Karnataka High Court
Smt Gullamma W/O Late Hanumappa vs Sri Dodda Muniswamy Reddy on 18 April, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.F.A.No.2583/2006
BETWEEN:
1. SMT.GULLAMMA,
W/O LATE HANUMAPPA,
AGED ABOUT 68 YEARS,
APPELLANT No.1 & 2 LEGAL LRs.,
APPELLANT No.1 IS ALREADY RECORD
APPELLANT No.2 & 3
2. SRI. KAVERAPPA,
S/O LATE HANUMAPPA,
AGED ABOUT 42 YEARS,
SINCE DEAD BY HIS LRs.,
2(1) SMT. PARVATHAMMA,
AGED ABOUT 60 YEARS,
W/O LATE KAVERAPPA,
2(2) MS.ANITHA,
AGED ABOUT 30 YEARS,
D/O LATE KAVERAPPA,
3(3) SRI.VINOD.K.,
AGED ABOUT 28 YEARS,
S/O LATE KAVERAPPA,
ALL ARE R/O KODICHIKKANAHALLI VILLAGE,
BEGUR HOBLI, BILEKAHALLI POST,
BENGALURU-560 076.
2
3. SRI.VENKATESH,
S/O LATE HANUMAPPA,
AGED ABOUT 40 YEARS,
4. SMT. YELLAMMA,
D/O LATE ASPATRE YELLAPPA,
AGED ABOUT 63 YEARS,
5. SRI.LAKSHMAIAH.Y.,
S/O LATE ASPATRE YELLAPPA,
AGED ABOUT 53 YEARS,
ALL ARE RESIDING AT KODICHIKKANAHALLI
VILLAGE, BILEKAHALLI POST, BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 076.
... APPELLANTS
(BY SRI.ABHINAV.R., ADVOCATE FIR A-2(a TO c),
A-3 & A-5;
SRI. JAGADISH.D.HIREMATH, ADVOCATE FOR A-4;
[A-1 & A-2 ARE DEAD- A-2& A-3 ARE LRS OF DECEASED
A-1)
AND:
SRI DODDA MUNISWAMY REDDY,
S/O LATE CHIKKA ABBAIAH,
AGED ABOUT 78 YEARS,
R/AT BOMMANAHALLI VILLAGE,
BOMMASANDRA POST,
BANGALORE-560 068.
SINCE DEAD REPRESENTED BY LRs.,
1(a) SRI.D.HANUMANTHA REDDY,
S/O DODDA MUNISWAMY REDDY,
AGED ABOUT 54 YEARS,
1(b) SRI.D.AMARESH REDDY,
S/O DODDA MUNISWAMY REDDY,
AGED ABOUT 51 YEARS,
3
1(c) SRI.D.NAGARAJ,
S/O DODDA MUNISWAMY REDDY,
AGED ABOUT 46 YEARS,
1(d) SRI.D.VENKATESH,
S/O DODDA MUNISWAMY REDDY,
AGED ABOUT 42 YEARS,
ALL ARE R/AT No.259, 7TH CROSS,
31ST MAIN, SECTOR-I, HSR LAYOUT,
BENGALURU-560 102.
... RESPONDENTS
(BY SRI.M.R.RAJAGOPAL, SENIOR COUNSEL FOR
SRI.H.N.BASAVARAJU, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED:24.11.2006
PASSED IN O.S.No.8244/1998 ON THE FILE OF THE VIII
ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY (CCH-15)
DISMISSING THE SUIT FOR DECLARATION AND PERMANENT
INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 28.03.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. Gullamma, Kaverappa and Venkatesh, the wife and sons of Hanumappa and the siblings of Hanumappa i.e., Yellamma and Y. Lakshmaiah, instituted the suit seeking for a declaration that they were the absolute joint owners in physical possession of land bearing 4 Sy.No.40/7 of Kodichikkanahalli village, Begur Hobli, Bengaluru, South Taluk measuring 18 guntas.
2. They stated that they were the descendants of Aspatre Yellappa, who passed away a long time ago. It was stated that Aspatre Yellappa had left behind him Hanumappa (the husband of Gullamma and father of Kaverappa and Venkatesh, i.e., plaintiffs No.1 to 3) and Yellamma (plaintiff No.4) and Lakshmaiah (plaintiff No.5) and the aforementioned children of Aspatre Yellappa had succeeded to Sy. No.40/7 and were enjoying the property jointly. It was stated that the revenue entries were entered in the name of Hanumappa and they, therefore, did not find need to effect a partition.
