefore, it is argued by the counsel for the appellant that the respondents/plaintiffs at one stretch pleaded in the plaint that Krishtappa died bachelor but in the counter filed before the Assistant Commissioner had admitted that the disputed suit land absolutely belongs to Basappa, the son of Krishtappa but the said Basappa is no more. Therefore it is contended that the present stated Basappa in the counter before the Assistant Commissioner is none other than appellant herein but the respondent/plaintiff have falsely stated that the son of Krishtappa by name Basappa died. Therefore, there is a contradictory pleading in the plaint of the plaintiffs in the suit as well as in the counter filed before the Assistant Commissioner negates the case of the plaintiff and which is considered by the First Appellate Court and accordingly dismissed the suit of the plaintiff and allowed the counter claim of the appellants by declaring that the appellant is the son and in possession of the land to the extent of 15 acres 06 guntas but the First 18 Appellate Court has wrongly set aside the judgment and decree of the Trial Court. Therefore, prays to allow the appeal and confirm the judgment and decree passed by the Trial Court.
16. On the other hand, learned counsel for the plaintiffs submitted that the appellant has failed to prove the relationship with Krishtappa (senior) and thus rightly considered by the First Appellate Court. Further, it is submitted that in order to prove the relationship, the appellant has examined himself as DW.1 and his son as DW.2 and one witness as DW.3 has not deposed anything about the relationship with the said Krishtappa. As per the Section 50, 51 and 52 of Indian Evidence Act, 1872, the appellant has not proved his relationship. The First Appellate Court rightly delivered the judgment and decree.
17. Further he submitted that the averments made in the counter by the respondent filed before the Assistant Commissioner in RRT Appeal cannot be considered for the reason that those are secondary evidence but not primary evidence. By these averments, the relationship of the 19 appellant has not proved that Krishtappa and the appellant is stranger person and is no way concerned with the family of the respondents/plaintiffs which is rightly considered by the First Appellate Court.
18. Learned counsel for the appellant/defendant relied on the judgments of the Hon'ble Supreme Court which are as stated below:
1. HCR 2016 KANT 407 Kadamma & Others Vs. Chikkamma & Others.
2. HCR 2015 SC 384 Shashidhar & others Vs. Smt. Ashwini Uma Mathad & another.
3. 2003 SAR (Civil) 234 Kuldeep Chand Vs. Advocate General to Government of Himachal Pradesh
4. AIR 2002 Supreme Court 504 Karevva & others Vs. Hussain Sab Khansab
5. AIR 2002 Kerala 133 Raman Pillai Krishna Pillai Vs. Kumaran Parmeshwaran
6. 2017 AIAR (SC) Justice Hon'ble Abdul Nazeer Already furnished before this Hon'ble Court.
19. The learned counsel for the respondents - plaintiffs relied on the judgment of the Hon'ble Apex Court as below in the case of Dolgobinda Paricha vs. Nimai 20 Charan Misra and Others reported in AIR 1959 SC
914.
20. Further, the learned counsel for the respondents/plaintiffs submitted that even as per Section 35(2) of the Evidence Act, 1872 the appellant has not proved relationship with the said Krishtappa. Therefore, with the aforesaid submissions, the learned counsel for the respondents/plaintiffs submitted that there are no substantial questions of law involved in the present case for consideration of the same and the appeal is devoid of merits as the First Appellate Court has rightly delivered the judgment and decree, therefore, prays to dismiss the second appeal.
21. In the present case, upon considering the substantial question of law framed by this Court stated above, the crux of the matter involved is whether the appellant is the son of Krishtappa and whether this fact is proved by the appellant by adducing evidence before the Trial Court. As there is divergent finding between the Courts below on the issue of fact involved, therefore, there 21 is a need to consider the relevant facts adduced by both the parties in the background of pleadings canvassed by them.
22. The Trial Court has relied on the documentary evidence Ex.D25 and Ex.D26 which are the counter filed by the respondents/plaintiffs in RRT appeal before the Assistant Commissioner and the Trial Court has opined that in this counter, the respondents/plaintiffs have admitted that Basappa was the son of Krishtappa. Therefore, the contention of the plaintiffs that Krishtappa died as bachelor and accepting the said documentary evidence, dismissed the suit of the respondents/plaintiffs and decreed the counter claim of the appellant/defendant. But on the other hand, the First Appellate Court has discarded the above said documentary evidence but has observed that as per Sections 50, 51 and 52 of Evidence Act, the appellant/defendant has not led any evidence proving his relationship with Krishtappa by adducing any independent witness and with these reasons, reversed the 22 judgment and decree of the Trial Court and decreed the suit of the respondents/plaintiffs.
23. Therefore, the crux of the matter involved in the present case and also the substantial questions of law has to be answered in this regard the facts are to be considered on the aspect (1) whether the respondents/plaintiffs proves that Krishtappa died bachelor as they have pleaded in the plaint and also give evidence in the suit? (2) whether the appellant/defendant proves that he is the son of Krishtappa, but the Krishtappa did not die as bachelor. Therefore, on these factual aspects, the above framed substantial question of law is liable to be answered.
