Karnataka High Court
Sri N Kotrappa vs Smt Kotramma on 7 February, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA No.2461/2007 (PAR)
BETWEEN:
SRI N KOTRAPPA
S/O HANUMANTHAPPA
AGED ABOUT 66 YEARS,
AGRICULTURIST, R/AT HANASI VILLAGE
AND POST, KOGALI HOBLI,
HAGARIBOMMANAHALLI TQ.,
BELLARY DIST.-583212
DEAD BY HIS L.RS.
1. IRAMMA W/O N.KOTRAPPA,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O HANASI, TQ.: HAGARIBOMMANAHALLI,
DIST: BELLARY.
2. MANJAPPA S/O N.KOTRAPPA
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O HANASI, TQ.: HAGARIBOMMANAHALLI,
DIST: BELLARY.
3. HANUMANT S/O N.KOTRAPPA
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O HANASI, TQ.: HAGARIBOMMANAHALLI,
DIST: BELLARY.
4. RAJAPPA S/O N.KOTRAPPA
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O HANASI, TQ.: HAGARIBOMMANAHALLI,
DIST: BELLARY.
2
5. GURUSIDDAMMA W/O RAJAPPA
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O REVERSE COLONY, NEAR A.I.R.HOSPET,
DIST: BELLARY.
6. NAGAMMA W/O HANAMANTAPPA PUJARI MASTAPPA
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O KONDANAYAKANAHALLI,
TQ.: HOSPET, DIST: BELLARY.
7. KALAMMA W/O HANAMANTAPPA RITTI NAGAPPA
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O TIPPAPUR,
TQ.: HUVINA HADAGALI, DIST: BELLARY.
... APPELLANTS
(By Sri. B.C.PATTAR, ADV. FOR LRS OF DECEACED.)
AND
1. SMT KOTRAMMA
S/O SANNA MUKUNDAPPA
AGE: 50 YEARS, AGRICULTURIST
2. SRI HANUMANTHAPPA
S/O SANNA MUKUNDAPPA
AGE: 50 YEARS, AGRICULTURIST
3. CHANDRAPPA N
S/O SANNA MUKUNDAPPA
AGE: 48 YEARS, AGRICULTURIST
4. ANJINAPPA
S/O SANNA MUKUNDAPPA
AGE: 46 YEARS, AGRICULTURIST
5. SRI GURUSIDDAPPA
S/O SANNA MUKUNDAPPA
3
AGE: 45 YEARS, AGRICULTURIST
6. SRI KOTRESHI
S/O SANNA MUKUNDAPPA
AGE: 44 YEARS, AGRICULTURIST
7. SRI MARTHANDA
S/O SANNA MUKUNDAPPA
AGE: 25 YEARS, AGRICULTURIST
8. SRI SRINIVASA
S/O SANNA MUKUNDAPPA
AGE: 23 YEARS, AGRICULTURIST
ALL ARE R/AT HANSI VILLAGE,
H.B.HALLI TQ.583212.
... RESPONDENTS
(By Sri. G I GACHCHINAMATH, ADV. FOR R1, R5-R8,
R2-SERVED, R3-R4-ABATED.)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 9.4.07 PASSED IN R.A.NO 103/06
ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN),
HOSPET,DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DTD 30.8.06 PASSED IN OS 76/04
ON THE FILE OF THE CIVIL JUDGE (JR.DN), & JMFC.,
H.B.HALLI, DISMISSING THE SUIT SEEKING RELIEF OF
DECLARATION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Legal representatives of deceased plaintiff of an original suit bearing O.S.No.76/2004 have filed this appeal under Section 100 of CPC, as they are aggrieved by the judgment and decree dated 30.08.2006 passed in O.S.No.76/2004 and affirmation of the same in regular appeal bearing R.A.No.103/2006. Respondent Nos.1 to 6 are the legal representatives of deceased Sanna Mukundappa, who were defendants 1 to 6 in the trial Court. Respondent Nos.7 and 8 were the defendant Nos.7 and 8 in the trial Court. Parties will be referred to as plaintiffs and defendants 1 to 8 as per their ranking given in the trial Court.
