Karnataka High Court
G R Channappa vs Channaiah on 25 September, 2019
Author: R Devdas
Bench: R Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
R.S.A. NO.935 OF 2006(DEC & INJ)
BETWEEN
G R CHANNAPPA
S/O RAMAIAH
AGED ABOUT 63 YEARS
AGRICULTURIST
R/O GUDDADAPALYA
KIBBANAHALLI HOBLI
TIPTUR, TUMKUR
AND ALSO GANDHINAGAR,
TIPTUR TOWN, TIPTUR 572201
SINCE DECEASED BY HIS LR'S
1. MANJUNATH
S/O LATE G.R. CHANNAPPA,
MAJOR,
R/AT GUDDADAPALYA,
GIBBANAHALLI HOBLI,
TIPTUR TALUK, TUMKUR DISTRICT
2. SMT LATHA BAI,
W/O NAGARAJ
MAJOR,
R/AT 2ND MAIN ROAD,
D S GOWDA COMPOUND,
GANDHINAGAR, TIPTUR TOWN,
TUMKUR DISTRICT.
... APPELLANTS
(BY SRI K N MAHABALESHWARA RAO, ADVOCATE)
AND
CHANNAIAH
S/O REVANNA,
AGED ABOUT 53 YRS
2
R/O GUDDADAPALYA
KIBBANAHALLI HOBLI
TIPTUR, TUMKUR 572201.
... RESPONDENT
(BY SMT NALINA K, ADVOCATE FOR
SRI S K VENKATA REDDY, ADVOCATE FOR C/R)
THIS RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DT.2.12.2005 PASSED IN
R.A.NO.133/05 ON THE FILE OF THE PRESIDING OFFICER,
FTC-III, TUMKUR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DT.13.2.1991 PASSED
IN O.S.NO.79/89 ON THE FILE OF THE MUNSIFF AND JMFC,
TIPTUR AND ETC.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
R. DEVDAS J., (ORAL):
This regular second appeal arises out of O.S.No.79/1989, which was decreed in favour of the plaintiff on 13.02.1991, by the Munsiff and JMFC, Tiptur and R.A. No.133/2005, which was allowed by the First Appellate Court namely Fast Track Court-III, Tumkur, setting aside the judgment and decree passed by the trial Court on 02.12.2005. This regular second appeal is therefore preferred by the appellant who was the plaintiff before the trial Court.3
2. For the sake of convenience, the parties shall be referred to as per their ranking before the trial court.
3. The case of the plaintiff was that the four items of the suit schedule properties were his ancestral properties, originally belonging to Dodda Channe Gowda, the great grandfather of the plaintiff. For the sake of brevity, it is sufficient to notice that according to the plaintiff there are only two surviving great grand children of Dodda Channe Gowda, one being the plaintiff and another is Basavaiah S/o Murudu Basavaiah, who according to the plaintiff left the ancestral home about 30 years before the suit was filed in the year 1987. In this background, the plaintiff claims that the suit schedule properties being the ancestral properties of the Dodda Channe Gowda, belongs to the plaintiff. On the other hand the defendant filed written statement contending that the suit schedule properties, except item No.4, are his 4 ancestral properties, his grand father having purchased the same in a court auction.
4. The trial Court, on going through the plaint and the written statement framed the following:
ISSUES
1) Whether the suit is valued for the purpose of court fee and jurisdiction?
2) Whether plaintiff proves that he has perfected his title to the suit schedule property by adverse possession?
3) Whether defendant proves that he is in possession of the suit schedule property as owner?
4) What order or decree?
5. After recording the evidence of both sides and after hearing arguments, the trial Court answered issue No.1 in the affirmative, while issue Nos.2 and 3 were held to be negative. The trial Court proceeded to pass a judgment and decree in favour of the plaintiff, declaring that the plaintiff is the lawful owner of the suit schedule properties and the defendant and his men were restrained from 5 interfering with the peaceful possession and enjoyment of the suit schedule properties.
6. The First Appellate Court raised the following points for consideration:
1) Whether the plaintiff established his title over the suit schedule properties?
2) Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of suit?
