Karnataka High Court
Krishnappa S/O Sidramappa Nandi Anr vs Nimbanna S/O Neelappa Bandi Anr on 7 July, 2023
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NC: 2023:KHC-K:5069
RSA No. 7345 of 2010
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO. 7345 OF 2010 (DEC/INJ)
BETWEEN:
1. KRISHNAPPA S/O SIDRAMAPPA NANDI
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE,
R/O GOUR (K)
TQ. AFZALPUR,
DIST.GULBARGA-585101
2. MAHATAPPA S/O SIDRAMAPPA NANDI
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE,
R/O GOUR (K)
TQ. AFZALPUR,
DIST. GULBARGA-585101
Digitally signed (SINCE APPELLANT NO.2 DEAD
by SHYAMALA
Location: HIGH
APPELLANT NO.1 IS THE LEGAL HEIR
COURT OF OF DECEASED APPELLANT NO.2)
KARNATAKA
(AMENDED AS PER THE ORDER
DATED 08.06.2023)
...PETITIONERS
(BY SRI C. A. SUGOOR, ADVOCATE)
AND:
1. NIMBENNA S/O NEELAPPA BANDI
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O GOUR (K), TQ. AFZALPUR,
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NC: 2023:KHC-K:5069
RSA No. 7345 of 2010
DIST.GULBARGA-585101
2. SRISAIL S/O NEELAPPA BANDI
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O GOUR (K), TQ. AFZALPUR,
DIST. GULBARGA-585101.
...RESPONDENTS
(BY SRI P. S. MALIPATIL, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO
JUDGMENT AND DECREE DATED 02.07.2010 PASSED BY THE
III ADDL. DISTRICT JUDGE AT GULBARGA IN R.A.NO. 62/2009
AND ALSO THE JUDGMENT AND DECREE DATED 12.02.2009
PASSED BY THE III ADDL. CIVIL JUDGE (SR.DN.) AT
GULBARGA IN OS NO.103/2006 AND MAY KINDLY BE PLEASED
TO DECREE THE SUIT OF THE PLAINTIFF AND GRANT ANY
OTHER RELIEF WHICH THIS HON'BLE COURT DEEMS FIT IN
THE CIRCUMSTANCES OF THE CASE.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs in O.S.No.103/2006 on the file of the III Additional Civil Judge (Sr.Dn.) at Kalaburagi (henceforth referred as 'Trial Court') have filed this appeal challenging the judgment and decree dated 12.02.2009 passed therein, dismissing the suit as well as the judgment and decree passed by the III Additional District Judge at Kalaburagi (henceforth referred as 'First Appellate Court') dated 02.07.2010 in R.A.No.62/2009. -3-
NC: 2023:KHC-K:5069 RSA No. 7345 of 2010
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. The suit in O.S.No.103/2006 was filed for a declaration that the defendants have no manner of right, title or interest in respect of the suit schedule properties namely, the land bearing Survey No.89/3 measuring 6 acres 30 guntas and land in Survey No.89/2 measuring 3 acres 15 guntas both situated at Gour (K) village, Afzalpur taluka, Kalaburagi district. The plaintiffs claimed that Mallappa Bandi had three sons namely, Neelappa, Kashiraya and Sidramappa. The plaintiffs are the sons of Sidramappa and the defendants are the children of Neelappa. The plaintiffs claimed that all the three brothers namely, Neelappa, Kashiraya and Sidramappa had divided the land bearing Survey No.89 of Gour (K) village, measuring 19 acres 1 gunta and that Survey No.89/1 fell to the share of Neelappa, Survey No.89/2 fell to the share of Kashiraya and Survey No.89/3 fell to the share of the father of the plaintiffs. They claimed that Kashiraya was -4- NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 given in adoption to another family and consequently, the property allotted to the share of Kashiraya was divided equally between Neelappa and Sidramappa. The plaintiffs claimed that a feud arose between the brothers which ended in the murder of their father. The plaintiffs claimed that Kashiraya gave up his claim and the same came to be enjoyed by Neelappa and Sidramappa. The plaintiffs claimed that the father of the defendants had earlier filed O.S.No.295/1978 for declaration of title and correction of entries in the revenue records in respect of the land bearing Survey No.89, contending that he had purchased the entire extent of land in Survey No.89 from Ramji S/o. Hiriba Suryavanshi in the year 1953. He further claimed that the division of Survey No.89 into Survey Nos.89/1, 89/2 and 89/3 were illegal and the consequent revenue entries in the name of father of plaintiffs and Kashiraya were also illegal. The plaintiffs claimed that the said suit was decreed. Thereupon, an appeal was filed in R.A.No.96/1980. The First appellate Court after considering the material on record allowed the appeal and -5- NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 remitted the case back to the Trial Court and the suit was renumbered as O.S.No.35/1986 and thereafter renumbered as O.S.No.1169/1989. The plaintiffs claimed that the outcome of this suit was not brought to the notice of the Court. It is contended that this suit was ultimately dismissed and confirmed in first appeal as well as in second appeal. That the outcome in the above proceedings was never challenged by the defendants or their father. The plaintiffs contended that they were in lawful possession and enjoyment of the suit property and the defendants were attempting to interfere with their possession and therefore sought for the reliefs mentioned above.
