Karnataka High Court
K K Gangaiah Since Dead By His Lrs vs Honnaiah @ Kodaiah on 12 October, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:37695
RSA No. 115 of 2009
C/W RSA No. 116 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO.115 OF 2009(DEC/INJ)
C/W
REGULAR SECOND APPEAL NO.116 OF 2009
IN RSA NO.115/2009:
BETWEEN:
K.K. GANGAIAH,
SINCE DEAD BY HIS LRS
1. VIJAYALAKSHMI,
W/O LATE K.K. GANGAIAH,
AGED ABOUT 52 YEARS,
2. LAKSHMINARAYANA,
S/O LATE K.K. GANGAIAH,
AGED ABOUT 33 YEARS,
Digitally 3. NARENDRAPASAD,
signed by S/O LATE K.K. GANGAIAH,
SOWMYA D AGED ABOUT 29 YEARS,
Location:
High Court of ALL ARE R/O AMRUTHUR VILLAGE,
Karnataka AMRUTHUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-572 111.
...APPELLANTS
(BY SMT. NALINA.K, ADVOCATE FOR
SRI. S.K. VENKATA REDDY, ADVOCATE)
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NC: 2023:KHC:37695
RSA No. 115 of 2009
C/W RSA No. 116 of 2009
AND:
HONNAIAH @ KODAIAH,
SINCE DEAD BY HIS LRS,
1. SHIVARAMAIAH,
S/O LATE HONNAIAH @ KODAIAH,
SINCE DEAD BY HIS LRS,
A) NEELAMMA,
W/O PRAKASH (BHAJANTHRI)
S/O LATE K.K. SHIVARAMAIAH,
AGE: MAJOR,
R/O DODDA HOSAGADI,
KOPPA HOBLI, MADDUR TQ.,
MANDYA DIST.-571 425.
B) MANJUNATHA,
S/O LATE K.K. SHIVARAMAIAH,
AGE: MAJOR,
R/O KEELARA, AMRUTHURU HOBLI,
KUNIGAL TQ,
TUMAKURU DIST.-572 111
AMENDED AS PER COURT
ORDER DATED:20.04.2018
2. GANGARAMAIAH,
S/O LATE HONNAIAH @ KODIAIAH,
SINCE DEAD BY HIS LRS
A) LAKSHMAMMA,
W/O LATE GANGARAMAIAH,
AGE: MAJOR,
B) SWAMY,
S/O LATE GANGARAMAIAH,
AGE: MAJOR,
BOTH ARE R/O JANATHA COLONY,
KEELARA VILLAGE,
AMRUTHURU HOBLI,
KUNIGAL TQ,
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NC: 2023:KHC:37695
RSA No. 115 of 2009
C/W RSA No. 116 of 2009
TUMAKURU DIST.-572 111
AMENDED AS PER COURT
ORDER DATED:20.04.2018
3. GANGALAKSHMAMMA,
D/O LATE HONNAIAH @ KODAIAH,
AGED ABOUT 45 YEARS,
4. NAGAMMA,
D/O LATE HONNAIAH @ KODAIAH,
AGED ABOUT 38 YEARS,
ALL ARE R/O KEELARA VILLAGE,
AMRUTHUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-572 111
...RESPONDENTS
(BY SRI. P.M. SIDDAMALLAPPA AND
SRI. P.M. GOPI, ADVOCATE FOR R1(A)&(B)
V/O DATED 19.03.2012, SRI. P.M. SIDDAMALLAPPA,
ADVOCATE FOR R3 & R4, R2(A) & R2(B) ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD:15.10.2008 PASSED IN
R.A.NO.11/2003 ON THE FILE OF THE CIVIL JUDGE, (SR.DN,
KUNIGAL, DISMISSING THE APPEAL AND FILED AGAINST THE
JUDGMENT AND DECREE DTD:2.6.2003 PASSED IN
OS.156/1989 ON THE FILE OF THE ADDL. CIVIL JUDGE, (JR.
