Karnataka High Court
V Sahanashri vs Sri A R Chinthamani on 6 October, 2023
Author: P.S. Dinesh Kumar
Bench: P.S. Dinesh Kumar
R.F.A No.2138/2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
R.F.A NO.2138 OF 2022 (DEC/INJ)
BETWEEN:
V. SAHANASHRI
D/O H.M. VENKATESH
AGED ABOUT 32 YEARS
R/AT NO. 425, 1ST STAGE
TEACHER LAYOUT, NAGARABHAVI
NEAR I.S.E.C.BENGALURU-560 072 ...APPELLANT
(BY SHRI. ZULFIKIR KUMAR SHAFI, ADV.)
AND:
SRI. A.R. CHINTHAMANI
S/O LATE A.M. RAMACHANDRAN
AGED ABOUT 56 YEARS
R/AT ARAYAMPARAMBIL HOUSE
ODAPALIAM ROAD, P.O. MOOLANAKAVE
S. BATTERY, WYNAD DISTRICT
PIN: 673 592, KERALA STATE
BY HIS GENERAL POWER OF ATTORNEY
HOLDER SRI. B.N. VRUSHABHENDRA
DEAD BY LRs.,
1. SMT. SARAMMA T. KOSHY
W/O LATE A.R. CHINTHAMANI
AGED ABOUT 71 YEARS
2. SMT. MEERA
D/O LATE A.R. CHINTHAMANI
AGED ABOUT 42 YEARS
R.F.A No.2138/2022
2
3. MANU
S/ LATE A.R. CHINTHAMANI
AGED ABOUT 37 YEARS
R1 TO R3 ARE R/ AT
ARAYAMPARAMBIL HOUSE
ODAPALLAM ROAD
P.O. MOOLANAKAVE
S. BATTERY, WYNAD DISTRICT
KERALA STATE-673 592.
SRI. V. SRINIVAS
S/O LATE S. VENKATARAMAIAH
AGED ABOUT 63 YEARS
SINCE DEAD BY LRs
4. SMT. PADMAVATHAMMA
M/O LATE SRINIVAS
AGED ABOUT 93 YEARS
5. SMT. MANJULA
W/O LATE SRINIVAS
AGED ABOUT 65 YEARS
6. SRI. S. RAVIKUMAR
S/O LATE SRINIVAS
AGED ABOUT 45 YEARS
7. SRI. S. PRASHANTH
S/O LATE SRINIVAS
AGED ABOUT 31 YEARS
8. SMT. S. SHOBHA
D/O LATE SRINIVAS
AGED ABOUT 41 YEARS
R4 TO R8 ARE R/AT NO. 909/176
SARVAJANIKA HOSTEL ROAD
VIDYARANYAPURAM
MYSURU-570 008.
9. SRI. ELANGOVAN
S/O D. ANNAMALAI
AGED ABOUT 48 YEARS
R/AT DOOR NO. G/5
R.F.A No.2138/2022
3
1027, CH 23
NISARGADHAMA APARTMENTS
JAYALAKSHMI ROAD
MYSORE-570 012.
10. SRI. V. NANJUNDASWAMY
S/O LATE VEERAPPA
AGED ABOUT 48 YEARS
R/AT CHIKKADEVARAGUDI
KANCHIKERE POST, K.R. NAGAR TALUK
MYSURU DISTRICT 571 602.
11. SRI. MANOMOHAN LAL
S/O LATE A.M. RAMACHANDRAN
AGED ABOUT 78 YEARS
R/AT ARAYAMPARAMBIL HOUSE
KODAPULLI TEMPLE ROAD
KIZHAKUMMARI POST
PERINGOTUKARA, TRICHUR DISTRICT
KERALA STATE-680 571.
12. SMT. NINGAMMA
W/O LATE SANNE GOWDA
AGED ABOUT 73 YEARS
R/AT PARASAIAHANA HUNDI VILLAGE
SRIRAMAPURA, KASABA HOBLI
MYSURU TALUK
PIN: 570 008.
13. SRI. PUTTA @ PUTTEGOWDA
S/O LATE SANNE GOWDA
AGED ABOUT 52 YEARS
R/AT PARASAIAHANA HUNDI VILLAGE
SRIRAMAPURA, KASABA HOBLI
MYSURU TALUK
PIN: 570 008.
