Karnataka High Court
Mr K N Venkataswamy vs Mr Chikkananjappa on 13 August, 2009
E) MR LAKSHMANA S /o LATE MUNISWAMAPPA AGED ABOUT 46 YEARS R/OF KAJIKALLAHALLI VILLAGE, .
NARASAPUR HOBLI. A ~ KOLAR TALUK & DISTRICT-563 191,."-.._ '
4. «.
[BY SR1 : B N MURALIDHAR, ADV. FGREEE {A} "
THIS RSA FILED U/S 1'G0_ttQE CPc"tAGA;NST THE JUDGMENT AND DEGREE DATED1.26_.11.2oov5 PASSED EN RA.NO. 162 /99 ON THE FILE OF .__FAST TRACK COUR'I'~H, KOLAR, DISMISSING THE"A;3PEA1,. AND_eoNE1RMING THE JUDGMENT AND DEGREE" DATED 999 PASSED IN O.S.NO.224/£995. THE FILE.4o«E.THE'wADDL. C.J {JR.DN.) AND JMFC., 'V THIS ADMISSION THIS BAY, THE COURT DEL;I\fE'i@I)"THE_ EGLLGWING:
t A f E N T This seems. the unsuccessful plaintiff in Etj"o;S.' 2:22;/:1A995tAon%ttheS1'i1e of the Additional Civil Judge (Jr. I)"i1_,)'V,' évtveiifected against the concurrent judgment of 'Vthe dismissing the suit filed by him for _ffjyj"c1_ec1;11fatiD11_.Zof his title and for permanent injunction in "reSpveet_'Df 6 items of agricultural properties described in the ':'seh_ee1ule to the plaint. 9 /g/'
2) The facts are:
Sri. Doddananjappa, father of the plaintiff, defendant No.l~ Chikkananjappa, Defendant No.2-- Munisamappa are brothers being the sons of one Doddavenkatappa. "suit schedule properties among others were '_ properties of Doddananjappa and his registered partition deed dated brothers divided the j0int'..j.djlg:.fiEmilA3r. among themselves. Under schedule properties fell to the share zs_'_.father. Though initially Khata of sch'edul'e'(properties was made up in the name the plaintiff, subsequently, the name of thefilst defenltllaiitilllealrne to be entered in the revenue to \V Vrecordsg after the the father of the plaintiff. A 'f«.gAfVter_ coming to know of the mutation in the name'--ofnth'-eh..i$§'V'defendant in respect of the suit schedule 'propertiesl, plaintiff filed suit in O.S. 224/95 -seeking declara,tion of his title in respect of the suit schedule ___"*properties and also for permanent injunction inter alia & 5 defendant under the registered mortgage deed and subsequently, Doddananjappa sold Item No.3 under a registered sale deed dated 23.03.1964 and he also borrowed loan from P.L.D Bank on securities of all his it was the further contention of the defendants V' during the lifetime of his father, t1;iteAftVp:};a:L:V1t'i_ff 7 V and his whereabouts were not known any_.Z3n:e, f'as'~.such;; Doddananjappa Was living withfyfthei defendants-I after the death of Doddananjappa;"deferidari'ts_V_;'1,8: 2 cleared all the amounts due to the mortgage in favour of the the death of Doddana§f_1jappa,Vt'7.the* started enjoflng the properties on 12.12.1985, defendants -- 1 .. 8: 2 h.atfei'~effecte'd.V:partition of all the properties including f°tl1e;suit s.c1'ied.uie properties, as such, the plaintiff was not in possessiori'offj=ai:SfVof the suit schedule properties. Therefore, g the suit the plaintiff for declaration of his title and I i;jj1ivnC'tion is not rnaintainable. H 6 5] On the basis of the pleadings of the parties, the trial Court framed several issues. After the parties led evidence, on assessment of the oral and documentary evidence, the trial Court answered all the matei'ia§-f4i'sts't1.es against the plaintiff. The trial Court though "
plaintiff has proved that he is the cvvrier Of "the;su'it_ _schedu'le 97 properties, held that he has pfailedéto"--prove",.thpavt possession and enjoyment of schedule'-iprcgperties, as such, the suit filed by the pl;ai'ntif'f._for._declaration of title, without seeking the relief not rnaintainable. In that view of trialjvdoumrtfddismissed the suit. The trialiicourtwiriithisi placed reliance on the Division Bench decision ofllthlisil in POORJARI PUTTAIAH (BY _sVLRs.1,.,i$i' ii.0THER:_Sv'VS:t KEMPAIAH 1 1980 (1) ILR KAR by the said judgement and decree of the trli'al.'9plaintiff filed appeal in RA. 162/1999 before the Cuolutthofhthe Civil Judge (Sr.Dn.], Kolar, which was later 'transferred to Fast Track Court--1I at Kolar. M. 6} The Lower Appellate Court on re-assessment of the oral and documentaiy evidence concurred withg the findings of the trial Court, therefore, upholding the judgement of the trial Court.,_L:l.tgv eegegeieietper theses concurrent judgment of the jjbe.lo*és(; 'C has presented this second appeal.
