Karnataka High Court
Smt Kariyamma W/O Lakshma Bovi vs Sri Ningaiah S/O Kaluve Kataiah on 4 September, 2008
Author: V.Jagannathan
Bench: V.Jagannathan
V 1. IN THE HIGH COURT OF' KARNATAKA AT BANGALORE Dated the 4&1 day of September 2008 : B E F 0 R E 1 THE I-i()N'BLE MRJUSTICE : V.JAGANNAT.H':§;g:...:: _ 7 _ REGULAR SECOND APPEAL No. ~'20d§~ T' BETWEEN : Smt. Kariyamma, W/0 Lakshma Bovi, ~ Aged about 60 years, ' _ R] a Thammadihafli, Hat!:i,"--. "_ Chikkanayakanahalli "E.'_;_§i':1k, 5 » V ' Tumkur District ---- 572 101.; " " . .. .AppcHant ; '( Sri ) S/o iéaiuvrska _ % Agcd_44y¢a1fs,V_'»« _. 2. Srifiingaiah, _;j " S10 Dot-'.t1_aVKadt1raiah.na Ningaiah, gfigcd S5 " Dtxitla Kaduraiahna Ningaiah, Age:ij_7f3 years. 4, .. fiKaduramn3a, W'/<1 Kataiah, Aged 45 years. R~1 to R-4 are 110 Thamwihalli Goliara Haiti, Chikkanayakanahaili Taluk, Tumkur District - 572 101. Sri Gorappa, since dead by his L.Rs. : IO. 11. Smt. Gowramma, W/o late Sri Gorappa, Aged 70 years. Sri G'r.l3asavaraj, S/0 late: Gorappa, Aged 50 years. Stmt. Pazvathamma, W/0 G.Huchc Gowda, D/0 late Gorappa, Major, Sri Cnvmapathi, S/o lat: Gcrappa, --_ Agcd4'7 years. H '" Sri G.S11i.<?7az3.11a, S/o lat: Gfimppé, '" V " IS/0 "Aged 42 years; _ S:'i"S.;J9¥31111a . " . ., Q/o late (ior'appa, ' Aged abdtzt years. 115;'- , Qanakamma, V' -- G»v1a?§"Czorappa, « Agé:;1__a!:V);0i1t 37 years. zsgnt. "§lethJ:~avatl1i, '~ Die late Gomppa, about 35 years. A R6 to R-13 are 310 Yelanadu, Chjkkanayakanahaili Taiuk, 'I'umku.r District ---- 572 101. . . . Respondents
( By Sri M.Vi11aya Keerthy, Advocate. ) 3 Regular Second Appeal filed under Section 100 of the C.P.C. against the judment and decree dated 9.12.2005 passed in R.A.No. 136/2005 on the file of the Presiding Ofiicer, Fast Track Courblil, Tumkur, allewitag '- and setting aside the judgment and decree dated. passed in 0.S.No. 77/1982 on the file This appeal coming on for delivered the following : _ .. V _ JUDGmERTVl"
This second appeal is :pla_in1:ii'l' before the trial court afldilthofigii ll the suit of the -'and permanent injunction, the lovtfer the said finding of the "court the appeal preferred by the lf jgcrgndggntgand the suit of the plaintifi" was dismissed. in brief are to the effect that the filed the suit in question claiming the 3 eamsam relief in respect of the suit land in S.No. 193/1 5 acres 2 games situated at Yelanadu 'V "Village, Chikkanayakanahalli, Tumkur District, on the footing that the suit schedule property was origixmlly fi'/ Va ganted to the appclianfis husband Lakshma Bovi and though it had original S.No. 131, during resurvey, was numbered as 193/1 and the plaintjfl' pO$$»ti':'SSiOl'1 of the suit tend paying Government and, as the deftmdzamts with the peaceful possession land, the piamtm had toV»I3L1.§::""~the Aéuit. sgrmeamesaadt relief. V A _ fl
3. The said suit ofttge Rmontestcd by the defendants tn}? the Suit Eand was = tII1d(iI' various sale deeds and the by the defendants are that the V. 1 acre 30 guntas of land in » ;,i9§Q.. Klariya Bovi and it has been gven the No. 193 and the third defendant purchased
2 xland from one Lakka Bovi and the defendants A 5" been paying the revenue to the authorities in Vtrcspcct of their rsspective shares and, thercfam, the plaix1tiff's claim that she is the ownsr of the suit property is not admitted. Another their stand taken by "x thti defendants was that they had perfected to the property held by them by adverse openly against the plaintifi' for over twelve .V A *
4. Based on the said pleadi11gS"of«tl§é_."pa,t'fiVti3, ii court framed as many as e1evcn:'i,ss'a1¢s as"eould«. from the pawl' book page-V I of the evidence on' .. V1:~espec13've parties, the triai had made out a case for:.g§~'ant1'_'of accordingly, the suit was . ; V
5. fiby thie-...(iefendants, the lower appellate court, ihe evidence on record, held nae agpcuant rim» failed to establish her ownership pijgsgéaion over the suit schedule property but, on the defendants had produced various to prove that may are the owners in V. 'ipegsevséiion of the suit land and consequently, tin appeal allowed by setting aside the judgxnent of tkm trial' and dismissing the suit filed by the appellant. z£/ ' .5
