Karnataka High Court
K Muniyappa vs Narayanappa @ Mugi Narayanappa on 7 August, 2017
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
RSA No.1008/2005 (P-INJ)
c/w
RSA No.1128/2008 (P-INJ)
IN RSA No.1008/2005
BETWEEN
K MUNIYAPPA
SINCE DECEASED BY HIS LRs
1(a) SMT. GULLAMMA
W/O LATE K MUNIYAPPA
AGED ABOUT 51 YEARS
OCC: AGRICULTURE
1(b) PRAKASH S M
S/O LATE K MUNIYAPPA
AGED ABOUT 31 YEARS
OCC: AGRICULTURE
1(c) SMT. MUNIRATHNAMMA
W/O MANJUNATH
AGED ABOUT 25 YEARS
OCC: AGRICULTURE
1(d) SHRI. THIMMARAYAPPA
S/O LATE K MUNIYAPPA
AGED ABOUT 21 YEARS
OCC: AGRICULTURE
ALL ARE RESIDING AT SUGATUR VILLAGE
KOLAR TALUK, KOLAR DISTRICT.
...APPELLANTS
(BY SRI G A SRIKANTE GOWDA, ADVOCATE)
2
AND
NARAYANAPPA @ MUGINARAYANAPPA
SINCE DECEASED BY HIS LRs
1(a) SMT. MUNIYAMMA
W/O LATE MUGINARAYANAPPA
AGED ABOUT 56 YEARS
OCC: AGRICULTURE
1(b) SHRI. GANGARAJU
S/O LATE MUGINARAYANAPPA
AGED ABOUT 35 YEARS
OCC: AGRICULTURE
1(c) SHRI. KADHIRAPPA
S/O LATE MUGINARAYANAPPA
AGED ABOUT 30 YEARS
OCC: AGRICULTURE
1(d) SHRI. RAVI
S/O LATE MUGINARAYANAPPA
AGED ABOUT 27 YEARS
OCC: AGRICULTURE
1(e) SHRI. RAMESHA
S/O LATE MUGINARAYANAPPA
AGED ABOUT 26 YEARS
OCC: AGRICULTURE
ALL ARE RESIDING AT SUGATUR VILLAGE
SUGATUR HOBLI, KOLAR TALUK
KOLAR DISTRICT
...RESPONDENTS
(BY SRI T V NANJE GOWDA &
SRI K VISHWANATHA, ADVOCATE FOR
R1(a) to R1(e) AND R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT & DECREE DATED 10.03.2005 PASSED IN
R.A.NO.47/1999 ON THE FILE OF THE ADDL. SESSIONS JUDGE,
FAST TRACK COURT II, KOLAR, ALLOWING THE APPEAL AND
3
SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.12.1998
PASSED IN O.S.NO.196/1996 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN.), KOLAR.
IN RSA No.1128/2008
BETWEEN
K.MUNIYAPPA
SINCE DECEASED BY HIS LRs
1(a) SMT. GULLAMMA
W/O LATE K MUNIYAPPA
AGED ABOUT 51 YEARS
OCC: AGRICULTURE
1(b) PRAKASH S M
S/O LATE K MUNIYAPPA
AGED ABOUT 31 YEARS
OCC: AGRICULTURE
1(c) SMT. MUNIRATHNAMMA
W/O MANJUNATH
AGED ABOUT 25 YEARS
OCC: AGRICULTURE
1(d) SHRI. THIMMARAYAPPA
S/O LATE K MUNIYAPPA
AGED ABOUT 21 YEARS
OCC: AGRICULTURE
ALL ARE RESIDING AT SUGATUR VILLAGE
KOLAR TALUK, KOLAR DISTRICT
...APPELLANTS
(BY SRI G A SRIKANTE GOWDA, ADVOCATE)
AND
NARAYANAPPA @ MUGINARAYANAPPA
SINCE DECEASED BY HIS LRs
1(a) SMT. MUNIYAMMA
W/O LATE MUGINARAYANAPPA
4
AGED ABOUT 56 YEARS
OCC: AGRICULTURE
1(b) SHRI. GANGARAJU
S/O LATE MUGINARAYANAPPA
AGED ABOUT 35 YEARS
OCC: AGRICULTURE
1(c) SHRI. KADHIRAPPA
S/O LATE MUGINARAYANAPPA
AGED ABOUT 30 YEARS
OCC: AGRICULTURE
1(d) SHRI. RAVI
S/O LATE MUGINARAYANAPPA
AGED ABOUT 27 YEARS
OCC: AGRICULTURE
1(e) SHRI. RAMESHA
S/O LATE MUGINARAYANAPPA
AGED ABOUT 26 YEARS
OCC: AGRICULTURE
ALL ARE RESIDING AT SUGATUR VILLAGE
SUGATUR HOBLI, KOLAR TALUK,
KOLAR DISTRICT.
