Karnataka High Court
Sri.Doddabusiyaiah vs Sri. Lingaiah @ Ningaiah on 2 March, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
REGULAR SECOND APPEAL NO.1491 OF 2017 (DEC)
BETWEEN:
1. SRI.DODDABUSIYAIAH,
S/O LATE DODDAMARILINGAIAH,
AGED ABOUT 84 YEARS,
R/O ARETHIPPUR VILLAGE,
C.A.KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 436.
2. NINGAMMA,
W/O SHIVALINGAIAH,
AGED ABOUT 49 YEARS,
R/O ARETHIPPUR VILLAGE,
C.A.KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
3. NINGARAJU,
S/O SHIVALINGAIAH,
AGED 49 YEARS,
R/O ARETHIPPUR VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
4. SHIVU,
S/O KULLAMANCHEGOWDA,
AGED 32 YEARS,
R/O ARETHIPPUR VILLAGE,
C.A.KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
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5. YASHODAMMA,
W/O NINGARAJU,
D/O SHIVALINGAIAH,
AGED 41 YEARS,
R/O HARIHARA VILLAGE,
KANAKAPURA TALUK,
BANGALORE RURAL DISTRICT - 571 428.
6. PUTTALINGAIAH,
S/O SHIVALINGAIAH,
AGED 37 YEARS,
THE APPELLANTS 1 TO 4 AND 6 ARE THE
R/O ARETHIPPUR VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
...APPELLANTS
(BY SRI.PRAMOD R., ADVOCATE)
AND:
1. SRI. LINGAIAH @ NINGAIAH,
S/O CHIKKAMARIGOWDA,
AGED 62 YEARS,
R/O ARETHIPURA VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
2. NINGA,
S/O DODDAHYDA,
AGED 60 YEARS,
R/O ARETHIPURA VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
3. NINGAPPA,
S/O NINGEGOWDA,
AGED 59 YEARS,
R/O ARETHIPURA VILLAGE,
C.A. KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 436.
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4. RATHNAMMA,
W/O LINGAIAH @ NINGAIAH,
AGED MAJOR,
R/O BASAVANAPURA VILLAGE,
KASABA HOBLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 438.
5. SHANTHAMMA,
D/O LINGAIAH @ NINGAIAH,
AGED MAJOR,
R/O BASAVANAPURA VILLAGE,
KASABA HOBLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 436.
6. SIDDAMMA @ HOOVAMMA,
D/O LATE BUJANGAIAH,
W/O SUBBAIAH,
AGED 59 YEARS,
R/O S.I. HONNALAGERE VILLAGE,
C.A.KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 438.
7. SHIVANNA,
S/O LATE BUJANGAIAH,
AGED 54 YEARS,
R/O KABBARE VILLAGE,
K. HONNALAGERE POST,
KASABA HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 438.
8. SARASWATHI,
D/O LATE BUJAGAIAH,
AGED MAJOR,
R/O KABBARE VILLAGE,
K. HONNALAGERE POST,
KASABA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 438.
9. CHIKKATHAYAMMA,
D/O LATE BUJAGAIAH,
W/O B C PUTTAIAH,
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AGED ABOUT 47 YEARS,
R/O BASAVANAPURA VILLAGE,
NANJEGOWDANADODDI POST,
HALAGUR HOBLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 436.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 10.04.2017 PASSED IN RA NO.52/2008 ON THE FILE OF
THE SENIOR CIVIL JUDGE, MADDUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
10.07.2008 PASSED IN OS NO.201/2003 ON THE FILE OF THE
PRL.CIVIL JUDGE (JR.DN) AND JMFC., MADDUR.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by unsuccessful plaintiffs challenging the concurrent finding of fact recorded by both the Courts rejecting their claim for partition and separate possession of their alleged undivided share in the suit property.
