Karnataka High Court
Shri.Fakkirappa S/O Shediyappa ... vs Shri.Ningappa Shediyappa Maggad, on 10 February, 2016
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
R.S.A.NO.100055/2016 (D&PI)
BETWEEN:
1. SHRI.FAKKIRAPPA
S/O SHEDIYAPPA DYAVAKKALAVAR
AGE: 64 YEARS,
OCC: WORK IN SCHOOL,
R/O AREMALLAPUR,
TQ: RANEBENNUR,
DIST: HAVERI. .. APPELLANT
(By Sri./Smt : PATIL M.H., ADV. )
AND:
1. SHRI.NINGAPPA SHEDIYAPPA MAGGAD,
AGE: 60 YEARS, OCC: AGRI.
R/O AREMALLAPUR,
TQ: RANEBENNUR,
DIST: HAVERI.
2. SHRI.BASAVANEPPA KARIYAPPA MAGGAD
SINCE DECEASED BY HIS LEGAL HEIRS,
SHRI.NAGRAJ BASAVANNEPPA MAGGAD,
AGE: 38 YEARS,
OCC: TEACHER,
R/O BEERESHWAR NAGAR,
HALGERI ROAD,
RANEBENNUR,
DIST: HAVERI.
3. SMT.MARIYAVVA
W/O BASAVANNEPPA MAGGAD,
AGE: 74 YEARS,
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OCC: HOUSE HOLD WORK,
R/O BEERESHWAR NAGAR,
HALGERI ROAD,
RANEBENNUR,
DIST: HAVERI.
4. SMT.GUTTEVVA
W/O OGUDDAPPA KANDEPPANAVAR,
AGE: 48 YEARS,
OCC: HOUSE HOLD WORK,
R/O NITIAPALLI CROSS,
DAVANGERE.
5. SMT.SOROJAVVA
W/O NINGAPPA KANDEPPANAVAR,
AGE: 45 YEARS,
OCC: HOUSE HOLD WORK,
R/O AREMALLAPUR,
TQ: RANEBENNUR,
DIST: HAVERI. .. RESPONDENTS
*****
THIS RSA IS FILED U/S. 100 OF CPC 1908., AGAINST
THE JUDGEMENT & DECREE DTD:21.11.2015 PASSED IN
R.A.NO.17/2014, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, RANEBENNUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD:21.12.2013,
PASSED IN OS.NO.54/2008 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE & I ADDITIONAL JMFC COURT, RANEBENNUR,
DECREEING THE SUIT FILED FOR DECLARATION AND
PERMANENT INJUNCTION.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The second defendant in O.S.No.54/2008 has preferred this second appeal, assailing judgment and decree of the Prl. Senior Civil Judge, Ranebennur, dated 21/11/2015, in R.A.No.17/2014, by which judgment and decree passed in O.S.No.54/2008 dated 21/12/2013 by the Prl. Civil Judge and I Additional JMFC, Ranebennur, has been affirmed.
2. For the sake of convenience, parties shall be referred to in terms of their status before the trial Court.
3. The first respondent - plaintiff, filed the suit seeking relief of declaration to the effect that the plaintiff is the absolute owner of the suit schedule properties by virtue of Will dated 05/12/2005, executed by Ningappa Maggad, in favour of the plaintiff and for consequential relief of permanent injunction, restraining the defendants or anybody claiming through them from interfering with the construction of the suit properties, for the developmental work of Beereshwara Devasthana (temple). -: 4 :-
4. It is the case of the plaintiff that earlier, suit schedule property was the self acquired property of Kariyappa Ningappa Maggad. It is vacant site, more fully, described in the schedule to the plaint. That on 30/10/1961, Kariyappa Maggad sold the property in favour of Siddappa Maggad of Aremallapur village, under a registered sale deed, for a valuable consideration of Rs.200/-. On the same day, possession of the property was handed over to the purchaser. Kariyappa Maggad, had ten daughters and defendant No.1 is the only son. Siddappa Maggad, who had purchased the property from Kariyappa Maggad, had seven sons and Ningappa Maggad, was the only son, who survived. Siddappa Maggad, had died about 22 years prior to the suit and Ningappa Maggad, being the absolute owner of the suit property, as he had inherited it from his father, Siddappa Maggad, executed a Will in respect of the suit property, in favour of the plaintiff on 05/12/2005, stating that the suit property must be used for development of Beereshwara Devasthana (Temple).
