Karnataka High Court
Smt Manchamma vs Sri Bommaiah on 23 August, 2018
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
RSA No.389/2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
REGULAR SECOND APPEAL NO.389/2013 (DEC/INJ)
BETWEEN:
1. SMT. MANCHAMMA
W/O. LATE KALAIAH
AGED ABOUT 52 YEARS
2. SMT. SAVITHA
D/O. LATE KALAIAH
AGED ABOUT 30 YEARS
3. SMT. DEVERAMMA
D/O. LATE KALAIAH
AGED ABOUT 27 YEARS
4. CHELUVARAJU
S/O. LATE KALAIAH
AGED ABOUT 20 YEARS
ALL THE APPELLANTS
R/AT NARACHANHALLI
MIRLE HOBLI,
K.R.NAGAR TALUK -571 603
MYSORE DISTRICT
...APPELLANTS
(BY SHRI A.LOURDU MARIYAPPA , ADVOCATE)
AND:
SRI BOMMAIAH
S/O. JAVARAIAH
2
RSA No.389/2013
AGED ABOUT 50 YEARS
R/AT NARACHANAHALLI
MIRLE HOBLI
K.R.NAGAR TAUK - 571603
MYSORE DISTRICT
SINCE DEAD REPRESENTED BY HIS LRS
1(a). SMT. BATTHAMMA
W/O. LATE BOMMAIAH
AGED ABOUT 70 YEARS
R/AT NARACHANAHALLI VILLAGE
MIRLE HOBLI, K.R.NAGAR TALUK
MYSORE DISTRICT - 571602
1(b). SMT. JAVARI KALAMMA
D/O. LATE BOMMAIAH
AGED ABOUT 50 YEARS
R/AT HAMPAPURA VILLAGE
HOSA AGRAHARA HOBLI
K.R.NAGAR TAUK
MYSORE DISTRICT - 571602
1(c). SRI. CHELUVAIAH
S/O. LATE BOMMAIAH
AGED ABOUT 45 YEARS
R/AT NO.300/A, 12TH CROSS
VIDYARANYAPURAM
MYSORE - 08
1(d). SRI. KARIAIAH
S/O. LATE BOMMAIAH
AGED ABOUT 40 YEARS
R/AT NARACHANAHALLI VILLAGE
MIRLE HOBLI
K.R.NAGAR TAUK
MYSORE DISTRICT - 571602
...RESPONDENTS
(BY SHRI V.R.BALARAJ, ADVOCATE FOR R1(A TO D)
3
RSA No.389/2013
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DTD 19.1.2013 PASSED
IN R.A.NO.13/2012 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, K.R.NAGAR, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DTD 19.04.2012 PASSED IN
O.S.NO.8/2009 ON THE FILE OF CIVIL JUDGE AND JMFC,
K.R.NAGAR.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Though, this appeal is listed for admission, with consent of learned Advocates on both sides, it is heard on merits for final disposal.
2. This second appeal by plaintiff Nos.1 to 4 is filed challenging the divergent findings of fact recorded by Courts below, by assailing the judgment and decree dated 19.01.2013 passed in R.A.No.13/2012 on the file of Senior Civil Judge and JMFC, K.R.Nagar, allowing the appeal filed against judgment and decree dated 19.04.2012 passed in O.S.No.8/2009, on the file of the 4 RSA No.389/2013 Civil Judge and JMFC, K.R.Nagar and dismissing the suit in its entirety.
3. Heard Shri A.Lourdu Mariyappa, learned advocate for the appellants and Shri V.R.Balaraj, learned advocate for respondent Nos.1(a to d).
4. For the sake of convenience, parties shall be referred to as per their status before the Trial Court.
5. Though, plaint averments as recorded by the trial Court contain several details, learned advocates on both sides agreed on the following admitted position.
6. According to the plaintiffs, suit properties belonged to one Bulla, he had a daughter by name Mariyamma and she was married to one Shri Kalaiah. Mariyamma died issueless and after her death, Kalaiah married one Manchamma (first plaintiff). The suit 5 RSA No.389/2013 properties continued to be in possession of Shri Kalaiah. As per Ex.P12 dated 08.09.1989, the name of first plaintiff was entered in the revenue records. Subsequently, on 27.9.1993, defendant got the property mutated in his name as per M.R.No.3/1993-94 (Ex.P10). With these plaint averments, plaintiffs sought for a decree of declaration and injunction.
7. The defendant contested the suit by filing his written statement. He denied the plaint averments and contended that suit properties belonged to one Shri Bulla who is the son of Kalaiah and Kalamma. He had two sons namely, Kalaiah and Kaduraiah. Defendant is the grand son of Kalaiah and son of Javaraiah. The suit properties are ancestral properties. After death of Javaraiah, defendant's name has been 6 RSA No.389/2013 entered into the revenue records and he continued to be in possession of the properties.