14. SMT. NINGAMMA
W/O LATE PUTTAIAH @ PUTTE GOWDA
AGED ABOUT 78 YEARS
R/AT PARASAIAHANA HUNDI VILLAGE
SRIRAMAPURA, KASABA HOBLI
MYSURU TALUK
PIN: 570 008.
R.F.A No.2138/2022
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15. SMT. SHIVAMMA
D/O LATE PUTTEGOWDA &
SMT. NINGAMMA
AGED ABOUT 58 YEARS
R/AT PARASAIAHANA HUNDI VILLAGE
SRIRAMAPURA, KASABA HOBLI
MYSURU TALUK
PIN: 570 008.
16. TAHSILDAR
MYSURU TALUK
MYSURU - 570 018.
17. ASSISTANT DIRECTOR OF
LAND RECORDS
MYSURU SUB-DIVISION
MYSURU - 570 018.
18. STATE OF KARNATAKA
VIDHANA SOUDHA
BENGALURU - 560 001.
BY ITS CHIEF SECRETARY ...RESPONDENTS
(BY SHRI. G. KRISHNA MURTHY, SENIOR ADV. FOR
SHRI. T.P. VIVEKANANDA, ADV. FOR R1 TO R7)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 17.02.2020 PASSED IN OS NO. 128/2014 ON
THE FILE OF THE ADDL. COURT OF SMALL CAUSES, MYSURU,
DECREEING THE SUIT FOR DECLARATION AND PERMANENT
INJUNCTION.
THIS RFA, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.07.2023 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY,
T.G. SHIVASHANKARE GOWDA J., PRONOUNCED THE
FOLLOWING:-
R.F.A No.2138/2022
5
JUDGMENT
In this appeal, the appellant has challenged the judgment and decree dated 17.02.2020 passed by the learned Additional Small Causes and Senior Civil Judge, Mysuru (for short 'the Trial Court') in O.S.No.128/2014.
2. For the sake of convenience, parties shall be referred as per their status before the Trial Court.
3. Briefly stated the appellant's case is, land bearing Sy.No.197/2A and new No.197/3 measuring 1 acre situated at Srirampura village, Kasaba Hobli, Mysuru Taluk, originally belonged to one Jogegowda. It had fallen to the share of his son Puttegowda in a partition. The revenue entries have been changed in the name of Puttegowda, who continued in possession and enjoyment of the said property as the owner. Puttegowda died R.F.A No.2138/2022 6 intestate leaving behind his wife Ningamma and his only daughter Shivamma. They succeeded to Puttegowda's property. They have sold it to one V.Srinivas under a registered sale deed dated 15.06.1990. V.Srinivas, was in possession of the said land. He in turn sold it to one A.Elangovan under registered sale deed dated 13.04.2005. Revenue records were changed in the name of A.Elangovan, who continued in possession as absolute owner. Elangovan in turn sold it in favour of one V.Nanjundaswamy under a registered sale deed dated 11.08.2005. Pursuant to the sale, revenue records were transferred in the name of said Nanjundaswamy, who continued in possession as absolute owner. V.Nanjundaswamy sold the said land to one Raghavendra Lohith under a registered sale deed dated 27.10.2006. Raghavendra Lohith died in the meantime. After his death, his sister Smt.Shwetha sold the land in favour of one R.F.A No.2138/2022 7 B.R.Sarojamma by a registered sale deed dated 25.02.2009 and the revenue records were transferred in her name. B.R.Sarojamma in turn sold the said land in favour of one Ningamma @ Kenchamma, wife of Thimmaiah under a registered sale deed dated 03.10.2015. After the sale, revenue records were transferred in her name and she continued to be in possession of the said land as absolute owner.
4. Ningamma @ Kenchamma has executed a gift deed dated 14.03.2017 in favour of the appellant, who is her grand-daughter. Thus, all the right, title and interest possessed by Ningamma @ Kenchamma has been transferred in favour of the appellant and thereby the appellant is claiming title and possession over the said land as absolute owner under the said gift deed.
