IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20th DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL No.721/2010 BETWEEN:
Smt. K.S. Savithramma, Major, D/o. Manjappa Mestru, Occupation: Household work, Residing at Shiramagondanahalli, Davanagere Taluk-577001. . . . Appellant (By Sri. N. Shankaranarayana Bhat, Advocate) AND:
1. Secretary, Vyavasaya Seva Sahakara Sangha Niyamitha, Shiramangondanahalli, Davanagere-577 001.
2. Assistant Registrar of Co-Operative Societies, Office of the Assistant Registrar of Co-Operative Societies, Near Trishul Talkies, P.B. Road, Davanagere -577 002.
3. T. Sannahanumappa, Sales Officer (No.441), CDCC Bank Ltd., Chitradurga – 577 001. . . . Respondents (Notice to R-3 is dispensed with vide order dated 05.09.2012 Respondent Nos.1 & 2 are served, unrepresented) This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and decree dated 23.11.2009 passed in R.A. No. 151/09 (old R.A. No.161/2005) on the file of the II Additional District and Sessions Judge, Davanagere, allowing the appeal and setting aside the Judgment and decree dated 05.03.2005 passed in O.S.No.49/2003 on the file of the Principal Civil Judge (Junior Division) Davanagere.
This Regular Second Appeal coming on for admission, this day, the Court delivered the following:
J U D G M E N T Though this regular second appeal is listed for admission, with the consent of learned counsel for the appellant the matter is heard on merits. For the purpose of convenience, the parties are referred to as per their respective ranks before the trial Court.
2. This regular second appeal is filed by the unsuccessful plaintiff, challenging the divergent findings recorded by the Courts below R.A. No. 151/09 (old R.A. No.161/2005) and O.S. No.49/2003 and seeking a decree of permanent injunction.
3. The facts of the case are as under:
Out of the retirement benefit of her father, the suit schedule property was purchased by the mother of the plaintiff on 26.09.1997 and when she approached the revenue authorities for getting her name mutated, they refused to do so on the ground that there was decree passed in O.S.No.4/86-87 against the suit property for recovery of the dues to the 3rd defendant-society; The plaintiff-appellant had instituted a suit in O.S.No.151/1998 and obtained prohibitory order against the defendants from alienating the suit property, but on account of non-
compliance of Section-80 of C.P.C., she withdrew the said suit and filed the present suit for permanent injunction.
4. On the other hand, it is the case of the defendants that the plaintiff is the wife of one Chikkaveerappa of Siramanagondanahalli village, who was the Secretary of 3rd defendant-society and during his tenure, he misappropriated the funds of the society and as such, for recovery of said misappropriated amount, recovery proceedings were initiated under the provisions of Karnataka State Co- Operative Societies Act; after obtaining decree, an execution petition No.13/1992 came to be filed and to defeat the legal process of execution, said Chikkaveerappa who is none other than the husband of the present plaintiff has created a nominal benami sale deed in the name of the plaintiff and filed the collusive suit with a malafide intention to obstruct recovery proceedings against him.
5. A perusal of the findings recorded by the trial court disclose that the trial Court, while holding that Section-118 of the Karnataka State Co-Operative Societies Act, 1959 would not curtail the jurisdiction of the Civil Court to try the suit for injunction, has found that the plaintiff proved her case that she was in actual lawful possession and enjoyment of the suit schedule property, as on the date of the suit and consequently, decreed the suit O.S.No.49/2003 by the judgment dated 05.03.2005, restraining the defendants from auctioning the suit property. On appeal, by the Secretary, Vyavasaya Seva Sahakara Sangha Niyamitha of Siramagondanahalli, Davanagere Taluk, the First Appellate Court, by its judgment dated 23.11.2009 passed in R.A.No.151/2009 (Old R.A.No.161/2005), set aside the judgment and decree passed by the trial Court and consequently, dismissed the suit of the plaintiff-appellant with costs of Rs.10,000/-. Being aggrieved by the same, the plaintiff is before this Court.
