Karnataka High Court
Chikkaramappa vs Thimmarayappa on 13 July, 2017
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13th DAY OF JULY, 2017
BEFORE
THE HON'BLE Mr. JUSTICE S.N.SATYANARAYANA
R.S.A. No.1537 OF 2005
BETWEEN:
1. CHIKKARAMAPPA
SINCE DECEASED BY LRS
(a) VENKATALAKSHMAMMA
W/O GOVINDAPPA
D/O CHIKKARAMAPPA
AGED ABOUT 52 YEARS,
R/O KEREKODI VILLAGE,
MOGANDHI POST,
BANGARPET TALUK,
KOLAR DISTRICT.
(b) MUNIVENKATAMMA
W/O SAMPANGAPPA
D/O CHIKKARAMAPPA,
AGED ABOUT 48 YEARS,
R/AT MARAHATTI VILLAGE,
HURIKERE POST,
MALUR TALUK,
KOLAR DISTRICT.
(c) C VENKATESH
DEAD BY LRS
2
1(c)a) SMT. JAYAMMA,
W/O LATE C. VENKATESH,
AGED ABOUT 45 YEARS.
1(c)b) V. HAREESH,
S/O LATE C. VENKATESH,
AGED ABOUT 22 YEARS,
BOTH ARE RESIDING AT
NO.11/24, CHOLANAYAKANAHALLI,
R.T. NAGAR,
BENGALURU - 560 032.
(d) KRISHNAPPA
S/O LATE CHIKKARAMAPPA
AGED ABOUT 40 YEARS,
R/AT ATHIGIRI VILLAGE
MAGONDHI POST
BANGARPET TALUK
KOLAR DISTRICT
(e) MUNIYAPPA
S/O LATE CHIKKARAMAPPA
AGED ABOUT 37 YEARS,
R/AT ATHIGIRI VILLAGE
BANGARPET TALUK
KOLAR DISTRICT
(f) JAYARAM
S/O LATE CHIKKARAMAPPA
AGED ABOUT 35 YEARS,
R/AT ATHIGIRI VILLAGE
BANGARPET TALUK
KOLAR DISTRICT. ... APPELLANTS
(BY SRI. H. T. NARAYAN ADVOCATE)
3
AND
THIMMARAYAPPA
SINCE DECEASED BY LRS
1(a) NARAYANAPPA,
S/O LATE THIMMARAYAPPA,
AGED ABOUT 48 YEARS.
1(b) MUNIRATHNAPPA
S/O LATE THIMMARAYAPPA,
AGED ABOUT 45 YEARS.
1(c) GOVINDAPPA
S/O LATE THIMMARAYAPPA,
AGED ABOUT 43 YEARS.
1(d) VENKATESH
S/O LATE THIMMARAYAPPA,
AGED ABOUT 40 YEARS.
1(e) SHANKARAPPA
S/O LATE THIMMARAYAPPA,
AGED ABOUT 38 YEARS.
1(f) MANJUNATH
S/O LATE THIMMARAYAPPA,
AGED ABOUT 36 YEARS.
1(g) DEVARAJ
S/O LATE THIMMARAYAPPA,
A TO G ALL ARE RESIDING AT
ATTIGIRI VILLAGE,
KASABA HOBLI,
4
BANGARPET TALUK.
1(h) SMT. SHANTHAMMA,
W/O SEENAPPA,
AGED ABOUT 50 YEARS,
R/AT BYNEHALLY VILLAGE,
DODDAKAMBALLI POST,
BANGARPET TALUK.
1(i) SARASAMMA
W/O MUNIYAPPA,
AGED ABOUT 46 YEARS,
R/AT THORALAHATTTI VILLAGE,
THORALAKKI POST,
MALURU TALUK,
KOLAR DISTRICT.
1(j) THIMAKKA @ CHINNI,
W/O THIMMARAYA,
AGED ABOUT 30 YEARS,
R/AT THORALAHATTI,
THORALAKKI POST,
MALUR TALUK,
KOLAR DISTRICT. ... RESPONDENTS
(BY SRI. N. MURALI ADVOCATE FOR PROPOSED
R1 (A TO G)
R-1(H TO G ARE SERVED)
....
THIS REGULAR SECOND APPEAL IS FILED
UNDER SECTION 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED:16.6.05 PASSED IN
R.A.NO.72/01 ON THE FILE OF THE CIVIL JUDGE (SR.