4. This suit was contested by the defendants who claimed that the land bearing Survey No.89 of Gour (K) village was purchased by their father and later his name was entered in the revenue records for the year 1953-54 to 1967-68. They contended that since illegal entries were brought about in the name of the father of the plaintiffs -6- NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 and Kashiraya, a suit was filed in O.S.No.295/1978 which was decreed and thereafter. An appeal was filed in R.A.No.96/1980 and the appeal was allowed and the case was remitted back to the Trial Court and thereafter the suit was renumbered as O.S.No.35/1986 and which was again numbered as O.S.No.1169/1989. The defendants contended that they were the full and absolute owner of the entire land in Survey No.89 and therefore, the plaintiffs were not entitled for the relief of declaration. They also claimed that the plaintiffs had sought for a negative declaration that the defendants do not have any right, title or interest in the suit properties without seeking declaration of their right, title and interest in the suit properties and therefore, the suit was not maintainable.
5. Based on these rival contentions, the Trial Court framed the following issues:
1. Whether the plaintiffs prove that the defendants have no right, title or interest in the suit l and Sy.No.89/2 to the extent of half and -7- NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 89/3 to the extent of 6 acres 30 guntas situated at Gower (K) village, as alleged?
2. Whether the plaintiffs further prove that they are in possession and enjoyment of suit properties as alleged?
3. Whether the plaintiffs further prove that the defendants are interfering in their possession and enjoyment as alleged?
4. Whether the suit of the plaintiffs is hit by principles of resjudicata as contended in the written statement?
5. Whether the plaintiffs are entitled for the relief of declaration and injunction as prayed?
6. What order or decree?
6. The plaintiff No.1 was examined as PW.1 who marked Exs.P1 to P29. He also examined a witness who deposed about possession of the plaintiffs in the suit properties. The defendant No.2 was examined as DW.1 and he marked Exs.D1 to D87. He also adduced the -8- NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 evidence of DWs.2 and 3 in support of his contention that he was in possession and enjoyment of the suit properties.
7. Based on the oral and documentary evidence, the Trial Court perused the records and held that during the course of the suit, the plaintiffs gave up their claim in respect of Survey No.89/2 by filing an application for amendment to delete Survey No.89/2 from the suit schedule, which was allowed. The Trial Court therefore held that the suit is only in respect of land in Survey No.89/3. When an amended plaint was filed, the plaintiffs declared the suit survey number as 80/3 instead of 89/3. Therefore, the Trial Court held that the subject matter of the suit was not identifiable. Based on the oral and documentary evidence, it held that the plaintiffs claimed that they left to Bombay after their father was murdered but did not disclose who was in possession of the suit properties when they were in Bombay. It also held that the plaintiffs had pleaded that the defendants were cultivating the property on behalf of the plaintiffs and -9- NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 therefore, it held that the plaintiffs were not in physical possession of the suit properties. Hence, it held that the question of the defendants trying to obstruct or interfere with the possession of the plaintiffs did not arise. It also held that the father of the plaintiffs had filed his written statement in O.S.No.295/1978 that the land bearing Survey No.89 of Gour (K) village was purchased by the father of the defendants and that he was the full and absolute owner in possession of the suit properties and therefore, the Trial Court held that the plaintiffs were estopped by record and conduct from now contending that their father was the owner of land bearing Survey No.89/3. It also held that the plaintiffs could not seek for a negative declaration that the defendants do have not have any share in the suit properties. Consequently, the suit was dismissed.
8. Being aggrieved by dismissal of the suit, the plaintiffs filed R.A.No.62/2009. The First Appellate Court secured the records of the Trial Court, heard the learned
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 counsel for the parties and framed the following point for consideration:
1. Whether the plaintiffs/appellants proved that they are the owners and in possession of the suit land and alleged interference by the defendants in their possession?
2. Whether the plaintiffs/appellants further proved the finding recorded by trial Court on issues 1 to 3 and 5 are erroneous, illegal, so the impugned judgment is not sustainable in law?
3. Whether the plaintiffs/appellants have make out satisfactory grounds for allowing I.A.-
II and permitting them to produce additional documents?
