Karnataka High Court
Chikkamuniyappa vs P N Narasimhaiah on 7 September, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:32474
RSA No. 2399 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2399 OF 2017 (DEC)
BETWEEN:
1. CHIKKAMUNIYAPPA
S/O LATE MUNISHAMAPPA,
AGED ABOUT 59 YEARS,
2. AVALAKONDAPPA
S/O LATE MUNISHAMAPPA,
AGED ABOUT 64 YEARS,
BOTH ARE RESIDING AT
THIMMANAHALLI VILLAGE,
Digitally signed NANDI HOBLI,
by SHARANYA T CHICKBALLAPUR TALUK
Location: HIGH AND DISTRICT-562101.
COURT OF
KARNATAKA
3. SMT. KEMPAMMA
SINCE DEAD BY HER LRS,
3(a) SMT.AKKAYAMMA,
D/O LATE KEMPAMMA,
W/O LATE NARASAPPA,
AGED ABOUT 72 YEARS,
R/AT BRAHMANARAHALLI,
GUDIBANDE TALUK,
CHICKBALLAPUR (D) -562101
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RSA No. 2399 of 2017
3(b) SMT. JAYALAKSHMAMMA
D/O LATE KEMPAMMA,
W/O LATE CHIKKA MUNISHAMPPA,
AGED ABOUT 58 YEARS,
R/AT THIMMANAHALLI VILLAGE,
NANDI HOBLI,
CHICKBALLAPUR TALUK
AND DISTRICT-562101
...APPELLANTS
(BY SRI S.N.ASHWATHANARAYANA, SENIOR ADVOCATE FOR
SRI S.A.SUDHINDRA, ADVOCATE)
AND:
1. P.N. NARASIMHAIAH
S/O LATE NARASIMHAIAH,
AGED ABOUT 39 YEARS,
2. OBANNA
S/O LATE NARASIMHAIAH,
AGED ABOUT 44 YEARS,
3. VENKATAMMA
D/O LATE NARASIMHAIAH,
AGED ABOUT 44 YEARS,
4. GANGAMMA
W/O LATE NARASIMHAIAH,
AGED ABOUT 74 YEARS,
5. MOHIDDIN
S/O LATE BUDENSAB,
AGED ABOUT 44 YEARS,
6. JAYEESABU
S/O LATE BUDENSAB,
AGED ABOUT 54 YEARS,
7. JAMEELA
D/O LATE BUDENSAB,
AGED ABOUT 49 YEARS,
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NC: 2023:KHC:32474
RSA No. 2399 of 2017
8. KRISHNAMMA
D/O LATE NARASIMHAIAH,
AGED ABOUT 44 YEARS,
9. RAMAKKA
D/O LATE NARASIMHAIAH,
AGED ABOUT 44 YEARS,
RESPONDENT NOS.1 TO 9
ALL ARERESIDING AT
PERESANDRA,
MANDIKAL HOBLI,
CHICKBALLAPUR TALUK
AND DISTRICT-562 101.+
10. FAKRUMBEE
SINCE DECEASED DEAD BY LRS
10(a) SMT.PARVEEN TAJ
W/O LATE SHAIK MANZOON
AGED AOBUT 62 YEARS,
10(b) SMT.RAMEEZA
W/O GHOUSE PEET
AGED ABOUT 60 YEARS
RESPONDENT NOS.10(a & b)
ALL ARE RESIDING AT 8TH CROSS
1ST MAIN ROAD, NEAR GLOBLE SCHOOL
BAPUJI NAGAR, BANGALORE-560 026.
...RESPONDENTS
(BY SRI S.VISHWESHWARAIAH, ADVOCATE FOR
R1 TO R4, R8 & R9;
SRI K.VIJAYAKUMAR, ADVOCATE FOR R7 & R10[a & b])
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 26.9.2016 PASSED IN
R.A. NO.30/2013 ON THE FILE OF THE PRL. DISTRICT JUDGE,
CHIKKABALLAPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 19.1.2013
PASSED IN O.S.NO.74/2000 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND CJM, CHICKBALLAPUR.
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RSA No. 2399 of 2017
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for appellants and also the counsel appearing for the respondents. This matter is listed for admission.
2. The factual matrix of the case of the plaintiffs before the Trial Court in O.S.No.74/2000 wherein sought for the relief of declaration to declare that the plaintiffs are the absolute owners of the suit schedule properties and to grant for permanent injunction restraining the defendants or anybody claiming under them from interfering with the suit schedule properties and for costs and such other relief.
