Karnataka High Court
Smt. Boramma vs Sri. Chittaiah on 2 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:4616
MFA No. 1876 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 1876 OF 2023 (CPC)
BETWEEN:
1. SMT. BORAMMA ,
W/O LATE CHITTAIAH,
AGED ABOUT 65 YEARS,
2. SRI ERAKARIYAPPA
S/O LATE DODACHITTAIAH,
AGED ABOUT 60 YEARS,
3. SRI KRISHNAPPA
S/O LATE KARIYAPPA,
AGED ABOUT 70 YEARS,
APPELLANTS 1 TO 3 ARE
R/O G. NAGENAHALLI,
GOLLARAHATTI, KASABA HOBLI,
Digitally signed
by SHARANYA T KORATAGERE TALUK,
Location: HIGH TUMAKURU DISTRICT-572129.
COURT OF ...APPELLANTS
KARNATAKA
(BY SRI. M.B. CHANDRACHOODA, ADVOCATE)
AND:
1. SRI. CHITTAIAH,
S/O GULI CHITTAIAH,
AGED ABOUT 80 YEARS,
2. SMT CHIKKAMMA
W/O LATE KRISHNAPPA,
AGED ABOUT 62 YEARS
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NC: 2024:KHC:4616
MFA No. 1876 of 2023
3. SMT. AKKAMMA
W/O DODDI CHITTAIAH,
AGED ABOUT 72 YEARS,
4. SRI RAVISH
W/O LATE AJJEGOWDA @ AJJAIAH
AGED ABOUT 52 YEARS,
RESPONDENTS 1 TO 4 ARE
R/O G. NAGENAHALLI,
GOLLARAHATTI, KASABA HOBLI,
KORATAGERE TALUK,
TUMAKURU DISTRICT-572129.
...RESPONDENTS
(BY SRI. K.N.NITISH, ADVOCATE FOR R1 TO R4)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SEC.151 OF
CPC, AGAINST THE ORDER DT.16.12.2022 PASSED IN
O.S.NO.192/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC (ITENERATE) COURT, KORATAGERE, ALLOWING
THE APPLICATION FILED U/O.39 RULE 1 AND 2 R/W OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant and learned counsel appearing for the respondent.
2. This appeal is filed challenging the order passed by the Trial Court in allowing the I.A. filed under Order 39 Rule 1 and 2 of Code of Civil Procedure, 1908 wherein -3- NC: 2024:KHC:4616 MFA No. 1876 of 2023 appellants are restrained by way of temporary injunction restraining the defendants interfering with plaintiffs peaceful possession and enjoyment of the suit schedule property, till the disposal of the suit.
3. The factual matrix of the case of plaintiffs is that in O.S.No.192/2020 before the trial court when the suit is filed for the relief of declaration of title and permanent injunction contended that one Gooli Chittaiah, Ajjaiah, Dodda Chittaiah and Kariyappa are brothers and they are sons of one late Gadige Chittaiah. The plaintiff No.1 is son of Gooli Chittaiah, plaintiff No.3 is wife of Dodda Chitaiah and plaintiff No.4 is son of Ajjaiah. The land measuring 8 acres 6 guntas in Sy.No.84/2 of G.Nagenahalli Village originally belonged on one Thammanna, Son of Yeliyappa. The father of plaintiff No.1, father-in-law of plaintiff No.2 viz., Gooli Chittaiah and husband of plaintiff No.3 viz., Dodda Chittaiah and one Kariyappa purchased the said property under the registered sale deed dated 15.12.1959 from the said -4- NC: 2024:KHC:4616 MFA No. 1876 of 2023 Thammanna. Out of the said property, they sold land measuring 1 acre 20 guntas to one Dodda Chittaiah who is the father of defendant No.2 and defendant No.3 under the registered sale deed dated 22.11.1968. The remaining property i was in possession of Gooli Chittaiah, Ajjaiah, Dodda Chittaiah and Kariyappa. Out of it, Kariyappa sold share of his property to Ajjaiah under the registered sale deed dated 06.12.1966. Since then, Gooli Chittaiah, Ajjaiah & Dodda Chittaiah were in joint possession and enjoyment of suit properties as absolute owners. The revenue records stands in their names.
