Karnataka High Court
Palaiah vs Channamma on 30 January, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 925 of 2022
C/W RSA No. 928 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 925 OF 2022 (DEC)
C/W
REGULAR SECOND APPEAL NO. 928 OF 2022 (INJ)
IN R.S.A. NO.925 OF 2022:
BETWEEN:
1. PALAIAH
S/O. AJJANA SANNAPAPAIAH
AGED ABOUT 51 YEARS
2. SURE PAPAIAH
S/O. AJJANA SANNAPAPAIAH
AGED ABOUT 48 YEARS
3. SANNA PAPAPIAH
S/O. AJJANA SANNAPAPAIAH
AGED ABOUT 46 YEARS
ALL ARE AGRICULTURISTS
R/O. NERLAHALLI VILLAGE
MOLAKALMURU TALUK - 577 535.
...APPELLANTS
(BY SRI R.SHASHIDHARA, ADVOCATE)
Digitally signed by
SHARANYA T
Location: HIGH AND:
COURT OF
KARNATAKA
1. CHANNAMMA
W/O. AJJANA PAPAIAH
AGED ABOUT 51 YEARS
2. AJJANA PAPAIAH
S/O. AJJANA SANNAPAPAIAH
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RSA No. 925 of 2022
C/W RSA No. 928 of 2022
AGED ABOUT 58 YEARS
UNSOUND MIND,
REPRESENTED BY HIS NEXT
FRIEND WIFE RESPONDENT NO.1
BOTH ARE R/O. NERLAHALLI VILLAGE
MOLAKALMURU TALUK-577 535.
...RESPONDENTS
(BY SRI. SIDDAPPA B.M., ADVOCATE R1 & R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 08.04.2022
PASSED IN R.A.NO.7/2021 ON THE FILE OF THE ITINERARY
SENIOR CIVIL JUDGE AND JMFC, MOLAKALMURU DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 19.12.2020 PASSED IN O.S.NO.35/2016 ON THE FILE
OF THE CIVIL JUDGE AND JMFC AT MOLAKALMURU.
IN R.S.A. NO.928 OF 2022:
BETWEEN:
1. PALAIAH
S/O. AJJANA SANNAPAPAIAH
AGED ABOUT 51 YEARS
2. SURE PAPAIAH
S/O. AJJANA SANNAPAPAIAH
AGED ABOUT 48 YEARS
3. SANNA PAPAPIAH
S/O. AJJANA SANNAPAPAIAH
AGED ABOUT 46 YEARS
ALL ARE AGRICULTURISTS
R/O. NERLAHALLI VILLAGE
MOLAKALMURU TALUK - 577 535.
...APPELLANTS
(BY SRI. R.SHASHIDHARA, ADVOCATE)
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RSA No. 925 of 2022
C/W RSA No. 928 of 2022
AND:
1. CHANNAMMA
W/O. AJJANA PAPAIAH
AGED ABOUT 51 YEARS
2. AJJANA PAPAIAH
S/O. AJJANA SANNAPAPAIAH
AGED ABOUT 58 YEARS
UNSOUND MIND,
REPRESENTED BY HIS NEXT
FRIEND WIFE RESPONDENT NO.1
BOTH ARE R/O. NERLAHALLI VILLAGE
MOLAKALMURU TALUK-577 535.
...RESPONDENTS
(BY SRI. SIDDAPPA B.M., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 08.04.2022
PASSED IN R.A.NO.6/2021 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, ITINERARY AT MOLAKALMURU DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 19.12.2020 PASSED IN O.S.NO.99/2015 ON THE FILE
OF THE CIVIL JUDGE AND JMFC AT MOLAKALMURU.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are listed for admission and I have heard the learned counsel for the appellants and learned counsel appearing for the respondents.
2. These two appeals are filed to set aside the judgment and decree passed by the learned Senior Civil Judge -4- RSA No. 925 of 2022 C/W RSA No. 928 of 2022 and JMFC Itinerary, Molakalmuru in R.A.Nos.7/2021 and 6/2021 dated 08.04.2022 confirming the judgment and decree passed by the learned Civil Judge and JMFC, Molakalmuru in O.S.Nos.35/2016 and 99/2015 dated 19.12.2020 respectively.