3) Whether the defendant proves his title over the schedule property under 1932 decree in O.S.No.240/1932-33, on the file of the Second Munsiff, Tumkur?
4) Whether the impugned judgment of the trial Court requires interference?
5) What order?
7. The First Appellant Court notices that the plaintiff, though not saying in many words, had set up an alternative plea regarding adverse possession. On going through the reasons assigned by the trial Court, the First Appellate Court observed that the title by way of adverse possession, as rightly held by the trial court cannot be granted to the plaintiff as at 6 one stage he claimed by way of inheritance and on the other attempts to prove prescriptive title by way of adverse possession. The First Appellate Court further held that even according to the plaint when the plaintiff has stated that his cousin brother Basavaiah S/o Murudu Basavaiah was another person, who was legally entitled to inherit the property and having not impleaded the said Basavaiah, the First Appellate Court proceeded to hold that the suit was not maintainable, in the absence of Basavaiah s/o Murudu Basavaiah.
8. The First Appellate Court, on going through Ex.D1, which is a certified copy of decree drawn in O.S.No.240/1932-33 and in the light of the explanation given by the DW-1, regarding the identity of the property found in the decree and the suit schedule properties, proceeded to hold that the defendant established his contention that the properties were acquired by his grandfather, Sri.Savakki Channe Gowda in a court auction that was conducted in execution of the decree passed by 7 the competent civil court in O.S.No.240/1932-33 and Sri. Savakki Channe Gowda, the grandfather of the defendant purchased the same in the court auction. The First Appellate Court also held that reliance placed by the plaintiff upon the revenue entries, where the name of Siddaramaiah is found as the kathedar in possession of the suit schedule properties were not sufficient to come to a conclusion that Siddaramaiah, the plaintiff's uncle (4th son of Ramaiah and the brother of plaintiff's father Ramaiah) was the lawful owner of the suit schedule properties. The First Appellate Court further held that the Trial Court committed an error in foisting the burden on the defendant to establish the identity of the suit schedule properties and to prove that he was in possession of the suit schedule properties as owner. With this, the First Appellate Court, proceeded to set aside the judgment and decree passed by the Trial court and consequently, dismissed the suit filed by the plaintiff. 8
9. This Court, on 18.07.2008 held that the following substantial question of law arises for consideration:
"Whether in the facts and circumstances of the case, the appellate Court was justified in reversing the judgment and decree passed by the Trial Court on the ground that the existence of Basavaiah, S/o Murudu Basavaiah is not considered and the identity of the properties has not been established by the plaintiff?"
10. During the course of the arguments, the learned Counsel for the appellant submitted that in fact the substantial question of law raised in the memorandum of appeal may be considered as the substantial question of law. The learned Counsel for the respondent accedes to such a request and therefore with the consent of both the learned Counsels, the following substantial questions of law are framed after hearing both the learned Counsels:
"1. Whether the lower Appellate Court is justified in reversing the findings of the Trial Court with reference to the identity of the 9 suit schedule properties in the absence of any documentary evidence produced by the defendant to establish that the suit properties are the properties acquired under Ex.D1 to D5?
2. Whether the lower appellate Court is justified in reversing the findings of the Trial Court on issue No.3 without recasting the issue and without giving opportunity to the appellant/plaintiff to prove that he is in lawful possession of the suit schedule property?"
11. The plaintiff instituted the suit seeking a declaration that he is the lawful owner in possession of the suit schedule properties. Therefore, it was required that an issue to the effect that the plaintiff proves his title and possession over the property had to be framed by the Trial Court. Nevertheless, the First Appellate Court noticed that the parties have understood their case and have proceeded to produce evidence to substantiate their contention that they are the owners of the property. The learned Counsel 10 for the appellant relied upon certain decisions to buttress his contention that especially in the mofussil areas, the pleadings should be liberally considered and that Courts should be slow to throw out a claim on a mere technicality of pleadings. This Court is in agreement with such a contention and the decisions relied upon by the learned Counsel for the appellant. Therefore, while answering the second substantial question of law, this Court is of the opinion that there is no need to remand the matter back for recasting the issue and affording an opportunity to the appellant/plaintiff to prove that he is in lawful possession of the suit schedule property. The plaintiff has understood that he claims to be the lawful owner of the suit properties and therefore he has placed before the Trial Court, evidence in support of his contention. Whether such evidence is sufficient to hold that the plaintiff is the lawful owner of the suit schedule properties is another question. That question can be answered while dealing with the 11 first substantial question of law that has been framed by this Court.