2. The plaintiffs sought for partition and separate possession of the land bearing Sy.No.56/1 of Koolagere Village, C.A.Kere Hobli, Maddur Taluk, on the premise that the revenue record of the said land stood in the name of their grandfather, Linga S/o. Marilinga. The plaintiffs claim 5 that Linga S/o. Marilinga died intestate leaving behind him three sons, namely, (1) Kadaiah, (2) Doddamarilingaiah and (3) Chikkamarilingaiah. Kadaiah died leaving behind his son Bujagaiah, who died issueless. Doddamarilingaiah died leaving behind him his three sons, namely, Chikkaputta, Doddabusiyaiah (plaintiff No.1) and Shivalingaiah (plaintiff No.2). Chikkamarilingaiah died intestate leaving behind him Lingaiah @ Ningaiah (defendant No.1). The plaintiffs claim that they and defendant No.1 were jointly cultivating the suit property and were in joint possession. They alleged that the defendant No.1 taking advantage of the similarity of his name with Linga S/o. Marilinga alienated the suit property on 16.05.2003. They claimed that defendant No.1 had no absolute right to alienate the suit property to defendant No.2, who allegedly knew that the suit property was the ancestral property, where the plaintiffs had undivided share and yet purchased it. The plaintiffs, therefore, sought for partition and separate possession of that 6 property which according to them was numbered as Sy. No.56/4.
3. The defendant No.1 and 2 contested the suit and filed separate written statements denying the averments of the plaint.
4. The defendant No.3, on the other hand, filed his written statement contending that plaintiffs and 1st defendant were not the descendants of Linga S/o. Marilinga and that the genealogy furnished by plaintiffs was false. He contended that the sale deed executed by defendant No.1 in favour of defendant No.2 did not relate to the suit property, but related to the property bearing Sy.No.56/4 and not the suit property which was bearing Sy.No.56/1. The defendant No.3 alleged that this was a plot hatched by the plaintiffs in collusion with defendants No.1 and 2 to grab the property of defendant No.3. He claimed that the suit property belonged to Sidda S/o. Nelamarana Ninga which lay within the limits of Malavalli 7 taluk. The said Sidda had mortgaged Sy.No.56/1 in favour of Siddegowda on 09.12.1907 for a period of four years. Subsequently, the said Sidda sold Sy.No.56/1 to the mortgagee Siddegowda, who in turn sold it to the father of defendant No.3 on 28.05.1919. He contended that while mentioning the hissa number of Sy.No.56, it was wrongly mentioned as Sy.No.56/3 instead of Sy. No.56/1. However, the boundaries mentioned in the mortgage deed and the sale deed corresponded to the boundaries mentioned in the suit schedule. He claimed that from the date of its purchase on 28.05.1919, his father was in possession and later he continued to be in possession. He claimed that he had planted four mango trees and other trees in the suit property which were aged more than 50 years. Thus, he pleaded that the plaintiffs have no right over the suit property.
5. The defendant No.4 filed her written statement admitting the relationship of the parties. However, she claimed that plaintiffs have no manner of right over the 8 suit property. She claimed that the defendant No.1 was visually blind and had executed a sale deed dated 16.5.2003 in favour of defendant No.2 and alleged that the defendant No.2 had not paid the sale consideration.
6. The defendant No.6 denied the case of the plaintiffs and contended that the plaintiffs were not the grandsons of Linga S/o. Marilinga, but were the grandsons of Chikkaputta. He also claimed that the suit property did not belong to the family of the plaintiffs and defendant No.1.
7. Based on these rival contentions, the Trial Court framed the following issues :
i. Whether the plaintiffs prove that they are entitled for partition and separate possession of 1/3rd right and share in the suit schedule property? ii. Whether the plaintiffs prove that alienation made by the first defendant in favour of the 2nd defendant by way of sale deed dated 16.05.2003 registered document No.746/2003-04, book-I Volume No.2432 pages 5 to 7 registred with sub- registrar, Maddur, is not binding on the plaintiffs share?