R.F.A No.2138/20228
5. When the matter stood thus, one A.R.Chintamani, father of plaintiff Nos.1 to 3 has filed the instant suit seeking following reliefs:
a) Declaration that the Sy.no.of Agricultural land purchased by Manmohan Lal, the 3rd Defandant from Sannegowda, Smt.Ningamma and Puttegowda @ Putta vide Registered Sale Deed dated 21.03.1980 and settled in favour of plaintiff by Manmohan Lal vide Settlement Deed dated 02.11.1987 is land bearing Sy.No.197/2 and described in the Sale Deed dated 21.03.1980 and settlement deed dated 02.11.1987.
(b) Declaration that the Sale Deed dated 13.04.2005 executed by defendant No.1 in favour of Defendant No.2 with respect to suit schedule property is not binding on the plaintiff.
(c) Declaration that the sale deed dated 11.08.2005 executed by defendant No.2 in favour of Defendant No.3 with respect to suit schedule property is not binding on the plaintiff.
(d) Declaration that the Sale Deed dated 15.06.1990 executed by Smt.Ningamma and Shivamma, the 8th and 9th Defendants herein in favour of 1st Defandant with respect to land R.F.A No.2138/2022 9 bearing Sy.No.197/2 and shown in R.T.C. as 197/2A is not binding on the plaintiff.
e) Declaration that the plaintiff is the absolute owner of land bearing Sy.No.197/2 and shown in R.T.C. Sy.No.197/2A by Dtd.02.11.1987 to an extent of 31 Guntas.
f) For permanent injunction to restrain the defendants from interfereing with the Suit Schedule Property.
g) Grant Costs of the Proceedings and
h) Any other relief's which the Hon'ble Court deems fit to grant in the circumstances of the case.
6. During the pendency of the suit, Ningamma @ Kenchamma, received a notice under Order I Rule 10 of CPC numbered as I.A.No.14 to implead her and her vendors as necessary parties. She appeared before the Court and opposed the application on the ground that the suit schedule property and her land is altogether different.
7. After hearing the parties, the Trial Court came to the conclusion that the land acquired by R.F.A No.2138/2022 10 Ningamma @ Kenchamma and the suit schedule properties are altogether different and dismissed the I.A.No.14 filed by the plaintiff. The Trial Court after trial, by the impugned judgment decreed the suit. Aggrieved by the same, the appellant has filed the instant appeal on various grounds.
8. The appellant has filed I.A.No.1/2022 seeking permission to prosecute the appeal. In support of the application, she has sworn to an affidavit narrating the above facts stating that the plaintiff was under the impression that the Trial Court had earlier decided the matter holding that the suit property is different from the property gifted by Ningamma @ Kenchamma. But in the impugned judgment Trial Court has erroneously recorded that the sale deed dated 13.04.2005 in the name of V.Srinivas is not binding on the plaintiff and passed the decree in respect of the property belonged to the appellant. When I.A.No.14 was R.F.A No.2138/2022 11 dismissed on the ground that the properties are different, the Trial Court has committed an error in decreeing the suit in respect of 1 acre of land belonging to the appellant. Hence, she was constrained to file this appeal and sought leave to prosecute the appeal.
9. Respondents No.1 to 3/plaintiffs have filed their statement of objections opposing I.A.No.2/2022 contending interalia that 1 acre 39 guntas of land in Sy.No.197/2 and 31 gutnas of land in Sy.No.197/1B originally belonged to the family of Jogegowda, Puttegwoda and Sannegowda. In the oral partition, northern portion of the land measuring 31 guntas in Sy.No.197/1B and 9 guntas of land in Sy.No.197/2 together measuring 1 acre was allotted to the share of Puttegowda. The middle portion of 31 guntas in Sy.No.197/2 was retained by Jogegowda and 39 guntas on the R.F.A No.2138/2022 12 southern side in Sy.No.197/2 was allotted to the share of Sannegowda.