12. It is interesting to notice that in the plaint, the plaintiff has stated that Siddaramaiah, the Uncle of the plaintiff had borrowed money from Savakki Channe Gowda, who is the grandfather of the defendant. Though there is no mention of the suit number, it is evident that the plaintiff was referring to O.S.No.240/1932-33. However, it is stated in the plaint that in the said suit Savakki Channe Gowda obtained a decree against Siddaramaiah and further states that Savakki Channe Gowda left behind his only son Revanna, who also passed away and the only legal heir surviving for Savakki Channe Gowda is the defendant. Having said so, the plaintiff contends that during the lifetime of Savakki Channe Gowda, the plaintiff's grandfather i.e., Dodda Channe Gowda took possession of Sy.No.83/5 to the extent of 28 guntas and a house bearing khaneshumari No.58 of Guddadapalya. It is also stated that Sy.No.83/5 had been sold by the defendant's father to one 12 Kurudu Rangaiah along with half portion of the property bearing khaneshumari No.58, while the other half was sold by the defendant's father to one Nanjappa, S/o Basavaiah. What is noticeable is that the plaintiff admitted that Savakki Channe Gowda, the grandfather of the defendant had obtained a decree against Siddaramaiah, the Uncle of the plaintiff. However, nothing more is said about how the suit properties were acquired by the forefathers of the plaintiff. It is also noticeable that Sy.No.83/5 does not form part of the suit schedule property. Therefore, the averments made in paragraph-6 regarding Sy.No.83/5 or khaneshumari No.58, is of no avail. This Court has gone through the certified copy of the decree in O.S.No.240/1932-33 which is produced as Ex.D1. It is seen from the decree that Savakki Channe Gowda, the grandfather of the defendant obtained a decree against Ramaiah, the grandfather of the plaintiff, Ramaiah the father of the plaintiff, Murudubasaiah and Siddaramaiah, the Uncles of the plaintiff as well as Nanjappa, the minor 13 son of Basavaiah, one another Uncle of the plaintiff who was no more, even at the time of the decree.
13. As regards the properties that were put to auction in view of the decree passed in O.S.No.240/1932-33, it is seen that since the defendants therein failed to repay the money decreed in O.S.No.240/1932-33, the properties that were belonging to the defendants therein were put to auction by the Court and the plaintiff therein i.e., Savakki Channe Gowda, himself purchased the properties. In this regard, Ex.D1 is the certified copy of the decree in O.S.No.240/1932-33, Ex.D2 is the Court notice issued in Execution Case No.638/1936- 37 and Ex.D5 is the sale certificate issued in favour of Savakki Channe Gowda i.e., the grandfather of the defendant. Consequent thereto, the name of Savakki Channe Gowda was entered in the index of lands as found in Ex.D6. In the light of the above, the First Appellate Court was justified in arriving at a conclusion that the defendant has placed sufficient evidence on record to substantiate his contention 14 that the suit schedule property was purchased by the grandfather of the defendant. However, since a question was raised as to the identity of the property as found in the decree in O.S.No.240/1932-33, the sale certificate found at Ex.D5 when compared to the description of the suit schedule properties, the First Appellate Court has accepted the oral evidence led by DW1. In the oral evidence let in by DW1, he has explained as to how Sy.No.80/3 found in the decree and sale certificate was later renumbered as Sy.No.83/2 and the extent is 1 acre 26 guntas. Similarly, with respect to Sy.No.87, it was stated that it was later renumbered as Sy.No.87/2. Further it is stated that in Sy.No.83/2 out of the extent of 1 acre 26 guntas a portion of it was sold by Savakki Channe Gowda and the extent that now remained with the defendant was 33 guntas. It is also stated that the said land is also called "PÀmÖÉ »A¢£À ºÉÆ®". Similarly in Sy.No.81 where originally there were 2 acres 6 guntas, Savakki Channe Gowda, sold a portion to 15 Ramaiah and what remains with the defendant is 1 acre 20 guntas. The said land was also called as "JgÉ ºÉÆ®". It has also been stated that the said Ramaiah sold his part of the property to one Narasappa. It is stated that old Sy.No.87 was renumbered as Sy.No.87/2. The witness has also stated that in Sy.No.87/2 the extent is found to be 5 acres 20 guntas, though in the decree and sale certificate it is shown as 4 acres 7 guntas.