2. One person by name Hanumanthappa was the propositus. He had two wives by name Hanumava and Nagamma. Dodda Mukundappa and Sanna Mukundappa were the two sons of Hanumanthappa through his first wife Hanumavva. Dodda Kotrappa and Sanna Kotrappa were the two sons of Hanumanthappa through his second wife 5 Nagamma. Dodda Mukundappa died issueless. Sanna Mukundappa is also no more and he has survived by his wife Kotramma the defendant No.1 and her children Hanumanthappa, Chandrappa, Anjeenappa, Gurusiddappa and Kotreshi, defendant Nos.2 to 6 in the trial Court. Second son Chandrappa is also no more. He is survived by two sons namely, Marthanda and Srinivasa i.e., defendant Nos.7 and 8 respectively.
3. Dodda Kotrappa son of Nagamma also died issueless. Sanna Kotrappa, the plaintiff died during the pendency of this appeal and hence his legal representatives have been brought on record. According to the plaintiff, as put forth in the trial Court that, 'B' schedule properties appended to the plaint were the ancestral properties of the plaintiffs and defendants 1 to 6. The suit schedule properties, according to the plaintiff, originally belonged to one Hanumanthappa, who had two wives by name Hanumavva and Nagamma. The said Hanumavva had two 6 sons by name, Dodda Mukundappa and Sanna Mukundappa and out of them, Dodda Mukumdappa died issueless. Nagamma is also no more and she has survived by two sons by name, Dodda Kotrappa and Sanna Kotrappa and out of them, Dodda Kotrappa died issueless. During the lifetime of his father Hanumanthappa, plaintiffs and defendants were stated to be the members of the Hindu Joint family and no partition has ever taken place in the family. According to the plaintiff, due to some differences between the joint family, defendants 1 to 6 and the plaintiffs demanded half share in the suit schedule property and the defendants refused to give half share. As a result of the same, suit had to be filed claiming half share.
4. Defendant No.3 alone chose to file written statement denying all the averments. The averment that the plaintiff and defendants constitute a joint family and schedule 'B' property are the joint family properties and that they have been jointly and severally possessed by all of them have been 7 specifically denied. It is stated that he is the son of one Sanna Mukundappa and since from his childhood, he was living with Dodda Mukundappa. Dodda Mukundappa died issueless and that time plaintiff was already living separately having his own share in the properties of Hanumanthappa. After taking share, the plaintiff started living separately in his house, cultivating the lands allotted to him and ever since the date of partition, plaintiff was living separately.
5. Plaintiff is stated to have mortgaged items 2 to 4 to one Dyamanagouda and he did not clear the mortgaged debt and therefore, Dyamanagouda filed a suit before the Court of Munsiff at Hospet in O.S.No.478/1954 for recovery of the amount on the basis of the mortgage. The suit was decreed and the decree was brought into execution in E.P.No.451/1956 against the plaintiff and that the suit items 2 to 4 were brought for auction in the Court sale in the Court auctioin Dyamanagouda purchased the properties of the plaintiff in the Court auction. The decree holder 8 Dyamanagouda later on sold the said properties to one Tatappa alias Chennabasappa and that Tatappa in turn sold the properties to Dodda Mukundappa in the year 1967 through a registered sale deed and therefore, they were self acquired properties of Dodda Mukundappa. Then the Dodda Mukundappa stated is to have executed a sale deed in favour of defendants 7 and 8 making defendant No.3 as guardian of defendants 7 and 8. Therefore, defendants 3, 7 and 8 stated to be the absolute owners of items1 to 4 and 8 of 'B' schedule properties.
