Karnataka High Court
Smt.Mallavva W/O Late Goneppa vs Kalsammanavara Kalamma on 13 June, 2019
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13 T H DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE P.G.M. PATIL
R.S.A.NO.100071/2019 [DECL. & INJ]
BETWEEN:
1. SMT.MALLAVVA W/O LATE GONEPPA
AGE: 63 YEARS,
OCC: AGRICULTURIST,
R/O: VARAKANAHALLI VILLAGE,
TQ: HADAGALI,
DIST: BALLARI-583219.
2. MR. KUBERA S/O LATE GONEPPA
AGE: 33 YEARS,
OCC: AGRICULTURIST,
R/O: VARAKANAHALLI VILLAGE,
TQ: HADAGALI,
DIST: BALLARI.
... APPELLANTS
(BY SRI. C V ANGADI. ADV.)
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AND
1. MR. KALSAMMANAVARA KALAMMA
SINCE DEAD BY LEGAL HEIRS
1-A) MR. KALASAMMANAVARA
HULUGAPPA S/O LATE
KARIYAPPA,
R/O: VARAKANAHALLI VILLAGE,
TQ: HADAGALI,
DIST: BALLARI-583219.
2. MR. KALASAMMANAVARA
KATTI BASAPPA S/O HULUGAPPA,
AGE: 43 YEARS,
R/O: VARAKANAHALLI VILLAGE,
TQ: HADAGALI,
DIST: BALLARI-583219.
3. SMT. KALASAMMANAVARA
NAGAMMA W/O RAMAPPA,
AGE: 36 YEARS,
OCC: AGRICULTURIST,
R/O: BASARAKODU VILLAGE,
TQ: H.B.HALLI,
DIST: BALLARI-583219.
4. SMT. KALASAMMANAVARA
MARIYAMMA W/O NAGARAJA,
AGE: 30 YEARS,
OCC: AGRICULTURIST,
R/O: JANATA ONI
HOOVINAHADAGALI
TQ: HADAGALI,
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DIST: BALLARI-583219.
5. MR. KALASAMMANAVARA
MALLAPPA S/O HULUGAPPA,
AGE: 23 YEARS,
OCC: AGRICULTURIST,
R/O: VARAKANAHALLI VILLAGE,
TQ: HADAGALI,
DIST: BALLARI-583219.
... RESPONDENTS
(BY SRI.RAJASHEKHAR BURJI, ADV. FOR
SRI. GURUBASAVARAJ, ADV. FOR C/R 2 & 5
RESPONDENT NO.1 EXPIRED
RESPONDENT NO.4 POSTAL SHARA "NO SUCH
ADDRESSEE"
RESPONDENT NO.S3 SERVICE HELD SUFFICIENT)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST
THE JUDGEMENT & DECREE DTD:27.10.2018
PASSED IN R.A.NO.80/2018 ON THE FILE OF THE
ITINERATING SENIOR CIVIL JUDGE,
HUVINAHADAGALI, ALLOWING THE APPEAL AND
MODIFING THE JUDGMENT AND DECREE
DTD:06.09.2014, PASSED IN O.S. NO.67/2011 ON THE
FILE OF THE CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HADAGALI, DISMISSING
THE SUIT FILED FOR DECLARATION AND
INJUNCTION.
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RESERVED FOR JUDGMENT ON: 31/05/2019
JUDGMENT PRONOUNCED ON : 13/06/2019
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant Nos.1 and 2 being aggrieved by judgment and decree dated 27/10/2018 passed in RA No.80/2018 on the file of the Itinerating Senior Civil Judge at Huvinagadagi, setting aside the judgment and decree dated 6/9/2014 passed in O.S.No.67/2011 on the file of the Civil Judge and JMFC, Hadagali, have filed this regular second appeal.
