Karnataka High Court
Chidanandappa vs Irappa on 13 April, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO.488 OF 2004
Between:
1. Chidanandappa
45 years, S/o Channabasappa
R/o Holesirigere village
In Harihara
Davanagere.
2. Kalaveerappa
41 years, S/o Channabasappa
R/o Holesirigere village
In Harihara
Davanagere.
3. Channaveerappa
Dead by his lrs
3 (a) Meenakshi
W/o. Channaveerappa
Age Major
3 (b) Manu
D/o. Channaveerappa
Age Major
3 (c) Bhuvaneshwari
D/o. Channaveerappa
Age Major
2
All are r/at Holesirigere village
In Harihara, Davanagere.
4. Neelakantappa
Aged about 41 years
S/o Mahalingappa
5. Hanumanthappa
S/o Mahalingappa
Aged about 38 years
6. Irappa
S/o Mahalingappa
Aged about 30 years
7. Vijaya
S/o Mahalingappa
Aged about 20 years
Appellants 4 to 7 are
R/o Holesirigere village
In Harihara
Davanagere.
...Appellants
(By Sri.B.K.Manjunath, Advocate)
AND
1. Irappa
Dead by LRs
1 (a) M. Vonoda
D/o Late Irappa
W/o Ganeshappa
Age Major
R/at Basavalingappana Mane
Post Chikkanakoppa
3
Shikaripura Taluk
Shivamogga District
1 (b) M. Vasanthamma
D/o Late Irappa
W/o M.V. Muniyappa
Age Major
R/at Shreapuradara Mane
Near Sangameshwara Temple
Halladakere, Harihara Taluk
Davanagere District
1 (c) K. Ravi @ Ravikumar
S/o Late Irappa
Age Major
1 (d) K. Kuberappa
S/o Late Irappa
Age Major
Respondent 1 (c) & 1 (d)
R/at Holesirigere village
Harihara Taluk
Davanagere District
2. Siddappa
Dead by LRs
2 (a) Channamma
D/o Siddappa
Aged about 50 years
2 (b) Harish @ Hanumanthappa
S/o Siddappa
Aged about 30 years
2 (c) Manjappa
S/o Siddappa
Aged about 27 years
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2 (d) Ambuja
D/o Siddappa
Aged about 25 years
Respondent 2 (a) to 2 (d) are
R/at Jarikatti Village
Davanagere Taluk & District
3. Nanjappa
S/o Nagappa Kattalagere
Aged about 49 years
4. Shivappa
S/o Nagappa Kattalagere
Aged about 47 years
5. Basavarajappa
Dead by his LRs
5 (a) Smt. Nagarathna
S/o Late Basavarajappa
Aged about 50 years
Respondents 3 to 5(a) are
R/o Holesirigere village
Harihara Taluk
Davanagere District - 577 516
.....Respondents
[By Sri.M. Raghavendra Achar, Advocate for R4 (VC)]
(R1, R2 (A to D), R3 and R5 are served)
This Regular First Appeal is filed under Section 96
read with Order 43 Rule 1 CPC against the Judgment and
Decree dated 17.03.2004 passed in O.S.No.70/2022 on
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the file of the Civil Judge (Sr. Dvn.), Harihar, decreeing the
suit for declaration and permanent injunction.
This Regular First Appeal coming on for further
hearing this day, the Court delivered the following:
JUDGMENT
This captioned appeal is filed by the defendants questioning the judgment and decree dated 17.03.2004 passed in O.S.No.70/2002 (Old O.S.No.110/1999) on the file of the Civil Judge (Sr. Dvn.), Harihar.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The brief facts leading to the case are as under;
The plaintiffs have instituted a suit in O.S.No.110/1999, which is re-numbered as O.S.No.70/2002, seeking relief of declaration to declare that they are the owners and in possession of 6 the suit schedule property and consequential relief of permanent injunction is sought to restrain the present defendants from obstructing their peaceful possession and cultivation over the suit schedule property. The subject matter of the suit is an agricultural land bearing Sy. No.213/3P measuring 2 acres 2 guntas situated at Sirigere Village, Harihar Taluk.
