Karnataka High Court
Thimmarayappa Since Deceased By Lrs vs Hemanna on 5 December, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
-1- ®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
R.S.A.NO.NO.308/2002(DEC)
BETWEEN
THIMMARAYAPPA SINCE DECEASED BY LRS
S/O GIRIGA @ CHIKKAGIRIGA
1. SMT.HANUMAKKA
SINCE DECEASED (DIED ON 10.06.2000)
W/O LATE THIMMARAYAPPA
2. THIMMAKKA, AGED 48 YEARS,
D/O LATE THIMMARAYAPPA,
3. DODDAGIRIYAPPA, AGED 45 YEARS
4. CHIKKAGIRYAPPA, AGED 41 YEARS
5. DODDAMUNIYAPPA, AGED 39 YEARS
6. THIMMARAYAPPA, AGED 37 YEARS
7. CHIKKAMUNIYAPPA, AGED 32 YEARS
8. SHIVANNA, AGED 29 YEARS
APPELLANTS 3 TO 8 ARE SONS OF
LATE THIMMARAYAPPA,
ALL ARE RESIDENTS OF
SATHUNUR VILLAGE, JALA HOBLI,
BANGALORE NORTH TALUK.
-2-
9. AKKAYAMMA, AGED 33 YEARS
W/O SOLLAPURIAPPA
D/O LATE THIMMARAYAPPA ... APPELLANTS
(BY SRI M R RAJAGOPAL, ADVOCATE)
AND
HEMANNA
BY LEGAL REPRESENTATIVES
a) SMT.AKKAYAMMA,
W/O LATE HEMANNA,
AGED 75 YEARS,
b) SRI DANEGOWDA,
S/O LATE HEMANNA,
AGED 59 YEARS,
c) SRI MUNIVENKATEGOWDA,
S/O LATE HEMANNA,
AGED 55 YEARS,
d) SRI GOPALAGOWDA @ PRAKASH,
S/O LATE HEMANNA,
AGED 52 YEARS,
PROPOSED LEGAL REPRESENTATIVES
(a) to (d) ARE RESIDENTS OF
SATHANUR VILLAGE, JALA HOBLI,
BANGALORE NORTH
(ADDITIONAL) TALUK. ...RESPONDENTS
(BY SRI V.F.KUMBAR, ADVOCATE FOR R1(a to d))
THIS RSA IS FILED UNDER SECTION 100 CPC
AGAINST THE JUDGEMENT AND DECREE DT:22.12.2001
PASSED IN RA NO.38/1987 ON THE FILE OF THE PRL.
CIVIL JUDGE (SR.DN), BANGALORE (R) DISTRICT,
BANGALORE, DISMISSING THE APPEAL AND CONFIRMING
-3-
THE JUDGEMENT AND DECREE DT:28.3.1987 PASSED IN
OS NO.104/1982 ON THE FILE OF THE MUNSIFF,
DEVANAHALLI.
THIS RSA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The legal representatives of original plaintiff in OS.No.104/1982 (old No.215/1968) have come up in this second appeal impugning the concurrent findings of both the courts below in rejecting the suit for the relief of declaration and permanent injunction in respect of suit schedule property.
2. In this appeal original defendant Nos.2 to 9 in the trial court are not parties. Therefore, what is really to be decided is, whether the suit schedule property for which the plaintiff claims the relief of declaration and title is available to him as descendant of original owner - Danada Muniga or the 1st defendant has secured title to the said property from the original descendants of Danada Muniga i.e., defendants 2 to 9.
-4-
3. Admittedly, this second appeal has a chequered history with reference to title of land bearing Sy.No.90 of Sathanur village, measuring to an extent of 1 acre 27 guntas (1 acre 26 guntas is ain land and 1 gunta is kharab land). The case of the plaintiff in the court below is that the entire extent of 1 acre 27 guntas belongs to his grand father Danada Muniga, which was succeeded by plaintiff's father Giriga @ Chikka Giriga and subsequently, it has come to plaintiff by way of succession. So far as 1st defendant in the court below is concerned, he is the purchaser of entire extent of 1 acre 26 guntas of ain land in said survey number under two sale deeds executed in his favour, one in the year 1967 for 16 guntas and another for 1 acre 9 guntas in the year 1968 from defendant Nos.2 to 9 in the original suit. The defendants 2 to 9 in the original suit also claim title to the suit property on the ground that they are the lineal descendants of Thimmaraya s/o Giriga.