14. Going by the evidence on record, both oral as well as documentary, the First Appellate Court came to a conclusion that though it was not for the defendant to prove his title over the property, while it was for the plaintiff to place evidence on record to substantiate his contention that he is the lawful owner of the property, having sought for declaration that he is the lawful owner of the property, however, it was found that the defendant had placed substantial evidence on record to dislodge the contention of the plaintiff. Having found substantial 16 material on record, the First Appellate Court came to a conclusion that the Trial Court erred in appreciating the evidence on record. In this regard, the decision relied by the learned Counsel for the plaintiff in the case of Dolfy A.Pais Vs. Lalitha Therasa Sequiera reported in ILR 2005 KAR 4137 would lend credence to the finding given by the First Appellate Court. It is a well settled proposition of law that the appellate Court has jurisdiction to reverse or affirm findings of the Trial Court. However, the Appellate Court must give findings and reasons that if the appraisal of the evidence by the Trial Court suffers from material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact. Therefore, in the light of the discussion above, this Court is of the opinion that the finding given by the First Appellate Court that the Trial Court, in fact, committed an error in appreciating the evidence on record, cannot be faulted.
17
15. On facts, it has to be noticed that out of the four items of property found in the schedule, as regards Sy.No.88/3 which was the 4th item in the suit schedule property, the defendant admitted that he had nothing to do with that item of the suit schedule property. However, the evidence placed by the plaintiff may not be sufficient to declare him as the lawful owner of the Sy.No.88/3. Nevertheless, since there is no objection from the defendant, the question regarding the lawful ownership or possession of the plaintiff with respect to Sy.No.88/3 will be kept open, to be decided in a properly instituted suit. As regards other three items of the property i.e., Sy.No.81/2, 87/2 and 83/2, the plaintiff has miserably failed to produce any evidence to substantiate his contention that he is in lawful possession of the suit schedule property. On the other hand, the defendant has produced Exs.D1 to D5 which are certified copies of the Court proceedings in O.S.No.240/1932-33 and Ex.Case No.638/1936-37. These documents are sufficient evidence to hold that the defendant's 18 grandfather Savakki channegowda had, in fact, succeeded in a suit that was filed against the grandfather, father and Uncles of the plaintiff and in the very same suit, in a Court auction, the grandfather of the defendant, Savakki Channegowda had purchased the properties which included the suit schedule properties and therefore, Savakki Channegowda became the lawful owner of the properties in question. The index of land was also mutated in the name of Savakki Channegowda. However, it may be true that the RTC and other revenue records were not mutated in the name of either Savakki Channegowda or his successors. But in the light of the comprehensive evidence on record, this Court proceeds to hold that it will not be sufficient for the plaintiff by more production of the RTC to substantiate his contention that he is the lawful owner of the suit schedule properties. Having regard to the evidence placed on record, it is found that Savakki Channegowda was the lawful owner of the suit schedule properties and the claim of the 19 defendant that he has succeeded to the properties of Savakki Channegowda has been substantiated by the evidence on record. However, it needs to be made clear that this judgment and decree does not declare the entitlement or rights of the defendant and his family members, inter se.
16. Having regard to the discussion above and on the basis of the evidence on record and on perusal of the pleadings and appreciation of the arguments of the learned Counsels, this Court proceeds to hold that the appeal preferred by the plaintiff should necessarily fail and accordingly the regular second appeal filed by the appellant herein is dismissed.
17. Consequently, the judgment and decree passed by the First Appellate Court is upheld and the suit in O.S.No.79/1989 stands dismissed.
SD/-
JUDGE DL/JT/-