24. It is the strong contention of the respondents/plaintiffs that the appellant/defendant is a stranger but not the son of Krishtappa. The family pedigree stated by the respondents/plaintiffs and the pedigree stated by the appellant/defendant are not disputed.
25. The only issue of fact emerged in the present case is whether the appellant/defendant is the son of 23 Krishtappa (son of Thimmappa) or not? It is strong contention of the respondents/plaintiffs that the said Krishtappa is the son of Thimmpappa died bachelor. Therefore, on these pleadings that Krishtappa, s/o Thimmappa is a bachelor. Therefore, it is contended that the appellant/defendant is not the son of the said Krishtappa but he is a stranger to the family. Negating this contention, the appellant/defendant is contending that the said Krishtappa son of Thimmppa did not died as bachelor but he was having a wife by name Balamma and he is the son of Krishtappa and Balamma. Upon this controversy involved, the Trial Court in its judgment while appreciating the documentary evidence i.e. Ex.D.25 had observed that the appellant/defendant Basappa had filed RRT appeal against the respondents/plaintiffs herein before the Assistant Commissioner and in the said RRT proceedings, where the respondents/plaintiffs had filed objection as per Ex.D26, it is stated that the disputed survey number of Kalmangi village actually belongs to Krishtappa who is none other than uncle of the plaintiff and the said uncle is no more and he died and the present 24 appellant/defendant Basappa is fake and misrepresenting the litigation. Therefore, it was observed that the said Krishnappa had son by name Basappa and he was not a bachelor. Therefore, the Trial Court has observed that Krishtappa did not die as bachelor but having wife by name Balamma and the next question is whether this appellant/defendant Basappa is the son of Krishtappa or not is the question to be determined. Therefore, the Trial Court had appreciated other evidences which are record of rights in which the name of the Krishtappa and thereafter his son Basappa's name was found and held that the present appeal/defendant is the son of said Krishtappa and accordingly dismissed the suit of the respondents/plaintiffs and counter claim of the appellant/defendant is allowed by declaring the appellant/defendant is the owner and in possession to the extent of half share of land i.e. 15 acres 06 guntas. Therefore, when the respondents/plaintiffs have contended that Krishtappa died bachelor but this contention is found to be contrary to the objection filed by the respondents/plaintiffs No.2 and 3 before the Assistant Commissioner i.e.Ex.D25. Respondents/plaintiffs have 25 categorically objected that the suit land belongs to Basappa, s/o Krishtappa. Ex.D26 is the certified copy of the counter in the above said RRT appeal and these documents are not disputed by the respondents/plaintiffs. In fact the respondents/plaintiffs admitted that there was appeal pending before the Assistant Commissioner and they have participated in the said proceedings before the said Assistant Commissioner. Ex.D26 can be considered as secondary evidence as per Section 63 of the Indian Evidence Act. Therefore, it is proved that the said Krishtappa, s/o Thimmappa did not die as bachelor but he was having wife by name Balamma and son by name Basappa. Then, the question arise that whether the appellant/defendant is the son of Krishtappa or not?
26. The First Appellate Court had observed that the appellant/defendant did not examine any other independent witnesses to prove his relationship with Krishtappa, s/o Thimmappa. The First Appellate Court has discarded the documentary evidence at Ex.D25 and Ex.D26 on the ground that the said counter is not signed by the respondents/plaintiffs of the said appeal and also 26 there is no name of the advocate in the counter but singed the counter on behalf of the respondents/plaintiffs as per Ex.D26.
27. Upon perusing Ex.D.26 counter, on behalf of respondent Nos.1 and 2 in that case, no doubt the name of the advocate is not found but signature is found. Normally, it is common experience that in some instances, the advocate files counter on behalf of their parties did not write their names but only put their signatures. Therefore, just because the name of the advocate is not found in the counter but where signature is found, that cannot be a ground in discarding the said documentary evidence and this observation made by the First Appellate Court is one of superficial in nature.
28. Further, the First Appellate Court has discarded the evidence of Ex.D15, Ex.D25 and Ex.D.27 and entries made in the record of rights and did not establish the paternity of the appellant/defendant i.e. the son of Krishtappa and accordingly, reversed the judgment and decree passed by the Trial Court.