9.1. There was no survey or pakka podi of 39 guntas of land allotted to Sannegowda in Sy.No.197/2B as also 1 acre of land allotted to the share of Puttegowda in Sy.No.197/2. The name of Jogegowda was not shown either in Sy.No.197/2 or 197/1B in respect of 31 guntas. Jogegowda and his sons, were under the impression that the property allotted to the share of Puttegowda is assigned with Sy.No.197/2A, property retained by Jogegowda was assigned with Sy.No.197/1B and property allotted to Sannegowda was Sy.No.197/2B. That was not the actual position in reality. The portion allotted to Puttegowda measuring 31 guntas was in Sy.No.197/1B and 9 guntas was in Sy.No.197/2. One Manmohan Lal has purchased 1 acre 30 guntas in Sy.Nos.197/2B and 197/1B through sale deed dated 21.03.1980. The property owned by vendors R.F.A No.2138/2022 13 of Manmohan Lal lies in Sy.No.197/2B measuring 39 guntas and Sy.No.197/2 measuring 31 guntas. There was a bonafide mistake in mentioning the survey numbers in the sale deed as 197/1B instead of 197/2. The said mistake continued even in the Settlement Deed execute by Manomohan Lal in favour of A.R.Chintamani in the year 1987. After purchase, Manomohan Lal's name was entered in RTCs for year 1983-84 to 1987-88. By virtue of Settlement Deed dated 02.11.1987, A.R.Chintamani had approached the Revenue Authorities for mutation. The Revenue Authorities have entered the name of A.R.Chintamani to an extent of 39 guntas in Sy.No.197/2B and his request for 31 guntas in Sy.No.197/1B was refused. Aggrieved by the same, A.R.Chintamani filed an appeal before the Assistant Commissioner, Mysore Sub-Division, and the appeal was disposed of holding that there is a dispute with regard to identity of survey numbers R.F.A No.2138/2022 14 in respect of the property claimed by A.R.Chintamani and he was relegated to the Civil Court.
9.2. In the interregnum, the legal representatives of Puttegowda have sold 1 acre of land in Sy.No.197/2A based on the RTC entries in favour of V.Srinivas through registered sale deed dated 15.06.1990. The family members of Puttegowda had no other land except the land sold in favour of V.Srinivas. However, taking advantage of the mistake which had crept-in in the sale deed of Manmohan Lal in respect of 31 guntas in Sy.No.197/2, they clandestinely executed another sale deed dated 04.10.1990 in favour of V.Srinivas which actually belongs to A.R.Chintamani. On the strength of said sale deed, V.Srinivas attempted to interfere with the peaceful possession of 31 guntas of land in Sy.No.197/2. Hence, A.R.Chintamani was constrained to file a suit in O.S.No.165/1995 before R.F.A No.2138/2022 15 the Civil Judge (Jr.Dn.), Mysore, against V.Srinivas and his father S.Venkataramaiah. In the said suit, the plaintiff came to know about the mistake in mentioning the survey numbers in the sale deed executed by Puttegowda, Sannegowda and Ningamma. In the said suit, A.R.Chintamani filed an application for amendment to clarify the position with regard to mistake in mentioning the survey numbers and its extent. The said application came to be rejected by the Civil Judge (Jr.Dn.) Mysore. Against said order plaintiff had filed a writ petition in W.P.No.11085/2009 before this Court. The writ petition was disposed of permitting the plaintiff to withdraw the suit and to file a fresh suit on the same cause of action. Thereafter A.R.Chintamani filed the instant suit in O.S.No.566/2009 seeking declaration and permanent injunction. The Trial Court has granted an order of injunction on 23.10.2009 against defendant No.3/ R.F.A No.2138/2022 16 Nanjundaswamy. The subsequent purchasers viz., Elangovan, and Nanjundaswamy have been arrayed as defendants. During the pendency of the said suit, A.R.Chintamani died and his legal representatives were brought on record. The suit was re-numbered as O.S.No.128/2014. During the pendency of the said suit, 31 guntas of land in Sy.No.197/1B has changed several hands and therefore, the plaintiffs had filed an application for impleading the subsequent purchasers i.e., Smt.Swetha, B.R.Sarojamma and Smt.Ningamma @ Kenchamma as party to the suit. The said application was opposed by Ningamma @ Kenchamma. By order dated 04.10.2017, the Trial Court has dismissed the said application holding that plaintiffs had failed to satisfy the Court that the presence of the said proposed defendants was necessary in order to effectively adjudicate the question involved in the suit. Ningamma @ R.F.A No.2138/2022 17 Kenchamma did not challenge the said order and therefore, any adverse order passed in the suit would bind them.