3. They stated that Dodda Muni Swamy Reddy i.e., defendant tried to interfere with their possession and attempted to fence their land and when enquired upon, he informed them that the land bearing Sy.No.40/7 had been sold to him under registered sale deed dated 25.10.1967 by Yellappa S/o. Panthappa, Annayappa and 5 Venkatappa. It was contended that no sale had been made by any of the plaintiffs or by any of their family members and yet Dodda Muniswamy Reddy was attempting to claim that he had purchased the property from plaintiffs. It was stated that he had no right, interest or title to the said land.
4. It was also stated that the mutation entry was changed in the name of the plaintiffs. It was stated that Dodda Muniswamy Reddy had got the revenue entry changed in his favour in Mutation No.20/1997-98 on the basis of the sale deed dated 25.10.1967 and this change of entries was illegal. It is stated that since the claim was set up in respect of their property, they were constrained to file a suit seeking for a declaration.
5. Dodda Muniswamy Reddy entered appearance and contested the suit by filing the written statement. He contended that the relationship as set-up in the plaint was not within his knowledge. He also stated that the assertion that they were in possession that they had 6 succeeded to Sy.No.40/7 and were in physical possession was incorrect and he was, in fact, in possession and enjoyment of land bearing Sy.No.40/7 measuring 18 guntas under a valid sale deed.
6. He specifically contended that a sale deed had been executed in his favour by which Sy.No.40/7 had been conveyed in his favour and this sale deed had been executed by Yallappa S/o. Panthappa, Annayappa and Venkatappa and attempts were being made by the plaintiffs to nullify this sale deed by filing a vexatious suit. He also denied the assertion that revenue entries were fraudulently entered in his name.
7. He further contended that the plaintiffs had fraudulently filed a suit in O.S. No.9164/1998 through one Kaverappa and others and in this suit, they had entered into a compromise without making him as a party and on the basis of this unholy and fraudulent compromise decree they had attempted to change the revenue entries in their favour. He, therefore, stated that 7 the collusive decree obtained by the plaintiffs would not bind them at all.
8. The Trial Court framed in all seven issues.
9. Y.Lakshmaiah, plaintiff No.5 was examined as P.W.1 and 21 documents were admitted in evidence and marked as exhibits.
10. Dodda Muniswamy Reddy examined himself as D.W.1 and also got two other witnesses Venkatesh and Annayappa examined in support of his case and 18 documents were admitted on his behalf in evidence and they were also marked as exhibits.
11. The Trial Court, on consideration of the material available before it came to the conclusion that Gullamma and others i.e., the plaintiffs had failed to prove that they were the owners of the suit property and that they also failed to establish that the sale deed dated 25.10.1967 executed in favour of Dodda Muniswamy Reddy was null and void. The Trial Court also recorded a 8 finding that the suit was barred by limitation, and it ultimately held that the plaintiffs were not entitled for the reliefs sought for and accordingly proceeded to dismiss the suit.
12. Sri. Abhinav, learned counsel appearing for Gullamma and others contended that the revenue entries from 1967 to 1987 stood in the name of Thayiga and this by itself indicated that the property was belonging to Thayiga. He also contended that the evidence on record indicated that Thayiga had only one son called Aspatre Yellappa and Aspatre Yellappa had three children Hanumappa (husband and father of plaintiffs No.1 to 3), Yellamma (plaintiff No.4) and Lakshmaiah and therefore, it was clear that Hanumaiah was the owner of the suit property.
13. He stated that the revenue entries were mutated in favour of the husband of Gullamma i.e., Hanumappa under M.R. No.22/1986-87 and in this extract, it was clearly stated that the kathedar Thayiga had passed 9 away leaving behind two sons, who were also no more. He stated that the extract also indicated that his second son Yellappa had left behind six sons and the first son Hanumappa had made a request for change of katha in his favour. This, according to him, indicated that the authorities had acknowledged that Hanumappa was indeed the son of Yellappa and therefore, it was clear that the suit property belonged to the plaintiffs.
