Sri Venkateshappa S/O Sri. ... vs Smt Doddamunivenkatamma on 1 March, 2014

[Cites 2, Cited by 2]

Karnataka High Court

Sri Venkateshappa S/O Sri. ... vs Smt Doddamunivenkatamma on 1 March, 2014

2 Respondents jointly instituted O.S.25/2002 on 10.9.2004 before the Prl. Civil Judge, Jr.Division, Kolar for permanent injunction restraining the appellant arraigned as defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule item 1 and 2 properties being agricultural lands together with eucalyptus trees and shed construed thereon. In the plaint it was asserted that the plaintiffs are sisters given in marriage to Gopalappa and are in enjoyment of the suit schedule properties, the first item of which relates to Sy.No. 8/2 which fell to 3 R.S.A.463/08 the share of the plaintiff's father, in a partition on which eucalyptus trees are grown, while 8 guntas acquired by the plaintiffs under 'pavathi-varasu', they have put up a shed for silk rearing and put to use for tethering cattle and stacking hay. On the allegations that the defendants sought to interfere with the suit schedule property the suit was instituted.

3. Defendant when served with summons entered appearance and filed a written statement admitting that the total extent of land in Sy.No.8/2 is 1 acre from out of which plaintiffs are entitled to 20 guntas of land, having fallen to their father's share in a partition. It was denied that plaintiffs have right, title or possession over 8 guntas of land, being suit item No.2 property. Defendant contends that by creating documents a false and frivolous suit is filed. According to the defendant 20 guntas of land in Sy.No.8/1 fell to 4 R.S.A.463/08 the share of their father plaintiffs are not in possession and enjoyment of 8 guntas of land.

4. The trial court in the premise of pleadings of the parties framed the following issues:

1. Whether the plaintiffs prove that they are in Possession and enjoyment of the suit schedule property ?

2. Whether the plaintiffs prove the alleged interference by the defendant ?

3. Whether the plaintiffs prove that they are entitled for the relief as sought for ?

4. What order or decree ?

5. The power of attorney holder of the plaintiffs was examined as PW1 and marked Ex.P1 toP10 in addition to examining two witnesses Thanappa and M.Krishnappa, as PWs. 2 and 3 respectively, while the defendant was examined as DW1 and marked Ex.D1 to D9 one Seenappa was examined as DW2. 5 R.S.A.463/08

6. The trial court having regard to the material on record observed that one Thimmakka, w/o.Chikkamuniswamy and the plaintiffs partitioned the properties under registered partnership deed dated 8.7.1996 whereunder 'A' schedule properties fell to the share of the plaintiffs while the mother of the defendant obtained B schedule properties in the said partition. A schedule property consists of Sy.No.8/2 measuring 20 guntas; Sy.No.16/2 measuring 6 guntas and other properties while B schedule consists of Sy.No. 8/2 measuring 20 guntas and other properties. The property measuring 20 guntas that fell to the share of the plaintiffs is bounded on the East by Devandahalli Munivenkatappa's land;

West by Oni;

North by B-Schedule Property; and South by Koramanna Venkatappa's land. The 20 guntas of land that fell to the share of mother of the defendant has the following boundaries: 6 R.S.A.463/08

East by Munivenkatappa's land;

West by Oni;

North by Devandahalli Munivekaatappa land; South by A-Schedule property.

The plaint schedule item No.1 property is said to be bounded on the East by property of Devandahalli Munivenkatappa's land;

West by Oni;

North by B schedule property, now in possession of the defendant; and south by property of Koramanna Venkatappa. The boundaries of item No.2 of the schedule property measuring 8 guntas is as follows:

East by property of Devandahalli Munivenkatappa;

West by Oni;

North by property of Govindappa; and South by property of defendant.