7) I have heard Sri. learned counsel appearing for the records secured from the Courtsiybelovv. g C
8) counsel for the appellant' and the records of the Courts below, I the appeal does not involve _.,any qtiestion of muchless substantial question of law V"warranting«interference by this Court. counsel for the appellant vehemently vd".,.,_'contended";that the courts below have committed a serious holding that the plaintiff is not in possession of the fprogperty only based on some stray admissions said to have b.
been made by the plaintiff during the course of his evidence. He further contended that the evidence placed on record by the plaintiff is sufficient to hold that the lawful possession and enjoyment of the as absolute owner, therefore, the Courts ' error in holding that the suit not maiflitainablle', 1 it
10) I have bestowed aconlsideratiions to the submissions made by However, I do not see any groiarsdplto doubt, both the courts below" is the owner of the suit succeeded to the same upon theldeath 'f'he defendants have also not disputed, thelfactvthat°.uiider the registered partition deed fdatepdh.l2:.02."l.958,Hlthelsuit schedule properties fell to the share. 'of of the plaintiff and that the plaintiff was the only behind by his father. Therefore, both the have rightly held that the plaintiff has proved ownership over the suit schedule properties. The if ':l_4'de«fendants have not questioned the correctness of the said M, 9 finding of the courts below. However, both the courts below have dismissed the suit of the plaintiff on the ground that, even as on the date of the filing of the suit the plaintiff was not in possession of the properties, on the other_'44'hVan(ifthe defendants were found to be in possession of the and since the plaintiff had for" bf T. V possession in addition to the d«eclarat--ion-- of the.
is not rnaintainable in View of to~.Sect'ion;34 of the Specific Relief Act. The questicin xzvhich of parties to the suit was and is in of which is the subject n1at_ter:;1i,of suit', b4ei.r1é'a"--question of fact, has to be determined"'~-an, of the oral and documentary evidence the parties. Both the Courts _be1oW.. «having toithe oral and documentary evidence A"p1ac'ed__b3I:_the:pa.rties have recorded a concurrent finding of fact ,xti1atHVth'e--. piaintiff has not been in possession of the ' property at time and even as on the date of the suit the were fsund to be in possession of the properties. finding of fact has been arrived at upon proper M. 10 appreciation of the oral and documentary evidence. Unless it is pointed out that the finding of the Courts below in that regard is perverse on account of either misreading..._of the evidence or omission to consider the material circiiinstance found in the evidence or by drawing of improper .inferences'» from the contents of the document;'the'Hig'h psittingzin ii' appeal under Section 100 of lcannotvinter_fere."ivith such finding of fact. it is tolfind o1it*- the concurrent finding recorde_d belovv that ~/the plaintiff is not in possessionlof is perverse and contrary to evici'er:"=;§e,' re:cor:ds'"Were =s'ecui*ed from the courts below arid i-_ have vp'e_rused._t'he 'evidence on record. 1 1] from the evidence of the plaintiff his5;e:s;a;m.inati'on+in_¢ehief itself he has stated that the Vltieferidants'~ai"eflin_possession of the suit schedule properties. It ishis after he attained majority, the defendants 'drove hi.rfi'«:o1it of the village without giving his share of the The relevant evidence in this behalf is found in V' ..__"VPara--2 of eXamination--in--chief, which reads as under: - 12