4. After the death of Gooli Chittaiah, Ajjaiah & Dodda Chittaiah, plaintiffs have been in peaceful possession and enjoyment of the suit property as its absolute owners. The defendants are nowhere concerned with the family of plaintiffs and they are purchasers of land measuring 1 acre 20 guntas only in suit survey number. Except the purchase of land to an extent of 1 acre 20 guntas, the defendants have no manner of right, title -5- NC: 2024:KHC:4616 MFA No. 1876 of 2023 much less, possession over the suit property. It is also sworn to an affidavit by plaintiff No.2 in support of the application that earlier Gooli Chittaiah, Ajjaiah, dodda Chittaiah and Kariyappa have executed a registered mortgage deed dated 13.02.1960 in favour of one Bharmoji Rao in Sy.No.No.84/2 to an extent of 8 acres 6 guntas. Therefore, the plaintiff No.1, LRs of Krishnappa, plaintiff No.4 & defendants had filed suit against the legal heirs of Bharmoji Rao for the relief of cancellation of mortgage deed, declaration of title and permanent injunction in O.S.No.197/2017 on the file of the Hon'ble Civil Judge and JMFC, Koratagere. The said suit was ended in compromise on 22.04.2018 and in the compromise, the defendants in that suit admitted that the plaintiffs are the absolute owners of land to an extent of 8 acres 6 guntas in Sy.No.No.84/2 and got cancelled the mortgage deed. Therefore, RTC was made out in favour of plaintiff No.1 late Krishnappa and his heirs and the defendants jointly. It is contended that the defendants even though they purchased the land measuring 1 acre 20 -6- NC: 2024:KHC:4616 MFA No. 1876 of 2023 guntas only in Sy.No.No.84/2 are claiming equal rights in the suit survey number.
5. In pursuance of the suit summons, the defendants have appeared and filed their written statement contending that one late Gadige Chittaiah and 4 sons and the plaintiff are their descendants and they have denied rest of the plaint averments. It is their case that property belongs to one Kariyappa and Yalayappa who are the own brothers. The land measuring 9 acres 28 guntas in Old Sy.No.84, New Sy.No.84/2 originally belonged to the said Kariyappa and he was in possession and enjoyment of the said land till his death. After his death, his only daughter Chittamma succeeded the said land and she was in possession and enjoyment of the same as its absolute owner till her death. During her lifetime, she sold the land to an extent of 1 acre 22 guntas out of 9 acres 28 guntas to one Sanna Kariyappa and she retained remaining land measuring 8 acres 6 guntas. The said Chittamma had no issues, so she has left the said land to -7- NC: 2024:KHC:4616 MFA No. 1876 of 2023 an extent of 8 acres 6 guntas in Sy.No.No.84/2 in favour of one Thammanna, who is son of her own uncle viz., Yaliyappa and she told the said Yaliyappa that the said property has to be divided among his brothers. Thereafter, the said Thammanna and sons of his elder brother - Gadige Chittaiah i.e., Ajjaiah, Dodda Chittaiah and Kariyappa got partitioned the said land to an extent of 8 acres 6 guntas and in the partition land to an extent of 4 acres 3 guntas was fallen to the share of Thammanna and 4 acres 3 guntas was fallen to the share of sons of Gadige Chittaiah viz., Ajjaiah, Dodda Chittaiah and Kariyappa. The defendants have denied the claim made by the plaintiff but admitted that there was a registered mortgage deed dated 13.02.1960 in favour of one B.S.Bharmoji Rao in respect of land to an extent of 8 acres 6 guntas in Sy.No.84/2. It is averred that there was a compromise in O.S.No.1972017 and there was a compromise between the plaintiffs and defendants. Since then, they have been in joint possession and enjoyment of the suit land. The said Thammanna had never sold the suit property in favour of -8- NC: 2024:KHC:4616 MFA No. 1876 of 2023 the plaintiffs. The alleged sale deed dated 15.02.1959 is concocted, created and manipulated one. Hence, they are not entitled for any relief.