4. The plaintiffs claim that the suit schedule property was originally owned by one Hanumanthappa s/o Kattalagere Basaiah. It is also contended that one Veerappa was the propositus of the plaintiffs family. It is further contended that the propositus had two sons by name Basappa and Basaiah. Basappa had a son by name Nanjappa and Basaiah had a son by name Hanumanthappa. The present plaintiffs claim that they belonged to the branch of Basappa. After the death of the propositus - Kattalagere Basaiah, his son Hanumanthappa succeeded to the property in 7 question and became the owner of the suit schedule property. Having inherited the suit schedule property, the name of Hanumanthappa was duly mutated in the revenue records and he was cultivating the suit schedule property personally during his life time. It is also contended that Hanumanthappa had only one son by name Gangappa and after the death of Hanumanthappa, his sole son by name Gangappa became the owner of the suit schedule property and he was in actual possession and enjoyment over the suit schedule property. The plaintiffs further claimed that the said Gangappa was unmarried and he died about 25 years ago. Therefore, the plaintiffs claim that since the present plaintiffs represent the branch of Basappa, they claim that after the death of Gangappa, the suit schedule properties would revert back to the co-parceners, who represent the branch of Basappa. It is also specifically pleaded at para No.4 of 8 the plaint that after the death of Gangappa, 4th plaintiff - Shivappa started cultivating the suit schedule property. The plaintiffs also claimed that their father Nagappa is no more and therefore, the suit schedule property would devolve upon the plaintiffs as they are class-2 heirs. On these set of pleadings, the plaintiffs asserted and claimed that they are the absolute owners of the suit schedule properties.
5. The plaintiffs further contended that the defendants are the owners of the adjoining lands and they are in no way concerned to the suit schedule property. It was further pleaded that the defendants are bent upon knocking off the suit schedule property and started asserting right over the suit schedule property in the year 1990. The plaintiffs also contended that defendant No.1 submitted an application to the Deputy Tahasildar, Malebennur to 9 change katha in his name and the same was objected and the Revenue Authorities relegated the defendants to approach the Civil Court to establish their rights. The defendants having failed to get their names mutated in the revenue records, tried to dispossess the plaintiffs on 06.07.1999 and therefore, the present suit is filed seeking relief of declaration and consequential relief of injunction.
6. The defendants on receipt of summons contested the proceedings by filing written statement and stoutly denied the entire averments made in the plaint and specifically contended that the present defendants are the descendants of the propositus Hanumanthappa. The defendants specifically contended that Hanumanthappa had two sons by name Channabasappa and Mahalingappa and also two daughters by name Gangamma and Gowramma and after the death of Hanumanthappa, the defendants 10 claimed that their respective fathers i.e., Channabasappa and Mahalingappa succeeded to the suit schedule property and therefore, they being the grand children of Hanumanthappa are absolute owners and are in actual possession of the suit schedule property. The defendants seriously disputed the relationship of plaintiffs with propositus Hanumanthappa and hence, prayed for dismissal of the suit.
7. Based on the rival contentions, the Trial Court formulated the following issues;
1. Whether the plaintiffs prove that they are the absolute owners in lawful possession of the suit schedule property?
2. Whether the plaintiffs prove the alleged interference by the defendants?
3. Whether the plaintiffs are entitled for the relief of declaration?
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4. Whether the plaintiffs are entitled for the relief of permanent injunction?
5. What decree or order?
8. The plaintiffs to substantiate their claim examined plaintiff No.1 as P.W.1 and two independent witnesses as P.Ws.2 and 3 and adduced documentary evidence vide Exs.P.1 to 23. The defendants to counter the claim made by the plaintiffs examined defendant No.1 as D.W.1 and examined two witnesses as D.Ws.2 and 3 and adduced documentary evidence vide Exs.D.1 to D.36.
9. The Trial Court having assessed the ocular and documentary evidence answered issue Nos.1 to 4 in the affirmative and thereby recorded a finding that the plaintiffs have succeeded in proving that they are the absolute owners of the suit schedule property. The Trial Court also recorded a categorical finding that the plaintiffs have succeeded in proving the 12 interference by the defendants and therefore, proceeded to grant the relief of declaration thereby declaring the plaintiffs as the absolute owners of the suit schedule property and consequently, granted permanent injunction thereby restraining the defendants from interfering with the plaintiffs possession.
10. Feeling aggrieved by the judgment and decree passed by the Trial Court, the defendants preferred an appeal before this Court in RFA No.488/2004. This Court by judgment and decree dated 12.09.2006 allowed the appeal and reversed the findings of the Trial Court and consequently, dismissed the suit filed by the plaintiffs herein. Questioning the judgment and decree passed by this Court in RFA No.488/2004, the plaintiffs preferred a Special Leave Petition before the Hon'ble Apex Court. The Hon'ble Apex Court having granted leave heard 13 the appeal on merits and allowed the civil appeal and thereby remanded the matter to this Court to decide the case afresh after hearing both the parties. After remand by the Hon'ble Apex Court, this matter is taken up for final hearing.