-5-
4. With this, what is seen is, the plaintiff and defendants 2 to 9 are claiming title to same property on the basis that it is succeeded by them. The contesting 1st defendant in the court below is trying to establish the suit property as his absolute property by virtue of two sale deeds executed in his favour by his vendors, who according to him are the original owners of the property. Both the parties in the court below are not in a position to place any document of title to trace their title to the property in question. Therefore, what is left to be decided by this Court is their title to the suit property based on the revenue documents which are relied upon by them, which dates back to 1920's and 1930's.
5. In this background, in the suit filed by the plaintiff in OS.No.215/1968, the following three issues are framed:
" 1. Does the plaintiff prove that he was the owner of the suit schedule property?
2. Does the plaintiff prove that he was in lawful possession of the suit schedule property?-6-
3. Is the plaintiff entitled for declaration and permanent injunction as prayed for?"
6. In the said suit, the plaintiff adduced evidence by examining 5 witnesses and relied upon in all 11 documents, which are mainly revenue documents. So far as defendants are concerned, they examined in all 3 witnesses and relied upon 13 documents, out of which 2 are the registered sale deeds.
7. The evidence adduced by plaintiff as PW.5 and that of the other 4 witnesses PWs.1 to 4 is to the effect that the suit property belonged to plaintiff's grand father - Danada Muniga, who is resident of Sathanur village; that said Danada Muniga had a son by name Giriga @ Chikka Giriga and his wife is one Thoti Akkayyamma; that plaintiff is the son of Giriga @ Chikka Giriga and Thoti Akkayyamma; that plaintiff is the lineal descendant of Danada Muniga, as such, the land which was registered in the revenue records in the name of Danada Muniga is -7- succeeded by him. The witnesses who are examined by plaintiff are none other than the villagers and owners of adjacent lands, who stood by him in the said proceedings.
8. Per contra, the evidence adduced on behalf of defendants viz., 1st defendant as DW.2 and two other defendants as DWs.1 and 3 is that the property in question is the family property of defendants 2 to 9, which they have conveyed to 1st defendant and accordingly, he has secured title to said property.
9. The trial court on appreciation of the material on record proceeded to answer the issues in favour of the plaintiff and decreed the suit by judgment and decree dated 29.1.1979, which was subject matter of an appeal in RA.No.72/1979 by defendants 1 to 9. In the said appeal, the lower appellate court while reappreciating the pleadings and evidence available on record felt that issues framed by the trial court are not just and proper, hence the same is required to be framed in such a way that title of the plaintiff and defendants 2 to 9 is required to be -8- traced to the suit property through the person under whose name the property was standing.
10. Incidentally, what is not in dispute in this proceedings is that the property in question initially stood in the name of Danada Muniga during the years 1920's and 1930's. The dispute is only with reference to, who is the lineal descendant of said Danada Muniga, whether it is plaintiff or defendants 2 to 9. It is in this background that the lower appellate court felt proper issues are required to be framed. Accordingly, by its judgment dated 28.2.1981 set aside the judgment and decree passed in OS.No.215/1968, consequently, remanded the matter to trial court for fresh consideration with a specific direction regarding framing of proper issues.
11. The remanded suit is renumbered as OS.No.104/1982 on the file of Munsiff, Devanahalli, wherein the additional issues which are framed are the relevant issues which are framed pursuant to the direction -9- by the lower appellate court. The said reframed issues and additional issue read as under:
"1. Whether the persons mentioned in Exs.P2 and P3 and Exs.P8 and P9 are the ancestors of plaintiff or the ancestors of defendants 2 to 9?