3. The factual matrix of the case of the plaintiffs in O.S.No.35/2016 before the Trial Court is the irrigated land bearing Sy.No.44, an extent of 1 acre out of 4 acres, 5 guntas assessed at Rs.1-53, situate at Nerlahally Village, Molakalmuru Taluk. The other item of the property is the dry land bearing Sy.No.207, an extent of 2 acres, out of 4 acres, 7 guntas and assessed at Rs.2-72 situate at Nerlahally Village, Molakalmuru Taluk and boundaries of the two items of the property is as per the schedule given in the suit in O.S.No.35/2016. It is the claim made in the plaint that, one Ajjanna Sanna Papaiah and his wife Eramma of Nerlahally Village, Molakalmuru Taluk had four sons and five daughters and the four sons are the plaintiff No.2 and the defendant Nos.1 to 3. The plaintiff No.2 is the eldest son of the said Ajjanna Sanna Papaiah. The said Ajjanna Sanna Papaiah and his brother Jagaluraiah had partitioned their ancestral properties through the registered partition deed dated 22.11.1980, out of the Sy.No.44, an extent of 4 acres, 5 -5- RSA No. 925 of 2022 C/W RSA No. 928 of 2022 guntas of irrigated land of Nerlhally Village, Molakalmuru Taluk had fallen to the share of said Ajjanna Sanna Papaiah. Out of the income derived from the Sy.No.44, Ajjanna Sanna Papaiah and his 4 sons had jointly purchased the Sy.No.206, an extent of 4 acres, 15 guntas of dry land, in Sy.No.207, an extent of 4 acres, 7 guntas of dry land in Sy.No.171, an extent of 4 acres of dry land, in Sy.No.166, an extent of 3 acres, 33 guntas of dry land and in Sy.No.167, an extent of 3 acres, 20 guntas of dry land of Nerlahally Village and the said lands are joint family properties.
4. It is the contention of the plaintiffs that, in the year 1998, plaintiff No.2 had met with a motorcycle accident and he had mentally disabled, hence, the plaintiff No.1 had taken care of him, they faced very difficulties for their livelihood, hence, the plaintiff No.1 had demanded the share to her father-in-law and the defendants in all the above said properties. The defendants and their father had given 1 acre of irrigated land in Sy.No.44 and 2 acres of dry land in Re.Sy.No.207 of Nerlahally Village to the plaintiffs as their share. After that, the plaintiffs had separated by taking the said 3 acres of land and they are living in the house bearing No.546, Khatha No.155 as -6- RSA No. 925 of 2022 C/W RSA No. 928 of 2022 constructed in the land bearing Sy.No.44 of Nerlahally Village. It is further contended that, after the death of Ajjanna Sanna Papaiah, the father of the plaintiff No.2 and the defendants, their mother Eramma only had obtained the khatha of the land bearing Sy.Nos.44, 206, 207 and 171 and she had executed the registered Will dated 20.12.2004 on the above survey numbers of Nerlahally Village. Whether those Sy.No.44, an extent of 1 acre irrigated land and Sy.No.207, an extent of 2 acres of Nerlahally Village, had already been given to the plaintiffs by the father of the plaintiff No.2 and defendants. Hence, the plaintiff No.1 had filed the suit in O.S.No.28/2006 against the wife and daughters and other sons of said Ajjanna Sanna Papaiah for partition and separate possession of the above said 6 lands before the Senior Civil Judge at Challakere and the same was dismissed for not stating the appropriate share to which the plaintiffs are entitled to. Further, against the order of dismissal of the suit in O.S.No.28/2006, this plaintiff has preferred an appeal in R.A.No.83/2008 before the Additional District and Sessions Judge, Chitradurga and the same was allowed by taking the additional evidence to determine the rights of the parties in the Trial Court and the judgment and decree passed by the Trial Court had been set -7- RSA No. 925 of 2022 C/W RSA No. 928 of 2022 aside and remanded back to the Trial Court for recording the additional evidence. After remand of the suit in O.S.No.28/2006, the Senior Civil Judge, Challakere had again dismissed the suit and this plaintiff again preferred an appeal in R.A.No.28/2012 before the Principal District and Sessions Judge, Chitradurga against the judgment and decree passed in O.S.No.28/2006. Further, the Principal District and Session Judge, Chitradurga has come to the conclusion that already the partition has taken place therefore, dismissed the appeal on 03.09.2012. Further, after the death of mother of the defendants, they have given an application to the Tahsildar, Molakalmuru to change the khatha of the land bearing Sy.Nos.44 and 207 in their names as per Will executed by their mother. The Tahsildar, Molakalmuru had ordered to change the khatha of Sy.Nos.44 and 207 without giving any notice to the holder of rights in the names of the defendants as per MRH No.5/2012-13 dated 29.08.2012. Against that order, the plaintiffs had preferred an appeal in RRT/CR No.151/2013-14 to the Assistant Commissioner, Chitradurga and he had come to the conclusion after observation of the contents in O.S.No.28/2016 and R.A.28/2012 and set aside the order passed by the Tahsildar, Molakalmuru and passed an order to -8- RSA No. 925 of 2022 C/W RSA No. 928 of 2022 change the khatha of the said survey numbers in the name of the plaintiffs. Hence, the khatha has been changed in the name of plaintiff No.1 as per MR No.13 dated 21.07.2015. Further, the defendants have preferred an appeal before the Deputy Commissioner, Chitradurga in R.A.(A) No.25/2015-16 against the order of Assistant Commissioner and they have obtained the stay against the order of the Assistant Commissioner.