...RESPONDENTS
(BY SRI T V NANJE GOWDA &
SRI K VISHWANATHA, ADVOCATE FOR
R1(a) TO R1(e))
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT & DECREE DATED 07.12.2007 PASSED IN
R.A.NO.97/2006 ON THE FILE OF THE ADDL. DISTRICT JUDGE
(FTC-IV), KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 31.01.2006 PASSED IN
O.S.NO.129/1999 ON THE FILE OF THE PRL.CIVIL JUDGE, (JR.DN)
AND JMFC, KOLAR.
THESE RSAs COMING ON FOR FURTHER AGRUMENTS, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
These two second appeals are by the plaintiff in O.S.No.196/1996, who is also the defendant in O.S.No.129/1999.
The appeal in RSA No.1008/2005 is in challenge to the divergent findings rendered in R.A.No.47/1999. Admittedly, the suit in O.S.No.196/1996 for the relief of injunction was decreed on 7.12.1998 against which, the defendants Moogi Narayanappa and Munemma filed an appeal in R.A.No.47/1999 on 15.02.1999, which came to be allowed by the judgment dated 10.03.2005, which is the subject matter of R.S.A.No.1008/2005 and which came to be admitted on 28.07.2005 to consider the following substantial questions of law;
" (i) Whether the finding of the First Appellate Court reversing the judgment and decree passed by the Trial Court and dismissing the suit of the plaintiff is perverse and arbitrary being contrary to the material on record?
(ii) Whether the judgment and decree passed by the First Appellate Court is perverse and arbitrary for non-
consideration of the oral and documentary evidence on 6 record and mis-reading of the boundaries in respect of the schedule property which pertains to Katha No.587 and not 434?"
The appeal in RSA No.1128/2008 is by the plaintiff in O.S.No.196/1996, who is the defendant in O.S.No.129/1999 filed by defendant No.1 in O.S.No.196/1996 namely, Moogi Narayanappa. Admittedly, O.S.No.129/1999 is filed on 05.04.1999 i.e. subsequent to the decree in O.S.No.196/1996 filed by the defendant in O.S.No.129/1999. The plaintiff in O.S.No.129/1999, even prior to filing of this suit, had filed an appeal in R.A.No.47/1997 challenging the judgment and decree passed in O.S.No.196/1996. The records would indicate that O.S.No.129/1999, was filed in suppression of the earlier proceedings in O.S.No.196/1996 and the appeal arising therefrom in R.A.No.47/1999. The said suit came to be decreed by judgment dated 31.01.2006, against which, the plaintiff in O.S.No.196/1996, defendant in O.S.NO.129/1999 had to file an appeal in R.A.No.97/2006, which also came to be dismissed by judgment dated 07.12.2007. The concurrent finding in the said proceedings is the subject matter in RSA 7 No.1128/2008, which was admitted by this Court on 03.03.2017 for consideration of the same substantial questions of law on which R.S.A.NO.1008/2005 was admitted on 28.07.2005.
2. In both the appeals, the Trial Court records are secured. Paper books filed by the parties are taken on record and thereafter these two appeals are heard and disposed by the common judgment.