11. Learned counsel appearing for the defendants would vehemently argue and contend before this Court that the plaintiffs are no way concerned with the suit schedule property. Reiterating the grounds urged in the appeal memo, the learned counsel appearing for the defendants would seriously dispute the status of the plaintiffs' father as claimed in the plaint. He would contend that Nagappa is not the son of Nanjappa. To counter this claim, the learned counsel would place reliance on Ex.P.14, which is a Gift Deed executed by the widow of Nanjappa namely Hanumavva. In the said Gift Deed, the widow - Hanumavva has referred the plaintiffs father Nagappa 14 as son-in-law. This registered Gift Deed is dated 22.11.1956 and therefore, by placing reliance on this registered Gift Deed, he would vehemently argue and contend that the plaintiffs father Nagappa cannot claim to be the descendant of Nanjappa. In fact, he is a son-in-law of Nanjappa and therefore, he cannot claim to be the owner of the suit schedule property by way of inheritance through Hanumanthappa. To further strengthen his hands, he would take this Court to Ex.P.10, which is a registered Partition Deed. Placing reliance on Ex.P.10, he would contend that Hanumanthappa is survived by his legal heirs and therefore, even otherwise, the branch of Nanjappa would not succeed to the estate of Basappa's branch. He would also seriously dispute the family tree, which was furnished before the Hon'ble Apex Court. He would contend that the genealogical tree, which was furnished before the Hon'ble Apex Court, is factually 15 incorrect, incomplete and the same was produced before the Hon'ble Apex Court for the first time. He would further take this Court to the genealogical tree furnished by the defendants, which is marked as Ex.D.13. Learned counsel by placing reliance on Ex.D.14, which is a registered Gift Deed coupled with a partition deed effected between the children of Hanumanthappa vide Ex.P.10, which is produced by the plaintiffs themselves as well as Ex.D.13, which is the family tree, would contend that the relationship of the defendants with propositus Hanumanthappa would stand established. On the contrary, the recitals in the Gift Deed vide Ex.D.14 would clearly falsify the claim made by the plaintiffs. He would contend that all the relevant materials, which were placed on record, were not at all examined by the Trial Court. This clinching evidence was discarded and therefore, the judgment rendered by the Trial Court ignoring this clinching 16 evidence, has resulted in erroneous judgment and therefore, would warrant interference at the hands of this Court.
12. Per contra, the learned counsel appearing for the plaintiffs would, however, contend that the family tree, which was placed on record before the Hon'ble Apex Court is correct family tree and the same would establish that the plaintiff's father was the son of Nanjappa and this material aspect is not at all refuted by the defendants. He would seriously dispute the family tree furnished by the defendants at Ex.D.13. He would further vehemently argue and contend that the defendants cannot place reliance on the registered Gift deed executed by Nanjappa's widow Hanumavva in favour of plaintiffs father Nagappa. To counter the allegations made by the defendants, he would contend that the Gift Deed at Ex.D.14 is in respect of some other property and the 17 present suit property was not subject matter under Ex.D.14 and therefore, no reliance could have been placed on Ex.D.14. He would further contend that the defendants have not asserted right and title over the suit schedule property and the fact that Gangappa died issueless. The present plaintiffs, who represent the branch of Nanjappa are entitled to the suit schedule properties. In absence of legal heirs, the property would invariably devolve upon the class-2 heirs and therefore, the Trial Court has rightly appreciated the ocular and documentary evidence and decreed the suit thereby declaring the plaintiffs as the absolute owners of the suit schedule property and consequently, in absence of any right and title of defendants, the learned Judge was justified in recording a finding that there is an interference and threat of dispossession and therefore, the Trial Court 18 was justified in granting consequential relief of permanent injunction.
13. Heard learned counsel appearing for the defendants and learned counsel appearing for the plaintiffs.
14. The following points would arise for consideration of this Court that;
1. Whether the Trial Court was justified in declaring that the plaintiffs are the absolute owners of the suit schedule properties and consequently was justified in granting consequential relief of injunction restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment over the suit schedule properties?