14. Learned counsel highlighted the fact that the sale deed dated 25.10.1967 which is relied upon by the Dodda Muniswamy Reddy indicated that the land bearing Sy.No.40/7 had been sold by Yellappa S/o. Panthappa and his two sons Waradappa and Annayyappa and since the sale deed indicated that the seller was one Yellappa S/o. Panthappa, it was clear that the sale deed executed was by a person, who was not related to Thayiga in any manner and consequently no title was conveyed to Dodda Muniswamy Reddy. It was submitted that this 10 aspect of the matter was not at all considered by the Trial Court.
15. In this appeal an application is filed by the plaintiffs seeking for production of additional documents. The additional documents which are sought to be produced are copies of Mutation Extract bearing M.R. No.22/1986- 87 and a copy of the judgment rendered in SLPs. No.12104-07 of 1991. It is stated that the appellants were unaware of the existence of these documents, and they came to know about them only recently.
16. Having regard to the facts and circumstances of this case, it would be proper to allow the said application permitting the appellants to produce the additional evidence since it would not prejudice the case of wither parties.
17. Learned counsel also placed reliance on the mutation extract, which was produced along with application seeking for production of additional evidence 11 and in which it had been recorded that on the death of Thayiga, the katha was transferred in the name of the second son Yellappa's son, i.e., Hanumappa, the husband and father of plaintiffs No.1 to 3 to contend that this by itself indicated that the plaintiffs had succeeded to the property.
18. The learned counsel also contended that the lands in question had been acquired in favour of Vyalikaval Housing Society and the same was subsequently quashed by the Hon'ble Supreme Court and there had been a direction issued to the land owners to re-deposit the compensation and secure possession and Hanumappa who had received the compensation was directed to re-deposit the same and he had also accordingly re-deposited the compensation and this document thus conclusively established that he was the owner of the suit property. He submitted that these materials would establish that the judgment of the Trial Court was incorrect.
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19. Sri M.R. Rajagopal, learned Senior Counsel appearing for Dodda Muniswamy Reddy, on the other hand, contended that the Trial Court was justified in dismissing the suit since the execution of the sale deed in favour of Dodda Muniswamy Reddy, way back in the year 1967, was not really in dispute. He stated that one of the vendors i.e., Annayappa S/o. Yellappa had been examined during trial and he had categorically stated that the vendor Yellappa along with his two brothers Urjappa and Bheemappa had conveyed the property to Dodda Muniswamy Reddy and in the light of this deposition by Yellappa's son, the assertion that an imposter had sold the suit property cannot be accepted.
20. It is further submitted that the sale deed dated 25.10.1967 could not be gotten over by filing a suit for declaration asserting that the vendors were strangers.
21. In the light of the arguments advanced, the point that arises for consideration in this appeal is - 13
"Whether the Trial Court was justified in coming to the conclusion that Gullamma and other plaintiffs had failed to establish that they had succeeded to the property and that the suit property had been conveyed in favour of Dodda Muniswamy Reddy by the persons who had no title to the property?"
22. It is not in dispute that a sale deed did come into existence from 25.10.1967 by which Yellappa and his two sons i.e., Waradappa and Bheemappa conveyed land bearing Sy.No.40/7 in favour of Dodda Muniswamy Reddy. The contention advanced by Gullamma and other plaintiffs is that this sale deed had been executed by one Yellappa S/o Panthappa who was the person who had executed the title who was unrelated to the family of Thayiga and as a consequence no title had been conveyed.
23. Dodda Muniswamy Reddy in order to establish that a sale deed was conveyed in his favour examined Annayya S/o. Aspatre Yellappa as D.W.3. In his 14 examination-in-chief he deposed that his father Aspatre Yellappa had seven children and Gullamma, the first plaintiff was his elder brother's wife and plaintiffs No.2 and 3 were her children. He also stated that Yellamma and Laxmaiah plaintiffs No. 4 and 5 were his sister and brother. He also stated that his father Yellappa, his elder brother Varadappa, himself and his younger brother Venkatappa had together sold land bearing Sy. No.40/7 to clear the loans that had been availed off by the family. He stated that since his younger brothers were minors, his father was acting as the Yajamana of the family and he had taken the decision on behalf of the family to sell the property along with his major sons and therefore, the sale in favour of Dodda Muniswamy Reddy was a valid sale. Thus, according to the deposition of D.W.3, his father and brothers had together conveyed the property in favour of DoddaMuniswamy Reddy.