2. Whether Thoti Akkayya is the mother of plaintiff or the wife of defendant No.4?
3. Whether Thimmaraya mentioned in Ex.P2 is ancestor or defendant Nos.2 to 9 or the ancestor of plaintiff?
Addl. Issue No.3 amended subsequently, which reads as under
3. Whether Thimmaraya mentioned in Ex.P2 is the ancestor of defendants 2 to 9 or is the plaintiff?"
12. To establish said reframed issues further evidence is led in by both the parties, wherein so far as plaintiff is concerned, in addition to 5 witnesses who were already examined, 3 more witnesses are examined as PWs.6 to 8. Out of them PW.6 is none other than one of the relative of defendants 2 to 9 and PWs.7 and 8 are the other villagers who knew about the suit schedule property
- 10 -
and one of them is owner of the property situated closer to the property in question. However, no additional documents are produced and marked by the plaintiff.
13. On behalf of the defendants, in addition to 3 witnesses already examined, 7 more witness are examined. As stated earlier, Dws.1 to 3 are none other than the parties to the proceedings and DWs.4 to 10, who are subsequently examined are the independent witnesses as well as sons of some of the defendants. They are examined to establish the relationship of defendants 2 to 9 to Danada Muniga - the original owner of the property in question. In the remanded matter the defendants also did not produce and mark any documents.
14. After receiving additional pleadings, after recording of additional evidence was complete in the remanded suit in OS.No.104/1982, 1st additional issue which was with reference to whether the document relied upon by the plaintiff at Exs.P2, P3, P8 and P9 with reference to the person referred to as Danada Muniga is
- 11 -
the ancestor of plaintiff or the ancestor of defendants 2 to 9, is answered in favour of defendants 2 to 9 in holding that persons mentioned in Exs.P8 and P9 are the ancestors of defendants 2 to 9. With reference to 2nd additional issue whether Thoti Akkayyamma is mother of plaintiff or the wife of 4th defendant is answered in favour of plaintiff in holding that Thoti Akkayya mentioned in Ex.P1 is the mother of plaintiff and not the wife of 4th defendant. So far as 3rd additional issue regarding Thimmaraya mentioned in Ex.P2 is the ancestor of plaintiff or defendant 2 to 9 is concerned, the trial court answered the same in negative holding that neither of the parties have established that Thimmaraya is their ancestor. Consequently, the claim of plaintiff as the lineal descendant of Danada Muniga is held against him and the prayer for declaration of his title to suit property is denied and accordingly, dismissed the suit filed by him in OS.No.104/1982 on 28.3.1987.
- 12 -
15. Against said judgment and decree dated 28.3.1987 the plaintiff - Thimmaraya preferred an appeal in RA.No.38/1987 only against Hemanna - 1st defendant in the original suit and in the cause title to appeal he has put up a note stating that since defendants 2 to 9 have pleaded in the written statement that they have no subsisting right in the suit schedule property as on the date of filing of the suit and also other defendants 10 to 12 have not claimed any interest in the said property who are now dead, are not made as parties.
16. In the said appeal, the lower appellate court framed the following points for consideration:
1. Whether the appeal against only on of the defendants is not maintainable?
2. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
3. Does he prove that he was in lawful possession of the suit property on the date of suit?
4. Whether the persons mentioned in Ex.P2, Ex.P3, P8 and P9 are the ancestors of the plaintiff or the ancestors of the defendant?