9.3. After a full-fledged trial, the Trial Court came to the conclusion that the property purchased by Manmohan Lal under the sale deed dated 21.03.1980 is Sy.No.197/2 and not 197/1B. Accordingly, the Trial Court declared that original plaintiff A.R.Chintamani is the absolute owner of Sy.No.197/2 to an extent of 31 guntas, which is wrongly shown as Sy.No.197/2A in the RTC. Consequently, the Trial Court declared that the sale deeds executed by Ningamma and Shivamma in favour of V.Srinivas on 15.06.1990, sale deed executed by V.Srinivas in favour of Elangovan on 13.04.2006 and sale deed executed by Elangovan in favour of V.Nanjundaswamy on 11.08.2005 are not binding on the plaintiffs, and the matter has attained finality.
R.F.A No.2138/202218
9.4. It is further contended that the application filed by the appellant does not disclose as to why the appellant is to be permitted to prosecute the appeal. The appellant has no locus standi to file the present appeal. Ningamma @ Kenchamma in violation of the interim order, has executed the gift deed.
9.5. It is further contended that the appellant's family members have started interfering with the possession of the defendants. These defendants have preferred a statutory appeal before the Assistant Commissioner, Mysore Sub- Division, under Section 136(2) of the Land Revenue Act. The learned Assistant Commissioner by order dated 15.12.2021 has directed the Tahsildar to enter the name of the appellant therein in the revenue records as per the order passed in the original suit. Against the said order, the appellant has filed a Revision Petition No.161/2021 before the R.F.A No.2138/2022 19 Deputy Commissioner, Mysore and the said revision petition is pending consideration. Without disclosing the pending revision petition, the appellant has approached this Court by filing a writ petition in W.P.No.13121/2022 challenging the order passed by the Assistant Commissioner, but the said writ petition has been dismissed vide order dated 11.08.2022 with an observation that, if the appellant were to get the judgment and decree passed by the Civil Court reversed by the Appellate Court or if an order of stay is granted against the judgment and decree, then the petitioner/appellant may approach the Revenue Authorities to take note of the subsequent orders and make entries or change the revenue entries accordingly. Suppressing all these aspects, this appeal has been filed with inordinate delay, and sought for dismissal of the appeal.
R.F.A No.2138/202220
10. Heard the arguments of Shri Zulfikir Kumar Shafi, learned counsel for appellant and Shri G.Krishnamurthy, learned Senior Counsel for respondents No.1 to 7.
11. It is the contention of the learned counsel for the appellant that the appellant is claiming title and possession over 1 acre of land in Sy.No.197/3 (old No.197/2A) which had originally fallen to the share of Puttegowda. His wife Ningamma and her daughter Shivamma sold it in favour of one V.Srinivas, who came in possession and enjoyment of the property. Thereafter the said property has been devolved upon several persons namely Elangovan, Nanjundaswamy, Raghavendra Lohith, Shwetha, the sister of Raghavendra Lohith, Sarojamma, Ningamma @ Kenchamma. The appellant has acquired the property by virtue of the gift deed dated 14.03.2017 and she is in possession and enjoyment of the property. The property R.F.A No.2138/2022 21 acquired by Manmohan Lal is the property fallen to the share of Jogegowda, who executed a Will in favour of his grandson Putta, who sold it in favour of Manmohan Lal on 20.03.1980. The land in Sy.No.197/2 (old No.197/2B) measuring 39 guntas fallen to the share of Sannegowda is situated to the southern portion of 1 acre of land of the appellant. Putta and his father Sannegowda have sold the said property in favour of Manmohan Lal on 20.03.1980. Manmohan Lal sold it on 01.12.2004 in favour of one G.Srinivas. G.Srinivas has sold said property to one R.Lokesh on 15.07.2006, who in turn formed a Layout in the said 39 guntas. The 31 guntas of land sold by Putta and Sannegowda to Manmohan Lal is on the northern side of plaintiff's land.
11.1. It is further contended that application filed by the plaintiff under Order I Rule 10 of CPC to implead Ningamma @ Kenchamma and also her vendors was dismissed on the ground that R.F.A No.2138/2022 22 Ningamma @ Kenchamma and her vendors are not the necessary parties to resolve the dispute in respect of 31 guntas situated on northern portion of the land of appellant. Hence, there is no question of estoppel or res judicata operates against the appellant.