5
DN.) KGF, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE
DATED:14.06.01 PASSED IN O.S.NO.294/94 ON THE
FILE OF THE II ADDL. CIVIL JUDGE (JR. DN.) KGF.
THIS APPEAL COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S. No.294/1994 on the file of II Additional Civil Judge (Jr. Dn.) at KGF has come up in this second appeal impugning the concurrent findings of both the courts below in dismissing his suit for the relief of declaration and permanent injunction in respect of the land bearing Sy.No.21 measuring 3 acres 31 guntas assessed at Rs.4.98 paise situated at Athigiri village, Kasaba Hobli, Bangarpet taluk.
2. Brief facts leading to this second appeal are as under:
Original plaintiff Chikkaramappa and original defendant Thimmarayappa are brothers and sons of late 6 Krishanppa. They were members of joint family of Krishnappa who had several properties to the said family. The pleadings and records would indicate that they were living in joint family initially. Thereafter there was a partition and in the partition all the properties of Krishnappa were divided among all the sons of Krishnappa who are totally three in numbers. The case of the plaintiff in the court below is that he was the cultivator of suit schedule property as tenant under one Arasu Nanjundappa, the resident of Bangarpet to whom the suit schedule land was belonging. According to him he was in possession and cultivation of the same in his individual capacity and as such, nobody else other than him has any right in the said property. It is also his case that he filed Form No.7 under the amended provisions of Karnataka Land Reforms Act. Based on an application filed by him in Form No.7 his tenancy right was considered and an order was passed by the 7 Land Tribunal granting occupancy rights in his favour to an extent of 3 acres 31 guntas in land bearing Sy.No.21 of Athigiri village which according to him is in his possession, cultivation and enjoyment exclusively in which nobody else including defendant has any manner of right, title or interest. With this pleadings suit was filed for the relief of declaration and injunction.
3. In the said suit on service of notice original defendant Thimmarayappa entered appearance and filed his defence to the effect that the suit schedule property was not ancestral property of the joint family of Krishnappa and that the same was property of one Arasu Nanjundappa. However, when it comes to the cultivation of the same, the defendants defence is to the effect that the said land which was measuring to an extent of 4 acres 15 guntas inclusive of kharab was in joint cultivation of himself and plaintiff, his elder 8 brother. He would also state that the extent of land that was in occupation and cultivation of his brother is 2 acres and 26 guntas inclusive of kharab and the land which was in his cultivation and enjoyment was 1 acre 29 guntas inclusive of kharab. The defence would also indicate that since both were brothers they did not choose to file two separate Form No.7, instead he allowed the elder brother to file Form No.7 with a clear understanding that as and when occupancy right is given in his favour, the same would be divided between himself and the defendant in accordance with the extent which are under their cultivation and accordingly when occupancy right was granted in favour of plaintiff on 31.03.1980, on the same day the premium which was imposed on them to be paid for granting of occupancy right was divided among themselves with reference to the extent of land held by each of them and accordingly he has paid a sum of Rs.640/- vide challan No.344 9 dated 31.03.1980 and with reference to remaining extent of land his brother has paid a sum of Rs.904/- as his share of premium under challan No.343 of the same date and based on that the property was divided. He would also state on that day an agreement was also prepared on the stamp paper which was purchased by his brother which is dated 31.03.1980, wherein all the aforesaid defence which he has raised in the written statement was reduced into writing and the extent of land is also identified. Based on which it is stated that they got the land measured and the property in possession of each of them was identified, the revenue records are updated.
4. With aforesaid pleadings & issues were framed as under:
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1. Whether plaintiff proves that he is the absolute owner of the entire suit schedule property?
2. Whether plaintiff proves his exclusive and lawful possession of the entire suit schedule property as on the date of suit?
3. Whether plaintiff proves the alleged interference by the defendant in his enjoyment of the suit schedule property?
4. Whether plaintiff is entitle for the relief of declaration and permanent injunction as prayed?
5. What decree or order?
Thereafter parties were called upon to adduce evidence.
