Karnataka High Court
H P Siddappa vs Siddappa on 23 November, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
R.S.A.No.1432 OF 2006
BETWEEN:
H P SIDDAPPA
S/O PUTTAIAH
AGED ABOUT 41 YEARS,
R/O HUNJANAKERE VILLAGE
SRIRANGA PATNA - 571 401.
...APPELLANT
(BY SRI R VIJAYAKUMAR, ADVOCATE)
AND:
1 . SIDDAPPA
S/O KOTURAPPA
AGED ABOUT 60 YEARS
SINCE DEAD BY L.RS
1(a) DEVAMMA
W/O LATE SIDDAPPA
2(b) SIDDAPPA
S/O LATE SIDDAPPA
3(c) MAHADEVAPPA
S/O LATE SIDDAPPA
4(d) SIDDAMMA
W/O MAHADEVU
2
D/O LATE SIDDAPPA
5(e) CHANDRAMMA
W/O BASAVANNA
D/O LATE SIDDAPPA
6(f) SMT. MANGALAMMA
W/O DYAVAIAH
D/O LATE SIDDAPPA
2 . CHIKKA THAYAMMA
W/O LATE CHANNAPPA
AGED ABOUT 58 YEARS.
3 . MAHADEVAPPA
S/O SIDDAPPA
AGED ABOUT 41 YEARS
1(a) TO 1(f) ALL ARE RESPONDENTS
MAJOR, R/O HUNJANAKERE VILLAGE
S.R. PATNA TALUK MANDYA DISTRICT.
4 . H B SIDDAPPA
S/O LATE PUJARI BASAPPA
AGED ABOUT 50 YEARS.
5 . SWAMI, S/O LATE PUJARI BASAPPA
AGED ABOUT 48 YEARS
BOTH R/A HUNJANAKERE VILLAGE
SRIRANGA PATNA, TALUK
MANDYA DISTRICT - 571 401.
...RESPONDENTS
(BY SRI B BIJAYASHETTY, FOR
SRI B VISWESWARAIAH, ADVOCATE
FOR R-1(a), R-2 & R-3.
V/O DATED 3.8.2007 SERVICE OF
NOTICE TO R-1(b-f) IS HELD SUFFICIENT
R-4 & R-5 ARE SERVED)
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THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DT.26.09.2005 PASSED IN
R.A.No.46/2001 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (SR.DN.) AND JMFC, SRIRANGAPATNA,
DISMISSING THE APPEAL AND MODIFYING THE
JUDGMENT AND DECREE DATED:30.3.2001 PASSED IN
OS.No.97/1999 ON THE FILE OF THE CIVIL
JUDGE(JR.DN.), SRIRANGAPATNA.
THIS RSA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is directed against the judgment and decree dated 26-09-2005 passed in R.A.No.46/2001 by the learned Principal Civil Judge (Sr.Dn) and JMFC, Srirangapatna, wherein the appeal filed by the 3rd defendant in R.A.No.46/2001 came to be dismissed and the appeal filed by the plaintiffs in RA No.47/2001 came to be allowed. Consequently, the judgment and decree dated 30-03-2001 passed in O.S.No.97/1999 by the learned Civil Judge (Jr.Dn), Srirangapatna, is modified and the suit of the plaintiffs is decreed declaring them as owners and possessors 4 of suit schedule A and B properties and sale deed dated 30-03-1999 is declared as null and void and not binding on the plaintiffs and defendants are restrained permanently from interfering in the possession of the plaintiffs over suit schedule A and B schedule properties in any manner. Being aggrieved by the same, 3rd defendant has come before this Court in this regular second appeal under Section 100 CPC.
2. In order to avoid confusion and overlapping, the parties are addressed in accordance with the ranks held by them before the trial Court.
