Karnataka High Court
Ningaiah vs Sri Kariyappa on 8 April, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR.JUSTICE R. NATARAJ
R.S.A. NO.474 OF 2019(DEC/INJ)
BETWEEN:
NINGAIAH
SINCE DEAD BY LRS.
1. SMT ARASAMMA
AGED ABOUT 62 YEARS
W/O LATE NINGAIAH
2. SRI KEMPANINGA
AGED ABOUT 50 YEARS
S/O LATE NINGAIAH
3. SRI SHIVA
AGED ABOUT 49 YEARS
S/O LATE NINGAIAH
4. SRI SWAMY
AGED ABOUT 37 YEARS
S/O LATE NINGAIAH
5. SRI CHIKKASWAMY
AGED ABOUT 32 YEARS
S/O LATE NINGAIAH
6. SRI SHIVARAJU
AGED ABOUT 29 YEARS
S/O LATE NINGAIAH
7. MANJULA
AGED ABOUT 27 YEARS
2
D/O LATE NINGAIAH
KEMPAIAH
SINCE DEAD BY LRS.
8. SMT. MARILINGAMMA
AGED ABOUT 47 YEARS
W/O LATE KEMPAIAH
9. SRI. SANETHU
AGED ABOUT 42 YEARS
S/O LATE KEMPAIAH
10. SRI NINGAIAH
AGED ABOUT 39 YEARS
S/O LATE KEMPAIAH
SHIVALINGAIAH
SINCE DEAD BY LRS.
11. SMT HUCHABORAMMA
AGED ABOUT 57 YEARS
W/O LATE SHIVALINGAIAH
12. SMT CHAYAMANI
AGED ABOUT 37 YEARS
W/O LATE NINGAIAH
13. SHIVA
AGED ABOUT 14 YEARS
S/O LATE NINGAIAH
14. VARSHA
AGED ABOUT 12 YEARS
D/O LATE NINGAIAH
APPELLANTS NO.13 AND 14 ARE MINORS,
REPRESENTED BY HIS NATURAL GUARDIAN/
MOTHER SMT. CHAYAMANI, APPELLANT NO.12.
15. PUSHPA
AGED ABOUT 37 YEARS
D/O LATE SHIVALINGAIAH
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16. PADMA
AGED ABOUT 35 YEARS
D/O LATE SHIVALINGAIAH
17. CHANDRA
AGED ABOUT 32 YEARS
S/O LATE SHIVALINGAIAH
APPELLANTS NO.1 TO 17 ARE
R/AT CHIKKEGOWDANAKOPPALU VILLAGE,
YELAWALA HOBLI,
MYSURU TALUK AND DISTRICT-570 019.
...APPELLANTS
(BY SRI. P.NATARAJU, ADVOCATE) (PH)
AND:
1. SRI KARIYAPPA
AGED ABOUT 68 YEARS,
S/O LATE KALAIAH,
2. SRI DODDANINGAIAH
AGED ABOUT 61 YEARS,
S/O LATE KALAIAH,
RESPONDENTS N0.1 AND 2 ARE
R/AT CHIKKEGOWDANAKOPPALU VILLAGE
YELAWALA HOBLI
MYSURU TALUK AND DISTRICT-570 019.
...RESPONDENTS
(BY SRI. AJITH KALYAN, ADVOCATE FOR C/R-1 &R-2 (PH)
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 10.12.2018 PASSED IN RA
NO.35/2018 ON THE FILE OF THE V ADDL.DISTRICT JUDGE AT
MYSURU. DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 14.12.2017 PASSED IN OS
NO.502/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CJM., AT MYSURU.
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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendants in O.S No.502/2012 challenging the concurrent finding of fact that plaintiffs are the owners of the suit property and therefore are entitled to perpetual injunction restraining the defendants from interfering with their possession in the suit property.
2. Parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. The suit in O.S No.502/2012 was filed for declaration and permanent injunction in respect of 7 acres 34 guntas of land in Sy.No.18/2 of Nagavala Village, Mysore Taluk. It was contended by the plaintiffs that their father Kalaiah had two brothers namely Ningaiah and Kempaiah who divided the joint family properties about 50 years ago. At the said partition the land measuring Sy.No.18/2 measuring 8 acres 34 guntas fell to the share 5 of father of the plaintiffs, while Sy.No. 18/1 measuring 1 acres 38 guntas, Sy.No.18/3 measuring 10 guntas and Sy.No.38 measuring 5 acres 23 guntas fell to the share of the Ningaiah. Similarly Sy,No.252 measuring 5 acres 38 guntas Sy.253 measuring 4 acres of Huyilalu village, Mysore taluk fell to the share of Kempaiah, the father of the defendants. That the plaintiffs claim that the partition was acted upon and respective sharers were enjoying the properties that fell to their shares. After the death of Kempaiah, the defendants succeeded to the properties that were possessed by their father and the khatha of the said properties were transferred to their names. The father of the plaintiffs sold 1 acre of land in Sy.No.18/2 to Cheluvaiah and he retained 7 acres 34 guntas which is the suit schedule property. The plaintiffs claim that the revenue records of the suit property still stood in the name of late Ningaiah, the uncle of the plaintiffs. They claim that the defendants had no right, title or interest in the suit property but yet they were interfering with his possession which compelled them to file O.S.No.655/2006 for 6 partition. In the said suit, the defendants conceded that there was already a partition in the family and therefore, the Trial court dismissed the suit.
4. The plaintiffs submitted that in spite such a statement made in O.S.No.655/2006, the defendants denied the title of the plaintiffs in the suit properties and therefore the plaintiffs were constrained to file a suit for declaration of their right title and interest and for consequential relief of injunction.
5. The defendants contested the suit. A written statement was filed by the defendant No.2 which was adopted by the defendant Nos.1 and 3. It was contended by them that at a oral partition, 2 acres of land in Sy.18/2 fell to the share of their father and therefore they are in possession of the said properties. They admitted the sale of 1 acre of land by the father of the plaintiffs to Cheluvaiah but contended that only an extent of 5.34 guntas was in possession of the plaintiffs while the remaining 2 acres was in the possession of the defendants. 7
6. Based on these rival contentions, the Trial Court framed the following issues:-
"(i) Whether the plaintiffs proves that the suit schedule property fell to the share of their father late Kalaiah in an oral partition between himself and his brothers?
(ii) Whether the plaintiffs prove that their late father Kalaiah was in possession of the suit schedule property during his life timed and subsequent to his death, the plaintiffs are in possession and enjoyment of the suit schedule property?
(iii) Whether the plaintiffs prove that the defendants have intereferred with the possession of the plaintiffs over the suit schedule properties?
(iv) Whether the plaintiffs are entitled for declaration as owners of the suit schedule property?
(v) Whether the plaintiffs are entitled for permanent injunction?"
(vi) What Order or Decree?
7. The Plaintiff No.2 was examined as P.W.1 who marked documents as Exs. P1 to Exs. P8. The defendant No.1(c) was examined as D.W.1 and he marked documents as Exs. D1 to D-4.
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8. The Trial Court noticed that the defendant No.2 who was the defendant No.6 in O.S No.655/2006 had pleaded that the plaintiffs were in possession of 7 acres 34 guntas. The Trial Court considered exhibit P-5 which was the revenue patta of the suit property and the revenue records of Sy.18/2 which indicated that the total extent in Sy.18/2 was 7 acres 34 guntas and held that the plaintiffs owned the entire extent of the land in Sy.No.18/2. It also held that the defendants did not prove that they had taken any steps whatsoever to prove that 2 acres of land fell to their share at the oral partition 50 years ago. Therefore, the Trial Court decreed the suit and declared that the plaintiffs were the owners of the suit schedule property.
9. Being aggrieved by the aforesaid judgment and decree the defendants filed R.A No.35/2018 before the First Appellate Court. The First Appellate Court secured the records, heard the learned counsels for the parties and framed the following points for consideration: 9
"(i) Whether the appellants prove that the appellants has got 2 acres of land in Sy No.18/2?