- 13 -
5. Whether Thoti Akkayya is the mother of the plaintiff or the wife of the defendant No.4?
6. Whether Thimmaraya mentioned in Ex.P2 is the ancestor of defendants 2 to 9 or of the plaintiff ?
7. Whether the plaintiff is entitled to declaration or injunction ?
8. Whether the judgment and decree of the learned Munsiff are sustainable?
17. The lower appellate court after reappreciation of the material available on record dismissed the appeal by judgment and decree dated 5.10.1990, wherein the first point which was with reference to whether appeal against purchaser - Hemanna alone is maintainable is answered in holding that the appeal is not maintainable. So far as the claim of plaintiff that he is absolute owner of suit property and he is in possession is concerned, they are answered in the negative. With reference to 4th and 6th points, whether the documents would establish that plaintiff is the lineal descendant of original owner of property or the defendants 2 to 9 in the original suit is concerned, they are answered in favour of defendants 2 to
- 14 -
9 in the original suit, who are not parties in the said appeal. With reference to status of Thoti Akkayya, she is accepted as the mother of plaintiff and with reference to reliance of the name of Thimmaraya in Ex.P2 is concerned, it is held to be a reference to the ancestor of defendants 2 to 9 and not the plaintiff, consequently 8th point regarding the claim of the plaintiff for the relief of declaration is rejected and the appeal filed by the plaintiff is dismissed.
18. As against the judgment and decree of dismissal in RA.No.38/1987 dated 5.10.1990, the original plaintiff - Thimmarayappa approached this Court in RSA.No.1042/1990. When said second appeal came up for consideration before a Coordinate Bench of this Court, this Court had set aside the finding of the lower appellate court that the regular appeal is not maintainable for non inclusion of defendants 2 to 9 and also set aside the other findings, consequently, remanded the matter back to the lower appellate court to consider the appeal with 1st
- 15 -
defendant in the court below, who is the sole respondent in said appeal as the only contesting respondent in the remanded appeal.
19. Accordingly, the remanded appeal was taken up for consideration before the lower appellate court in the same number in RA.No.38/1987. By then since the original plaintiff - Thimmaraya had died his legal representatives came on record and the original 1st defendant - Hemanna, who was alive continued to be the sole respondent in remanded RA.No.38/1987. In said remanded appeal the lower appellate court framed the following fresh points for consideration:
"1. Whether the LRs of the plaintiff can be permitted to produce additional evidence as sought by them?
2. Whether the LRs of the plaintiff have proved that the plaintiff was absolute owner in the lawful possession of the suit schedule property on the date of suit?
3. Whether the persons mentioned in Exs.P2, P3, P8 and P9 are the ancestors of the plaintiff or ancestors of defendant?
- 16 -
4. Whether the plaintiff is entitled for declaration and injunction?
5. What order?
20. In the remanded appeal, the lower appellate court after appreciating the oral and documentary evidence available on record as on that date answered the 1st point whether the legal representatives of plaintiff should be permitted to produce additional evidence as sought for by them in the negative; the 2nd point which was framed to consider whether legal representatives of plaintiff have proved that the original plaintiff was the absolute owner in lawful possession of the suit property on the date of suit in the negative; with reference to 3rd point whether the name of the person mentioned in Exs.P2, P3, P8 and P9 is ancestor of plaintiff or ancestor of defendants 2 to 9 is answered in such a way that the same does not arise for consideration. Regarding the plaintiffs' right to seek declaration and injunction, the same is rejected by answering the 4th point in negative, consequently, dismissed the appeal by judgment and
- 17 -
decree dated 22.12.2001. While doing so, the cross objection which was filed by the 1st defendant in the original suit is allowed and the finding of trial Court that Thoti Akkayyamma is the mother of plaintiff is rejected. Against the said judgment and decree dated 22.12.2001, the legal representatives of original plaintiff have come up in the present second appeal.
21. When this matter came up for consideration before this Court, initially an order was passed on 12.4.2002 by a Coordinate Bench of this Court calling upon the lower appellate court to give a specific finding on the question, whether Thimmaraya mentioned in Ex.P2 is the ancestor of defendants 2 to 9 or ancestor of plaintiffs and for that limited purpose the matter was remanded to the lower appellate court.
22. The said question which was raised by this Court was considered by the Principal Civil Judge (Sr.Dn), Bengaluru Rural District and submitted its finding by order dated 30.10.2003. The said finding was not
- 18 -
accepted by the Coordinate Bench of this Court because the same was arrived at without recording evidence. Hence, by order dated 19.12.2003 the finding recorded in order dated 30.10.2003 was set aside, the matter was again remanded to the very same court for recording additional evidence with liberty to the parties to produce and mark additional documents if necessary and thereafter, to give its finding.