DN.) & JMFC, KUNIGAL.
IN RSA NO.116/2009:
BETWEEN:
K.K. GANGAIAH,
SINCE DEAD BY HIS LRS
1. VIJAYALAKSHMI,
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NC: 2023:KHC:37695
RSA No. 115 of 2009
C/W RSA No. 116 of 2009
W/O LATE K.K. GANGAIAH,
AGED ABOUT 52 YEARS,
2. LAKSHMINARAYANA,
S/O LATE K.K. GANGAIAH,
AGED ABOUT 33 YEARS,
3. NARENDRAPASAD,
S/O LATE K.K. GANGAIAH,
AGED ABOUT 29 YEARS,
ALL ARE R/O AMRUTHUR VILLAGE,
AMRUTHUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-572 111.
...APPELLANTS
(BY SMT. NALINA.K, ADVOCATE FOR
SRI. S.K. VENKATA REDDY, ADVOCATE)
AND:
KODAIAH S/O KODI @ MUDIYA,
SINCE DEAD BY HIS LRS,
1. K.K. SHIVARAMAIAH,
S/O LATE HONNAIAH @ KODAIAH,
SINCE DEAD BY HIS LRS,
A) NEELAMMA,
W/O PRAKASH (BHAJANTHRI)
S/O LATE K.K. SHIVARAMAIAH,
AGE: MAJOR,
R/O DODDA HOSAGADI,
KOPPA HOBLI, MADDUR TQ.,
MANDYA DIST.-571 425.
B) MANJUNATHA,
S/O LATE K.K. SHIVARAMAIAH,
AGE: MAJOR,
R/O KEELARA, AMRUTHURU HOBLI,
KUNIGAL TQ,
TUMAKURU DIST.-572 111
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NC: 2023:KHC:37695
RSA No. 115 of 2009
C/W RSA No. 116 of 2009
AMENDED AS PER COURT
ORDER DATED:20.04.2018
2. GANGARAMAIAH,
S/O LATE HONNAIAH @ KODIAIAH,
SINCE DEAD BY HIS LRS
A) LAKSHMAMMA,
W/O LATE GANGARAMAIAH,
AGE: MAJOR,
B) SWAMY,
S/O LATE GANGARAMAIAH,
AGE: MAJOR,
BOTH ARE R/O JANATHA COLONY,
KEELARA VILLAGE,
AMRUTHURU HOBLI,
KUNIGAL TQ,
TUMAKURU DIST.-572 111
AMENDED AS PER COURT
ORDER DATED:20.04.2018
...RESPONDENTS
(BY SRI. P.M. SIDDAMALLAPPA AND
SRI. P.M. GOPI, ADVOCATE FOR R1 (A) & (B)
R2(A) & R2(B) ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD:15.10.2008 PASSED IN
R.A.NO.10/2003 ON THE FILE OF THE CIVIL JUDGE, (SR.DN,
KUNIGAL, DISMISSING THE APPEAL(A/W I.A.NOS. 4 & 6) FILED
AGAINST THE JUDGMENT AND DECREE DTD:2.6.2003 PASSED
IN OS.106/1987 ON THE FILE OF THE ADDL. CIVIL JUDGE, (JR.
DN.), KUNIGAL.
THESE APPEALS COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:37695
RSA No. 115 of 2009
C/W RSA No. 116 of 2009
JUDGMENT
These regular second appeals are filed under Section 100 of CPC challenging the judgment and decree passed in O.S.No.156/1989 on the file of Additional Civil Judge, Kunigal and confirmed by Senior Civil Judge, Kunigal, in R.A.No.11/2003 and the judgment and decree passed in O.S.No.106/1987 on the file of Addl. Civil Judge (Jr.Dn.), Kunigal and confirmed by the Civil Judge (Sr.Dn.), Kunigal in R.A.No.10/2003.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied them before the trial Court.