2. The status of the parties is referred to as per their ranking before the trial Court.
3. The original plaintiff filed the suit bearing O.S.No.67/2011 seeking relief of declaration and -5- injunction in respect of the suit property. It is the case of the plaintiff that she is an agriculturist and permanent resident of Varakanahali village of Huvinahadagali Taluk. First defendant is the mother of the second defendant and they are also permanent residents of the same village. One late Kalasammanavara Chinmayappa and late Kalasammanavara Mallappa were brothers. During their life time, they owned the suit property. Though both the brothers were joint owners of the suit land, they were standing in the name of Kalasammanavara Chinmayappa. The said Kalasammanavara Chinmayappa and his wife Dodda Mallamma died long ago leaving behind their son by name Goneppa as the legal heir. Later on, Kalasammanavara Mallappa-the younger brother and Goneppa became the joint owners of the suit property. The said Goneppa died without -6- issues and his wife Mallavva also died in the year 2004. This being the state of affairs, the said Kalasammanavara Mallappa and his wife Sangamma also died leaving behind three daughters and a son by name Mudimallappa, the father of the plaintiff. Thus, the plaintiff is the grand-daughter of Kalasammanavara Mallappa. Now, all the three daughters and son Mudimallappa have died intestate. Therefore, plaintiff is the only legal heir of Kalasammanavara family. Accordingly, she is the absolute owner and in possession in suit property by way of inheritance. The defendants belongs to Jummani family and they are in no way concerned with the family of Kalasammanavara. In the family of the defendants, one Goneppa, the 5th son of Jummani Basappa was there and he is none other than the husband of the first defendant -Mallava. Similarly, in Kalasammanavara family also there was a -7- person by name Goneppa and his wife Mallamma. They were the paternal uncle of the plaintiff. By taking disadvantage of the same names in both the families, the defendants in collusion with revenue authority managed to change the khata of the suit property in their name. This fact came to the knowledge of the plaintiff in the year 2009, when he obtained the documents to avail the loan from the bank. Therefore, plaintiff filed the Revision Petition before the Deputy Commissioner, Bellary, in R.P.No.89/2009-10 for rectification of illegal entries in revenue. The Deputy Commissioner granted stay order. But, the defendants continued to interfere in the possession of the plaintiff over the suit property and they also denied the right of the plaintiff over the suit property. The plaintiff being the only the daughter of Mudimallappa became the an absolute owner of the suit property and she is in -8- possession and enjoyment of the same. Therefore, she was constrained to file the suit for declaration of her title over the suit property and consequential relief of permanent injunction.
4. In pursuance of the summons, the defendants appeared before the trial Court through their counsel and filed written statement. They contended that the suit filed by the plaintiff is vexatious, frivolous, false in facts and not maintainable in law. There is no cause of action to file the suit.
5. The defendants contended that the suit property belongs to Kalasammanavara Chinamayappa and he died intestate and his wife Doddamallamma also died leaving behind her son Goneppa. The said Goneppa has married one Jummani Mallava, daughter of Jummani Basappa who is none other than the sister of the husband of the first defendant. The said Goneppa and -9- Jummani Mallavva died leaving behind the husband of the first defendant and father of the second defendant as her class-II legal heirs. Thus, the defendants are having claim over the suit property as per the provision of Hindu Succession Act, 1956. After the death of Goneppa, the said Mallavva @ Jummani Mallavva was living with the husband of the first defendant and father of the second defendant. The said Mallavva had given consent to change the khata of the suit property in the name of the second defendant and the first defendant is the guardian. In view of her consent, the mutation was changed as per Mutation entry No.11/1981-82 as she has not issues and legal heirs, the husband of the first defendant was looking after Mallavva. After mutation, the first defendant came into lawful possession and enjoyment of the suit property on behalf of the second defendant. After attaining the majority, the mutation
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has been changed in the name of the second defendant. The defendants are regularly paying the taxes to the Government and they are in lawful possession and enjoyment of the suit property. The plaintiff is not having any right, title and interest over the suit property and she was never in possession of the same on this ground they prayed for dismissal of the suit property.
6. On the basis of pleadings of the parties, the trial Court framed following issues:-
"1. Whether the plaintiff proves that she is the absolute owner and in possession of the suit properties?
2. Whether the plaintiff proves that she belonged to the Kalasammanavar family and her ancestors Chinmayappa and Mallappa are own brothers?
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3. Whether the plaintiff proves that the defendants are interfering with the peaceful possession and enjoyment of the suit schedule properties of the plaintiff?
4. Whether the defendants prove that Jamani Mallavva has consented to change the Khatha in the name of defendant No.2 in respect of the suit properties?
5. Whether the defendants prove that the suit is not maintainable without seeking the relief of possession by the plaintiff?
6. Whether the defendants prove that they are in lawful possession and enjoyment of the suit schedule properties?
7. Whether the defendants prove that the Court fee paid by the plaintiff is insufficient?
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8. Whether the plaintiff is entitled for the relief as sought for?
