Karnataka High Court
Smt Gudisili Hampamma vs Smt G Hampamma on 14 November, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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RSA No.101 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL NO.101 OF 2007 (DEC/INJ)
BETWEEN:
1. SMT. GUDISILI HAMPAMMA,
W/O. GUDSILI BHEEMANNA,
SINCE DECEASED BY HER LR'S.
1(A) K. MEENAKSHI,
W/O K. HANUMANTHAPPA,
AGE: 56 YEARS, OCC: HOUSEWIFE,
R/O NO.22/7, GANESH TEMPLE STREET ROAD,
BRUSHPATH BALLARI.
1(B) K. SARASAVATI BAI,
W/O NAGAPPA K.,
AGE: 53 YEARS,
OCC: HOUSEWIFE,
R/O PLOT NO.1 & 2,
MALLIKARJUN NAGAR,
AVAMBHAVI SHIRGUPPA RAOD,
BALLARI.
1(C) G. UMA,
W/O CHANDRAKANTH,
AGE: 46 YEARS,
OCC: HOUSEWIFE,
R/O MAHALAKSHMI NILAYA,
BEHIND NEW BUS STAND GANGAVATHI,
GANGAVATHI TALUK,
BALLARI DISTRICT.
1(D) G. KADANDA RAMA REDDY,
S/O LATE G. BHIMANNA,
AGE: 54 YEARS,
OCC: BUSINESS,
R/O H.NO.1, SHASTRI NAGAR,
BALLARI.
...APPELLANTS
(BY SMT.SUNITHA P.KALASOOR, ADVOCATE)
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RSA No.101 of 2007
AND:
1. SMT. G. HAMPAMMA,
W/O TALAVAR BHEEMANNA,
HINDU, MAJOR,
R/O KURUGODU,
BELLARY TALUK and DISTRICT - 583 101.
...RESPONDENT
(RESPONDENT - SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 R/W ORDER 42 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908,
AGAINST THE JUDGMENT AND DECREE DATED 18.10.2006 PASSED
IN R.A.NO.95/2002 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
(SR.DN.), BELLARY DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 31.10.2002 PASSED IN
O.S.NO.360/1998 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE
(JR.DN.), BELLARY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.09.2022, THIS DAY, THE COURT, PRONOUNCED
THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 18.10.2006 passed by Additional Civil Judge (Sr.Dn.), Bellary Jamkhandi, in R.A.no.95/2002 dismissing appeal confirming judgment and decree dated 31.10.2002 passed by III Additional Civil Judge (Jr.Dn.), Bellary, in O.S.no.360/1998, this appeal is filed.
2. Present appellants are legal representatives of original plaintiff, while respondent herein was defendant in -3- RSA No.101 of 2007 original suit. For sake of convenience, they shall hereinafter be referred to by their rank in original suit.
3. O.S.no.360/1998 was filed seeking for declaration that plaintiff was absolute owner of agricultural land bearing Sy.no.283-B, measuring 02 acres 01 cent assessed for land revenue at Rs.1.91, situated in Kurugodu village, Bellary, (referred to as 'suit property' for short). She also sought relief of permanent injunction restraining defendant from interfering with plaintiff's lawful possession of suit property etc.
4. In plaint, it was stated that suit property was a government land, assigned to plaintiff in year 1958 by tahsildar under assignment no.RDG.DR.413/67 B1 3/58. Ever since assignment, plaintiff was in possession and cultivation of same. Record of rights from 1976 upto filing of suit bore name of plaintiff and she was paying land revenue to government. Said land was treated as fragment and in mutation entry no.96/1979-80, there was reference to assignment in favour of Smt. G Hampamma d/o Huchappa.
5. Defendant by taking advantage of similarity of name, attempted to enter suit property. She also got her name entered in cl.no.9 of record of rights (Record of rights) as -4- RSA No.101 of 2007 Smt.Gudisili Hampamma w/o Talavar Bheemanna, Kurugodu. Nevertheless, plaintiff claim to be in possession and cultivation of suit property. She was cultivating it with assistance of labourers namely, Peeran Sab and Kottalappa. After death of Peeran Sab, Kottalappa was assisting her. His name was entered in cl.No.12(2) of Record of rights.
6. After coming to know about illegal mutation entry, plaintiff filed application to Deputy Tahsildar, Kurugodu on 25.04.1998 for correction of entries in Record of rights. After hearing, Deputy Tahsildar passed order directing parties to approach appropriate forum. Though, plaintiff had preferred appeal against said order before Assistant Commissioner, Bellary and same was pending, defendant attempted to trespass into suit property. When complaint lodged with police did not yield any result, plaintiff filed suit.