11.2. It is further contended if the Trial Court has come to the conclusion that 31 guntas of land claimed in the suit is a portion of 1 acre of land belonging to the appellant, it ought to have revived its orders on I.A.No.14 directing the plaintiff to implead Ningamma @ Kenchamma and vendors as parties to the suit. The appellant or her grandmother had no occasion to file any written statement as the impleading application came to be dismissed. Only after the order passed by the Assistant Commissioner that khata of 31 guntas be carved out of 1 acre of appellant's land, the appellant was constrained to file the appeal before R.F.A No.2138/2022 23 the Deputy Commissioner, so also the Writ Petition before this Court.
11.3. The appellant has been directed to get the judgment and decree set aside and then to seek rectification of the order of the Assistant Commissioner. Hence, the appellant is constrained to file this appeal. Unless the appellant is given an opportunity to contest the suit explaining her stand, appellant's valuable rights would be adversely affected. It is urged that the impugned judgment is one-sided, passed behind the back of the appellant and sought an opportunity to contest the suit.
12. Per contra, learned Senior Counsel has contended that Sy.No.197/1A consist of 2 acres 26 guntas, out of which, 39 guntas was allotted to Sannegowda, 1 acre was allotted to Puttegowda and 31 guntas of land was retained by Jogegowda. Jogegowda bequeathed his 31 guntas in favour of R.F.A No.2138/2022 24 his grandson Putta and thereby Sannegowda and his son Putta acquired 39 guntas + 31 guntas, i.e., an extent of 1 acre 30 guntas. Sannegowda and his son sold 1 acre 30 gutnas in favour of Manmohan Lal on 21.03.1980. Manmohan Lal settled the said property in favour of plaintiff by virtue of Settlement Deed on 02.11.1997. Plaintiff has sold 39 guntas of land to one G.Srinivas and retained 31 guntas. One acre of land allotted to Puttegowda was sold to V.Srinivas by his wife and children on dated 15.06.1990; in addition to the same, they have also sold 31 guntas in favour of V.Srinivas and thereby V.Srinivas is claiming 1 acre 31 guntas out of which he has sold 1 acre to Elangovan. When Puttegowda was allotted only 1 acre of land, he never possessed 1 acre 31 guntas for alienation and thereby 31 guntas is situated on northern portion of 39 guntas sold by Sannegowda and his son, in favour of Manmohan Lal. Hence, the R.F.A No.2138/2022 25 Trial Court after considering the evidence on record has rightly held that there is a mistake in mentioning of the survey number in respect of 31 guntas and ultimately decreed the suit. In compliance of the order of the Court, the Assistant Commissioner has effected the change of khata in respect of 31 guntas of land in Sy.No.197/3 and the remaining land is only 9 guntas. If the appellant is having any claim over the property, she has to proceed in respect of 31 guntas sold in favour of V.Srinivas situated on the northern portion of Sy.No.197/3.
13. It is further contended that I.A.No.14 filed under Order I Rule 10 of CPC was filed by the plaintiff on 04.10.2016. On 30.01.2016, there was an order of status quo passed by the court. But on 16.12.2016, the appellant obtained the gift deed from her grand mother Ningamma @ Kenchamma and thereby the gift is hit by doctrine of lis R.F.A No.2138/2022 26 pendens. When Ningamma @ Kenchamma opposed I.A.No.14 filed under Order I Rule 10 of CPC on the ground that her property is different and on dismissal of the said application, she has waived her right over the suit schedule property. Hence, appellant is estopped from claiming his right over the suit property. I.A.No.14 was decided on merits and therefore, res judicata is applicable to I.A.No.1/2022 filed by the appellant herein. Hence, the application is not maintainable and the appellant cannot prosecute the appeal and sought for dismissal of the application, so also the appeal.
14. We have given our anxious consideration to the arguments addressed on behalf of both parties and perused the records.
15. In the light of the rival contentions urged by both parties, the point that arises for our consideration is:
R.F.A No.2138/202227
(i) Whether the appellant has made out grounds to permit her to prosecute the appeal?