3. The plaintiffs before the trial court are: (i) Siddappa son of Late Koturappa dead by his LRs, (2) Chikkatayamma wife of Channappa and (3) Mahadevappa son of Siddappa. They filed a suit for declaration and for permanent injunction against the defendants viz. (1) H.B.Siddappa, (2) Swamy and (3) 5 H.P.Siddappa, in respect of the suit schedule A and B property which are as under:
'A' SCHEDULE Land situated at Hunjanakere village, Srirangapatna Taluk, bearing Sy.No.21, extent O-49 guntas, bounded on the East-Road, and B-Schedule land of plaintiffs, West- Halla. Northland of Shivaramu and land of Siddappa South-land of Pujari Siddappa and Channappa, rough sketch - EFGH.
'B' SCHEDULE Land situated at Hunjanakere village, Srirangapatna Taluk, Sy.No.21, extent 0.01 ½ guntas (0.1 ½) bounded on the East - 3rd Defendant land, west - Road, North - Land of Chowdaiah, South- Land of Pujari Siddappa, Channappa and Road, Rough Sketch - MNOP."
4. The relief sought by the plaintiffs in O.S.No.97/1999 is as under:
"a. To declare that plaintiffs are the owners of the suit schedule A and B lands.
b. To declare that the sale dated 30.3.1999 was null and void and also not binding on the plaintiffs;
c. For the relief of permanent injunction restraining the defendants, their agents, and 6 servants from interfering with their possession of the schedule property."
5. The substance of the case of the plaintiffs is that, originally the suit schedule land bearing survey No.21 belonged to Sree Channeswara Swamy deity Inam Land of Hunjanakere village consisting of 3 Acres 39 guntas hiduvali and 6 guntas of Karab land which was cultivated by Sree Channeswara Swamy Temple Archaks. The said inam land was originally cultivated by 1st plaintiff's father late Koturappa and one Basammana Siddaiah. Subsequently, 1st and 2nd defendant's father Basappa was also appointed by the villagers to perform the pooja of the said deity.
6. The total extent of 3 acres 39 guntas was got divided into three equal parts and each one of them has got 1 acre 10 ½ guntas. In 1991, 1st plaintiff, 1st defendant and Siddappa son of Basammana Siddaiah filed their applications before the Land Tribunal, 7 Srirangapatna for registering their names as occupants with respect of inam land in Survey No.19 and 21 of Hunjanakere village which belong to Sree Channeswara Swamy deity inam land. The Land Tribunal, Srirangapatna registered their applications in INA 57,58,59 of 1991-92 and treated them as tenants under the Religious and Charitable Inam Abolition Act, 1955 on 6.12.1991 and they are the statutory tenants in possession of the schedule lands.
7. It is further contended that after the orders of the Land Tribunal, 1st defendant colluded with revenue authorities and take undue advantage from them and made false entries in the 1st and 2nd defendants name. The Land Tribunal has conferred the occupancy rights of 0.50 ½ guntas in survey No.21 of Hunjanakere village to three archaks each one of them got 1/3rd share in 3 acres 39 guntas. But 8 the revenue authorities have entered 65 ½ guntas in the name of 1st and 2nd defendants.
8. It is further stated that 1st defendant sold 6 guntas of land in survey No.21 on 11.6.1998. Subsequently, on 30.3.1999 he sold 1 ½ guntas to 3rd defendant which is disputed B schedule property though it was allotted to plaintiffs. 3rd defendant being adjacent owner of the plaintiffs, he offered to purchase 1 ½ guntas from the plaintiffs. As plaintiffs refused to do so, in collusion with the defendants they have got created the sale deed in respect of the disputed B schedule property dated 30.3.1999 and as such, the said sale deed is not binding upon them and it is null and void.
