Karnataka High Court
Sri Venkataramanappa vs Sri Narasaiah Since Dead Rep By His Lrs on 16 January, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR SECOND APPEAL NO.2241/2005
BETWEEN:
SRI VENKATARAMANAPPA,
S/O CHIKKAMARAPPA,
DODDKUNTANAHALLI VILLAGE,
BIDADI HOBLI,
RAMANAGARAM TALUK. ... APPELLANT
(BY SRI: N.R. NAIK, ADVOCATE FOR N.R. NAIK AND
ASSOCIATES, ADVOCATES)
AND
SRI NARASAIAH,
SINCE DEAD,
REPRESENTED BY HIS L.R.s
1 SRI K.N. BASAVARAJU,
S/O LATE NARASAIAH.
2. SRI K.N. KUMAR,
S/O LATE NARASAIAH.
BOTH ARE RESIDING AT
KAPANAIAHNAPALYA,
2
KAPANAIAHNAPALYA DAKALE,
BIDADI HOBLI,
RAMANAGARAM TALUK.
... RESPONDENTS
(BY SRI: B.K. MANJUNATH ADVOCATE FOR R1 TO R2)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 30.09.2005 PASSED IN
R.A.NO.40/2002 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (SR.DN) RAMANAGARAM, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
05.08.2002 PASSED IN O.S.NO.64/1990 ON THE FILE OF
THE CIVIL JUDGE (JR.DN) AND ADDITIONAL JMFC,
RAMANAGARAM.
THIS RSA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Defendant in O.S.No.64/1990 on the file of Civil Judge (Jr.Dn) and Additional JMFC, at Ramanagaram and the appellant in R.A.No.40/2002 on the file of the Principal Civil Judge (Sr.Dn), at Ramanagaram is the appellant herein. Both the Courts below have concurrently held against the defendant.
2. The facts leading to this appeal are that: 3
The defendant has sold the property to the plaintiff by Sale Deed as per Ex.P10 dated 24.04.1962, the land measuring 6 acres 8 guntas in Sy.No.43 of the village in Ramanagaram was sold in favour of the plaintiff. The plaintiff was in possession of the suit schedule property from the date of sale. However, there was attempt of forcible entering to the property, a suit was filed for bare injunction. During pendency of the suit, it is stated that the defendant entered forcible possession in the year 1994, thereupon suit was amended by adding prayer for declaration and possession also. In RA.No.40/2002 filed by the defendant several grounds have been taken. Considering all the aspects, the Regular Appeal came to be dismissed. The order passed in Regular Appeal was challenged before this Court in RSA.No.566/2003, the same came to be allowed on 05.02.2004, and the matter was remitted to the First Appellate Court with a direction to frame the specific issue regarding proof of execution of the 4 sale deed and further, the parties were permitted to adduce necessary evidence.
3. The learned counsel for the appellant submitted that, the sale deed said to have been executed on 24.04.1962 was result of fraud and coercion. In view of the said grounds taken by the appellant, the order was made with a direction to the plaintiff to prove execution of the sale deed said to have been executed by the defendant on 24.04.1962 as per Ex.P10.
4. The respondent in the Appellate Court has examined two witnesses who were attester to the sale deed and the same was considered by the Appellate Court and passed an order in favour of the plaintiffs/respondents herein.
5. The learned counsel for the appellant brought to my notice that, a suit was filed in O.S.No.90/2002 before the Civil Judge, (Jr.Dn) JMFC, Ramanagaram. In view of 5 the same, the appeal has been deferred till the disposal of the suit.
6. The learned counsel appearing on behalf of the respondent/plaintiffs submitted to dismiss this appeal as no substantial question of law arises for consideration. Secondly, both the courts have concurrently held in favour of the plaintiff. On a second occasion before this Court, one in RSA.No.566/2003 and present RSA.No.2241/2005, the appellant has not disclosed the pendency of the suit in O.S.No.90/2002 on the file of Additional Civil Judge (Jr.Dn), JMFC, Ramanagaram, the sale deed executed as per Ex.P10 was proved. At the first instance, before the trial Court the same has been affirmed by the Appellate Court and even after the same has been remanded by this Court in RSA.No.566/2003. On third occasion the said sale deed at Ex.P10 was proved.
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7. Under this circumstance, the case of the appellant has been examined on four occasions and hence there was no further examination arises for consideration.
8. This Court by its order dated 21.02.2006 has framed the following substantial questions of law:
"1. Whether the Trial Court has framed issues based on the pleadings of the parties?
2 Whether the appreciation of evidence by both the courts is perverse?"
9. With regard to the first substantial question of law the pleadings of the parties have been rightly taken for the purpose of framing issues. The pleadings of both the parties have been examined. It is pleaded by the plaintiff that, the property in question was purchased by the plaintiff on 24.04.1964. During the pendency of the suit, the Sale Deed - Ex.P10 for consideration from the date of sale deed till 1994 they were in possession.
10. On the other hand, the defendant has contended that, he has never executed Ex.P10 - Sale Deed and the 7 defendant is in possession of the suit schedule property. These pleadings have been rightly considered by the trial Court. Though, the suit was initially filed only for injunction later on, prayer was amended by adding prayer for declaration as well as possession. The defendant forcibly taking possession in 1994 has both the Courts have concurrently held in favour of the plaintiff. When the facts and pleadings on the basis of the evidence were considered and order was passed, the same ordinarily cannot be interfered by this Court. The Appellant has not made out grounds under Section 100 of CPC. It is not his case, that his evidence is mis-read by the Courts or the materials placed by him have not been considered.
11. It is to be referred that, the appellant herein in RSA.No.566/2003, even after remand he has not examined any witnesses to dis-prove the case of the plaintiff that defendant has taken forcible possession in the year 1994. 8 These facts and materials are basis for substantiating the question of law framed by this Court on 21.02.2006.
12. The second substantial question of law framed by this Court is as to "Whether the appreciating of evidence by the Courts is perverse". On behalf of the appellant herein he has examined DW1 who is the defendant/appellant himself he has not examined any independant witness and there was no occasion of the Courts to fall in error in appreciation of the evidence. On behalf of the plaintiffs side have examined three independent witnesses and the same has been considered.
13. In view of the order passed by both the Courts and after examining the evidence of the respective parties and also materials, I do not find any good reasons to allow the appeal. Accordingly the substantial questions of law are answered and the appeal is dismissed.
Sd/-
JUDGE DP*