5. The plaintiff in respect of his plea examined in all two witnesses. One by himself as PW.1 and another one by examining one Yerrappa S/o Muniswamy, a resident of the same village who would 11 support the case of the plaintiff in giving evidence to the effect that the entire extent of 3 acres 31 guntas along with kharab appended thereto is in possession, cultivation and enjoyment of the plaintiff and that even prior to the occupancy certificate is issued in his name, he was in possession and enjoyment of the said land and he would also deny the defence raised by the defendant to the effect that he is in cultivation and enjoyment of the extent of 1 acre 29 guntas. In support of the case of the plaintiff, in all 18 documents were produced vide EXs.P1 to P18.
6. Per contra, on behalf of defendant in all 6 witnesses were examined. The first one was defendant as DW.1, who would stand by the defence which was raised by him in his written statement. The others were the villagers who supported the defence of Thimmarayappa that he was in possession, cultivation 12 and enjoyment of 1 acre 29 guntas even prior to the entire extent being granted in favour of his elder brother and that after the certificate of grant issued in favour of plaintiff, the same was divided between himself and his brother is supported by defendant Nos.2 to 4 in their evidence.
7. DW.5 is the witness to EX.D3 which is the agreement under which the plaintiff and defendant are said to have divided the suit schedule property among themselves based on their cultivation prior to the date on which the amended provisions of Land Reforms Act came into force. DW.6 is the person who is son of the scribe of EX.D3 which is the document which was said to have been prepared in creating right in favour of defendant to an extent of 1 acre 29 guntas in the suit schedule land which is admittedly granted in favour of plaintiff by the land Tribunal. The defendant in all 13 relied upon 19 documents in support of his defence which are at EXs.D1 to D19.
8. Though there are several documents which had come on record with reference to the rights of the parties to the suit schedule property, the important document on which the entire litigation hinges is EX.D3 which is the agreement. Both the courts below held that the execution of the said agreement is accepted and accordingly the trial court initially decreed the suit of the plaintiff by its judgment dated 14.06.2001 only to an extent of 2 acres 26 guntas and declined to grant the relief of declaration and permanent injunction with reference to an extent of 1 acre 29 guntas relying upon EX.D3.
9. The said judgment of trial court was subject matter of an appeal in R.A. No.72/2001 on the file of the Civil Judge (Sr. Dn.), KGF, wherein the lower 14 appellate court on the basis of the grounds urged in the appeal memo prepared four points for consideration which are as under:
1. Whether the trial court erred in relying on the documents filed by the defendant in partly decreeing the suit?
2. Whether the trial court erred in holding that the plaintiff's counsel admitted to decree the suit only to an extent of 2 acres 26 guntas ?
3. Whether the judgment and decree of the trial court needs modification at the hands of this Court ?
4. What order?
10. On reappreciation of pleadings, oral and documents of trial court with reference to grounds urged in the lower appellate court the said court proceeded to answer all the three points for 15 consideration in the negative. Consequently, as per the final order on point No.4 dismissed the appeal filed by the plaintiff. Challenging the denial of decree with reference to 1 acre 29 guntas in Sy.No.21 in favour of plaintiff. Against the aforesaid concurrent finding, this second appeal is filed mainly concentrating on alleged lacuna in the said Judgment which is sought to be high lighted before this Court in showing the date on EX.D3 as 30.03.1980 when the same was executed on 31.03.1980. Accordingly, to consider the said ground which was raised, the following substantial question of law was framed.
"Whether the courts below were right in holding that the defendant is entitled for 1 acre 20 guntas of land under EX.D3, the agreement, which is a concocted document, in as much as, purchase of stamp paper is subsequent to the alleged agreement?" 16
11. Thereafter this Court after filing of paper book by the appellant secured the trial court records and heard the counsel appearing for appellant and as well as the respondent. Perused the lower court records with reference to pleadings, oral and documentary evidence as well as finding rendered by both the courts below on the basis of aforesaid material. On going through the same this Court answer the substantial question of law in the affirmative in favour of respondent and against the appellant herein for the following reason.