3. After hearing learned counsel appearing for both the parties, the substantial questions of law raised in RSA No.1008/2005 are answered in the affirmative for the following reasons;
The pleadings and evidence on record would indicate that the plaintiff in O.S.No.196/1996 is the owner of the land bearing Katha No.587 of Sugutur Grama Panchayat measuring East-West 24 feet and North-South 42 feet and in the said schedule, there is also a reference to a constructed area of 21 feet by 13 feet. Admittedly, the boundaries referred to in Katha No.587 are East: by the house of Kunti Muniyappa; 8
West: by road; North: by the house of Muniventakataramappa's house and South: by a road. When O.S.NO.196/1996 was filed for the relief of injunction against defendant Nos.1 and 2, they tried to set up a defence that the property which is shown in the suit schedule is incorrect and that property included the property of the defendants bearing Katha No.559 of Sugutur Grama Panchayat measuring East- West 18 feet and North-South 22 feet and thereby trying to demonstrate as if the corner portion in that property belongs to them. Admittedly, the plaintiff in O.S.No.196/1996 is seeking permanent injunction on the basis of the sale deed which is registered in his name. The said sale deed is at Ex.P.1 in O.S.No.196/1996. Though the defendants tried to put up a defence that the said property includes their property, they are not in a position to produce any document either in respect of title or in the alternative, the revenue documents to demonstrate that they are the owners in possession and occupation of that portion. Except oral statement, there is nothing on record to support said defence. In fact, the written statement which is filed by them in 9 O.S.No.196/1996 does not even give the Katha number of their property, which is subsequently attempted to be substantiated by relying upon the revenue document, which is at Ex.D.4. Except that revenue document, there are no other documents to show that there is any property in the name of the defendants. Even Ex.D.4 also does not disclose that the same is situated adjacent to the property of the plaintiff in O.S.No.196/1996 which is claimed to have been clandestinely included in the boundary of the plaintiff. Even when the schedule and the boundaries in Ex.D.4 in O.S.No.196/1996 are looked into, that does not support the case of the defendants showing as if it is situated adjacent to the property of the plaintiff. Admittedly, the construction which is already there is also accepted by the defendants. Per contra, they tried to demonstrate as if it is constructed subsequently. With such conflicting pleadings and evidence, an attempt is sought to be made to counter the claim in the suit which was filed in O.S.No.196/1996 for injunction.10
4. The suit of the plaintiff in O.S.No.196/1996 was decreed on 07.12.1998 and that was challenged in appeal by the defendants in R.A.No.47/1999 which was filed on 15.02.1999. Subsequent to the filing of the said R.A.No.47/1999, the very same appellant filed O.S.No.129/1999 on 05.04.1999. Surprisingly, in the second suit which is filed by him, there is no reference to the earlier litigation initiated against him by the defendant in O.S.No.129/1999. There is no reference of the earlier suit being decreed against the plaintiff in O.S.No.129/1999, who filed R.A.NO.47/1996. All these clearly indicate that there is suppression of facts and there is an attempt to mislead the Court and also there is an attempt to refer to some unconnected documents as documents which refers to the property belonging to the respondents in both the appeals which according to them form part of the suit schedule in O.S.No.196/1996. It is seen, at the first instance, the Trial Court while considering the materials available on record has rightly decreed the suit in O.S.No.196/1996. However, in the subsequent suit which is filed in O.S.No.129/1999, the Court below has erroneously dealt with 11 the same and decreed the said suit, even after coming to know that the plaintiff in the said suit has not approached the Court with clean hands and, more particularly, when the suit is filed by him against the true owner of the property, the title of which is registered in his name under Ex.P.1-registered sale deed, thereby a serious error is committed by the trial Court in O.S.No.129/1999 which is repeated in both the appeals in R.A.No.47/1999 and R.A.No.97/2006. Therefore, in this background, both the appeals filed by the plaintiff in O.S.No.196/1996 were admitted by this Court by framing the aforesaid substantial questions of law.
5. This Court with reference to the discussion as stated supra has held that the judgment in O.S.No.196/1996 is just and proper the same is confirmed by setting aside the judgment in R.A.No.47/1999 by allowing RSA No.1008/2005.
In view of RSA No.1008/2005 being allowed, the appeal filed by in RSA No.1128/2008 by the very same person, who is defendant in O.S.NO.129/1999 is required to be allowed. Consequently, the judgment and decree in O.S.No.129/1999 12 confirmed in R.A.No.97/2006 are dismissed by allowing RSA No.1128/2008.
6. Accordingly, both these appeals filed by the plaintiff in O.S.No.196/1996, who is defendant O.S.No.129/1999 are hereby allowed.
Sd/-
JUDGE mv