6. Item Nos. 5 and 6 of 'B' schedule properties were purchased by the father of defendant No.3 from one Javali Gurubasappa in the year 1963 through a registered sale deed and ever since the date of purchase, said Sanna Mukundappa had been in actual enjoyment of the same. After his death, revenue entries have been mutated in the name of his wife Kotramma. Item Nos. 5 and 6 are stated to be the self acquired properties of defendant No.1. Item No.7 is a 9 government land and defendant No.3 and his father were cultivating the said lands and the government has regularized the unauthorized cultivation and has issued Patta in favour of defendant No.3 and in respect of item No.7, he is in actual and lawful possession.
7. Insofar as item No.8 of 'B' schedule properties, it was purchased by Sanna Mukundappa from one Krishnabhat in the year 1978 through a registered sale deed and ever since the date of purchase, the said Sanna Mukundappa was in possession and thereby defendant Nos.3, 7 and 8 have acquired rights over item No.8 through a registered Will executed by Dodda Mukindappa. Hence, item Nos.1, 3, 7 and 8 are in the absolute possession of the defendant Nos.3, 7 and 8 and plaintiffs have no manner of right, title over 'B' schedule properties. With these pleadings, they had requested the Court to dismiss the suit.
8. On the basis of the above pleadings, following issues came to be framed.
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i) Whether the plaintiff proves that plaint 'B' schedule properties are ancestral properties of plaintiff and defendants?
ii) Whether the plaintiff proves that himself and defendants are joint owners and joint possession of 'B' schedule properties?
iii) Whether the plaintiff proves that 'B' schedule properties are originally belongs to the Nevar Hanumanthappa?
iv) Whether the defendant proves that the family partition has taken place long back?
v) Whether the defendants prove that properties of plaintiff sold in court auction as per decree in O.S.478/54?
vi) Whether the defendants prove that Dodda
Mukundappa executed a Will in favour of
defendant No.7 and 8?
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vii) Whether the defendants prove that item No.1, 3, 5
to 8 of 'B' schedule properties are self acquired properties of defendants?
viii) Whether plaintiff is entitled ½ share in the suit schedule 'B' properties?
ix) What order or decree?
9. Kotrappa the plaintiff is examined as P.W.1 and two witnesses have been examined on his behalf. Defendant No.3 has been examined as D.W.1 and 5 witnesses have been examined on his behalf. 14 documents have been got marked on behalf of the plaintiff and 27 documents have been got marked on behalf of the defendants. After perusing the evidence on record and on hearing the arguments from the counsel appearing for the parties, the learned Civil Judge (Jr.Dn.) H.B.Halli has answered issue Nos.1 to 3 and 8 in the negative and remaining issues in the affirmative.
Consequently, the suit came to be dismissed on 30.08.2006. 12
10. Being aggrieved by the said judgment and decree passed in O.S.No.76/2004, an appeal came to be filed before the Court Additional Civil Judge (Sr.Dn.), Hospet in R.A.No.103/2006. After hearing the arguments from the learned counsel appearing for the parties and perusing the records, the learned Senior Civil Judge has dismissed the appeal and the judgment and decree passed by the trial Court is confirmed. It is these concurrent judgments which are called in question on various grounds as set out in the appeal memo filed under Section 100 of CPC.
11. The learned counsel for the appellant has submitted his arguments in regard to the admission of the case.
Reasons
12. Admittedly, propositus Hanumanthappa and his two wives Hanamavva and Nagamma are no more. First wife Hanamavva had two sons by name Dodda Mukundappa and Sanna Mukundappa and Dodda Munkundappa died 13 issueless. Sanna Mukundappa is also no more and his wife Kotramma is defendant No.1. Defendant Nos.2 to 6 are the children of Kotramma wife of Sanna Mukundappa. Defendant Nos.7 and 8 are the sons of Chandrappa who is no more and he has survived by two sons who are defendant Nos.7 and 8. Nagamma, the second wife of Hanumanthappa is no more and she had two sons by name, Dodda Kotrappa and Sanna Kotrappa. Dodda Kotrappa died without any marriage and Sanna Kotrappa was the plaintiff who filed the suit. He is no more and his legal representatives have been brought on record in the second appellate Court claiming half share in all the schedule properties being the son of Hanumanthappa, Sanna Kotrappa chose to file this suit.