16. The material on record shows that originally Sy.No.197 consisted of 5 acres 16 guntas. It was divided and phoded as Sy.No.197/1 to an extent of 3 acres 17 guntas and Sy.No.197/2 measuring 1 acre 39 guntas. Sy.No.197/1 is phoded into Sy.No.197/1A to an extent of 2 acres 26 guntas and Sy.No.197/1B to an extent of 31 guntas. Sy.No.197/2 divided as Sy.No.197/2A measuring 1 acre and Sy.No.197/2B measuring 39 guntas. Jogegowda had two sons by name Puttegowda and Sannegowda. During the partition, the land in Sy.No.197/1B measuring 31 guntas was retained by Jogegowda. He has allotted 1 acre of land in Sy.No.197/2A to Puttegowda and 39 guntas of land in Sy.No.197/2B to Sannegowda. Jogegowda bequeathed his share of 31 guntas in R.F.A No.2138/2022 28 favour of Putta, his grandson, who is the son of Sannegowda. Sannegowda and his son owned 39 guntas and 31 guntas and totally 1 acre 30 guntas. This 1 acre 30 guntas was sold to Manmohan Lal by Sannegowda and his son Putta by sale deed dated 20.03.1980. The material on record also discloses that Manmohan Lal has sold 39 guntas out of 1 acre 30 guntas in favour of one G.Srinivas under a sale deed dated 01.12.2004, in turn, G.Srinivas sold the said 39 guntas to one R.Lokesh by sale deed dated 15.07.2006. In the said layout has been formed in 39 guntas as on today. In the remaining 31 guntas, on 02.11.1987, Manmohan Lal executed a settlement deed in favour of his brother Chintamani, who is the plaintiff in the instant suit.
17. Plaintiff is claiming this 31 guntas of land as part and parcel of Sy.No.197/3, which has been accepted by the Assistant Commissioner and khata has been ordered for 31 guntas out of 1 acre in R.F.A No.2138/2022 29 Sy.No.197/3. The claim of the appellant is that, 1 acre of land allotted to Puttegowda in 197/3 (old No.197/2A) was alienated by his wife Ningamma in favour of V.Srinivas by sale deed dated 15.06.1990. Thereafter, down the line, till Ningamma @ Kenchemma, the grandmother of the appellant, alienation has taken place under various sale deeds. Now the appellant is claiming title and possession over 1 acre of land in Sy.No.197/3 (old No.197/2A) under the gift deed dated 14.03.2017 executed by her grandmother Ningamma @ Kenchamma.
18. In our view, the learned Trial Court has committed an error in decreeing the suit without reviewing its order on IA No.14 but recording a finding that the property claimed by the plaintiff is portion of land of Ningamma @ Kenchamma. Now, by virtue of the decree the Assistant Commissioner in has effected the change of khata to the extent of 31 guntas in Sy.No.197/3, which is claimed by the R.F.A No.2138/2022 30 appellant through Ningamma @ Kenchamma. The judgment and decree is passed by the Trial Court in the absence of the appellant and her grandmother Ningamma @ Kenchamma. Therefore, the appellant is rightly seeking an opportunity to contest the suit.
19. The disputed land has been numbered as Sy.No.197/1B, 197/2A and 197/2B. Now Sy.No.197/2A has been renumbered as 197/3. The sale deed executed by Sannegowda and his son Putta in favour of Manmohan Lal on 21.03.1980 refers Sy.No.197/1B to the extent of 31 guntas. The plaintiff is claiming that it is wrong and the correct number is Sy.No.197/2, which is shown as Sy.No.197/2A in the RTC. As observed above, Sy.no.197/2A has been renumbered as Sy.No.197/3 based on which, the title as flown from Ningamma, wife of Puttegowda down the line to V.Srinivas, Elangovan, Nanjundaswamy, Lohith Raghavendra, R.F.A No.2138/2022 31 Shwetha, Sarojanna, Ningamma @ Kenchamma and then to the appellant. Hence, there is a clear dispute with regard to the identity of the land acquired by Manmohan Lal from Sannegowda and his son Putta. The question that arises is, whether the land retained by Jogegowda bequeathed in favour of Putta to an extent of 31 guntas is part of Sy.No.197/2 (old No.197/2A) and new No.197/3 or whether it was Sy.No.197/1B. If 31 guntas of land retained by Jogegowda is in Sy.No.197/1B, then it cannot be a portion of the land either in Sy.No.197/2 (197/2A) or Sy.No.197/3. To resolve this controversy, in our view, the appellant has to be given an opportunity to explain what was retained by Jogegowda bequeathed in favour of Putta is different from her 1 acre of land in Sy.No.197/3 old Sy.No.197/2A.