23. Pursuant to said remand by this Court on 19.12.2003, the matter went back to the lower appellate court again, where the additional documents which were produced by filing an application under Order 41 Rule 27 of CPC were taken on record by allowing the said application, 3 documents were taken on record and they were permitted to be marked as Exs.P12 to P14 through PW.9 - Shivanna s/o late Thimmarayappa. Thereafter, the lower appellate court gave finding on all the three additional issues which were framed at first instance when the original suit was remanded for reconsidered as
- 19 -
directed by the lower appellate court in RA.No.72/1979. In fact, these three additional issues were directed to be discussed at length and opinion was sought to be given on that. In this background, the lower appellate court submitted its finding in the form of judgment on 28.2.2005.
24. It is on the basis of the judgment of lower appellate court dated 28.2.2005, this Court framed the substantial question of law on 18.12.2007, which reads as under:
"Whether the findings recorded by the first appellate court on additional issue Nos.1 and 3 after reappreciation of the evidence, are incorrect? If so, what order?"
25. Heard Sri.M.R.Rajagopal, learned counsel appearing for the appellants and Sri.V.F.Kumbar, learned counsel for the legal representatives of original 1st defendant. After perusing the material available on record this Court would answer the substantial question of law in
- 20 -
favour of the appellants in holding that re-appreciation of the evidence by lower appellate court is just and proper. Therefore, no further clarification is required with reference to question that was raised regarding title of the original plaintiff to suit property as well as his possession for the following reasons:
Admittedly, entire proceedings which has commenced in the year 1968 in filing OS.No.215/1968 by the original plaintiff - Thimmaraya s/o Giriga @ Chikka Giriga against the original 1st defendant - Hemanna s/o Munivenkatappa and 11 others is for the relief of declaration that he is the absolute owner of suit property and defendants 1 to 11 are required to be restrained from claiming title and possession to the suit property.
26. It is not in dispute that suit property, namely land bearing Sy.No.90 measuring 1 acre 26 guntas situated at Sathanur village, Jala Hobli, Devanahalli Taluk, is Hiduvali land. It is not a tenanted land or a land granted to the original owner Danada Muniga @ Muniga
- 21 -
as grant land or service inam land though he belonged to Thoti community. It is further not in dispute that neither the plaintiffs in original suit nor defendants 2 to 9 from whom 1st defendant purchased the suit property would trace their title to said property through any registered document. Both would claim that the suit property is the property which belonged to Muniga.
27. According to original plaintiff, he is the grand son of Muniga i.e., his father Giriga @ Chikka Giriga is the son of Danada Muniga, who was the original owner of suit property and that he has succeeded to it as his lineal descendant. Coming to defendants 2 to 9, who have sold the suit property to 1st defendant under 2 registered sale deeds i.e., 16 guntas under registered sale deed of the year 1967 and another 1 acre 9 guntas under second registered sale deed of the year 1968, they are also claiming themselves as lineal descendants of Muniga. According to them, 4th defendant is the son of Giriga @ Chikka Giriga (as per evidence of defendants, it is father of
- 22 -
4th defendant in some places and father of 6th and 7th defendant in some other places) and the name which is seen in the revenue records/Kandayam receipt i.e., Thoti Akkayyamma, is a person, who has paid tax at some point of time and she is none other than the wife of 4th defendant and defendants 2 to 9 being the cousins and members of the same family (they referred themselves as Dayadis') have sold the suit property jointly in favour of 1st defendant, who in turn has claimed title to the said property.