4. What order?
9. During the pendency of the appeal, the plaintiffs filed an application under Order 41 Rule 27 of CPC to produce additional documentary evidence namely, the judgment and decree passed in O.S.No.1169/1989 and
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 the judgment and decree passed in R.A.No.41/1993 as well as the judgment and decree passed by this Court in RSA No.369/1997.
10. The First Appellate Court held that there were no documents to establish that land in Survey No.89 was divided into three portions. It also held that the plaintiffs were unable to prove that Kashiraya who was allotted the land bearing Survey No.89/2 had gone in adoption and that his share was divided between the plaintiffs and defendants. The First Appellate Court held that mere revenue entries did not confer title and the plaintiffs suit based on the revenue records was not maintainable in the face of the contention of the defendants that their father had purchased the suit properties in the year 1953. It also held that the father of the defendants had filed O.S.No.295/1978 where the father of the plaintiffs had filed a written statement admitting the claim of the father of the defendants that he was the full and absolute owner of the land bearing Survey No.89 and that he had no
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 objection to decree the suit. Therefore, it held that the plaintiffs cannot now turn around and claim that the defendants' father had no right, title or interest in the suit properties.
11. In so far as the application filed by the plaintiffs under Order 41 Rule 27 of IPC, the First Appellate Court held that the plaintiffs did not satisfy the requirements of Order 41 Rule 27 of CPC as no reason was assigned for not producing them at the earliest point of time. It held that the documents sought to be produced as documentary evidence did not help the plaintiffs in any way as their father had conceded in O.S.No.295/1978 that the father of the defendants was the full and absolute owner of the land bearing Survey No.89. Consequently, it dismissed the application and also the appeal filed by the plaintiffs.
12. Being aggrieved by the aforesaid judgment and decree of the Trial Court as well as the First Appellate Court, the plaintiffs have filed this regular second appeal.
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 This appeal was admitted to consider the following substantial question of law:
"Whether the Courts below were justified in non-suiting the plaintiff, notwithstanding the earlier proceedings, which commenced from O.S.No.295/1978?"
13. The learned counsel for the appellants/plaintiffs contended that no doubt their father had admitted in the written statement filed in O.S.No.295/1978 (new No.1169/89) that the father of the defendants was the full and absolute owner of the entire land in Survey No.89, but the Court had recorded a finding in O.S.No.1169/1989 that there was a partition between the father of the plaintiffs, father of the defendants and Kashiraya, in terms of which the father of the plaintiffs was given away the land in Survey No.89/3. The father of the plaintiffs derived land in Survey No.89/1 and Kashiraya was given the land in Survey No.89/2. He submits that this finding was upheld by the First Appellate Court in R.A.No.41/1993 and this Court in RSA No.369/1997. He therefore contended that
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 the defendants cannot continue to claim that they are the full and absolute owners of the land bearing Survey No.89. The learned counsel submits that non production of the judgments and decrees in O.S.No.1169/1989, R.A.No.41/1993 and R.S.A.No.369/1997 was due to inadvertent error on the part of the plaintiffs. He submits that the findings recorded in the aforesaid proceedings are relevant and necessary for adjudication of the present suit.
14. The learned counsel for the respondents/defendants, on the other hand, contended that the father of the plaintiffs had admitted that the father of the defendants was the owner of the land bearing Survey No.89 and therefore, they are now estopped from contending that the father of the defendants was not the owner of the suit property and that their father was the owner of the land bearing Survey No.89/3. He also submitted that the plaintiffs did not furnish any justifiable reason to place on record the additional documentary evidence before the First Appellate Court.
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010
15. I have considered the submissions made by the learned counsel for the plaintiffs as well as the learned counsel for the defendants.
16. The suit from which the present appeal arise was filed in the year 2006. The suit was filed not for the declaration that the plaintiffs are the owners of the suit properties but for a declaration that the defendants have no right, title or interest in the suit schedule property. The plaintiffs had given up their claim in respect of the land bearing Survey No.89/2 and had pursued the suit only in respect of Survey No.89/3. The counsel representing the plaintiffs was extremely negligent in showing the property involved in the suit as Survey No.80/3 instead of 89/3 and on this premise, the Trial Court proceeded to hold that the land in Survey No.80/3 was not identifiable.
17. Be that as it may, this appeal is limited only to the extent of land bearing Survey No.89/3 and not in respect of Survey No.89/2.