7. Upon service of suit summons, defendant filed written statement denying plaint averments. It was denied that suit property was assigned by tahsildar in favour of plaintiff in 1958 and plaintiff was in possession from date of assignment. It was further contended that plaintiff's claim of cultivating suit property with help of labourers etc., and allegations about defendant illegally getting her name entered in Record of -5- RSA No.101 of 2007 rightss and attempting trespass into suit property were also vehemently denied. It was stated that assignment of suit property was in fact to defendant and her name was clearly reflected in cl.no.9 and 12(2) of Record of rights, describing her as Smt. Gudisali Hampamma, w/o Talavara Bheemanna right from 1965 till 1999. It was stated that name of plaintiff was Smt. Hampamma w/o Bheemanna, whereas name of defendant was Smt. Gudisili Hampamma W/o T Bheemanna. In order to illegally grab suit property by taking advantage of similarity of name, plaintiff filed suit. It was further stated that plaintiff does not belong to Gudisili family and at no point of time, either plaintiff or her husband were known by surname 'gudisili'. It was also stated that plaintiff neither resided in Kurugodu village nor cultivated said land. It was specifically asserted that defendant belonged to Valmiki caste, a schedule tribe and as she was not owning any agricultural land, considering fact that she was belonging to weaker section, Tahsildar, Bellary, had assigned said land to defendant and therefore, defendant was in possession of suit property. She also stated that out of suit property, she had alienated extent of 01 acre in favour of one Kotalappa son of Chennabasappa under registered sale deed dated 15.02.1979 and thereafter defendant was in possession of remaining extent of 1.61 acres.
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8. Alternatively, defendant also contended that she had perfected her right, title and interest by way of adverse possession for more than 43 years, which was within knowledge of plaintiff. She also claimed to be paying land revenue regularly and obtained several loans by mortgaging suit property. It was asserted that plaintiff's husband was earlier working as Revenue Inspector at Kurugodu and taking advantage of his position, may have tampered with government records to show that land was granted to plaintiff, whereas land was granted only to those persons belonging to backward class, landless persons and with annual income below Rs.1,200/- per annum. Since plaintiff's husband was working as government employee, land could not have been granted to plaintiff. Defendant claimed to have raised paddy and jowar crops on suit property and for agricultural activity hired labour namely Durgappa, Khajappa, Sannappa T. Thimmanna, Mallaiah, Eramma, Basamma and others. She also claimed to have made improvements on land.
9. Insofar as amendment sought, it was contended that same was illegal and with intention to overcome lacunae in her case and filed after 4½ years of suit and after conclusion of trial.
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10. Based on pleadings, trial Court framed following:
ISSUES:
(1) Whether the plaintiff proves her lawful possession over the suit land as on the date of suit?
(2) Whether the plaintiff proves that the alleged interference by the defendant over the suit land?
(3) Whether the plaintiff is entitled to decree?
(4) Whether the suit is not maintainable without seeking the relief of declaration as pleaded by the defendant?
(5) What order or decree?
ADDITIONAL ISSUE:
(1) Whether the plaintiff is entitled to the relief of declaration as sought for?
11. Thereafter, plaintiff examined herself and others as PW.1 to PW.6 and got marked Exs.P1 to P22. On other hand, defendant examined herself and others as DW.1 to DW.5 and got marked Exs.D1 to D15.
12. On consideration, trial Court answered issues no.1 to 3 and additional issue no.1 in negative, issue no.4 not arising for consideration and issue no.5 by dismissing suit.
13. Aggrieved by said decree, original plaintiff filed R.A.no.95/2002 on several grounds. It was contended that addl. issue framed by Trial Court was not proper. Appreciation -8- RSA No.101 of 2007 of evidence of PWs.2 to 5 was also improper without reference to documents marked by both parties. Only during evidence, defendant had come out with plea that her father's name was Sri Mattappa @ Huchappa to cover up lacunae in her case. Trial Court erred in deciding validity of grant instead of considering fact that plaintiff was in possession of suit property from date of assignment and there was no explanation by defendant for not paying tax in respect of suit property. Trial Court also failed to note that Ex.P.21 showed surname of plaintiff as 'gudisili'. It failed to appreciate that in Ex.P.20 - voters list, age of defendant was mentioned as 40 years. Therefore, defendant would be a minor on date of grant, which would falsify case of defendant.
14. Based on contentions urged, first appellate Court framed following points for its consideration:-
(1) Whether the additional issues, framed by the trial Court, is proper?
(2) Whether the trial Court is right in dismissing the suit?
(3) What decree or order?