9. What order or decree?"
7. In order to prove the issues, the plaintiff herself got examined as PW-1 and examined 3 witnesses and got marked 28 documents. Defendant Nos.1 and 2 got examined as DWs.1 and 2 also examined 2 witnesses and got marked 33 documents.
8. The trial Court after hearing both the parties answered the issue No.1 partly in affirmative and issue No.2, 4, 5, 6 in the affirmative and issue No.3 and 7 in the negative. Consequently, the suit of the plaintiff was dismissed with cost of Rs.5,000/-.
9. It appears, in the meantime, the original plaintiff died and her LRs. filed regular appeal in RA No.80/2018 on the file of the Senior Civil Judge, Huvinagahagali,
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challenging the judgment and decree passed in OS No.67/2011. The Appellate Court secured the lower court records. Heard both the parties and passed the impugned judgment dated 27/10/2018, thereby allowed the appeal and decreed the suit of the plaintiff. It is also seen that the defendants who appeared in RA No.80/2018 have filed the cross objection challenging the findings recorded by the trial Court on issue Nos.1 and 2. In the impugned judgment the Appellate Court had declared that the legal heirs of plaintiff are the absolute owners of the suit property and defendants were directed to handover the possession of the property to the plaintiff. It is also seen that during the pendency of the appeal the plaintiffs had filed an application for amendment of the plaint to include the relief of possession which was allowed and consequently, the said relief was granted.
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10. The defendant Nos.1 and 2 being aggrieved by the said judgment and decree have filed this regular second appeal.
11. Heard the learned counsel for the appellants and respondents on admission.
12. Therefore, at the first instance, this Court has to consider the material on record and come to the conclusion as to whether any substantial questions of law arise for consideration in the present appeal.
13. The learned counsel for the appellant- defendant vehemently submitted that the appellant had filed cross objection under Order XLI Rule 22 of CPC before the First Appellate Court and it was not at all considered by the Appellate Court and no finding is recorded. Therefore, there is a substantial question of law to be considered in the present appeal.
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14. Learned counsel further submitted that the First Appellate Court has erroneously held that the suit of the plaintiff for declaration and possession is not barred by limitation.
15. Per contra, the learned counsel for the respondents submitted that the Appellate Court has considered the cross objections filed by the present appellants along with the appeal and the appeal was allowed. However, the Appellate Court has not specifically mentioned that the cross objection is dismissed.
16. The findings of the Appellate Court are sufficient to show that the cross objection was dismissed impliedly. The learned counsel further submitted that absolutely there is no document to show that Mallama gave consent in writing to mutate the name of defendant No.2 in respect of suit property.
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The learned counsel further submitted that question of limitation was also considered by the Appellate Court and held that the suit of the plaintiff is not barred by limitation. Therefore, absolutely there is no substantial question of law which arise for consideration in the present appeal.
17. The main contention of the appellants is that before the first Appellate Court they have filed cross objection under Order XLI Rule 22 of CPC challenging the finding of trial Court on issue Nos.1 and 2 and the cross objections were not at all considered by the Appellate Court. Therefore, there is illegality in passing the impugned judgment. On this point, the learned counsel for the appellants has relied on the judgment in the case of Mahadev Govind Gharge and Others Vs. Special Land Acquisition Officer, reported in (2011)
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6 SCC 321. In para No. 34, the Hon'ble Supreme Court has held as follows:
"Cross-objections within the scheme of Order 41 Rule 22 of the Code are to be treated as separate appeal and must be disposed of on same principles in accordance with the provisions of Order 41 of the Code".
18. Therefore, it is settled principle of law that cross objection filed in the appeal Under Order 41 Rule 22 of the CPC has to be treated as a separate appeal and the same has to be disposed of on the same principle that of the regular appeal. It is admitted that the present appellants filed cross objections in RA No.80/2018 challenging the finding recorded by the trial Court on issue Nos.1 and 2. Under issue No.1, the plaintiff was required to prove that he is the absolute
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owner and in possession of the suit property and under issue No.2 the plaintiff was required to prove that she belongs to the Kalasammanavara family and her ancestors are Chinmayappa and Mallappa. It is also necessary to observe that the trial Court has recorded the findings on issue No.1 partly in the affirmative and issue No.2 in the affirmative. Therefore, the trial Court held that the plaintiff is the absolute owner of the suit property and she belongs to the Kalasammanavar family. These findings were challenged by the present appellants by way of cross objection. Now, it is argued that the First Appellate Court has not at all considered the said cross objection. This contention cannot be accepted. In para 13 of the judgment, the First Appellate Court has referred to the Cross objection filed by the respondents therein. It is specifically stated that the respondents have filed cross objection under Order
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XLI Rule 22 of CPC praying to set aside the findings recorded on issue Nos.1 and 2. In para 14, the details of the cross objections are also referred.