The trial court opined that the boundaries aforestated clearly establish that the plaintiffs do not 7 R.S.A.463/08 claim property falling within the boundaries furnished in the B schedule under the partition deed Ex.D1. The trial court further observed that under Ex.P9 the sale deed executed by Chinnappa what is sold is property in Sy.No.8/2 while the katha of the property measuring 8 guntas is in the name of the plaintiffs in terms of the sale deed executed by Chinappa in favour of Naduli Muniswamppa, the father of the plaintiffs. The testimony of DW2, as observed by the trial court, discloses that defendant is in possession and enjoyment of the property of the plaintiff bounded on the East by Devandahlli Munivenkatappa's land, West by Oni, North by Defendant's another land and South by Koramanna' Venkatappa's land. According to the trial court DW1, the defendant, did not furnish definite answers with regard to the extent of the properties which he is in possession. The trial court presumed that as between the four parties, each of them naturally would have taken equal shares in the properties and accordingly 8 R.S.A.463/08 recorded a finding that the plaintiffs while being entitled to 20 guntas of land in suit item No.1 were entitled to item No.2 having acquired the same from Chinnappa under the sale deed and accordingly returned findings in the affirmative over the issues, to decree the suit by judgment and decree dated 10-9-2004.

7. The lower appellate court though framed points for consideration whether the defendant has made out sufficient ground for appointment of Commissioner, on the observation that the appointment of a commissioner cannot be made in order to collect evidence to fill up the lacunae particularly when it is possible for the parties to lead evidence as to the existence of the house, if any, answered the point in the negative and accordingly rejected the I.A. while concurring with the reasons and findings of the trial court to dismiss the appeal by the judgment and decree dated 11-10-2007. Hence the second appeal. 9 R.S.A.463/08

8. Appeal was admitted on 8-4-2010 on the following substantial questions of law:

1. Whether the judgment an decrees of the Court below are perverse in misconstruing the evidence of P.W.1?

2. Whether the judgment and decree of the first appellate court is perverse in confirming the decree of the trial while rejecting the application for appointment of the Commissioner ?

9. Heard learned counsel for the parties, perused the pleading and the evidence, both oral and documentary, and examined the judgment and decree of the courts below.

10. There is no serious dispute that item No.1 of the suit schedule property measuring 20 guntas in Sy.No.8/2, belongs to the plaintiffs, having acquired the same under a registered partition deed . The dispute is over suit item No.2 relating to 8 guntas of land in Sy.No.8/2. While plaintiffs claim that this 8 guntas is 10 R.S.A.463/08 carved out of 1 acre of land in Sy.No.8/2, the evidence of DW1 in his cross-examination is that the entire extent of land in Sy.No.8 is 2 acres 1 gunta from out of which 1 acre and 1 gunta is assigned Sy.No.8/1 while the balance extent of 1 acre is assigned Sy.No.8/2 from out of which 20 guntas fell to the share of plaintiffs and 20 guntas to the share of the defendant's father. Thus it was imperative to identity and locate 8 guntas of land i.e. whether it fell within the 22 guntas of land purchased by plaintiff's father Naduli Muniswamappa under the sale deed Ex.P9 dated 26-4-1996, from out of which 12 guntas was conveyed to Munivenkatappa and two guntas left for road, or whether the 8 guntas constitutes a part and parcel of 20 guntas of land in Sy.No. 8/2 that fell to the share of the defendant's father. If regard is had to the boundaries, as are set out in the documents as well as the plaint schedule, the evidence on record is insufficient to determine the dispute over the exact location and identity of 8 guntas 11 R.S.A.463/08 of land. In that view of the matter the lower appellate court, in my considered opinion, was not justified in rejecting I.A.No.3 filed under Or.26, Rule 9 C.P.C for appointment of Commissioner while dismissing the appeal by judgment and decree impugned.

11. In that view of the matter the second substantial question of law is answered in the affirmative holding that the lower appellate court was not justified in rejecting the application for appointment of Commissioner. The lower appellate court has sequentially recorded perverse findings to confirm the judgment and decree of the trial court. The first substantial question of law is answered partially in the affirmative holding that there is perversity in misconstruing the evidence of PW1 by the lower appellate court.

R.S.A.463/08

12. Since the appeal is to be remitted to the lower appellate court for a fresh consideration over the application for appointment of Commissioner so as to locate and identify the 8 guntas of land, being suit item No.2, there is no necessity to answer the first substantial question of law in so far as it relates to perversity in the judgment and decree of the trial court.

That is kept open.

13. In the result, this appeal is allowed in part, the judgment and decree of the lower appellate court is set aside and the proceeding remitted for consideration afresh on I.A.No.3 under Or.26, Rule 9 C.P.C filed by the appellant, more appropriately in the matter of identifying and locating the land measuring 8 guntas in Sy.No.8/2 being suit item No.2, and thereafter proceed to judgment.

Sd/-

JUDGE ssy/-

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Karnataka High Court