20. Adverting to the arguments of the learned Senior Counsel regarding lis pendens, estoppel and R.F.A No.2138/2022 32 res judicata, we may record that I.A.No.14 was dismissed on the ground that the land claimed by Ningamma @ Kenchamma and the plaintiff are different. In view of the same, the plea of res judicata is not applicable.
21. I.A.No.14 was filed on 04.01.2016 and order of status quo was passed on 30.01.2016. Ningamma @ Kenchamma has executed a gift deed on 14.03.2017. The order of status quo is not defined by the Trial Court. There is no specific direction that either Ningamma @ Kenchamma or anybody are restrained from creating third party rights in the property. Even otherwise, Ningamma @ Kenchamma cannot be debarred from executing gift deed in favour of her own grand-daughter. Therefore, it cannot be treated as alienation during lis pendens. Hence, the doctrine of lis pendens is not applicable.
R.F.A No.2138/202233
22. It is the specific case of Ningamma @ Kenchamma that the suit property is different from her 1 acre of land in Sy.No.197/3 (197/2, 197/2A). This has been accepted by the Trial Court. However, after trial, in the absence of Ningamma @ Kenchamma, the learned Trial Court has passed the decree against her land. As Ningamma @ Kenchamma has executed a gift deed in favour of her grand-daughter, the appellant was forced to come before this court. As observed in the writ petition, the Assistant Commissioner in compliance of the decree of the civil court has effected the khata. Unless the appellant gets an order setting aside the judgment and decree, the khata made in favour of the plaintiff cannot be changed. We are not persuaded to accept the argument canvassed by the plaintiff on waiver of right.
23. The judgment of the Hon'ble Apex Court in Jehal Tanti and Others -vs- Nageshwar Singh R.F.A No.2138/2022 34 (dead) through LRs.1 is relied upon to contend that execution of sale deed in the teeth of the order of injunction passed by the Trial Court was held to be unlawful. There is no dispute that there was no order of injunction against Ningamma @ Kenchamma from alienation. Mere order of maintaining status quo will not be a speaking order and therefore, the settled principles decided on different set of facts cannot be applied to the case on hand.
24. Smt.D.N.Mangala -vs- Smt.Sunanda and Others2 is relied upon to urge that the claim of the appellant is barred by res judicata. When the appellant or her grandmother, who are not parties to the suit and no issues were framed against them nor any issue or fact has been decided, the plea of res judicata is not applicable. We say so because, while dismissing I.A.No.14, the learned Trial Court 1 (2013) 14 SCC 689 2 ILR 2018 KAR 2022 R.F.A No.2138/2022 35 has recorded that the land belonging to Ningamma @ Kenchamma and the suit schedule properties are different.
25. In view of our discussion made on I.A.No.1/2022 without touching the merits of the case, as the appellant is required to be given an opportunity to contest the suit. Therefore this appeal merits consideration and it is a fit case for remand. Hence, the delay of 233 days in filing the appeal deserves to be condoned.
26. The appellant is now driving the plaintiff to go back to the Trial Court. Plaintiff requires to be compensated by awarding compensatory cost. We are of the considered opinion that the appeal deserves to be allowed restoring the suit to the Trial Court for adjudication on merits by imposing compensatory costs.
27. In the result, the following:
R.F.A No.2138/202236
ORDER
(i) I.A.No.1/2022 is allowed. The appellant is permitted to prosecute the appeal.
(ii) I.A.No.2/2022 is allowed. Delay of 233 days in filing the appeal is condoned.
(iii) Appeal is allowed;
(iv) The impugned judgment and decree in OS No.128/2014 on the file of the Additional Court of Small Causes, Mysuru is set aside;
(v) The matter is remanded to the Trial Court to the stage of impleading the appellant as one of the defendants;
(vi) The Trial Court is directed to permit the appellant to file her written statement, to lead additional evidence and to decide the case on merits afresh in accordance with law uninfluenced by any of the observations made hereinabove subject to appellant paying compensatory cost of Rs.50,000/- to the plaintiffs on the first day of appearance before the Trial Court;R.F.A No.2138/2022 37
(vii) Parties are directed to appear before the Trial Court without notice on 6th November 2023.
Sd/-
JUDGE Sd/-
JUDGE KNM