19. After hearing both the parties, the First Appellate Court formulated the following points for consideration:-
"1. Whether the appellants/plaintiff proved that they belongs to Kalasammanavara family thereby they became the absolute owners of the suit property by virtue of inheritance?
2. Whether the impugned judgment and decree is capricious perverse, illegal and calls the interference by this Court?
3. Whether the claim of the plaintiff is barred under law of limitation?"
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20. Therefore, the First Appellate Court has framed the points for consideration under which it considered as to whether the plaintiff has proved that she belongs to Kalasammanavara family and thereby became the absolute owner of the suit properties by virtue of succession and under the second point for consideration the Appellate Court has also considered as to whether the impugned judgment and decree of the trial Court is capricious perverse, illegal and calls for interference. Under the 3rd point the Appellate Court also considered as to whether the claim of the plaintiff is barred by limitation.
21. It is needless to observe that the same points for consideration arise both in the appeal and cross objection. There cannot be any separate point for consideration in respect of the cross objection since
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both the appeal and cross objection were heard together and the common point for consideration were framed by the Appellate Court. Point No.1 framed by the Appellate Court placing burden on the plaintiff to prove that she belongs to Kalasammanavara family is covered by issue Nos.1 and 2 before the trial Court. The findings on these were issues challenged by the present appellant by way of cross objection. Therefore, the contention of the appellant herein that the First Appellate Court has not at all considered the cross objection filed by them, has no merit and this ground does not survive for formulation of substantial question of law.
22. The First Appellate Court has appreciated the evidence of the parties especially the evidence of PWs.2 and 3 who belong to the family of the defendants namely, Jummani family and they have given evidence
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to the effect that the plaintiff belongs to Kalasammanavara family. Therefore, the First Appellate Court properly invoked Section 50 of Indian Evidence Act and accepted the opinion of these witnesses on the relationship issue and has concluded that the evidence of PWs.2 and 3 clearly established that the plaintiff is the daughter of Mudimallappa - the son of Kalasammanavara Mallappa and that the plaintiff belongs to Kalasammanavara family. The evidence of DWs.1 and 2 was also considered to hold that the plaintiff has successfully proved that she is the daughter of Mudimallappa - the son of Kalasammanavara Mallappa belonging to Kalasammanavara family. On the other hand, the defendants have failed to prove that Mallavava wife of Goneppa belongs to their family and she consented to effect Katha in favour of the second defendant. The
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defendants have not at all produced any document to show that the said Mallavva has given consent to the effect mutation in the name of defendant No.2 in respect of the suit property. Merely, because the names of the defendants are mutated without any registered documents, they does not confirm title over the property. On the other hand, the material on record was properly considered by the First Appellate Court and held that the plaintiff is the only legal heir of Kalasammanavara family and she is the absolute owner of the suit property. During the course of the said appeal, the plaintiff got amended the plaint seeking the relief of possession since the defendants contended that they are in possession of the property and therefore, the Appellate Court also passed a decree for possession.
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23. The present appellants have also contended that the suit for declaration and possession is barred by limitation under Article 58 of the Limitation Act. Since First Appellate Court has held that the plaintiff is the absolute owner of the suit property, she is entitled for possession and the case is not covered under Article 58 of the Limitation Act. It is also not the case of the defendants that they are in adverse possession of the suit property over the statutory period and they have perfected their title over suit properties by adverse possession. When this is not the case of the defendants, Article 65 of the Limitation Act has to be applied and consequently, the suit of the plaintiff cannot be held as barred by limitation. Moreover, when the suit of the plaintiff is based on title, the question of limitation does not arise. Under these circumstances, it is held that the appellants have not at all made out any
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substantial questions of law for consideration in the present appeal. Therefore, the appeal being devoid of merit is liable to be dismissed. Accordingly, the appeal is dismissed.
24. Parties are directed to bear their costs.
Sd/-
JUDGE Vmb