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010
18. The written statement filed by the defendants in the instant suit discloses that their father had filed a suit for declaration of his title and consequential injunction in respect of entire extent of land in Survey No.89 and claimed that Kashiraya, father of plaintiffs had no right, title or interest and the said suit was numbered as O.S.No.295/1978. In O.S.No.295/1978, the father of the plaintiffs had filed a written statement admitting the assertions made by the father of the defendants and he conceded that the suit be decreed. However, the said suit was contested by the children of Kashiraya and despite contest, the suit was decreed. Later, children of Kashiraya filed R.A.No.96/1980 before the First Appellate Court. The First Appellate Court allowed the appeal and remitted the case back to the Trial Court for reconsideration. The suit was renumbered as O.S.No.35/1986 which was later renumbered as O.S.No.1169/1989. The Trial Court after considering the oral and documentary evidence held that the father of the defendants was not the full and absolute owner of the land bearing Survey No.89 but father of the
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 plaintiffs, father of the defendants and Kashiraya were interested in equal portions of the land in Survey No.89 and that the revenue records stood testimony to the above fact. It also held that there was a partition between three brothers and that land bearing Survey No.89/1 fell to the share of father of defendants while land bearing Survey No.89/2 fell to the share of Kashiraya. It also held that as per the khata extracts marked as Exs.P3 to P5, the land bearing Survey No.89/3 was made out in the name of the father of the plaintiffs. The Trial Court therefore, dismissed the suit filed by the father of the defendants in terms of the judgment and decree dated 20.04.1993. This finding was upheld by the Appellate Court in R.A.No.41/1993 and thereafter by this Court in RSA No.369/1997. Thus, as the matter stands, the father of the defendants was not the owner of entire extent of land bearing Survey No.89 but was only owner of part of the said land which was numbered as Survey No.89/1, while the land bearing Survey No.89/2 fell to the share of Kashiraya and land bearing Survey No.89/3 fell to the share of the father of
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 the plaintiffs. In so far as the contention that the father of the plaintiffs was estopped from now contending that the father of the defendants was not the owner of the land in Survey No.89, it is relevant to note that the statement made by the father of the plaintiffs was found to be false in O.S.No.1169/1989. Since, the father of the defendants was deleted from the array of the parties in O.S.No.1169/1989, his contention was not tested. In view of the finding of the Courts that the father of the defendants had only succeeded to the land bearing Survey No.89/1 not the entire extent, the plaintiffs were entitled to claim subsequently that the suit property namely Survey No.89/3 fell to the share of their father. In that view of the matter, the finding of the First Appellate Court that the father of the plaintiffs was estopped has no basis.
19. Now coming to the question whether the First Appellate Court was right in refusing to allow the additional evidence, a perusal of the affidavit accompanying the application does not indicate any
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 justifiable reason to meet the requirement under Order XLI Rule 27 of CPC. Nonetheless, when the filing of suit in O.S.No.295/1978 was referred to the written statement filed by defendants, nothing forbade the First Appellate Court in entertaining the certified copies of judgments and decrees interpartes as additional documentary evidence. The First Appellate Court could have allowed the application by putting the plaintiffs on terms.
20. Since the learned counsel for the respondents/defendants does not deny the genuinity and authenticity of the judgment and decree sought to be placed on record along with application under Order LXI Rule 27 of CPC, this Court considers it appropriate to allow the said application and treat the documents enclosed herewith as additional documentary evidence marked as Exs.P30, P31 and P32. However, this is subject to payment of cost of Rs.25,000/- (Rupees Twenty Five Thousand only) payable to Gulbarga District Legal Services
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 Authority within a period of two months from the date of this judgment and award.
21. The contention of the learned counsel for the respondents/defendants that the plaintiffs could not have sought for negative declaration, is though correct but yet this Court exercising jurisdiction under Order VII Rule 4 of CPC moulds the relief and declare that the plaintiffs are the owners of land bearing Survey No.89/3 situate at Gour (K) village, Afzalpur taluka, Kalaburagi District, measuring 6 acres 30 guntas.
22. In that view of the matter, this appeal is allowed in part. The plaintiffs are declared as owners of the land bearing Survey No.89/3 situate at Gour (K) village, Afzalpur taluka, Kalaburagi District, measuring 6 acres 30 guntas and the defendants are restrained from interfering with the peaceful possession and enjoyment of the plaintiffs in respect of the land in Survey No.89/3. However, suit in respect of the land bearing Survey
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NC: 2023:KHC-K:5069 RSA No. 7345 of 2010 No.89/2 is dismissed as the plaintiffs themselves had given up their claim in respect of aforesaid survey number.
23. The plaintiffs shall pay the cost of Rs.25,000/- (Rupees Twenty Five Thousand only) to the Gulbarga District Legal Services Authority within two months from the date of this judgment.
Office is directed to draw a decree in terms of this judgment. The certified copy of this judgment shall not be issued to the plaintiffs unless the cost of Rs.25,000/- is paid.
Sd/-
JUDGE SRT/PMR LIST NO.: 2 SL NO.: 3