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5. Though the sale deed dated 30/10/1961 was in his name, the purchaser i.e., Siddappa Maggad, had not got his name entered in the revenue records. Taking advantage of this, defendant No.1 - Basavanneppa, being the son of Kariyappa Maggad, sold the suit property, in collusion with his father and revenue authorities and illegally got mutated his name by submitting a 'vardi' on 08/03/1999. In this regard, Mutation Entry No.5136 was effected. Recently, defendant No.2 claimed that he had purchased the suit property from defendant No.1. Therefore, defendant No.2 has been arrayed as a party in the suit. Defendant No.1 has signed as a witness to the sale deed dated 30/10/1961. Therefore, defendant No.1 has no right over the suit schedule property. Such being the facts, on 02/03/2006, Ningappa Maggad, submitted a vardi requesting his name be entered in respect of the suit property. On 07/04/2006, the Deputy Tahsildar of Medleri, rejected the application, directing the parties to approach the Assistant Commissioner. This order was not known to the plaintiff. On 28/02/2007, certified copy of the order -: 6 :- was obtained. It is contended by the plaintiff that under the Will dated 05/12/2005, plaintiff became the absolute owner of the suit schedule property. On 01/02/2008, plaintiff, with an intention to construct the office of the temple, intended to clean the suit property but the defendants interfered with the possession and enjoyment of the plaintiff. Hence, the suit.
6. On receipt of the suit summons from the trial Court, defendants appeared through their counsel. During the pendency of the suit, heirs of defendant No.1 were brought on record on account of the death of original defendant No.1 as Defendant Nos.1(a) to (d). They contested the suit by filing a written statement. It is their contention that the property was never sold in favour of Siddappa Maggad, under sale deed dated 30/10/1961. That Basavanneppa inherited the property from his father. That the father of Basavanneppa, during his advanced age submitted vardi and effected the name of deceased defendant No.1 in the revenue records. After the death of -: 7 :- Basavanneppa, his heirs defendant Nos.1(a) to (d) were actually in possession of the suit property. Therefore, they sought for dismissal of the suit.
7. Defendant No.2 filed his separate written statement, contending that he has purchased the suit property from the lawful owner. That the plaintiff has no right, title and interest in the suit. That the plaintiff has never been in possession and enjoyment of the suit property and therefore, he cannot seek relief of injunction. That the Court Fee paid was not proper. Therefore, he also sought dismissal of the suit with costs.
8. On the basis of the above pleadings, the trial Court framed the following issues and additional issues for its consideration:-
"1. Whether the plaintiff proves that, he is in absolute owner possession of the suit schedule property?
2. Whether the plaintiff proves that, 'Will' dated 05/12/2005 wee executed in his favour? -: 8 :-
3. Whether the plaintiff further proves that, the defendants are obstructing his peaceful possession and enjoyment?
4. What relief is the plaintiff entitled to?
5. What order?
Additional issue framed on this day of 28/08/2013 as following:-
Whether defendant No.1 proves that, plaintiff filed suit against dead person as such same is not maintainable under law?"
9. In support of his case, plaintiff examined himself as P.W.1. Three other witnesses were examined as P.Ws.2 to 4. They produced 13 documents, which were marked as Exs.P.1 to P.13. Defendant No.1(a) let in evidence as D.W.1. He did not produce any documentary evidence. No evidence was lead on behalf of defendant No.2 - appellant herein.