3. The brief factual matrix leading to the case are as under:
Plaintiff has filed a suit for declaration and injunction against the defendants. It is the contention of the plaintiff that plaintiff No.1 and defendant No.1 are cousins being the sons of brothers and plaintiff No.2 and defendant No.2 are the sons of plaintiff No.1. That the suit schedule -7- NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009 properties were originally Barber Inamthi lands and were granted in the name of Honnappa, the grandfather of plaintiff and defendant No.1. After the death of Honnappa, his sons Honnaiah alias Mudiyaiah and Kalahonnaiah were enjoying the suit schedule properties. After coming into effect of Inams Abolition Act, Kalahonnaiah being the eldest member of the family, applied to the concerned Authority for re-grant and accordingly, suit schedule properties were granted to Kalahonnaiah for the benefit of entire family. Subsequently, during the year 1965 there was partition between Kalahonnaiah and plaintiff No.1 and suit schedule properties fell to the share of plaintiff No.1 and since then, he is enjoying the suit schedule properties. It is further contended that after the death of Kalahonnaiah, defendant tried to get entered his name in the revenue records in respect of the suit schedule properties alone, which came to be objected by plaintiff No.1 and the revenue officials directed the parties to approach Civil Court and hence, the plaintiff claims to have filed the suit.-8-
NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009
4. Defendant No.1 filed his written statement disputing the claim, he denied that the plaintiff is the son of Honnaiah alias Mudiyaiah and he contended that plaintiff No.1 is called as Kodi and his son is Kodi alias Mudiya. It is asserted that plaintiff No.1 and his son are the natives of Maralaga village in Koppa Hobli of Maddur Taluka. It is denied that plaintiff No.1 is related to defendant No.1. It is admitted that the suit schedule properties are Barber Inam lands, but it is denied that Honnappa had two sons by name Honnaiah alias Mudiyaiah and Kalahonnaiah. It is specifically contended that the propositus Honnaiah had only one son by name Kalahonnaiah and suit schedule properties were granted in the name of Kalahonnaiah i.e., the father of defendant No.1 and he disputed the alleged partition of 1965 on the ground that it is a concocted document. He disputed the possession of the plaintiff and hence, he has sought for dismissal of the suit.
5. On the basis of these pleadings, the trial Court has framed in all following issues in O.S.No.156/1989: -9-
NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009
1) Whether the plaintiff proves the correctness of the geneological tree given in the plaint?
2) Whether the plaintiffs prove that they are the absolute owners in possession of the eastern half of item No.1 and the southern 16 guntas of item No.2 of the suit schedule for the reasons set out at para 3 and 4 of the plaint?
3) Whether the plaintiffs prove the alleged interference?
4) To what relief the parties are entitled?
6. During the pendency of the suit, original plaintiff No.1 expired and his other legal heirs were brought on record. Power of attorney was examined as PW1 and four witnesses were examined as PW2 to PW5. Plaintiffs placed reliance on 41 documents marked at Ex.P1 to Ex.P41. Defendant No.1 was examined as DW1 and one witness was examined as DW2 and placed reliance on 2 documents marked at Ex.D1 and Ex.D2.
7. Defendant No.1 has also filed a simple suit for injunction against the plaintiff/respondent No.1 herein
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NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009 pertaining to the same suit schedule properties and all the grounds urged in the written statement were as urged in the plaint pleadings and a similar defence was taken by defendant No.1 in the said suit as taken in the plaint pertaining to declaratory suit filed by him. In the said suit of injunction bearing O.S.No.106/1987, the trial Court has framed the following issues:
1) Whether the plaintiff proves that he is in lawful possession as absolute owner of the suit schedule property as averred at para-2 of the plaint?
2) In the alternative: whether the defendants prove that they are in lawful possession of the suit schedule property as absolute owners as contended at para-5 of the written statement?