9. Defendants appeared and filed their written statement separately. They have not disputed the total extent of property as well as the registration of 9 the occupancy rights in their favour as pleaded by the plaintiffs and they disputed the alleged sketch produced by the plaintiff. Further they contended that property fallen to their father was got divided between 1st and 2nd defendant under oral partition and in that oral partition, northern half portion of the property fallen to the share of 2nd defendant and southern half has fallen to 1st defendant and from the said date, their names have been entered in RTC. The portion of disputed B schedule property is separate from the land ABCD which is shown in the sketch. As such, it was sold in favour of 3rd defendant under a registered sale deed for a valuable consideration for the benefit of his family and since the date of purchase, 3rd defendant is in possession. It is further contended that 2nd defendant also sails along with 1st defendant who admits the case of 1st defendant and states that the plaintiffs have no title or interest over the B 10 schedule property but it belongs to 1st defendant and it is contended that the boundary mentioned in suit B schedule property towards south as land of Pujari Siddappa and others is not correct but the correct boundary is the land of the 3rd defendant.
10. It is the contention of 3rd defendant that he is a bonafide purchaser of the disputed B schedule property and contends that in survey No.21 towards northern side and East-west direction 26 guntas of land has fallen to the share of 1st defendant and he was in possession. Out of which, 6 guntas of the land has been alienated to his own brother H.P.Channappa under a registered sale deed dated 11.6.1998 by retaining 20 guntas of land towards northern side. By that time onwards, 2nd defendant was never in possession of B schedule property and plaintiffs also never in possession. As such his vendor has got tile to the property and he has purchased the same under 11 the registered sale deed for a valuable consideration. As such, he is a bonafide purchaser which is binding on the parties concerned.
11. On the basis of pleadings, material assertions and the denials, the learned trial judge has framed the issues and after considering the oral and documentary evidence adduced and produced by both the parties, partly decreed the suit of the plaintiffs with no order as to costs declaring that the sale deed executed by the 1st defendant in favour of 3rd defendant dated 30.3.1999 is null and void and also not binding on the plaintiffs and refused the declaration of title and consequential relief of injunction.
12. Being aggrieved by the said judgment and decree, 3rd defendant preferred regular appeal in RA No.46/2001 and plaintiffs preferred RA No.47/2001 12 before 1st appellate court. Appeal filed by 3rd defendant in RA No.46/2001 came to be dismissed and appeal filed by plaintiffs in RA No.47/2001 came to be allowed and the judgment and decree dated 30- 03-2001 passed in OS No.97/1999 came to be modified. Being aggrieved by the dismissal of the regular appeal in RA No.46/2001, 3rd defendant has presented this regular second appeal.
13. The appeal has been admitted by this court on 24-06-2010 to consider the following substantial question of law:
"Whether the judgment and decree of both the Courts below are perverse in decreeing the suit notwithstanding the absence of actual division of properties between the appellant's vendor and his brothers?
14. Learned counsel Sri R. Vijayakumar for appellant would submit the learned trial judge and the 1st appellate judge did not understand the scope of 13 the case and the real point of controversy between the parties, location of the property, admitted facts and principles of estoppel and are liable to be set aside. He would further submit that what was the simple suit has been made complicated to understand by virtue of wrong interpretation.
15. Learned counsel Sri. B. Vijaya Shetty for Sri. B. Visweswaraiah for respondents/plaintiffs would submit that everything is in order and dismissal of regular appeal in RA No.46/2001 was made after detailed discussion of facts and in accordance with the provisions.
16. Land in question in this case is morefully mentioned in A and B schedule to the plaint which are bearing survey No. 21 measuring 49 ½ guntas and an extent of 1 ½ guntas in survey No.21 of Hunjanakere village measuring 3 acres 39 guntas of Hiduvali and 6 guntas of Karab which were previously 14 belonging to Sri. Channeswara Swamy temple and it was an inam land. The father of 1st plaintiff Koturappa, Basammana Siddaiah and Basappa father of 2nd defendant were the Archaks of said temple and were in actual possession and enjoyment of the said land which was divided into 3 equal portions as per rough sketch. It is the case of the plaintiffs that, Land Tribunal granted occupancy rights to the extent of 50 ½ guntas each in favour of father of 1st and 2nd defendant and to Basammana Siddaiah and area of 51 guntas in favour of father of 1st plaintiff, but it has not demarcated the exact situation of all the three portions in survey No.21 on 6.12.1991. In this connection, plaintiffs have filed rough sketch along with suit.