15. Upon hearing counsel, first appellate Court
answered points no.1 and 2 in affirmative and point no.3 by dismissing appeal.-9- RSA No.101 of 2007
16. Against said judgment and decree, original plaintiff- appellant has preferred this appeal.
17. Smt. Sunitha P. Kalasoor, learned counsel for plaintiff-appellant submitted that plaintiff was granted suit property by Tahsildar, Bellary in 1958 and since then she was in possession and cultivation of same. Record of rights of suit property right from 1966 till 1981 were standing in name of plaintiff i.e., Smt. Gudisili Hampamma. Only from year 1984 name of Sri. Talavar Bheemanna was shown in Record of rights along with Smt. Gudisili Hampamma. In 1994, when defendant tried to trespass into suit property, plaintiff had only given police complaint, but also gave application to Tahsildar to rectify revenue records. Since, defendant opposed rectification by filing objections, revenue authorities passed order directing parties to approach Civil Court and hence, suit was filed seeking for declaration of plaintiff's title over suit property and for injunction restraining defendant from interfering with plaintiff's possession over suit property. In said suit, plea of adverse possession taken by defendant amounted to admission of plaintiff's title. To substantiate plaintiff's case, she not only examined herself, but also ADLR viz., Guru Shanthappa as PW2, who was Tahsildar, when suit property was surveyed. PW.2 supported plaintiff's case. Even PW.3 - Hanumanthappa,
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RSA No.101 of 2007PW.4 - Kotalappa and PW.5 - Palled Basavaraj neighbours of suit property supported plaintiff. Lastly, Sri.Bheemanna, husband of plaintiff was also examined as PW.6. Though, above witnesses were cross-examined, defendant failed to elicit any material admissions contrary to plaintiff's case.
18. On other hand, defendant examined as DW.1 stated in cross-examination that except suit property, her husband was not having any other property and that he was working as Talawar and was not an agriculturist. She has further stated that she filed application to government and land was granted to her. DW.1 also admitted that her father's name was Matteppa, who was also some times called as Huchappa, which would indicate attempt to cover up short coming in evidence. During further cross-examination, suggestion that her husband was cultivating neighbours land i.e. Sy.no.283/A, was denied by stating that she had paid land revenue to government, but receipts were with village Shanbhog, which was not supported by pleading. It was further submitted that deposition of Maddera Doddabasappa, Chelavadi Gadilingappa, and N.T. Ramanna as DWs 2 to 4 was inconsequential.
Shri. P.Shekanna - Manager of VSS Bank, from which defendant claimed to have borrowed loan, examined as DW.5
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RSA No.101 of 2007denied knowledge of loan transactions. Therefore, there was no substantial evidence to support defendant's case. However, trial Court dismissed suit only on ground that plaintiff failed to establish that she was resident of Kurugodu village and nothing prevented plaintiff from calling for original government records to establish grant in her favour. It was submitted that Ex.P.20 - voters list which was marked without any objection by defendant showed name of defendant as only Hampamma without prefix 'gudisili' and even her age shown as 40 years would mean that as on date of grant, she was three years of age, which would be in material contradiction to her statement that she obtained grant by filing application. It was contended that no provisions permitted minor to file application or for grant in favour of minor. Ignoring this material aspect, trial Court dismissed suit. Even first appellate Court failed to re- appreciate evidence. On other hand, it misled itself on issue of non-joinder of proper parties and also regarding limitation, while dismissing appeal.
19. Therefore, learned counsel sought to answer substantial questions of law in favour of appellant and allow appeal.
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RSA No.101 of 2007
20. This appeal was admitted on 04.03.2009 to consider following substantial questions of law:
1) Whether the lower appellate Court was justified in rejecting the appeal on this issues which were not pleaded, nor proved nor it was an issue for consideration before the trial Court with regard to non-joinder of parties and on the issue relating to limitation?
2) Whether the lower appellate Court has therefore committed an error of rights in not appreciating the merits of the case as against the judgment and decree rendered by the trial Court and if the same has caused any injustice to the appellant?
21. Even after service of notice and admission of appeal on above questions of law, defendant has remained unrepresented. Hence, matter was proceeded ex parte.
22. Heard learned counsel. Perused impugned judgment and decree and record.
23. From above submission, it is not in dispute that suit property earlier belonging to government was granted in year 1958 under orders of Tahsildar, Bellary. While plaintiff claims that grant was in favour of Smt. Gudisili Hampamma, w/o Huchappa, which was her name, defendant on other hand, denies assertion with counter assertion that grant was in favour of defendant as she belonged to valmiki caste, a backward
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class, which entitled for such grant. She also contends that as husband of plaintiff was working as Revenue Inspector, grant in favour of plaintiff would be barred. Both parties claimed to be in possession and cultivation of suit property.