12. The fact that plaintiff and defendant in the Court below are brothers and sons of Krishnappa, that the suit schedule property was not the joint family property of Krishnappa, the fact that the suit schedule property was the property of one Arasu Nanjundappa the same was under cultivation by tenants is not in 17 dispute. What is to be seen in this proceedings is, whether it is only the plaintiff who was in exclusive possession and cultivation of the said land as tenant on the date of the amended provisions of Land Reforms Act coming into force and creating a right to seek occupancy right or it is both plaintiff & defendants who were in cultivation of some extent of land in Sy.No.21. The evidence on record would indicate that the plaintiff and defendant were in possession and cultivation of some portions of land bearing Sy.No.21 which measures in all 4 acres 15 guntas. Out of that the Ain portion is 3 acres 31 guntas which is suit schedule land and kharab appended to that is 24 guntas. Thereby taking the total extent to 4 acres 15 guntas. The case of the defendant is that he is in cultivation of an extent of 1 acre 29 guntas of land in Sy.No.21 which extent is inclusive of kharab of 4 guntas and according to him what was in cultivation of his brother plaintiff in the court below is 2 18 acre 26 guntas. Out of which 2 acres 9 guntas is the Ain land and 17 guntas is the kharab land. Thereby taking the total extent which was in his occupation and cultivation was 2 acres 26 guntas.
13. The fact that plaintiff alone filed Form No.7 is not in dispute. It is also not in dispute that the order of Land Tribunal in granting occupancy right in favour of plaintiff alone to an extent of 3 acres 31 guntas of Ain land with kharab appended thereto. What unfurls thereafter is the arrangement which is entered into between the brothers under EX.D3. The thumb impression of plaintiff Chikkaramappa on the said document EX.D3 is not in dispute. So also the defendants' witness DW.5 being one of the witness to the said document is not in dispute. Further, it is not in dispute that father of 6th defendant was the scribe. 19
14. In the court below the challenge to the document was not there by the plaintiff in his plaint. It is only at the stage of recording evidence in the original suit there was an attempt to contend that the document at EX.D3 is a concocted document. Assuming for a moment if it is a concocted document which is created to take away the ownership, right of the plaintiff, it cannot be accepted that he would keep quite without challenge to the said document. In the entire pleadings and evidence there is not a single word where the plaintiff would deny that thumb impression on Ex.D3 is not his thumb impression and it is fabricated. Per contra, he would try to show as if he was forcibly taken to police station when he was made to execute that. Though such a serious allegation is made by him, the same is not supported with any pleading or evidence to support the same.
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15. Whereas, the defendant who relied upon the said document has made attempt to establish that a genuine mistake has been committed by the scribe while putting the date to the document and the same is endorsed by the witness - DW.5, the son of the scribe who admits that his father was the scribe to the said document. The execution of the document, attestation and everything being accepted, merely because at a later stage when it is inconvenient for the plaintiff to accept the arrangement entered into between himself and his brother under EX.D3 the said document cannot be denied as fake document or a concocted document merely on the basis of an error committed in referring to the date in the said document which is rightly discussed by both the courts below in their judgment while accepting the said document.
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16. As against the concurrent findings of both the courts below on facts, this Curt find no substantial question of law could have been raised. In that view of the matter, this Curt feel that the question of law does not arise for consideration at all. However, what went through the mind of this Court at the time of admitting this second appeal is, the date shown in the document is 30.03.1980 and the date on which the stamp paper is 31.03.1980. A doubt which was created in the mind of this court which prompted the court to frame the aforesaid substantial question of law and to secure the lower court records for further examination. However, on further examination on going through the entire material available on record, considering the nature of relationship between the parties, the manner in which the cultivation has taken place before the tenancy right is considered in respect of the said land and thereafter also the manner in which the parties have exercised 22 their right of cultivation and enjoyment on the said land would clearly indicate that the possibility of any criminal act of either creating or fabricating EX.D3 has taken place.
17. Per contra, as observed by both the courts below a genuine mistake has occurred in describing the document as the one which is executed on 30th March 1980 instead of 31st March 1980. When the entire contents and the circumstances namely, the day on which the order is passed, the day when the challans in 343 and 344 for payment of premium being paid is taken into consideration and the fact that all the persons namely, the plaintiff, defendants - DW.5, DW.6's father and other witnesses were present in the Taluk Office compound where the document is said to have been prepared clearly indicates execution of the said document, except for a small mistake in describing 23 the date. Therefore, too much importance is not rightly attached by both the courts below to the to said error and consequently the unrighteous stand taken by the plaintiff to deny what he has rightly conceded in favour of his younger brother defendant in the original suit cannot be disturbed in this second appeal.
18. Accordingly, this second appeal filed by the plaintiff in O.S. No.294/1994 on the file of the Civil Judge (Jr. Dn.), KGF does not merit consideration. Hence, the same is dismissed by answering the substantial question of law in the aforesaid manner.
Sd/-
JUDGE ykl