10. On the basis of the said evidence, trial Court answered issue Nos.1 to 4 in the affirmative, additional issues in the negative and decreed the suit of the plaintiff by declaring that the plaintiff is the absolute owner of the -: 9 :- suit property by virtue of Will dated 05/12/2005, executed by deceased Ningappa Maggad, in favour of the plaintiff, as per Ex.P.9.
11. Defendant, their agents and other claimants were restrained by decree of permanent injunction from interfering with the developmental work on the suit property i.e., temple, by way of a decree of permanent injunction.
12. Being aggrieved by the judgment and decree of the trial Court dated 21/12/2013, second defendant preferred R.A.No.17/2014 before the first appellate Court, which, on hearing the learned counsel for the respective parties, framed the following points for its consideration:-
"1.Whether the plaintiff proves his lawful title and possession over the suit property as on the date of the suit?
2. Whether he further proves the execution of the disputed Will dated 05-12-2005 in his favour?
3. Whether the documents produced by the appellant under IA.No.II are relevant to decide the present appeal?-: 10 :-
4. Whether the trial Court has erred in appreciating the evidence on record in a proper perspective?
5. If so, whether the impugned judgment and decree under appeal calls for interference by this Court?
6. What order or decree?"
It answered Point Nos.1 and 2 in the affirmative, Point Nos.3 to 5 in the negative and dismissed the appeal, by confirming the judgment and decree of the trial Court dated 21/12/2013 passed in O.S.No.54/2008.
13. Being aggrieved by the judgment and decree of the trial Court, second defendant has preferred this appeal.
14. It is contended by learned counsel for the appellant that the Courts below were not right in decreeing the suit in favour of the first respondent without affording an opportunity to the appellant to let in his evidence. He contended that D.W.1 let in his evidence and thereafter, he was to be cross-examined, but D.W.1 was -: 11 :- not cross-examined as he did not turn up for cross- examination. The trial Court closed the evidence and posted the case for arguments. As a result, the appellant neither let in his evidence nor produced the documents. This aspect has not been appreciated by the first appellate Court, which has simply confirmed the judgment of the trial Court. He further contended that an application was filed under Order XLI Rule 27 CPC for production of additional evidence but that application was disallowed by the first appellate Court. He therefore contended that substantial questions of law would arise in this appeal, which may be admitted for a detailed hearing.
15. Having heard learned counsel for appellant and on perusal of the material on record, it is noted that the plaintiff approached the Court seeking a declaration and consequential injunction against the defendants on the premise that the plaintiff was a legatee under the Will of Ningappa Maggad dated 05/12/2005. According to the plaintiff, Kariyappa Maggad, the original owner of the suit -: 12 :- is none other than the father of Basavanneppa Maggad, who is arrayed as defendant No.1 in the suit. He sold the suit property to Siddappa Maggad on 30/10/1961 under a registered sale deed. The certified copy of the sale deed is marked as Ex.P.10. Siddappa Maggad had seven sons but only one son i.e., Ningappa survived. He succeeded to the suit property on the death of his father Siddappa Maggad. Ningappa in turn, bequeathed the suit property to the plaintiff under a Will dated 05/12/2005, which was produced as Ex.P.9. Both the Courts have held that Ex.P.9
- Will was proved. In fact, the Courts have also come to the conclusion that Kariyappa Maggad had sold the suit property to Siddappa Maggad on 30/10/1961 and thereby lost his right, title and interest in the suit property. From Siddappa Maggad, the property was succeeded to by his son Ningappa and thereafter, the same was bequeathed to the plaintiff under the Will. Such being the position, the appellant herein, who was the second defendant could not have purchased the property from defendant No.1 - Basavanneppa, son of Kariyappa Maggad.