5. It is further contended that the defendants by taking all efforts have filed the suit in O.S.No.99/2015 and by misleading the facts, the plaintiff No.1 had taken 1 acre of irrigated land and 1 acre of dry land towards the western side of the Sy.No.171 in the year 1999 and except the Sy.No.44, no other lands are irrigated. Further the plaintiffs are the owners having a right, title and possession over the suit schedule lands till the defendants have preferred an appeal before the Deputy Commissioner, Chitradurga in R.A.(A) No.25/2015-16 dated 06.08.2015, the Deputy Commissioner, Chitradurga had stayed the order passed by the Assistant Commissioner, Chitradurga in R.A.No.151/2013-14 till 14.10.2015 and on the basis of stay order, the defendants have come with group and dispossessed -9- RSA No. 925 of 2022 C/W RSA No. 928 of 2022 the plaintiffs from the suit schedule properties. It is the contention that plaintiff No.1 is a lady having no force to prevent the illegal acts of the defendants and the stay order was not extended from 14.10.2015. The suit schedule properties are standing in the name of the plaintiff No.1 and they are the owners having right and title over the suit schedule properties.
6. In the suit, the defendants have filed the written statement contending that, from the date of allotment of their shares, the plaintiff No.2 along with plaintiff No.1 used to live separately and they are not the members of the defendants family since 1980 and to that effect, finding is given in O.S.No.28/2006 and R.A.No.28/2012. It is further contended that the plaintiffs have filed the suit with an intention to grab the suit schedule properties belonging to the plaintiffs. The plaintiffs have filed the above suit against the defendants to make counter to the suit filed by the defendants in O.S.No.99/2015. It is also contended that the plaintiffs, instead of enjoying the above land in Sy.No.171 measuring 3 acres, they are claiming suit schedule properties as their own
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RSA No. 925 of 2022C/W RSA No. 928 of 2022 properties unlawfully. Hence, they are not entitled for any relief.
7. In the other suit filed by the plaintiffs in O.S.No.99/2015, they have sought for an order of permanent injunction contending that they are in lawful possession and enjoyment of the suit schedule properties as on the date of the suit, wherein they have described the item No.1 of suit schedule property i.e., Sy.No.44 situate at Nerlahally Village, Molakalmuru Taluk to an extent of 1 acre out of 4 acres, 5 guntas assessed at Rs.1-53 and item No.2 of the suit schedule properties is a dry land bearing Sy.No.207 situate at Nerlahally Village, Molakalmuru Taluk to an extent of 2 acres out of 4 acres, 7 guntas assessed at Rs.2-72. It is further contended that the defendants are interfering with the possession of the plaintiffs and they are in possession and enjoyment of the suit schedule properties and sought for the relief of permanent injunction.
8. The Trial Court, after considering pleadings of both the plaintiffs and defendants, framed the issues in O.S.No.35 with regard to whether the plaintiffs prove that they are the absolute owners of the suit schedule properties, whether the
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RSA No. 925 of 2022C/W RSA No. 928 of 2022 plaintiffs prove that the defendants have illegally dispossessed the plaintiffs from the suit schedule properties and issue regarding limitation is also framed. In O.S.No.99/2015, issues are framed with regard to whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule properties as on the date of the suit and whether the plaintiffs prove the alleged interference of the defendants in the peaceful enjoyment of the suit properties.
9. The parties before the Trial Court, in a common trial led their evidence. In support of the contention taken by the plaintiffs in O.S.No.99/2015, the plaintiff No.1 has examined himself as P.W.1 and examined one witness as P.W.2 and got marked the documents as Exs.P1 to P13. In support of the contentions taken by the defendants, the defendant No.1 has examined himself as D.W.1 and one witness as D.W.2 and got marked the documents as Exs.D1 to D21. In the case in O.S.No.35/2016 which has been clubbed along with O.S.No.99/2015, common evidence has been recorded and the very same documents are exhibited as in the case of the suit in O.S.No.99/2015.