3. The claim of the plaintiffs/appellants before the Trial Court that the suit schedule properties originally attached to the office of the Neeraganti Inamthy belonged to Narasamma, the wife of Mariyanna, she bequeathed the suit schedule properties in favour of the -5- NC: 2023:KHC:32474 RSA No. 2399 of 2017 Munishamappa under the registered Will dated 28.05.1962. After her death, the legatee Munishamappa become the owner of the suit schedule properties on the basis of the Will and he was looking after the suits schedule properties. He was also a party to the proceedings in HOA(Nee)20/75-76 on the file of the Tahasildar at Chikkaballapur. The Tahasildar passed an order dated 17.06.1997 and re-granted the plaint schedule lands to Munishamappa. The said Munishamappa died leaving behind plaintiff Nos.1 and 2 who are his sons and plaintiff No.3 the wife and two daughters who married long ago. After the death of said Munishamappa, the katha effected in favour of the plaintiff in pursuance of the order of the Deputy Tahasildar dated 29.03.2000 in R.E.T.D.5/99-2000. The plaintiffs have paid the land revenue and they are in peaceful possession and enjoyment of the suit schedule properties. The defendants have no manner of right, title or possession over the suit schedule properties and they were also parties to the proceedings in case No.HOA(Nee)20/75-76 on the file of -6- NC: 2023:KHC:32474 RSA No. 2399 of 2017 the Tahasildar, Chikkaballapur and their claim was rejected. The defendants with a malafide intention to grab the properties, attempting to interfere with the plaintiffs peaceful possession and enjoyment of the suit schedule properties by denying the plaintiffs' title. On 16.07.2000 the defendants with their supporters attempted to interfere with the suit schedule properties and also there were two jaali trees and honge trees on the land. When the plaintiffs' questioned them, the defendants threatened that they would remove the trees and illegal acts of the defendants cannot be resisted by the plaintiffs. Hence, the plaintiffs constrained to file the suit. Originally the suit is filed by the defendants Nos.1 to 7 and defendant Nos.8 to 10 got impleaded. Accordingly, the amendment also effected in the cause title.
4. In pursuance of the suit summons, the defendants have appeared and defendant Nos.1 to 4 have filed common written statement. The defendants Nos.5 to 7 and 10 have filed separate written statement and defendant No.9 remained exparte.
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NC: 2023:KHC:32474 RSA No. 2399 of 2017
5. The defendants have denied the claim of the plaintiffs that they are the absolute owners and also contended that the very execution of the Will is concocted document and same is created document. It is contended that the suit schedule properties are attached to the office of Neeraganti Inamthy is true. But, it is contended the properties belonged to the Bira Sagara Kere Neeraganti Inamthy. The Kadirappa got three children, by name Mariyappa, Ramakka and Narasappa. The said Narasamma was the wife of the Mariyappa. The said Mariyappa and Narasamma had no issues. The defendant Nos.1 to 4 are the grand children of the said Ramakka.
6. The defendants further contended that after the death of said Kadirappa, these defendants are the successors including the plaintiffs are in joint possession and enjoyment of the suit schedule properties. There was no division in the suit schedule properties and they are entitle for share in the suits schedule properties.
7. The defendant No.10 has also filed written statement denying the averments of the plaint and -8- NC: 2023:KHC:32474 RSA No. 2399 of 2017 contend that the land was taken by the Government through Assistant Commissioner, Chikkaballapur in case No.R1VOC 1056/1962-63 dated 13.01.1968. In the aforementioned proceedings, the Assistant Commissioner, Chikkaballapur categorically observed that the defendants father was the lawful Neeraganti of the Peresandra village and the suit schedule properties came to be re-granted in the joint name of P.Budensab and Fakrusabi.
8. It is also contended that the suit schedule properties in question comes under various survey numbers such as 273, 298, 319 and 320 and the nature of the land in all these survey numbers are wet and the measurements of the said land are 0-25 guntas, 02 acres and 0-36 guntas respectively and contend that at no point of time, the plaintiffs are in possession of the suit schedule properties and hence prayed the Court to dismiss the suit.
9. The Trial Court has framed the issues and additional issues also framed in view of the proposed defendant took the contention with regard to the re-grant dated 12.02.1981. The Trial Court allowed the parties to -9- NC: 2023:KHC:32474 RSA No. 2399 of 2017 lead the evidence and having appreciated both oral and documentary evidence regarding issue No.1 to 4 as well as additional issue No.1, comes to the conclusion that the material placed before the Court i.e. Ex.P1 clearly shows that Sarkari and kabjedhar column is also mentioned as Chikkamuniyappa S/o Muniyappa who is none other than the first plaintiff herein and also taken note of Ex.P5 and also taken note of R.R.T proceedings and comes to the conclusion that though the plaintiff produced the tax paid receipts which are marked as Ex.P7 to Ex.P9 along with other documents which are marked as Ex.P10 to Ex.P15 and the same is prior to filing of the suit, tax paid receipts are produced. None of the documents clear that plaintiffs are in a peaceful possession and enjoyment of the suit schedule properties and also Ex.P6 i.e., RRT proceedings before the Deputy Tahasildar, it discloses that the matter is pending before the Hon'ble Prl. District and Sessions, Chikkaballapur Court and also taken note of the plaintiff No.1 who is examined as PW1 did not subjected himself
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NC: 2023:KHC:32474 RSA No. 2399 of 2017 for cross examination. Hence, the Trial Court declined to grant any relief of declaration as sought.