the suit schedule properties. On the other hand, the RTC extracts produced by him would show the naine--'"of the defendants as the persons in possession and of the suit schedule properties. Even according'-to V' avernients, after the death of his the 'got it their names entered in the revenue records L» the revenue authorities. It is case" that at any point of time, the revenue records either as livathedarln the absence, of any positive and in the light of the by the plaintiff in his have rightly held that the plaintiff hasjailed' that he is in possession and .v.enjoyvmienvti'~of the "s1iit___schedule properties as on the date of LSuji;_ finding of the Courts below cannot be terniedlllasl or illegal. The learned counsel for the appellant is not in a position to point out as to whether the Courts'-..'below have in any way misread the evidence or ____"omitted to consider any material evidence on record. The i/ 13 revenue records have presumptive value under Section 133 of the Karnataka Land Revenue Act. Therefore, the inferences drawn by the Courts below in the 'V the entries in the revenue records are in accordance'with'f'iaw. Therefore, the concurrent finding of fact by Courts below that the plaintiff has fa_i1e,d to_1prove"'th__at;;Vhe 3 was in possession of the suit7sc--hedu'l'e_ on date of suit does not call for Court in appeal under Section J 34 V
13) The as to whether in the lightriof t'hVe"Clv3ourts below gire justified in disrnisVsing-- the plaintiff for declaration as not rnaintain,able.l"' per Section 34 of the Specific Relief Act, a p'erso'11 éisifentitled u5'1'iie a suit for declaration as to right in respectl fprioperty against a person who is denying or it interestedv'to.rieny his title to such property and in such a it " 'T for declaration, he need not to ask for any further relief.
as per the proviso to Section 34, where the plaintiff 33 able to seek further relief than a mere declaration of &/ 14 title, omits to seek such further relief, then, the Court shall not make any such declaration of title. No doubt, in the present suit, the plaintiff contending that he is in possession and enjoyment of the property, sought for a of his title to the property and as a conseqi_ien'ti.a1' sought the relief of permanent if basis of the evidence on rec0r,d,_4_the4AC.o'urts that the plaintiff was not in of as on the date of the suit, of Vfpermanent injunction was not the which he was able to seelif he was required to seek on was for possession of the suit schedule pro.perties_ on his title and since he has 'omitted to"*seekV.'such___fiirther relief, the suit as brought is AV"not;niairitainalaIe,__Reliance has been placed in this behalf on the".lI3'iVision"pj--:_ decision of this Court in Poojary case referred to supra. The facts of the reported ate:-{:s'ie«:;°"% almost identical with the facts of this case. Even that case, since the suit was filed for declaration and W 15 permanent injunction, the Courts beiow held that the suit as brought was not Inaintainable on the ground that the plaintiff was not found in possession of the property. This Court affirmed the said finding holding that the circumstances of the case, the relief of perrnanent__injunt:tion was not appropriate further relief and appropriatwei. relief to be asked was only for delivery the 7 property. The decision of the_S_upreme'*Court'..in': the Voafsetofpp Ram Saran 82. another Vs. SrI'it...:Ga.ngaV13ei"Ji 1H'V.972 SC 2685] was also reiied thefprinciples of law laid down in the afore_saidV jvvain of the opinion that the:'.._Courts rightly held that the suit as brought by Vthuei maintainable. Therefore, the _7,i,1a1dgII.l<3~:,I.1tVV of the " "C=o1i_r't.as below does not suffer from any fiiiegaiity '~ir;?egt11afity. In this View of the matter, there is no merit Hence, the appeal is dismissed. Sd/-
"ffl" IUDGE