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RSA No. 925 of 2022C/W RSA No. 928 of 2022
10. The Trial Court, after considering both oral and documentary evidence placed on record, having considered the pleadings of the parties and also the earlier judgment and decree passed in O.S.No.28/2006 and R.A.No.28/2012 and based on the findings, comes to the conclusion that the plaintiffs in O.S.No.35/2016 are the absolute owners and that they were dispossessed and suit is filed within one year of dispossession which is in time and hence, the plaintiffs in O.S.No.35/2016 are entitled for the relief of possession. The Trial Court also, having considered the material available on record, dismissed the suit in O.S.No.99/2015 and directed the defendants in O.S.No.35/2016 to handover the vacant possession in favour of the plaintiffs in O.S.No.35/2016.
11. Being aggrieved by the said judgment and decree of dismissal of suit in O.S.No.99/2015, the appellants have filed the appeals in R.A.Nos.6/2021 and 7/2021.
12. The main contention urged in the appeals is that the Court below committed an error in granting the relief of declaration and possession without any documentary proof and based on the RTCs, the Court cannot grant the relief of declaration and when the material discloses that the plaintiffs
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RSA No. 925 of 2022C/W RSA No. 928 of 2022 are in possession of the suit schedule properties, the Trial Court, ought to have granted the decree of permanent injunction and instead, directed the defendants to deliver the possession in favour of the plaintiffs in O.S.No.35/2016.
13. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, dismissed both the appeals and confirmed the judgment and decree of the Trial Court in O.S.No.35/2016. Hence, the present two appeals are filed challenging the judgment and decree of dismissal of suit and granting the decree in favour of the respondents herein.
14. The appeal in R.S.A.No.925/2022 is filed challenging the judgment and decree in R.A.No.7/2021, confirming the judgment of the Trial Court in O.S.No.35/2016. The appeal in R.S.A.No.928/2022 is filed challenging the judgment and decree in R.A.No.6/2021, confirming the judgment of the Trial Court in O.S.No.99/2015
15. Learned counsel appearing for the appellants in R.S.A.No.925/2022 would vehemently contend that the Trial Court committed an error in granting the decree in favour of
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RSA No. 925 of 2022C/W RSA No. 928 of 2022 the plaintiffs in O.S.No.35/2016 in coming to the conclusion that they are the absolute owners and also erroneously comes to the conclusion that they were dispossessed and committed an error in coming to the conclusion that the suit is not barred by limitation. The counsel would vehemently contend that this Court has to frame the substantial question of law and both the Courts have committed an error in decreeing the suit of the plaintiffs, though the plaintiffs failed to establish their possession. It is also contended that, even though the plaintiffs rely upon the revenue records and based on the revenue records, the Trial Court and the First Appellate Court comes to the conclusion that they are in possession of the suit schedule properties and revenue records also came into existence after the order passed by the Assistant Commissioner and the plaintiffs have also categorically admitted that the defendants are in possession of the suit schedule properties and both the Courts have passed an order against the admitted fact. Hence, it amounts to perversity.
16. Learned counsel for the appellants in R.S.A.No.928/2022 would vehemently contend that both the Courts committed an error in dismissing the suit filed by the
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RSA No. 925 of 2022C/W RSA No. 928 of 2022 plaintiffs/appellants and even though the Trial Court comes to the conclusion that the defendants are not in possession, the First Appellate Court also failed to take note of the said fact and the defendants were allotted share in the suit schedule properties and the conclusion of the Trial Court that they were granted with a share in the earlier partition and in terms of the said partition, they are entitled for the relief of possession is erroneous and similar grounds as urged in the appeal in R.S.A.No.925/2022 are also urged herein that, only based on the revenue records, relief has been granted and the suit of the plaintiffs has been dismissed.
17. Per contra, learned counsel for the respondents would vehemently contend that both the Trial Court and the First Appellate Court have taken note of the finding given in the earlier suit in O.S.No.28/2006 which was filed for the relief of partition, wherein the Trial Court comes to the conclusion that already there was a partition and the suit schedule properties are allotted in favour of the plaintiffs in O.S.No.35/2016 and the First Appellate Court also in R.A.No.28/2012, considering the material available on record, comes to the conclusion that suit schedule properties belong to the plaintiffs in
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RSA No. 925 of 2022C/W RSA No. 928 of 2022 O.S.No.35/2016 and the appellants herein have dispossessed the plaintiffs and also taken note of the fact that suit was filed within one year from the date of dispossession. Hence, the Trial Court comes to the conclusion that suit is not barred by limitation and now, the appellants cannot contend that the plaintiffs are not having any right in respect of the suit schedule properties and the judgment and decree passed by the Trial Court which has been confirmed by the First Appellate Court is not erroneous and no perversity is found in the findings of Trial Court as well as the First Appellate Court. Hence, no grounds are made out to admit the appeals and frame substantial question of law.