(ii) Whether the appellants prove that the judgment and decree passed by the trial Court in O.S No.502/2012 dated 14.12.2017 is erroneous, illegal and require intereference at the hands of the Appellate Court?
(iii) Whether the appellants prove that he is entitled for production of the documents as prayed in IA No.2?
(iv) What order?
10. The First Appellate Court held that though the defendants pleaded that their father had derived 2 acres of land in Sy.No.18/2, yet they did not produce any material documents in that regard. It also held that the evidence placed on record before the Trial Court justified the finding that the plaintiffs were the owners of the suit properties, as revenue documents justified the claim of the plaintiffs. Hence the First Appellate Court dismissed the appeal and confirmed the judgment and decree of the Trial Court. 10
11. Being aggrieved by the aforesaid, the present Regular Second Appeal is filed.
12. Learned counsel for the defendants submitted that except the revenue records, the plaintiffs did not produce any material documents to establish that the entire extent of 8 acres 34 guntas in Sy No.18/2 fell to their share. In this regard, he relied upon the judgment of the Apex Court in the case of Union of India and others V/s Vasavi Co-operative Housing Society Limited and others reported in (2014) 2 SCC 269 and contended that it is for the plaintiff to establish his case and he cannot exploit the weakness in the case of the defendants. He also submitted that the entries in the revenue records does not confer title. The learned counsel therefore submitted that the plaintiff ought to have produced adequate material to establish that they were the owners of the land in question.
13. I have considered the submissions made by the learned counsel for the plaintiffs and learned counsel for the defendants I have also perused the records of the 11 Trial Court as well as the judgment and decree of the Trial Court and the First Appellate Court and the grounds urged in the memorandum of appeal.
14. Exhibit P-1 was the RTC of the land bearing Sy.No.18/2 which stood in the name of Ninga son of Chikka. This Ninga is none other than the uncle of the plaintiffs. Exhibit P-3 is the judgment and decree passed in OS No.655/2006 where the Court had recorded the evidence of the defendant No.2 herein, who claimed that his family members were entitled to 2 acres in Sy.No.18/2 but at the same breath deposed that plaintiffs are in possession of 7 acres 31 guntas in Sy.No.18/2. Exhibit P-5 is the revenue patta which discloses that the land in Sy.No.18/2 stood in the name of the plaintiff in respect of 7 acres 34 guntas. Exhibit P-6 is the latest Revenue Patta which discloses that the plaintiffs are cultativating the land measuring 7 acres 34 guntas in Sy.No.18/2. Likewise exhibit P-7 is the land revenue receipt and exhibit P-9 is the deposition of the plaintiffs in OS No. 655/2006. The 12 defendants herein had conceded the fact that the father of the plaintiff had sold one acre of land in Sy.No.18/2 but they did not take any steps to assail the said sale. The suggestion made while cross examining PW-1 in O.S. No.655/2006 clearly proved the facts pleaded by the plaintiff in the plaint in the present suit and also that the property was partitioned amongst the three brothers namely Ningaiah, Kalaiah and Ningaiah. In view of the submission that the plaintiffs' father was allotted 8 acres 34 guntas in Sy.No.18/2, out of which, one acre was sold, what remained was 7.34 acres, which is the suit property. Other than these documents, the defendants placed on record the judgment and decree passed in O.S No.655/2006 and receipt Patta in respect of Sy.No.18/2 which showed that the extent of land was 7 acres 34 guntas. He also placed on record the land revenue receipt at exhibit -D-3 and the RTC of Sy.No.18/2 which stood in the name of Ninga son of Chikka which did not prove their claim that 2 acres in Sy.No.18/2 was allotted to their father Chikka, since the best evidence rule was applicable, 13 in the facts and circumstances of the case, having regard to the averments of the plaint and defendant No.2 admitting that the plaintiffs were in possession of 7 acres 31 guntas in Sy.No.18/2, the Trial court and First Appellate Court were justified in decreeing the suit. Since the Courts have recorded finding of fact which is based on acceptable evidence, this Court does not consider it appropriate to interfere with the said findings. As no substantial question of law arises for consideration in this appeal, the Appeal is dismissed.
Sd/-
JUDGE vs