3) Whether the plaintiff proves that the defendants are interfering with his right of possession on the suit schedule property?
4) Whether the plaintiff is entitled for the reliefs claimed?
5) To what decree or order?
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NC: 2023:KHC:37695
RSA No. 115 of 2009
C/W RSA No. 116 of 2009
Additional Issue No.1:
1) Does the L.Rs. of defendant proves that they
have perfected their title by adverse possession as contended in additional written statement?"
8. Even in the said suit also the plaintiff was examined as PW1 and 2 witnesses were examined as PW2 and PW3 and he placed reliance on 21 documents. While Power of Attorney holder of defendant No.1 was examined as DW1 and 4 witnesses were examined as DW2 to DW5 and Ex.D1 to Ex.D41 were marked.
9. After appreciating the oral and documentary evidence, the learned Civil Judge answered Issue Nos.1 to 3 in the affirmative and decreed the suit of the plaintiff declaring him to be the owner of the suit schedule property and also granted injunction. This order is being challenged by defendant No.1 before the Senior Civil Judge, Kunigal, in RA.No.11/2003. The learned Senior Civil Judge after appreciating the oral and documentary evidence, dismissed the appeal by confirming the judgment and decree passed by the trial Court.
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NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009
10. Against these concurrent findings, the defendant is before this Court by way of second appeal.
11. Heard the arguments advanced by the learned counsel for the appellant. In spite of granting sufficient opportunities, the learned counsel for respondent did not appear to advance the arguments.
12. The learned counsel for the appellant would contend that both the Courts below have given much importance to Ex.P11, which is an unregistered palupatti and failed to appreciate the evidence of DW1 and DW2 and they have given undue importance to evidence of PW1 to PW5. It is further contended that the plaintiff has failed to prove the geneology itself and hence, it is asserted that both the Courts below have committed an error in decreeing the suit and sought for allowing this appeal.
13. This Court while admitting the appeal has framed following substantial questions of law in RSA No.115/2016
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NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009
i) Whether the courts below are justified in holding Honnaiah @ Mudiyappa, father of Kodaiah S/o Kodi @ Mudiyappa/1st defendant was the son of propositus Honnappa, against the principles in Sec.50 of Evidence Act?
ii) Whether the courts below have erred in not properly appreciating the evidence on record to hold that plaintiffs have not proved their title to the suit properties and lawful possession of them?
iii) Whether the 1st appellate court is justified in dismissing IA-3 and 4, when Ex.P-11/alleged Palupatti was alleged to be concocted document by 1st plaintiff and signature of Kalahonnaiah thereon was to be compared with the admitted signature in the document produced in the appellate court for resolving the real controversy between the parties in the suit?
In RSA No.116/2009:
i) Whether the courts below are justified in holding Honnaiah @ Mudiyappa, father of Kodaiah S/o Kodi @ Mudiyappa/1st defendant was the son of propositus Honnappa, against the principles in Sec.50 of Evidence Act?
ii) Whether the courts below have erred in not properly appreciating the evidence on record to hold that plaintiff has been in lawful possession of
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NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009 the suit property and his possession was interfered with by defendants?
iii) Whether the 1st appellate court is justified in dismissing IA-4 and 6, when Ex.D-2/alleged Palupatti was alleged to be concocted document by 1st defendant and signature of Kalahonnaiah thereon was to be compared with the admitted signature in the document produced in the appellate court for resolving the real controversy between the parties in the suit?
14. It is an undisputed fact that suit schedule properties in both the suits are one and the same. Though in declaratory suit one property was added which was not there in injunction suit, the main dispute between the parties is pertaining to land bearing Sy. No.50 measuring 3 acres 26 guntas, which is the eastern portion of the suit schedule properties. The parties would be referred with the ranks occupied by them in O.S.No.156/1989, which is a declaratory suit filed by the respondent herein.