28. Though evidence is adduced by both the parties initially, in as much as plaintiff examined 5 witnesses in the original round of litigation and additional 3 witnesses in the remanded matter, whereas the defendants examined in all 3 witnesses at first instance and 7 witnesses in the remanded matter pursuant to the direction issued by the lower appellate court in RA.No.72/1979 by judgment and decree dated 28.2.1981. In fact, in the said remanded matter 3 additional issues
- 23 -
are also framed and consequently, remanded suit which is renumbered as OS.No.104/1982 is dismissed, against which appeal in RA.No.38/1987 was filed by the plaintiff, which came to be dismissed on 5.10.1990 and as against said judgment and decree the plaintiff has filed second appeal in RSA.No.1042/1990. The said second appeal came to be allowed, wherein the Coordinate Bench of this Court after allowing the appeal remanded the matter back to the lower appellate court. Subsequently, the lower appellate court after reappreciating the material on record dismissed the suit of the plaintiff. As against said dismissal the present second appeal is filed, wherein the Coordinate Bench while hearing this matter for admission remanded the matter to lower appellate court for recording a finding on whether Thimmaraya mentioned in Ex.P2 is ancestor of defendants 2 to 9 or ancestor of plaintiffs. Pursuant to such remand, the lower appellate court has furnished its finding on 30.10.2003. However, this Court not being satisfied with the finding of the lower appellate court has again remanded the matter back to it with a
- 24 -
direction to record additional evidence and thereafter to send a finding to this Court by order dated 19.12.2003.
29. Accordingly, the lower appellate court examined one Shivanna s/o Thimmarayappa as PW.9, marked 3 additional documents at Exs.P12 to P14 through said witness and after reappreciating the entire material available on record, recorded its finding in the form of judgment dated 28.2.2005. Now it is this finding of the lower appellate court dated 28.2.2005 assumes importance as the substantial question of law is framed based on that finding.
30. The learned counsel for appellants contended that nothing is left for him to argue in this matter, in as much as the substantial question of law already being supported by the finding of the lower appellate court in its finding dated 28.2.2005 no further consideration is required and on the basis of said finding, the appeal is required to be allowed by answering the substantial question of law in favour of the appellants. In support of
- 25 -
his contention, the learned counsel would rely upon the judgment rendered by the Apex Court in the matter of Municipal Committee, Hoshiarpur -vs- Punjab State Electricity Board, reported in 2010(13) SCC 216, wherein the discussion is as to how the finding rendered by the lower appellate court on the matter referred for giving its opinion is required to be considered. According to the learned counsel for appellant, it reaches finality so far as the finding of lower appellate court is concerned. However, with reference to substantial question of law, if it is not in consonance with that, then the parties will have to be heard, otherwise said finding is final in the light of the provisions of Section 103 of CPC in as much as said finding cannot be considered as a finding under Section 96 of CPC, which requires reconsideration before this Court.
31. However, learned counsel for 1st respondent would oppose the contention of learned counsel for the appellants on the premise that though such a finding is
- 26 -
given by the Apex Court in the aforesaid matter, there is an observation that in the event of there being perversity on the part of the lower appellate court in appreciating the material on record while giving its finding on the additional issue which is framed, then the same cannot be accepted in its totality and the same is subject to challenge in this proceedings even under Section 103 of CPC, therefore, the same cannot be accepted.
32. In this background, the finding rendered by the lower appellate court by its judgment dated 28.2.2005 is looked into to see whether there is any perversity in the finding of the lower appellate court while considering the point which was specifically referred to it for giving its opinion i.e., whether the original owner of suit property namely Danada Muniga is the ancestor of plaintiffs or that of defendants 2 to 9 in the original suit.
33. In the instant case the evidence which is elaborately discussed by the lower appellate court would indicate that it has taken into consideration the evidence
- 27 -
of PWs.1 to 9 as well as Dws.1 to 10 while discussing the relationship inter se between original plaintiff and Danada Muniga and defendants 2 to 9 and Balagai Giriga who is said to be son of Danada Muniga by defendants 2 to 9, who are claiming lineage from Danada Muniga through said Balagai Giriga to claim title to the suit property. In between, defendants 2 to 9 are trying to collate Thoti Akkayyamma as the wife of 4th defendant in original suit and they would try to demonstrate that she is not the mother of original plaintiff Thimmaraya as claimed by him in the suit. In this background, the lower appellate court has threadbare given its finding on the documents relied upon by defendants 2 to 9 in support of their defence in its finding dated 28.2.2005, wherein the additional evidence collected from PW.9 is pressed in to service to identify the property in question as that of Danada Muniga with reference to existing revenue documents vide Exs.P2, P3, P8 and P9, out of them Exs.P8 and P9 are the index of land and record of right and Exs.P2 and P3 are Kethwar register of 1923-24 and Karva Extract.