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16. In fact, the averments of the plaintiff are that, merely because on the purchase of the suit property from Kariyappa Maggad under a registered sale deed dated 30/10/1961 Siddappa Maggad had not got his name entered in the revenue records, taking advantage of this fact, Kariyappa Maggad, the vendor and his son defendant No.1 - Basvanneppa, got the name of Basavanneppa, entered in the revenue records by M.E.No.5136. It is the case of the plaintiff, that pursuant to sale deed dated 30/10/1961, Siddappa Maggad not only acquired title but also acquired possession to the suit schedule property and merely because the purchaser did not get his name entered in the revenue records and taking advantage of this fact, the name of defendant No.1 was entered in collusion with the revenue officials, which could not have conferred any possessary rights on defendant No.1. On the basis of the said mutation entry, defendant No.1 is said to have sold the suit property to defendant No.2 - appellant herein. The said sale if so, is illegal, for the simple reason that father of defendant No.1 had lost all -: 14 :- right, title and interest in the suit property on 30/10/1961 when he had sold the same to Siddappa Maggad. Then, merely because the name of defendant No.1 was entered in the revenue records illegally, he did not acquire any right, title and interest to alienate the suit property in favour of second defendant. There was no conveyance of the suit property to the second defendant. Therefore, the trial Court and the first appellate Court on the basis of the transactions narrated above, have come to the conclusion that the plaintiff was the lawful and absolute owner of the suit property, as the Will - Ex.P.9 dated 05/12/2005 had also been proved to the satisfaction of the Court.
17. It is in the aforesaid context, possibly, that defendant No.2 - appellant herein did not enter the witness box to let in his evidence. In fact, the first appellate Court has noted this aspect of the matter in detail. Paragraph 14 of the judgment of the first appellate Court may be extracted for immediate reference:- -: 15 :-
"14. On perusal of the order-sheet of the trial Court it is revealed that on 27-11- 2012 the plaintiff's side evidence was closed and thereafter the matter was posted for recording the evidence of the defendants and accordingly on 18-06-2013 the evidence of defendant No.1(a) was led before the court and on 09-07-2013 he was partly examined and thereafter the matter was posted for his further cross-examination and as he did not turn up for further cross-examination the trial court closed his evidence and posted the matter for arguments. Thus what can be gathered from the proceedings of the trial court is that though DW1 was examined before the court, but the second defendant did not attempt to enter into the witness box either to lead his oral evidence or to produce the documents. Though the matter was posted for arguments thereafter, the second defendant -: 16 :- has not made any efforts to get reopened the matter to lead his evidence, but on the contrary his counsel submitted the final arguments on merits. Thus it could be said that the second defendant has not attempted to lead his evidence by moving necessary applications before the trial court. Under such circumstances now he is not justified in urging before the court that he was not accorded any opportunity to put forth his defence by way of evidence."
In the above premise, the first appellate Court has come to the conclusion that the trial Court was justified in its conclusions and that the second defendant - appellant herein was not justified in urging that he was not accorded any opportunity to let in his evidence before the trial Court. On the aforesaid aspect, I do not find any infirmity in the judgment of the first appellate Court. -: 17 :-
18. Before the first appellate Court, the appellant filed an application under Order XLI Rule 27 of CPC, seeking to produce additional evidence. The said application was dismissed for the reason that in the first instance he had not let in any evidence before the trial Court. Therefore, the question of letting additional evidence did not arise. Secondly, having regard to the glaring facts of the case, vis-à-vis the antecedent transactions pertaining to the suit schedule property right from the erstwhile owner of the property, who was none other than the father of the first defendant up till the plaintiff, the trial Court and the first appellate Court were concurrently convinced that the plaintiff was entitled to the decree of declaration as well as permanent injunction. Therefore, no fault can be found in the judgment of the first appellate Court with regard to the application filed by the appellant herein under Order XLI Rule 27 of CPC.
19. On consideration of the judgments of the Courts below, in light of the detail narration of the facts above -: 18 :- and in light of the submissions made by learned counsel for appellant, I do not find any infirmity in the said judgments. In my view, no substantial questions of law would arise in this appeal. The appeal is therefore, dismissed.
20. In view of the dismissal of the appeal, I.A.I/2016, for stay also stands dismissed.
Sd/-
JUDGE *mvs