13. Admittedly, defendant No.3 alone had filed detailed written statement and the said written statement has been adopted by defendant Nos.1, 2 and 4 to 8 by filing a memo. Therefore, the written statement filed by defendant No.3 is also the written statement filed by defendant Nos.1, 2 14 and 4 to 8. On the basis of the pleadings, the burden had been cast upon defendant No.3 to prove that family partition had been taken place long back and that some items of the suit schedule properties were sold in the Court auction vide O.S.No.478/54 and that Dodda Mukundappa had executed a Will in favour defendant Nos.7 and 8. Issues 4 to 7 have been held in the affirmative stating that Will is proved and some of the properties sold in Court auction and item Nos.1, 3 and 5 to 8 of 'B' schedule properties are self acquired properties of these defendants.
14. Ex.D1 is the certified copy of the sale certificate issued under Order 21 Rule 94 of CPC by the then Court of Munsiff at Hospet in E.P.No.451/1956 arising out of original suit bearing O.S.No.478/1954. As could be seen from Ex.D1, one Mr. Dyamanagouda had filed a suit against Sanna Kotrappa based on a mortgage deed for recovery of money. The said suit came to be decreed. Execution was filed in E.P.No.451/1956 for recovery of the same and the schedule 15 properties bearing Nos. 182B, 182c and 183A measuring 1-40 acres, 1-62 cents and 1-17 cents respectively were the subject matter of the execution and a sale certificate came to be issued under Order 21 Rule 94 of CPC in favour of plaintiff/decree holder Dyamanagouda. This document is not denied. In the said sale certificate, 1 acre 52 cents is also the subject matter in item No.4 of Sy.No.275/B2. This would go to show that the plaintiff was the owner of the schedule properties and these four items had been mortgaged by the plaintiff in his individual capacity for availing loan; but, he could not repay the loan. Thus, Dyamanagouda had become the absolute owner of four items of the properties, which are also found in schedule appended to the present suit.
15. Ex.D4 is the original sale deed dated 06.03.1963 executed by one Gurubasappa in favour of Sanna Mukundappa, the husband of defendant No.1 and father of defendant Nos.2 to 6 and grand father of defendant Nos.7 and 8 relating to the lands measuring 3 acres 51 cents in 16 Sy.No.119A, 41 cents in Sy.No.120C 3-59 cents in Sy.No.121 and 3-42 cents and 14 cents in Sy.No.122B and 129C. These are also the properties mentioned in the schedule appended to the plaint. If the said Sanna Mukundappa was in joint family along with Kotrappa, the name of Kotrappa would have also find a place. Admittedly, Sanna Kotrappa was younger to Sanna Mukundappa the husband of defendant No.1. If really the some of the schedule properties, which find a place in Ex.D1 the certified copy of the sale certificate issued by the Civil Court, mortgage deed would have been executed by his elder brother but not by Sanna Mukundappa. The very fact that junior member had these properties would goes to show that the partition had taken place long back.
16. Dodda Mukundappa the elder brother of Sanna Mukundappa died without any issues. Defendants have stated that Sanna Mukundappa was living with Dodda Mukundappa. Ex.D5 is the original sale deed dated 25.11.1978 executed by one Krishnabhat in favour of Dodda 17 Mukundappa pertaining to 3 acres in Sy.No.608 of Hansi village. These are also the documents, which show that Sanna Kotrappa was living separately and his own properties as share from joint family properties.