6. The trial court having considered the pleadings of the plaintiffs as well as the defendants, formulated the following points:
(i) Whether the plaintiffs have made out prima facie case?
(ii) Whether the balance of convenience lies in favour of the plaintiffs?
7. The trial court having perused the material on record accepted the case of the plaintiffs and arrived to the conclusion that property was acquired vide sale deed dated 15.12.1959 to the extent of 8 acres 6 guntas and out of that, 1 acre 20 guntas was sold in favour of the defendants herein and they have retained 8 acres 6 guntas and for that they have claimed declaration and also the permanent injunction. Being aggrieved by the order passed by the trial court, the present appeal is filed. -9-
NC: 2024:KHC:4616 MFA No. 1876 of 2023
8. Learned counsel appearing for the appellant would vehemently contend that the Trial Court failed to take note of the fact that there was a compromise between the plaintiffs and defendants in the earlier suit in O.S.No.197/2017 and erroneously comes to the conclusion that recitals of the compromise decree reveals that defendants i.e., the legal representatives of Bharmoji Rao admitted that ancestors of plaintiffs had mortgaged the suit property in favour of father of defendants under the mortgage deed dated 13.02.1960. Further, both the plaintiffs and defendants agreed for cancellation of the said mortgage deed dated 13.02.1960. Further, the defendants agreed that the plaintiffs are absolute owners of the suit schedule property and that the defendants are not having any right in the suit property and the very approach of the Trial Court in granting the relief of temporary injunction in favour of the defendants is erroneous and it requires interference. The learned counsel also brought to the notice of this court that earlier the mortgage was made in favour of Bharmoji Rao. He
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NC: 2024:KHC:4616 MFA No. 1876 of 2023 also contends that if the defendants are not having any right what was the need in earlier filing the suit and compromising the matter. The said fact has not been considered by the Trial Court.
11. Per contra, learned counsel appearing for the respondents would contend that one Thammanna was the owner of the property in respect of Sy.No.84/2 measuring 8 acres 6 guntas and he sold the property in favour of Gooli Chittaiah, Ajjaiah, Dodda Chittaiah and Kariyappa. The aforesaid Gooli Chittaiah, Ajjaiah, Dodda Chittaiah and Kariyappa executed a registered mortgage deed in favour of one Bharmoji Rao in respect of the entire land of 8 acres 6 guntas, which they had purchased in Sy.No.84/2. Kariyappa who purchased the property in 15.12.1959 along with others had sold his share of the land in favour of Ajjaiah, son of Gadige Chittaiah. Chittaiah, son of Gooli Chittaiah, Ajjaiah, Dodda Chittaiah and Kariyappa sold 1 acre 20 guntas of land in favour of Dodda Chittaiah and Kariyappa on 22.11.1968. The said Dodda Chittaiah is the
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NC: 2024:KHC:4616 MFA No. 1876 of 2023 father of defendant No.2 and Kariyappa is the father of defendant No.3. The revenue entries are also found based on the compromise in O.S.No.197/2017. The mortgage deed, which was executed in favour of Bharmoji Rao was cancelled and declaratory relief was granted pursuant to the compromise. The instant suit is in respect of O.S.No.182/2020, which was filed by the respondents herein seeking the relief of the declaration only to an extent of 6 acres 26 guntas after deducting the land, which was sold in favour of the defendants to the extent of 1 acre 20 guntas. The Trial Court having considered the very contention of the plaintiffs / respondent rightly considered the material on record and granted the relief of temporary injunction in respect of only to the extent of 6 acres 26 guntas, wherein they have claimed the relief of declaration and consequential injunction of permanent injunction. The Trial Court also considered in detail in paragraph Nos.16 and 17 how the title devolves and also the compromise entered into between the parties. The learned counsel would vehemently contend that the
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NC: 2024:KHC:4616 MFA No. 1876 of 2023 compromise was arrived at in the earlier decree for the relief of declaration in the said suit because, the defendants herein are also the owners to the extent of 1 acre 20 guntas and a decree was also granted. Though they claim that they are the owners to the extent of 4 acres 3 guntas each, no documents are placed before the court and though they claim title through the said Thammanna, the very said Thammanna sold the property in favour of the plaintiffs to the extent of 8 acres 6 guntas in the year 1959 itself. The trial court arrived at a conclusion that a prima facie case is made out by the plaintiffs and hence, granted the relief.
12. Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondents.
13. The main contention of the learned counsel appearing for the appellants is that the Trial Court committed an error in granting temporary injunction and it has also taken note of the fact that the compromise had arrived at earlier in the suit in O.S.No.197/2017 which was
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NC: 2024:KHC:4616 MFA No. 1876 of 2023 filed by the plaintiffs and defendants against Bharmoji Rao and no doubt, Bharmoji Rao came forward in compromising the matter by relinquishing his mortgage right which was executed in favour of him in the year 1960. It is also important to note that in the said mortgage deed, the plaintiffs and defendants are parties to the said mortgage deed. It is also important to note that the appellants have not disputed the fact that an extent of 1 acre 20 guntas of land was purchased on 22.11.1968 and the said sale deed was in favour of Dodda Chittaih and Kariyappa. The said Dodda Chittaiah is father of defendant No.2 and Kariyappa is the father of defendant No.3.
14. Having perused the document, which is not denied and also the purchase to the extent of 1 acre 20 guntas vide sale deed dated 22.11.1968 i.e., out of total area of 8 acres 6 guntas and the claim of the plaintiffs is also that out of 8 acres 6 guntas, they have sold the property to an extent of 1 acre 20 guntas and in respect of remaining land, they claim the relief of declaration and
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NC: 2024:KHC:4616 MFA No. 1876 of 2023 also inter alia sought for temporary injunction. Though it is contended by the defendants in the written statement that total extent is 9 acres 20 guntas, out of that, they have purchased 1 acre 22 guntas and they are now claiming the right in respect of remaining land to the extent of 8 acres 6 guntas. Having perused the material on record and particularly in considering the document of 1959, though defendants have disputed that the document is a fictitious document and the fact that they have purchased only to the extent of 1 acre 20 guntas and earlier there was a mortgage to an extent of 8 acres 6 guntas executed in favour of Bharmoji Rao, which is also not in dispute and compromise is also when they have filed the suit jointly along with the plaintiffs and in order to trace and prima facie case to an extent of 8 acres 6 guntas and also in respect of partition to the extent of 4 acres 8 guntas each is concerned, no documents are placed and having considered the material on record, the Trial Court considered the original document of the year 1959 and also subsequent document of mortgage in favour of
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NC: 2024:KHC:4616 MFA No. 1876 of 2023 Bharmoji Rao dated 13.02.1960 and also the sale made in favour of Ajjaiah vide sale deed dated 06.12.11966 and also subsequent sale deed in favour of the defendants only to the extent of 1 acre 20 guntas vide sale deed dated 22.11.1968. Though there was a compromise, but no specific averment is made to that effect. The documents prima facie discloses with regard to the ownership of plaintiffs and having considered the same, the Trial Court has not committed any error in granting the relief of temporary injunction in favour of the plaintiffs having considered the prima facie case made out by the plaintiffs to the extent of 6.26 guntas after deduction of 1 acre 20 guntas out of 8 acres 6 guntas. Hence, I do not find any error committed by the Trial Court in granting the relief in favuor of the respondents / plaintiffs and when the prima facie case is made out in favour of respondents, having considered both oral and documentary evidence and pleadings on the part of the plaintiffs and defendants, I do not find any merit in the appeal to arrive to a different
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NC: 2024:KHC:4616 MFA No. 1876 of 2023 conclusion than that of the Trial Court. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal stands dismissed.
Sd/-
JUDGE SS List No.: 1 Sl No.: 31