- 28 -
34. When aforesaid documents are looked into which are earliest documents on record, the Kethwar register of 1923-24 would indicate that the land in question is referred to as the land belonging to one Danada Muniga. It is the case of plaintiff that Danada Muniga is the father of plainitff's father Chikka Giriga @ Giriga which reference is seen in the revenue documents to demonstrate that Chikka Giriga is the son of Danada Muniga. There is also reference to Balgai Muniga. So far as this name is concerned, defendants 2 to 9 try to take advantage of the name Balgai which is used as prefix to Muniga and said person is totally different and independent person. He belongs to the family of defendants 2 to 9 who are referred to as Balgai family.
35. Here, what is required to be seen is that, the plaintiff and defendants 2 to 9 both belong to the community of Madiga, who are predominantly recognized for the services of Thoti work in the village where they are identified as persons belonging to Balagai and Edagai.
- 29 -
Therefore, Balagai is not the name of the family; Balagai is one branch of the community to which they belong to and that, this is not a title to any particular family to which that name could be attributed. In fact, it is attributed to that branch of schedule caste community which is identified in these two branches i.e., Balagai and Edagai. If it is seen in that context, Danada Muniga is also a person of that particular branch. Therefore, identifying him as Balagai Muniga is as a person belonging to that branch of Madiga community wherein Danada Muniga is a nick name which is given to him because his family was rearing cows as could be seen from the finding of the lower appellate court, which is not in dispute. Therefore, first part of his name is attributed to him because of his avocation and second part Muniga is his name. So far as Balgai is concerned, it would only indicate to which of the branches of the particular community he belongs to and that by itself is not the name of the family as could be gathered by the evidence of DW.4.
- 30 -
36. The oral evidence of the parties would clearly indicate that Thoti Akkayyamma is none other than the mother of the plaintiff - Thimmaraya and wife of Chikka Giriga. It is not in dispute that there is duplication of names in the entire village that there are many people who are called as Muniga and Bacchha or Giriga. In fact, as could be seen from this very litigation there is duplication of these names with several people on both sides as parties and witnesses. In this background, it is seen that they all belong to same community and with duplication of names, the confusion is bound to be there. Therefore, what is required to be seen is, whether the lower appellate court has taken proper care to collate the available evidence in a proper way and deciphered the relationship inter se between the parties with reference to evidence available on record?
37. If the finding of lower appellate court is looked in to, then this Court is of the considered opinion that the original plaintiff is the grand son of Danada Muniga and
- 31 -
son of Chikka Giriga @ Giriga and Thoti Akkayyamma who are none other than son and daughter-in-law of Danada Muniga. The said factual position with reference to relationship between the parties is established beyond all reasonable doubt. It is further fortified with the evidence of defendants themselves where at one place they state defendants 4 to 9 are the children of Thimmarayappa, in another place they state only defendants 4 and 5 as the sons of Thimmarayappa and in other place they would state defendant 6 and 7 are the sons of Thimmarayappa. Hence when they themselves are not clear about the relationship inter se, question of they establishing themselves as lineal descendants of Danada Muniga cannot be accepted as rightly considered by the lower appellate court. In that view of the matter, this Court is of the considered opinion that the finding rendered by the lower appellate court in the form of judgment dated 28.2.2005 that plaintiff is the grand son of Danada Muniga is just and proper.
- 32 -
38. Accordingly, this second appeal is allowed in declaring that the original plaintiff in OS.No.215/1968 (new No.104/1984), namely Thimmaraya S/o Chikka Giriga @ Giriga, who is now represented by his LRs is the absolute owner and in possession of the land bearing Sy.No.90, measuring 1 acre 26 guntas of Sathanur village, Jala Hobli, Devanahalli Taluk.
Sd/-
JUDGE nd/-