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iii. Whether the plaintiffs prove the alleged
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interference by the 2 and 3 defendant in
respect of the suit schedule property?
iv. Whether the plaintiffs prove that they are entitled for the relief of declaration and permanent injunction against the defendants?
v. What order or decree?
8. The plaintiff No.2 was examined as PW1 and marked documents as Exs.P-1 to P-13. P.Ws.2 and 3 were the witnesses who were examined. The defendant No.3 was examined as D.W.1 and marked documents as Exs.D- 1 to D-7. For the defendants, D.W.2 and 7 were examined.
9. Based on the oral and documentary evidence, the Trial Court held that the plaintiffs have not established their relationship with Linga S/o. Marilinga. It also held that the properties sold by defendant No.1 in favour of defendant No.2 was the land in Sy.No.56/4 and not the suit property which was Sy.No.56/1. It further held from the evidence of D.W.6 that the family of plaintiffs and defendant No.1 never owned the land in Sy. No.56/1. It 10 further held that the property purchased by father of defendant No.3 in terms of the sale deed dated 28.05.1919 related to the land in Sy.No.56/1, and therefore, the plaintiffs have no right, title or interest in the suit property and hence, dismissed the suit.
10. Feeling aggrieved by the aforesaid judgment and decree, the plaintiffs filed R.A. No.52/2008.
11. The First Appellate Court secured the records of the Trial Court and after hearing the parties, framed the points for consideration. The First Appellate Court held that the plaintiffs had proved their relationship with Linga S/o. Marilinga and also that Exs.P-2 and P-3 to P-5 as well as P-11 concerning Sy.No.56/1 stood in the name of Linga S/o. Marilinga. The First Appellate Court compared the boundaries mentioned in the sale deed 28.05.1919 (Ex.D-
1) and held that the boundaries mentioned therein clearly corresponded with the boundaries mentioned in the suit.
The First Appellate Court held that it was incumbent upon the plaintiffs to prove the antecedent title of Linga S/o. 11 Marilinga in respect of the suit property. It held that mere production of revenue records in the name of Linga S/o.Marilinga cannot confer any title on the plaintiffs, more particularly, in view of the sale deed dated 28.05.1919. Therefore, the First Appellate Court dismissed the appeal filed by the plaintiffs.
12. Being aggrieved by the aforesaid judgment and decree, the present regular second appeal is filed.
13. The learned counsel for plaintiffs submitted that the First Appellate Court after holding that the plaintiffs were related to Linga S/o. Marilinga and after holding that the revenue documents stood in his name, could not have dismissed the suit. He further contended that the sale deed dated 28.05.1919 (Ex.D-1) did not relate to the land in Sy.No.56/1 but concerned to the land in Sy.No.56/3 , and therefore, both the Courts committed an error in mis-construing Ex.D-1.
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14. I have considered the submissions of the learned counsel for the plaintiffs.
15. Though the First Appellate Court had held that the plaintiffs had proved their relationship with Linga S/o.Marilinga and that the revenue documents of Sy.No.56/1 stood in the name of Linga S/o. Marilinga, but yet both the Courts have noticed the evidence of owners of the lands adjacent to the suit property, who deposed that it was the defendant No.3 who was cultivating and in possession of land bearing Sy.No.56/1. In order to know whether the boundaries mentioned in the sale deed dated 28.05.1919 corresponded with the suit property, this Court secured the copies of the same and found that the boundaries did tally. Therefore, even if wrong survey number was mentioned in sale deed dated 28.05.1919, but the boundaries corresponded with the boundaries mentioned in the schedule to the suit. As the defendant No.3 had relied upon the sale deed dated 28.05.1919, it was incumbent upon the plaintiffs to prove antecedent title 13 or that the father of defendant No.3 had conveyed it to them.
16. In that view of the matter, since the Courts have recorded a finding of fact that the father of defendant No.3 was in possession of the suit property for nearly 100 years, this Court does not consider it appropriate to upset the concurrent finding of fact.
17. Consequently, this Regular Second Appeal fails and is dismissed.
Sd/-
JUDGE NR/-