24. Since, it was a suit for declaration of title, burden was on plaintiff to establish her title over suit property. When plaintiff is basing her title on order of grant, it would be incumbent on her to produce order of grant. Plaintiff produced assignment as Ex.P.1, which is Form 'D', which shows that it was issued to Smt. Hampamma D/o Huchappa of Kurugodu. There is overwriting in different coloured ink, as 'and husband Bheemanna' marked as Ex.D2. It is without counter signature by any Officer. It contains conditions of assignment. Though, it is stated to be issued by Tahsildar, Bellary, it does not bear official government seal. Ex.P.2 - Survey sketch, though appears to be in respect of Sy.No.283/A and B hissas, it does not bear date of survey or name of occupiers. Ex.P.3 - revenue receipt does not mention land in respect of which revenue is paid. Likewise, Exs.P.4 to P.7 are revenue receipts in respect of khata no.407 of Kurugodu village. Ex.P.8 - pavati book of khata no.407 indicates receipt of land revenue in respect of sy.No.283/B, but, there was overwriting on name of holder
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RSA No.101 of 2007Ampamma, wherein W/o Huchappa is struck off and daughter of Huchappa is added without any counter signature. Exs.P.9 and P.10 - Record of rights of 1996-1997 to 1997-1998 mention name of Smt. Gudisili Hampamma W/o Talawara Bheemanna, Kurugodu, in Cl.No.9. In Cl.No.12(2) name of Smt. Gudisili Hampamma is shown along with Shri Kothlappa in respect of 01 acre. Exs.P.11 to P.13 Record of rights for 1981- 82 to 1995-96 bear similar entries. Exs.P.14 and P.15 are Record of rights of fasli 1376-89 bear name of only Smt.Gudisili Hampamma, Kurugodu in Cl.no.9 and 12(2). Ex.P.16 is copy of complaint addressed to Superintendent of police, Bellary. Exs.P.17 and P.18 are copies of orders passed by Assistant Commissioner and Deputy Tahsildar in revenue proceedings await decision of Civil Court. Ex.P.19 is complaint given to village accountant, Kurugodu, against encroachment. Ex.P.20 is entry in voters list of Kurugodu village in name of Sri. Talwar Bheemanna Pampa Naik and Smt. Hampamma d/o Bheemanna. Ex.P.21 is copy of registered sale deed, while Ex.P.22 is copy of objection against sanction of loan on land bearing Sy.No.283/A given to VSS Co-operative Bank, Kurugodu.
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RSA No.101 of 2007
25. Said documentary evidence is appreciated by trial Court in light of oral evidence to come to conclusion that plaintiff had failed to discharge burden on her. It referred to statement made by PW.1, wherein she stated that she resided in Kurugodu for two years, but was unable to recollect either neighbourhood or owner of house in which she was residing. It also referred to cross-examination of PW.6 about overwriting /manipulation of Ex.P.1 marked as Ex.D.2, of which PW.6 was unaware of. Trial Court observed that in view of discrepancies in material document, it was incumbent upon plaintiff to have either offered satisfactory explanation or secured original records from government to substantiate her claim. Failure was held to be fatal.
26. Even when evidence led by plaintiff is considered as a whole, due to manifest discrepancies as narrated above, conclusion of trial Court, especially, when entire burden of proving her case for declaration of title would be on plaintiff, cannot be stated to be either perverse or suffering from capriciousness. First appellate Court on re-appreciation has arrived at such conclusion. Due to overwriting, it observed that Ex.P.1 was highly doubtful. Contention of learned counsel that both Courts erroneously proceeded to decide validity of order of
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RSA No.101 of 2007grant would be misplaced, when what they have pointed out is glaring irregularities inconsistent with manner of performance of government functioning.
27. Though, first appellate Court has made observations about non-arraying of Kothlappa as party to suit by referring to entries in Record of rights - Exs.P9 to P.11, since plaintiff is seeking for declaration of title in respect of Sy.No.283/B and defendant specifically deposed about alienation of an extent of 1 acre in favour of Kothlappa under registered Sale Deed, which is also reflected in above revenue records, no exception can be taken to said observation, as jurisdiction of first appellate Court under Section 96 of CPC is as wide as that of trial Court.
28. Further, though there is incidentally, it also touched upon limitation by referring to plaint para no.6 regarding cause of action to conclude that suit was barred by limitation, it would be relevant to refer to plaint para no.6, which is as follows:
" the cause of action for the suit arose on 30.07.1988 when defendant herein attempted to interfere with plaintiff's lawful possession of land at Kurugodu, where plaint schedule property is situate and within jurisdiction of this Court."
29. Therefore suit filed on 19.08.1998, i.e., after 10 years would be barred by limitation, as it was beyond period of
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RSA No.101 of 2007three years stipulated in Article 58 of Limitation Act, 1963. For afore mentioned reason about jurisdiction of first appellate Court, no exception can be taken.
30. For aforesaid reasons, both substantial questions of law are answered against appellant. In the result, I pass following:
ORDER Appeal is dismissed.
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JUDGE Psg*