27
29. Upon perusing the record of rights placed by the respondents/plaintiffs themselves from the year 1969- 1970 as per mutation entry i.e. Ex.P2, the name of Basappa s/o Krishtappa to the extent of 15 acres 06 guntas is entered and this name is continued further to the extent of 15 acres 06 guntas, the name of plaintiff No.1 is reflected, then out of the said 15 guntas 06 guntas, it was further divided into in the name of their children. Ex.D7 is the record of rights as that of the Ex.P2 documents. The name of Basappa, s/o Krishtappa is continued from the year 1983-84 by virtue of M.R. register order as it was done by the Revenue Officer dated 30.06.1984 that Basappa is the son of Krishtappa died and thereafter his uncle name was entered Ex.D15. Therefore, the cause of action arose for the appellant to prove that the appeal before the Assistant Commissioner invoking the provisions of 136(2) of Karnataka Land Revenue Act, 1964 in the said appeal proceedings, the plaintiff Nos. 2 and 3 have participated and filed objection and in the said objection, the respondents/plaintiffs admitted that the disputed survey number of land actually belongs to Basappa 28 who was none other than his uncle's son of plaintiff Nos.1 but it is contended in the said counter that the Basappa died and the present appellant Basappa is a fake person and a stranger to the family. But upon analysis of the evidence on record, the contention urged by the appellant/defendant that he is the son of Krishtappa and Balamma is not controverting by placing evidence by respondents/plaintiffs. Furthermore, the contention of the respondents/plaintiffs is found to be false that the said Krishtappa son of Thimmappa died bachelor. By virtue of Ex.D26 i.e., counter, the rejection of documentary evidence by the First Appellate Court is on flimsy grounds and discarding the evidence of Ex.D26 is improper as the reason assigned is not sufficient in nature. Further, PW.1 in his cross examination admitted that the suit land to the entire extent i.e., 30 acres 13 guntas came from the original propositus Thimmappa and it was inherited to his two sons Thimmappa (junior) and Hanumappa and this could be found from the Kasara pahani patrika Ex.D1 which is of the year 1954-55. Therefore, in this regard the ruling relied on by the respondents/plaintiffs in the 29 case of Dolgobinda Paricha Vs. Nimai Charan Misra and others reported in 1959 AIR 914 is not applicable to the present case as the facts and circumstances therein are different from the present case. The counsel for the respondents/plaintiffs argued that that relationship of the parties is not proved as per Section 32(5) of the Indian Evidence Act.
30. The appellant/defendant had relied on the counter filed by the respondent in the RRT appeal and wherein the respondents/plaintiffs have admitted that the suit land belongs to Basappa s/o. Krishtappa and when this being the position of law, the burden cast on the respondents/plaintiffs as to how the respondents/plaintiffs is related to Krishtappa by placing the evidence if the respondents/plaintiffs are so assertive in their contention. If the appellant/defendant is stranger to the family, then the appellant/defendant would not have dared to present the appeal before the Assistant Commissioner stating his concern with the land as it is inherited by his father Krishtappa. Therefore, the counter filed by the respondents/plaintiffs before the Assistant Commissioner is 30 a relevant document as per Section 32(5) of the Indian Evidence Act to prove that the appellant/defendant is the son of Krishtappa (senior).
31. Therefore, upon considering the evidence on records, where it is specifically urged by the respondents/plaintiffs that Krishtappa s/o Thimmappa died bachelor but it goes contrary to their own documents which is counter filed before the Assistant Commissioner. The respondents/plaintiffs could have produced the death certificate of Basappa if really the said Basappa son of Krishtappa died or could have led evidence of other witnesses stating that Basappa s/o Krishtappa died. This evidence cannot be found on the part of the respondents/plaintiffs. Whereas, the assertion made by the respondents/plaintiffs is that Basappa is the son of Krishtappa is proved for the reasons discussed above. Therefore, in this regard the evidence appreciated by the First Appellate Court is found to be not proper whereas, the Trial Court has properly appreciated the evidence on record. Therefore, the judgment and decree passed by the 31 First Appellate Court is liable to be set aside by restoring the judgment and decree passed by the Trial Court.
32. The judgment relied on by the counsel respondents in the case of Dolgobinda Paricha vs. Nimai Charan Misra and Others reported in AIR 1959 SC 914 stated supra is not applicable to the present case as the factual matrix and evidences involved in the above cited case is different from present case. The above stated judgment deals with the provisions of enunciated under Section-32(5) of the Evidence Act in regard to proving of relationship of parties. Section-32(5) of the Evidence Act deals with proving of existence of relationship by a statement made by a person who had special knowledge and that statement shall be made before raising of dispute, but in the present case, the proving of relationship is on the basis of 'promissory estoppel' made by the respondents/plaintiffs in the counter filed before the Assistant Commissioner and thus filing of counter before the Assistant Commissioner is not disputed by the respondents/plaintiffs. Therefore under these differences between the factual matrix and evidences in the above 32 cited case and in the present case the above cited judgment is not helpful to the respondent-plaintiff.
33. Therefore, the findings arrived at by the Trial Court are found to be proper, correct and justifiable. Therefore, the judgment and decree of the Trial Court in dismissing the suit of the respondents/plaintiffs and decreeing the counter claim of the appellant/defendant is correct and justifiable one. In the result, the judgment and decree passed by the First Appellate Court is liable to be set aside.
Hence, I proceed to pass the following:
ORDER
1. Regular Second Appeal is allowed.
2. The judgment and decree passed in R.A.No.14/2004 dated 20.01.2006 passed by the Court of Addl. District Judge and Presiding Officer, FTC-IV, Raichur is hereby set aside.
3. Consequently, the judgment and decree passed in O.S.No.130/1996 dated 15.12.2003 passed by the Court of Addl.Civil Judge (Sr.Dn), Raichur is restored and confirmed.33
4. No order as to costs.
5. Draw decree accordingly.
Sd/-
JUDGE SSD