24. However, the contention advanced by the plaintiffs was that Yellappa, the father of D.W.3 was unrelated to 15 the plaintiffs and could not have executed the sale deed. During the course of his cross-examination by the plaintiffs, he has stated that Thayiga was his senior uncle. To a suggestion made that Thayiga and his wife had fostered Hanumappa out of love and affection, he had denied this assertion. This suggestion indicates that Hanumappa, the husband of plaintiff No.1 and father of plaintiffs No.2 and 3 was the foster son of Yellappa.
25. It was also suggested to him that in order to defraud Hanumappa a sale deed had been executed in favour of Dodda Muniswamy Reddy even though he had no right to execute the sale deed. This suggestion, basically, indicates that the plaintiffs admitted the execution of the sale deed in favour of Dodda Muniswamy Reddy and that the sale deed had been executed by Yellappa and his two sons only to defraud the husband of plaintiff No.1 i.e.,Hanumappa.
26. In the light of the suggestion that Hanumappa was the foster son of Thayiga and his wife, and in order to 16 deprive them of his right, Yellappa and his children had executed a sale deed in favour of Dodda Muniswamy Reddy, it is clear that the relationship between the parties was directly being admitted by the defendants. More importantly, the suggestion that Hanumappa was the foster son of Thayiga and his wife it is clear that Hanumappa, the 1st defendant's father had no right over the property since he was not the biological son of Thayiga. One this is clear that from the suggestions made, the execution of the sale deed stood admitted and the motive was also being attributed that the sale deed was executed to deprive the foster son of his right over the suit property.
27. In my view, since the plaintiffs did not dispute the fact that D.W.3 Annayappa was the son of Yellappa, who had executed the sale deed and since it was suggested that the sale deed was executed to defraud Hanumappa, by itself proves that Dodda Muniswamy Reddy had acquired title over the suit property. The fact 17 that Yellappa and his two sons had conveyed the property not only stood admitted by the plaintiffs but also established that the executants of the sale deed had title over the suit property.
28. It is to be stated here that the plaintiffs contended that the sale deed was executed by the strangers, who had no interest in the property. However, the cross- examination of D.W.3 by them, clearly indicates that they admitted that the executants of the sale deed were the owners of the property and the sale deed had been executed only to defraud Hanumappa, the husband and father of plaintiffs, who was the foster son of Thayiga. Since, by the suggestion, it is admitted that Hanumappa, the husband and father of the plaintiffs No. 1 to 3 was the foster son of Thayiga, it is clear that they have no right over the property at all.
29. To put it differently, though it was urged in the plaint that the sale deed was executed by strangers, during the course of cross-examination, they had directly 18 admitted that the sale deed was executed in favour of Dodda Muniswamy Reddy and this sale deed was executed to defraud them. If this is the admitted position, it becomes clear that an attempt was being made to set at naught a sale deed dated 25.10.1967 by filing the suit for declaration in the year 1998.
30. The further fact that D.W.3 who stated that plaintiffs No.4 and 5 were his siblings and all his family members had agreed to sell the property due to their financial need and also because cultivating the 18 guntas of land was not worthwhile, the execution of the sale deed stood admitted and therefore, the suit seeking for declaration that the plaintiffs had title cannot be accepted.
31. The Trial Court was therefore, justified in coming to the conclusion that Gullamma and other plaintiffs had failed to establish that Dodda Muniswamy Reddy had purchased the property fraudulently. The Trial Court was justified in holding that the sale deed executed in favour 19 of Dodda Muniswamy Reddy was neither a bogus document nor a fraudulent document. The Trial Court has taken note of the fact that the execution of the sale deed in favour of Dodda Muniswamy Reddy was admitted as per the evidence of the family members and therefore, there was no merit in the claim of Gullamma and others.
32. In my view, having regard to the deposition of D.W.3, who was one of the executants of the sale deed executed in favour of Dodda Muniswamy Reddy, the defendant, the dismissal of the suit by the Trial Court cannot be found fault with. I find no merit in this appeal and therefore, the appeal is dismissed.
Sd/-
JUDGE hnm