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2. Whether the findings of the Trial Court that the plaintiffs father Nagappa is the son of Nanjappa and therefore, his father being a class-2 heir will inherit the suit schedule properties on account of Gangappa having died issue less is perverse?
3. Whether the defendants have made out a case to admit the additional evidence on record?
15. Findings on Point Nos.1 and 2:-
In support of their claims, the plaintiffs and defendants have led in ocular evidence and have also produced documentary evidence. This is a peculiar case, where both the parties have not lead in direct evidence to establish their relationship with propositus Hanumanthappa. But, however, the registered gift 20 deed at Ex.D.14 coupled with the registered partition deed at Ex.P.10 would clinch the issue and would be relevant piece of evidence, which would enable the Court to effectively adjudicate the controversy between the parties. Before I advert to the evidence on record, it would be useful for this Court to cull out both the family trees relied on by the plaintiffs as well as the defendants. The family tree furnished by the plaintiffs for the first time before the Hon'ble Apex Court is as follows;
Veerappa (Propositus) | _______________________________________________________ | | Basappa Basayya | | Nanajappa Hanumanthappa | | ______|___________ Gangappa | | (died unmarried and issuless) Nagappa Kotravva 21
16. To counter this family tree, the defendants have, in fact, furnished the genealogical tree of their family as per Ex.D.13 and the same is as follows;
Basappa | _______________________________________________________ | | Basappa (died) Nanjappa (died) | | ________________________________________ | | | | | Basamma (1st wife) Hanumanthappa Basappa Bheemappa Basamma | | | | Eeramma (daughter) Mahadevamma (wife) Hanumavva(wife) Basamma (died) | | | | Hanumavva (2nd wife) | 1. Doddaveerappa 1. Siddamma | | 2. Gowramma 2. Sannaveerappa 1. Eerappa | 3. Chandrashekarappa 3. Rudramma 2. Hanumaiah | 4. Shivarudrappa 4. Karibasamma 3. Sanappa | 5. Parvathamma 4. Nanjappa | 6. Maheshwarappa 5. Shivappa | 7. Basavarajappa 6. Basavarajappa | _______|_________________________________ | | | | Channabasappa Gangamma Mahalingappa Gowramma | Deveeramma (wife) |
1. Revakka
2. Chennappa
3. Rudrappa
4. Chidanandappa
5. Channaveerappa
6. Kalaveerappa
17. Now, these family trees are to be tested in the background of the registered Gift Deed at Ex.D.14, which is executed by Nanjappa's widow 22 namely Hanumavva at an undisputed point of time. Ex.D.14 is the Gift Deed executed by Hanumavva on 22.11.1956. The recitals in this registered Gift Deed would clearly clinch the entire controversy between the parties. Hanumavva, who claims to be the widow of Nanjappa, has clearly stated that the plaintiffs father Nagappa was married to one Kotravva, who is none other than Nanjappa's and Hanumavva's daughter. The recitals in the registered Gift Deed would be very useful for this Court to decide the lis between the parties. The relevant portion is culled out as follows;
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18. If these recitals in the registered Gift Deed vide Ex.D.14 are meticulously examined, this Court would find that Hanumavva is, in fact, second wife of Nanjappa and in the Gift Deed, she has referred that Nanjappa had a first wife by name Yeeravva and she has also referred that Kotravva is her daughter, who was given in marriage to the plaintiff's father 25 Nagappa. After the death of Nanjappa, it is Hanumavva, who arranged second marriage of plaintiff's father Nagappa, who continued to live with Hanumavva. These recitals in the Gift Deed would contradict the family tree, which is furnished by the plaintiffs for the first time before the Hon'ble Apex Court. It is quite unfortunate that plaintiffs have virtually furnished false genealogical tree so as to portray that the plaintiff's father Nagappa is the brother of Kotravva. This genealogical tree is totally in contradiction with what is stated in the registered Gift Deed executed by Hanumavva w/o Nanjappa as per Ex.D.14.