15. It is an admitted fact that Sy. No.50 measuring 7 acres 12 guntas and Sy. No.159/2 measuring 32 guntas of
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NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009 Kilara village were originally Barber Inamati lands granted in favour of Honnaiah. Further, it is an undisputed fact that they were subsequently re-granted in favour of father of the defendant No.1 by name Kalahonaiah by Special Deputy Commissioner. According to plaintiff, Honnaiah had two sons by name Honnaiah @ Mudiyaiah and Kalahonnaiah. While defendant No.1 asserts that only Kalahonnaiah was the sole son of Honnaiah. PW2- K.S.Maribettaiah is aged about 77 years and PW3- P.K.Thimmaih is aged about 79 years. Both are residents of Kilara Village and they have specifically deposed that Honnaiah had two sons by name Honnaiah @ Mudiyaiah and Kalahonnaiah. They have also deposed that plaintiff is the son of Honnaiah, while defendant No.1 is the son of Kalahonnaiah. Under Section 50 of the Indian Evidence Act, 1872 their evidence carries importance as they deposed regarding relationship between the parties and having regard to their age, their evidence carries weight. On the contrary, defendant No.1 got himself examined as DW1 and he placed reliance on evidence of DW2. But DW2
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NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009 is aged only about 43 years and his cross examination disclose that he pleads ignorance as to whether plaintiff No.1 is the son of Honnaiah or whether Honnaiah is having two sons. He did not assert that defendant No.1 was the sole son of Honnaiah and pleads ignorance regarding relationship. Hence, his evidence does not have much importance and the evidence of PW2 to PW4 who are elderly persons carries weight.
16. Apart from that, admittedly, the re-grant was in the year 1958 and according to plaintiff in the year 1965, there was a partition as per Ex.P11. According to plaintiff, Eastern portion was allotted to the share of plaintiff and southern half in Sy.No.159/2 was allotted to him, while the northern half in Sy.No.159/2 and western half in Sy.No.50 was allotted to Kalahonnaiah. Reliance was placed on Ex.P11 in this regard. PW2 & PW3 are attesting witnesses to Ex.P11 and they have deposed regarding execution of Ex.P11 and their presence during the partition. Ex.P12 is the Schedule. Much cross-examination was made
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NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009 regarding signature of Kalahonnaiah on these documents, but it is important to note here that name of plaintiff No.1 was mutated in cultivators Column from 1965 to 1983. This is evident from RTC extracts produced by the plaintiff. Kalahonnaiah admittedly died in 1983 and during his lifetime, he never disputed the entry of plaintiff in cultivators column. Further, plaintiff has also produced the receipts for having paid the tax, which is evident from Ex.P14 and for having paid water tax the land, Ex.P15 to Ex.P30 are relied. Ex.P39 and Ex.P40 are RTC extracts and name of plaintiff No.1 was found in cultivators column and the same was not challenged by the defendant or by his father during his lifetime.
17. Further, these entries were again corroborated by Ex.P11 & Ex.P12 and evidence of PW2 to PW4. Both the Courts below have appreciated the oral and documentary evidence in its proper perspective and have rightly decreed the suit filed by respondent No.1 herein in O.S.No.156/1989, but the suit filed by the appellant herein
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NC: 2023:KHC:37695 RSA No. 115 of 2009 C/W RSA No. 116 of 2009 in O.S.No.106/1987 was rejected. Apart from that, when the claim of appellant was disputed by the other side, the appellant ought to have filed a suit for declaration of his title, but he has not done so.
18. Looking to these facts and circumstances, the Substantial Question of Law Nos.1 & 3 were answered in the affirmative, while Substantial Question of Law No.2 is answered in the negative. As such, the appeals being devoid of any merits, does not survive for consideration and accordingly, they stand dismissed.
Parties to bear their own costs in these appeals.
Sd/-
JUDGE DS List No.: 2 Sl No.: 2