18. Having heard the learned counsel for the appellants and learned counsel for the respondents, the plaintiffs in O.S.No.35/2016 have sought for the relief of declaration and possession in respect of Sy.No.44 to an extent of 1 acre, out of 4 acres, 5 guntas and in respect of Sy.No.207 i.e., dry land to an extent of 2 acres, out of 4 acres, 7 guntas. It is the main contention of the learned counsel appearing for the appellants that, earlier they had filed the suit for partition and the same was dismissed in coming to the conclusion that already there
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RSA No. 925 of 2022C/W RSA No. 928 of 2022 was a partition and in the appeal, it was confirmed that they are the owners of the suit schedule properties, however the defendants have dispossessed the plaintiffs and hence, they have mainly relied upon the documents of Exs.P1 to P13.
19. It is the main contention of the defendants that they are in possession of the suit schedule properties and the plaintiffs are not having any right in respect of those items of the suit schedule properties, since they have been given an amount of Rs.5,000/- and they left the joint family. The defendants also relied upon the documents of Exs.D1 to D21.
20. Both the Courts, considered the defence which have been taken and the fact that the plaintiffs are seeking the relief of permanent injunction in O.S.No.99/2015 against the defendants that they are interfering with the peaceful possession and enjoyment of the suit schedule properties and both the Courts have particularly taken note of the findings in O.S.No.28/2006 and also the appeal in R.A.No.28/2012 and comes to the conclusion that the plaintiffs in O.S.No.35/2016 are entitle to the share of 3 acres in Sy.No.171. It is also the contention of the defendants that, even though the plaintiffs in O.S.No.35/2016 have been allotted 3 acres in Sy.No.171, they
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RSA No. 925 of 2022C/W RSA No. 928 of 2022 are claiming right in respect of the suit schedule properties and no material on record before the Court to evidence the fact that they have been given share in Sy.No.171.
21. The counsel also would vehemently contend that they were given share in Sy.No.171 and in order to substantiate the said contention, no material is placed before the Court and in the earlier judgment also, it was made clear that in Sy.No.44, they are having right to the extent of 1 acre in the irrigated land and in respect of item No.2 of the suit schedule properties in Sy.No.207, they are having right to an extent of 2 acres. When such being the material on record, the appellants though in the earlier suit, taken the defence that already there was a partition and property was given to the plaintiffs in O.S.No.35/2016, they cannot blow hot and cold that share was given in respect of the different item of the property, when there was already a finding in the earlier suit in O.S.No.28/2006 which has been confirmed in R.A.No.28/2012. When such being the material on record and when the plaintiffs categorically pleaded that the defendants herein have dispossessed the plaintiffs and sought for the relief of declaration and possession, the main contention that Court
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RSA No. 925 of 2022C/W RSA No. 928 of 2022 cannot grant the relief of decree based on the RTC cannot be accepted, since in the earlier partition suit they have taken the defence that already there was a partition and share was given in O.S.No.35/2016 and both the Courts have taken note of the material available on record and given anxious consideration and taken note of particularly the judgment and decree passed in the earlier suits and parties were also parties to the earlier suit and appeal. When such being the material on record, the very contention of the learned counsel for the appellants in both the matters that the Trial Court committed error in O.S.No.99/2015 and granting of decree in favour of plaintiff in O.S.No.35/2016 is erroneous cannot be accepted. The other contention is that both the Courts have passed the judgment against the material on record and the same is not substantiated by the appellants. The learned counsel would vehemently contend that, when both the Courts comes to the conclusion that the plaintiffs in O.S.No.35/2016 are not in possession and the defendants in O.S.No.35/2016 are in possession of the suit schedule properties, ought to have granted the decree of permanent injunction in O.S.No.99/2015 and the said contention cannot be accepted. The Trial Court, considering the material on record, comes to the conclusion
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RSA No. 925 of 2022C/W RSA No. 928 of 2022 that the defendants are the absolute owners when the possession was disturbed and the plaintiffs were dispossessed by the plaintiffs in O.S.No.99/2015 and rightly dismissed the suit seeking the relief of permanent injunction and directed to deliver possession in favour of the plaintiffs in O.S.No.35/2016. Hence, I do not find any merit in both the appeals to admit and frame the substantial question of law invoking Section 100 of C.P.C.
22. In view of the discussions made above, I pass the following:
ORDER The appeals are dismissed.
Sd/-
JUDGE ST List No.: 1 Sl No.: 44