19. The plaintiffs assertions and claim that the propositus Hanumanthappa had only one son by name Gangappa and after his death, the plaintiffs, who represent Nanjappa's branch, would succeed to the suit schedule property as class-2 heirs is also 26 misconceived and factually incorrect. This can be gathered from the very registered Partition deed, which is produced by the plaintiffs themselves at Ex.P.10. If Ex.P.10 is examined, the genealogical tree furnished by the defendants as per Ex.D.13 appears to be correct genealogical tree. The family tree furnished by the defendants at Ex.D.13 stands probabilized, if the recitals in the partition deed is examined. As per Ex.P.10, what emerges is that Hanumanthappa had two sons by name Channabasappa and Mahalingappa as well as he had two daughters by name Gangavva and Gowramma. In the partition deed, it is clearly referred that Hanumanthappa had two sons and this document is produced by the plaintiffs themselves. Therefore, the plaintiffs cannot approbate and reprobate and retract from this document, which is produced by themselves. Therefore, if Ex.P.10 is conjointly read with Ex.D.13, what emerges is that the 27 propositus Basappa had four children namely Hanumanthappa, Basappa, Bheemappa and Basamma. The present Hanumanthappa, in turn, had two sons by name Channabasappa and Mahalingappa. The present defendants are the children of Channabasappa and Mahalingappa. This is also forthcoming from the family tree furnished at Ex.D.13. If the branch of Basappa is effectively represented and the said propositous is survived by the class-1 heir, then the claim of the plaintiffs that their father Nagappa being a class-2 heir would succeed to the branch of Basappa cannot be acceded to. If Hanumanthappa was survived by his two sons namely Channabasappa and Mahalingappa and after the death of Channabasappa and Mahalingappa, the present defendants being the sons of Channabasappa and Mahalingappa inherited the suit schedule property, the plaintiffs father, who was son-in-law of 28 Nanjappa and who is a stranger to the defendants family, would not succeed by way of inheritance. All these significant details are not at all taken into consideration by the Trial Court. Therefore, for the foregoing discussions made above, the points formulated by this Court are liable to be answered in the Negative.
20. Findings on Point No.3:-.
Since this Court, while dealing with point Nos.1 and 2, has come to the conclusion that the clinching rebuttal evidence on record would establish that the defendants are the legal heirs of Hanumanthappa, I am of the view that these additional documents though may be relevant are not required at this stage. If these documents are to be taken on record, then the parties are to be again relegated to lead further evidence either under Order 41 Rule 25 of CPC or the matter has to be remitted back to the defendants to 29 lead fresh evidence in terms of the additional evidence. All these exercise would be futile as the case is of the year 1999. By relegating the parties to lead further evidence, this Court would virtually set back clock. Both parties have to again undergo long ordeal, which is not unwarranted in the present case on hand. In that view of the matter, I am of the view that the additional evidence would not be necessary in view of the findings already recorded by this Court on point Nos.1 and 2. Accordingly, point No.3 is answered in the Negative.
21. In view of the discussions made by this Court while answering point Nos.1 to 3, this Court has arrived at following conclusions.
1. The judgment and decree of the Trial Court in decreeing the suit of the plaintiffs suffers from serious infirmities and findings arrived therein are palpably 30 erroneous and contrary to the clinching evidence lead in by the defendants.
2. The findings of the Trial Court that the plaintiffs being the class-2 heirs have succeeded the suit schedule property is perverse and contrary to Ex.D.14, Ex.P.10 and Ex.D.13.
3. The findings of the Trial Court that the plaintiffs father Nagappa being the son of Nanjappa would succeed to the suit schedule property as class-2 heirs is also perverse, palpably erroneous and contrary to Ex.D.13, which clearly establishes that Hanumanthappa's branch is not extinguished, which is survived by class-1 heirs, which is evident from Ex.D.13.
4. The findings of the Trial Court that the plaintiffs being class-2 heirs are in lawful possession and enjoyment over the suit schedule property is perverse and 31 palpably erroneous and in absence of clinching evidence.
5. The findings recorded by the Trial Court on issue Nos.1 to 4 is in absence of clinching evidence to indicate that the plaintiffs father is the son of Nanjappa and is also contrary to the clinching and rebuttal evidence lead in by the defendants vide Ex.D.14 (Gift Deed) coupled with Ex.P.10, which is a partition deed produced by the plaintiffs themselves.
22. Therefore, on independent examination of pleadings, ocular and documentary evidence, this Court is of the view that the judgment and decree of the Trial Court in decreeing the suit is not at all sustainable and therefore, the findings of the Trial Court on all the issues are liable to be reversed. Consequently, the appeal is liable to be allowed. Accordingly, I pass the following;
32
ORDER The appeal is allowed.
The judgment and decree dated
17.03.2004 passed in O.S.No.70/2002
(Old O.S.No.110/1999) on the file of the Civil Judge (Sr. Dvn.), Harihar is set-aside.
The suit is dismissed.
Parties to bear their own cost.
Sd/-
JUDGE NBM