8. Based on the pleadings, trial Court framed five issues and they read as follows:
"1.Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
2. Whether the plaintiffs prove that they are in peaceful possession and enjoyment of the suit schedule property?
3. Whether the plaintiffs are entitled for the relief of declaration?
4. Whether the plaintiffs are entitled for the relief of permanent injunction?
5. What order or decree?7 RSA No.389/2013
9. Parties went to trial with aforesaid pleadings and issues. On behalf of the plaintiffs, two witnesses were examined. Plaintiff No.1 got examined as PW.1 and PW.2 got examined as an independent witness and exhibits P1 to P16 marked. On behalf of defendant, three witnesses were examined. Defendant got examined himself as DW.1. Two independent witnesses were examined as DWs.2 and 3 and exhibits D1 to D8 marked.
10. On appreciation of evidence, answering issue Nos.1 and 3 in the affirmative and issue Nos.2 and 4 in the negative, Trial Court dismissed the suit for declaration. However, prayer for injunction was granted.
11. Plaintiffs did not challenge the dismissal of suit with regard to declaration. Defendant challenged 8 RSA No.389/2013 the decree with regard to possession before the First Appellate Court.
12. On appeal, the First Appellate Court framed following points for its consideration:
1. Whether the trial court was right in decreeing the suit holding that the plaintiffs have established their possession over the suit schedule properties and interference of defendant?
2. Whether the impugned judgment and decree of the trial Court calls for interference by this Court?
3. What order?
13. On re-appreciation of evidence, answering point No.1 in the negative and point No.2 in the affirmative, the First Appellate Court allowed the appeal 9 RSA No.389/2013 by setting aside the judgment of trial Court and dismissed the suit in its entirety.
14. Feeling aggrieved, plaintiffs are before this Court in this second appeal.
15. Shri A.Lourdu Mariyappa, learned advocate for the plaintiffs/appellants urged following grounds in support of this appeal:
• that after death of first wife -Mariyamma, Kalaiah became the owner of the properties in question and continued to be in possession thereof;
• that the defendant has not produced the family tree to substantiate his contention with regard to inter-se relation between defendant and the original propositus/original owner of the property;10 RSA No.389/2013
• that plaintiff No.1 got her name entered in the revenue records as per Ex.P12, whereas, name of defendant was entered in the revenue records subsequently in the year 1993-1994 and though, plaintiffs have not challenged the dismissal of the suit insofar as declaration is concerned, the First Appellate Court without proper appreciation of the material on record has erroneously dismissed the suit in its entirety.
16. Shri V.R.Balaraj, learned advocate for the respondent Nos.1(a) to (d), supporting the impugned judgment of the First Appellate Court vehemently argued that in the written statement, the defendant has taken a specific stand that Shri Bulla had two sons namely, Kaiaiah and Kaduraiah and Kaduraiah passed 11 RSA No.389/2013 way issueless. Kalaiah had a son by name Javaraiah. The plaintiffs are in no way connected to family of Bulla and Bulla did not have any daughters at all. He further argued that the name of defendant was entered in the normal course of business in the year 1993-94 as per M.R.No.3/1993-94 (Ex.P10). The plaintiffs have not produced any documentary evidence to show that they are in possession of suit properties. He stressed a point that no copies of the RTC or record of rights are produced, which are the basic documents to prima- facie establish as to who is in possession of agricultural properties. He adverted to Ex.D1 in respect of survey No.47 and Ex.D2 in respect of survey No.8 and contended that Column No.9 of the RTCs clearly establish that, the defendant is in possession of suit properties.
12RSA No.389/2013
17. I have carefully considered the submissions made by learned Advocates appearing for the parties and perused the records.
18. The plaintiffs' suit is for declaration and possession. The suit for declaration has been dismissed and it has attained finality. Therefore, the only question with regard to possession remains for consideration. The First Appellate Court in Paragraph No.15 of its judgment, has recorded as follows:
"15. As already observed the plaintiffs have not produced any document to show that suit properties were standing either in their names or in the name of Kalaiah. When the plaintiffs failed to prove their title, the fact of possession will also fail. It is to be noted that the plaintiffs have not filed any appeal against the finding of trial Court with respect to title. The 13 RSA No.389/2013 initial burden was on the plaintiffs to prove their case before disproving it by the defendant. Such being the case, the plaintiffs cannot take advantage of weakness of defendant.
When the plaintiffs have not established their title to the suit properties, as already observed the possession of defendant follows the title in his favour." (sic)
19. A careful perusal of the above, shows that the plaintiffs have not produced any documents to show that the suit properties stood in their names or in the name of Kalaiah.
20. It is an admitted position that properties belonged to the first wife of Kalaiah namely Smt.Mariyamma. After her death, in any event, her husband could not have succeeded to her estate. Perusal of records do not show any documents issued 14 RSA No.389/2013 by any revenue authority which could prima-facie suggest plaintiffs' possession.
21. In the light of above discussion, no exception can be taken to the findings recorded by the First Appellate Court.
22. Resultantly, this appeal must fail and it is accordingly dismissed.
23. In view of dismissal of the appeal, I.A.No.1/2017 does not survive for consideration and the same stands disposed of.
No costs.
Sd/-
JUDGE HJ