6. I have heard the learned counsel for the parties and perused the entire material on record.
7. The leamed counsel Shri appellant put forward mainly the taken by the defendants possession and, thcrcfoltge' "
the defendants in of the written statement, the stand taken by the oderendazitsee iiecif show en: the plaintiff oof' property and, as seen," court could not have interfereti...§avit1iV t1;eA'.ji.eignaent of the tnal' court. Insofar ~. ae'i:;he__japp1ioat;ion__ef the decision reported in i.L.R. 2001 by the lower appellate court is "eottteerilefi, submission made is that the said rul1ng' is to fix: case on hand and, therefore, the VA LT xjfiew taken by the lower appellate court: is erroneous. Another submission made is that the defendants though have not pleaded abont the non-joinder of necessary partiee, the lower appellate court has taken note of the 9/ I 7' said cententien put forward by the defendants this is also an error committed by the lower appeB.a'i~e:' Therefore, it is submitted that the judgtttetttot % appellate court needs to be second appeal.
8. On the other hand,' the ti2e ;
respondents, while of 11116 lower appellate court, "th_e.A:'e'r;_idenoe on record iteezr establishes ef.'_tbeé.'de£4etiéiants that they are the of various sale = the respective owners of the after the resuwey, the land number 193, whereas the land ' husband of the plaintifi' after resurvey 'i'.v:é;$ number 197. Therefore, the question of the becoming the owner of the suit land does 4* attee. Referring to the evtciettee of P.W.1, it is " eebmtttee that the said witness me pleaded her igmozrance over the vexy sale deeds under which the defendants had purchased the lands and the evidence of 9/ NM 8 P.W.1, therefore, itself is sumcient to negate the (313113: of the plaintiff'. The learned counsel, in this regard, referred to the evidence ef P.W.1 and in eress--exami:uetion portion of the said ' It contended that P.W.1 has admitted in the of cz'oss-exarxainatien that she is ;£.'t'.e3 seeexid. é1§?eife'ee::,eof Lakshma Bovi and the fixst'-wife said Kariyamma the regstered sale deeds" evidence itself is sufficient __1ejeet"'tiie V ' ltlee plaintifi' and " has taken note cf all these VA
9. ., In aforesaid submissions made by " * e pa" "" "es, I have given careful consideration i;¢:_3 on record and the View taken by the 1e§ve§f'.i'afV1peHate court in reversing the judgment of xthe court. As far as the plaint'fl's claim is 'fczoxaeemed, in the course of her evidence, she has es <§pIea.dm ignorance about the defendants having purchased the suit land. under various sale deeds. In 5;
9 proof of the purchase being made, the first defendant has produced the sale deed as per Ex.D- 1 in A401' resurvey No. 193/ 2, the second defezldantisasi ' EX.D-31 in respect of resurveyv.Ne'.».. defendant has produced Ex.D--s7 er No. 193/ 1. Eversinee sale' ' deeds, all the reverme entI'ieVs'e_:'h'ave' in the names of the c1ercnc1j;ufi;s.%srA§rr@s1g£esz;bmiued by the learned for plaintifl", at no point of over the revenue of the defendants and, fl1ererere," the court, taking note of the 'en behalf of the defendants and "" documents produced by the Ex.P-6, which is the patta receipt book, same fee as conclusion that the plaintifi' had failed to ..es_tabEish her ownership and possession over the suit . €10. As far as the defence of adverse possession is eencemed, 3:19 doubt, the defendants have taken such a V/..
10 stand in their written statement by Way of alternative defence. But, nevertheless, the documents produced by the defendants, partiexilarly the various sale the plaintiff also not denying the sale deeds the defendants have purchased the " '> and also the resurfvey nizmbefs the lower appellate ceurt acceiin:.fl.1e L. evidence on word, came that the plaintiff had failed before the trial ceurt by placing a:deq:.u:ateV-- preef of her "V
11. my ¥:1'1e._:Iev:er appellate court has rightly assessed fine over 'evidence on record and has also . V. eté11{e1i--.";;oieé"of of this court reported in I.L.R. 5270 and merely because the <A1efen§1a;1i.eAhave taken an alternative defence of adverse n poeeession, that itself will not give the plaintiff' the " strength to say that she has made out a case for gent of '' Wgthe reliefs sought for by her. It is a well settled law that any weakness in the defendants' ease cannot be 3/ ' 0 :1 banked up-an by the piaintifi' but, on the other hazgd, the burden is on the plaintifi' to estabfish her viewed from the said angle and the i also supporting the case ofwtzhée the conclusion reached by the lawefé suit cf the plaintiff is wee be dis1n.i;e 43. fiat termed as either "Le.--g£i§11st fh'ev-ueviiclenrze on reoerd. Moreover, I jnot sfibstanflal question of law li tfieugh, at the time of admis$iefig«..o;i;~- t§§;fo.Vquesfions cf law have 'I proceed to pass the renewing oi'€iefi e e , 'The a;$.}')'e.{«§n:lVV_i§c:'.isi11issed. 3d/-E Iudgé