The said sketch is as under:
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M N
--- G H
Plaintiff's portion
A schedule B - Schedule
49.1/2 guntas Q R
---
E F North
--- Basammana Siddaiah
--- 50.1/2 guntas portion
---
C D West East
--- Defendants 1 and 3
--- Portion. 50.1/2 guntas
---
H B South
ABCD: Defendants 1 & 2 Portion
CDEF: Basammana Siddaiah's portion EFGH: Plaintiff's A Schedule 49.1/2 guntas MNOP Plaintiff's B Schedule 1.1/2 guntas 1st Defendant sold to Channappa ...
Dated 11.6.83, 0-06 guntas
\\\ Road
--- Halla"
15. The above sketch is necessary to be
incorporated in this judgment for the purpose of clarity and understanding. The entire cause for filing 16 the suit is, the sale deed dated 30.3.1999 that was executed by 1st defendant in favour of 3rd defendant- H.P.Sidddaiah son of Puttaiah@ Siddaiah. The granting of land as mentioned in the original grant order (Ex.P5) and the sketch differs. The land shown in the sketch as stated above were granted in consideration of provision of Archaks. Now that plaintiffs are claiming from respective archaks, the defendants denied the claim of the plaintiffs and contended that 1st defendant H.B. Siddappa sold 1 ½ guntas to 3rd defendant -H.P.Siddappa.
16. The issues framed by the trial court are as under:
"1. Whether plaintiffs proves they are the absolute owners in possession of the plaint schedule properties?
2. Whether plaintiffs proves that the sale deed dated 30.3.99 is null and void and not binding on them?17
3. Whether defendants 1 and 2 prove that the schedule properties fell to their share under oral partition?
4. Whether defendant No.3 proves that the plaintiffs have no locus-standi to question the alienation?
5. Whether plaintiff proves the interference of the defendants?
6. To what relief the plaintiffs are entitled for?
7. What order (or) Decree?."
17. It is also stated that one H.P.Channappa is the brother of 3rd defendant and said Channappa also had purchased 06 guntas of land from 1st defendant. However that 06 guntas does not find a place.
18. The undisputed facts are entire land belonged to Government. The Archaks were granted the land to the extent as stated above. Plaintiffs claim under Archak Koturappa and 1st and 2nd defendant claim under one P. Basappa. The total extent of land that was granted to them is 1 acre 10 ½ guntas in 18 survey No.21. Out of this extent, it is stated that have been sold 06 guntas to H.P.Channappa, brother of 3rd defendant by 1st defendant and at the same time, 1 ½ acres was sold by same 1st defendant in favour of 3rd defendant. The original suit O.S.No.97/1999 filed by plaintiffs came to be decreed in part and the operative portion reads as under:
"Suit of the plaintiffs is partly decreed with no order as to costs, declaring that the sale deed executed by the first defendant in favour of 3rd defendant dated 30.3.1999 is null and void and also not binding on the plaintiffs.
Declaration of title and consequential relief of injunction are refused."
19. Thereafter, appeal preferred by plaintiffs in RA No.47/2001 came to be allowed and the appeal preferred by 3rd defendant in RA No.46/2001 came to be dismissed. The operative portion of the judgment passed by the appellate court reads as under:
"The appeal in R.A.No.46/2001 is hereby dismissed. Consequently, the appeal in R.A.No.47/2001 is hereby allowed. The 19 judgment and decree, passed in O.S.No.97/99 dated 30/03/2001 on the file of Civil Judge (Jr.Dn.), Srirangapatna stands modified. The suit of plaintiffs is hereby decreed. The plaintiffs are hereby declared as owners and possessors of suit schedule 'A' & 'B' properties. The sale deed 30.3.99 is declared as null and void and not binding on the plaintiffs. The defendants are hereby restrained permanently from interfering in the possession of the plaintiffs over suit schedule 'A' & 'B' schedule properties in any manner.