10. Being aggrieved by the judgment of the Trial Court an appeal is filed before the First Appellate Court in RA No.30/2013. The First appellate Court on re- appreciation of both oral and documentary evidence comes to the conclusion that power of re-grant of land is vested with Tahasildar and not in the Civil Court and also taken note of the earlier Writ Petition filed before this Court and also taken note of that even though the matter was remanded, it has not been challenged before the High Court of Karnataka and also no purpose will be served by setting aside the Trial Court judgment on the ground stated in the appeal. The appellants have not made any special grounds as to why they have not participated in the original suit. Having taken note of the PW1 has not subjected for cross examination, in spite of matter was remanded dismissed the appeal.
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NC: 2023:KHC:32474 RSA No. 2399 of 2017
11. Being aggrieved by the said judgment and decree, present second appeal is filed before this Court. The counsel would vehemently contend that both the Trial Court and the First Appellate Court have committed an error in dismissing the suit as well as the appeal. Both the Courts below ought to have taken into consideration that initial burden on the appellants/plaintiffs and later on burden shifts to the other side. But, the Trial Court and the First Appellate Court not considered that in a suit or proceedings the burden of proof lies on that person who would fail to produce evidence and also contend that the First appellate Court failed to take notice that the re-grant order is questioned before the High Court of Karnataka in W.P.No.32257/2016(KVOA) and the re-grant is subject to the result of Writ Petition. Hence, this Court has to frame substantive question of law as both the Courts below passed a judgment and decree is contrary to the Section 102 of the Indian Evidence Act and also the counsel for appellants would vehemently contend that PW1 is not tendered for cross examination and in the absence of cross
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NC: 2023:KHC:32474 RSA No. 2399 of 2017 examination the documentary evidence would be futile. Hence, this Court has to admit and frame substantive question of law since the matter requires to be considered with regard to the grant is concerned.
12. Per Contra, the counsel appearing for the respondents would vehemently contend that the suit is filed for the relief of declaration to declare the plaintiffs as owners. No substantial material has been placed before the Court. Earlier also suit was dismissed an appeal was filed in RA No.45/2010 wherein also they took the specific contention that an opportunity was not given and the Court has remanded the matter in RA No.45/2010 by giving a direction to give an opportunity to both the parties vide order dated 31.01.2012 and in spite of it he has not utilized the opportunity given to him and not subjected for cross examination. Hence, the Trial Court rightly comes to the conclusion that the plaintiff No.1 has not established his claim. The First appellate Court has also taken note of said facts into consideration and in
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NC: 2023:KHC:32474 RSA No. 2399 of 2017 detail passed an order and also made an observation that no purpose will be served in setting aside the Trial Court judgment on the ground that no appeal is filed. Hence, the Trial court has not committed an error, in spite of remand also he did not choose to appear and contest the matter. Hence, in the second appeal nothing is there to decide.
13. In reply to the argument of the respondents' counsel, the appellants' counsel submits that due to his poverty he could not participate in the proceedings. Hence, the matter may be remanded to consider the same. Having considered the submission of the appellants' counsel and also counsel appearing for the respondents and the suit is filed for the relief of declaration and except producing of document Ex.P6 and Ex.P7 i.e., tax paid receipts nothing is placed before the Trial Court to declare the appellants' are the absolute owners.
14. It is also important to note that earlier also the matter was remanded in RA No.45/2010 and direction was given to give an opportunity to take a decision on merits.
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NC: 2023:KHC:32474 RSA No. 2399 of 2017 In spite of the said direction also, the appellant No.1 did not participate in the Court proceedings and not subjected for cross examination. When suit is filed for relief of declaration the plaintiff has to substantiate his claim by placing both oral and documentary evidence.
15. It is also settled law that when the suit is filed for the relief of declaration to declare them as owners, the plaintiff has to prove his case by placing substantial materials and the plaintiff cannot depend on the weakness of the defendants. In spite of the matter was remanded and opportunity was given, the PW.1 has not utilized the opportunity and once again seeks for remand and the said submission of the appellants' counsel cannot be accepted and repeatedly coming before the Court seeking for the remand and once the matter was remanded and given opportunity also, he had not utilized the opportunity. It is clear that earlier also one round of litigation was taken place before the Trial Court as well as the First Appellate Court and also matter was remanded again and again
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NC: 2023:KHC:32474 RSA No. 2399 of 2017 second round also on the very same ground that no opportunity was given cannot be accepted. When the opportunity was given, he did not utilize that opportunity and also not placed any material to substantiate the same.
16. The very contention of the counsel that in the absence of oral evidence, the documentary evidence which has been produced is also futile which cannot be accepted. Hence, I do not find any ground to set -aside the order of the Trial Court and also the First Appellate Court and no purpose will be served as observed by the First Appellate Court, even if the matter is remanded. Apart from that the appellant No.1 has not participated in the proceedings and repeatedly seeking the remand. Hence, no ground is made out to set aside the order and to admit and frame any substantive question of law. No such substantive question of law arises for consideration of this Court invoking Section 100 of CPC.
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NC: 2023:KHC:32474 RSA No. 2399 of 2017 In view of the discussions made above I pass the following:
ORDER The Second Appeal is dismissed.
Sd/-
JUDGE RHS List No.: 1 Sl No.: 35