17. Dodda Mukundappa chose to bequeath in all 13.08 acres of land in favour of defendant Nos.7 and 8 namely, Marthanda and Srinivasa through a registered Will dated 04.02.1987. Admittedly, they were minors at that point of time and their father Chandrappa was the guardian on their behalf. The property so bequeathed were lands in Sy.No.182B, 182C, 182H, 449, 571and 608.
Mr.K.Basavanagouda the attestor to Ex.D8 the Will is examined as D.W.3, in support of the proof of the execution of the Will. This Will is not seriously disputed.
18. Apart from this, voluminous evidence has been placed on record in the form of electoral roles, tax paid receipts and RTC's marked as Exs.D9 to D19. In the revenue records, the name of the plaintiffs are not at all found. 18 Ex.D22 is the original sale deed executed by one Kotrappa in favour of Veerappa. This original sale deed is in respect of a vacant residential site situated in Hansi village. If deceased plaintiff Kotrappa was not in possession of the property in his individual capacity, this could not have been come into being and this has been got marked. Similarly, Ex.D23 is the original sale deed executed in favour of Sanna Mukundappa of Hansi village by Veerappa.
19. Defendant No.3- N.Chandrappa has been conferred with the occupancy right to an extent of 1-71 cents in Sy.No.144A and Ex.D24 is the certified copy of occupancy right issued in Form No.2. This would also indicate that the said defendant No.3 had filed this application in his individual capacity. His name is found in the revenue records. In fact P.W.1 has specifically admitted that his father had 9 acres of land and out of the same, 3 acres were the wet lands. He has denied that the suit filed against him and decree being obtained in the year 1954. In his further 19 cross-examination, he has admitted that one Dyamanagouda had filed a suit against him in Hospet Court in regard to the debt availed by him and suit properties were brought into Court auction. He has admitted that Dyamanagouda purchased the properties in the Court auction and Dyamanagouda sold the same to one Tatappa. In regard to the question put to him that Tatappa sold the same to Dodda Mukundappa, he has given in aversive answer. This would go to show that there was already a partition between them and they had acted on their own.
20. P.W.2 is Kotrappa son of Gurubasappa resident of Hansi village. He is a close relative of the plaintiff and the defendants. He has admitted in his cross-examination that Dyamanagouda purchased the properties at a Court auction and he came to know from somebody. He has further admitted that, names of the plaintiffs and defendants are shown separately in the electoral roles. He has further 20 admitted that for more than 30 years prior to his evidence, plaintiffs and defendants have been living separately.
21. Taking into consideration that the trial Court has given a positive finding on the execution of the Will by Dodda Mukundappa in favour of defendant Nos.7 and 8 represented by their father Chandrappa and the Court auction of some of the schedule properties in a suit filed by Basanagouda against the deceased plaintiff Sanna Kotrappa and the sale certificate thereunder, defendants have been able to effectively discharge the burden cast upon them by placing sufficient oral and documentary evidence. On the other hand, plaintiffs have failed to prove that these properties were joint family properties and that he has half share. The evidence has been tested on the touchstone of intrinsic probabilities and therefore, the trial Court has given factual findings on proper appreciation of the evidence on record.
22. The first appellate Court has also reassessed the entire evidence in right perspective. If the first appellate 21 Court were to uphold the judgment of the trial Court, it need not restate the facts and it is sufficient if it concurs with the finding of the trial Court by giving cogent reasons. The judgment of the first appellate Court cannot be considered as either perverse or capricious. Both the Courts have adopted right approach to the real state of affairs. Suffice to state that overwhelming evidence is placed on record to substantiate the defence taken up by defendant No.3, which is adopted by other defendants. Hence, there are no merits in the appeal to admit the case. The substantial questions of law framed in the appeal memo are not the substantial question of law within the purview of Section 100 of CPC. Hence, the second appeal is liable to be dismissed by confirming the judgments of both the Courts below.
ORDER Appeal filed under Section 100 of CPC is dismissed. No costs.
SD/-
JUDGE.
MBS/-