- Under the circumstances, I direct the both the parties to bear their own costs.
- Draw the decree accordingly.
- The original of the judgment shall be kept in R.A.No.46/2001 and copy shall be kept in R.A.No.47/2001.
- Send the records to the lower court without delay with the copy of the judgment."
20. It is against the dismissal of RA No.46/2001, the present appeal is filed by 3rd defendant. Finally, the dispute is between 3rd defendant-H.P.Siddappa and the plaintiffs- Siddappa and others.
21. Here the following points are amply clear. The total extent of land is stated to be 4 acres 05 20 guntas including 6 guntas of karab land. It is obvious that the way passes through at almost extreme land on the eastern side living a similar portion of land and it is marked as MNOP in the sketch.
22. Learned counsel Sri. B. Vijay Shetty for plaintiffs submitted that there are no dispute regarding the sale of 06 guntas of land by 1st defendant in favour of one H.P.Channappa, brother of 3rd defendant. In the circumstances difficulty arises as no yardstick is stated as to why the sale of 06 guntas of land of H.P.Channappa was not questioned and on the other hand, sale deed in respect of 1 ½ guntas is questioned. Regard being had to the fact that the entire land is not cutout in accordance with the allotment. Survey number is not sub divided and separate sub numbers are not given. Survey sketch is not prepared. It is not that the land is not available and fallen short of the claim. One could see the 21 benefit of road passing North South wherein on the eastern side a small portion or patch of land is left and on the western side substantial portion of land is there. No doubt, division of property must justify the equal distribution of amenities and facilities.
23. As a matter of fact, position is somewhere similar to the provisions of order 26 Rule 13 of CPC. The judgment in its present form appears incomplete as there is no bifurcated sketch. The sketch showing bifurcation, location of road, extent allotted to each parties including the portion sold. In this connection, the parties should have made endure for joint survey that has not happened because they are at logger heads. Under such circumstances, courts should have treated the matter accordingly by appointing the qualified Surveyor for measuring the entire property in survey No.21 and to demarcate the portion granted to each of the parties and sketch has to be prepared in 22 the interest of justice and equity, for which purpose, he may also take the sale deeds and sketch. Having not done so, it levees the judgment incomplete and the present form of judgments of the both the trial court and first appellate court are liable to be set aside. The substantial question of law is answered accordingly.
24. In the result, I proceed to pass the following:
ORDER
(i) Appeal is allowed.
(ii) The judgment and decree dated 30-03-
2001 passed in OS No.97/1997 by the learned trial judge and the judgment and decree dated 26-09-2005 passed by the learned first appellate judge in RA No.46/2001 and R.A.No.47/2001 are hereby set aside. 23
(iii) Matter stands remanded to the trial court to appoint qualified surveyor with a direction to carry a copy of the original records from the office, visit spot and measure the property in survey No.21 of Hunjanakere village, Srirangapatna Taluk, and demarcate the portions
(iv) In this connection, the parties also shall file necessary application before the Tasildhar/Surveyor for getting their lands divided and for allotment of separate numbers if they chose to do so, so that the dispute between the parties shall be put to an end at once.
(v) The trial court shall provide opportunity to the parties to file their objections to the report of the Commissioner if any, enquire into the matter and dispose of the same in accordance with law.
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(vi) The parties are directed to appear before the trial court on 02-02-2021 without waiting for the notice.
(vii) Both the parties shall maintain status quo of the state of affairs until further orders by the trial court.
Sd/-
JUDGE tsn*