6. Learned counsel for the appellant-plaintiff submits that the learned Judge of the First Appellate Court erred in presuming that the husband of the appellant is none other than ex-secretary of the 3rd defendant-society, in the absence of necessary particulars and evidence. As could be seen from Ex.P.15, election identity card, despite noticing that the name of the plaintiff is Shekarappa, the First Appellate Court proceeded to hold that Chikkaveerappa is the husband of the plaintiff- appellant. The learned judge of the first appellate Court erred in holding that the vendor of the plaintiff is none other than her husband. On these grounds, he prays for setting aside of the judgment and decree passed by the first appellate Court.
7. On perusal of the pleadings of the parties and submissions made by the learned counsel, the controversy amongst the parties revolves around the name of K. Chikkaveerappa, the erstwhile Secretary of the 3rd defendant-Society and as to whether he is the husband of the plaintiff-appellant?.
8. Considering the evidence of D.Ws.1 to 3 coupled with the documentary evidence at Ex.D.1 to 9, the learned judge of the first appellate Court held that by passing resolution, the 3rd defendant-society removed K. Chikkaveerappa from the post of Secretary on the allegation that he has misappropriated the funds of the society and after initiating legal proceedings for recovery of Rs.16,795-
17 paise, they initiated execution proceedings in E.P.No.31/92-93 and brought the suit schedule property for public auction in the premises of the 3rd defendant-society on 25.02.1998. Indeed, in the sale deed marked at Ex.P.1, the name of plaintiff’s Vendor has been mentioned as K. Chikkaveerappa, who was originally working as Secretary of the 3rd defendant-society. From this document, an inference can be drawn that only with a malafide intention to defeat and frustrate the recovery proceedings, the husband of the plaintiff created the fictitious sale deed and filed collusive suit. Even in the said sale deed, the plaintiff-appellant has deliberately not mentioned her husband name, instead, she has mentioned her father name (Manjappa Mestru) and that in the cause title of the original suit as well as in the first appeal, she has not mentioned the name of her husband.
During her evidence, when she was subjected to cross-examination, the plaintiff, while admitting that she is residing with her husband, she has failed to explain the reason as to why she has omitted the name of her husband in all the records and proceedings. In Ex.D.10, the certificate issued by Bill Collector, Grama Panchayath, husband’s name of the plaintiff has been mentioned as K. Chikkaveerappa. Ex.D.12 is the copy of the voter identity card wherein her age has been mentioned as 38 years as on 01.01.1995 and her husband name has been shown as Shikarappa. Under such circumstances, the learned judge of the first appellate Court drew an adverse inference against the plaintiff- appellant. Learned judge of the appellate Court has assigned reasonings and held that her conduct, projecting a different person as her husband is not appreciable. It is further noticed that in her cross- examination, she has admitted that she has no documents to show that her husband’s name is Shikarappa. Another aspect is that the plaintiff should have examined said Shikharappa as her witness to prove that he was her husband. It is in this background, the suit filed by the plaintiffs came to be dismissed by the first appellate Court by setting aside the judgment passed by the trial Court.
It is necessary to place on record that in the second session, during dictation, learned counsel for the appellant has submitted that he had no information from the counsel for the plaintiff in the trial Court as to whether said Shikharappa is alive or not. In the light of the facts and circumstances, it is necessary to make a mention that if Shikharappa is dead, his siblings or parents should have been examined regarding the fact that there is no information regarding the death of her husband.
9. In the over all circumstances, I find that the learned judge of the trial Court erred in decreeing the suit, which is rightly reversed by the first appellate Court. Hence, I do not find any good grounds to interfere with the findings recorded by the First Appellate Court, in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure. There is no question of law, much less substantial question of law that arises for consideration in this appeal. It is entirely the conduct of the appellant that she suppresses the marital relationship and projects a different person as her husband just to avert financial liability. Consequently, the appeal is liable to be rejected at the stage of admission.
Accordingly, the appeal is rejected, confirming the judgment and decree passed by the first appellate Court wherein the suit was dismissed with costs of Rs.10,000/-.
Sd/- JUDGE VR