IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CRP NO. 230 OF 2009 (M) BETWEEN:
Smt. Lenkamma W/o. Kavallappa Aged about 60 years Since dead by LRs’ of Petitioner (1) Sri Lenkappa Aged about 45 years S/o Karehanumaiah R/o Veerannanahalli Dodderi Hobli,Madhugiri Taluk Tumkur District. …Petitioner (By Sri. R. Nataraj and Rashmi Patil, Advocate for LR’s of deceased petitioner) AND:
1. Basavaiah S/o Gangaiah Since dead by LRs’ (a)Sri Gangadhar 30 years S/o Late Basavaiah (b)Sri Shivashankarappa 32 years, S/o. Late Basavaiah Both residents of Kodalahalli Village, Kodalahalli Post Holavanahalli Hobli Koratagere Taluk Tumkur District.
2. Lingappa S/o Karajothalanaika Major, R/o Veerannanahalli Dodderi Hobli Madhugiri Taluk-572 132. …Respondents (By Sri K.R. Kumar, Advocate for R1(A) R2 served, notice to R1(B) held sufficient) **** This Civil Revision Petition is filed under Sec.115 of CPC, 1908, praying to call for the records in Misc. 31/94 on the file of the Principal Civil Judge (Jr.Dn.) at Madhugiri and set aside the order dated 08.08.2002 and etc., This Civil Revision Petition coming on for Orders this day, the Court made the following:
ORDER This Revision Petition is filed for setting aside the impugned order dated 08.08.2002 passed in Misc.Appeal No.31/1994 by the Principal Civil Judge (Jr.Dn.), Madhugiri and the impugned order dated 16.6.2009 passed in Misc. Appeal No.46/2002 by the Additional Civil Judge (Sr.Dn.) & JMFC, Madhugiri.
2. The facts briefly stated are that deceased petitioner Lenkamma had preferred the Misc. Appeal No.46/2002 against the dismissal of the Misc. Petition No.31/1994. The petitioner was unauthorized occupant of 5 acres 4 guntas of land in Sy.No.1/222 of A.M. Kaval which was a Government land. The respondent being a stranger has obtained katha in his name in respect of 4 acres 35 guntas, started obstructing possession of the petitioner. On enquiry, it is learnt that the respondent No.1 has filed suit in O.S.No.27/1993 against the petitioner and the said suit was decreed ex-parte. Therefore, the petitioner had filed petition under Order IX Rule 13 of CPC for setting aside the ex-parte decree passed against her in O.S.No.27/1993. The said Misc. Petition was dismissed. Being aggrieved by the said order, the petitioner has filed Misc. Appeal No.46/2002 before the First Appellate Court which was also dismissed vide order dated 16.6.2009. Therefore, the petitioner has challenged the said order by filing the Revision Petition.
3. The grounds urged are that the trial Court failed to consider the apparent collusion between the respondents in getting the suit decreed. The respondent in an attempt in contesting the suit had fraudulently described the petitioner as Lenkamma w/o. “Kavalingappa” instead of her correct name as Lenkamma w/o. “Kavalappa”. The trial Court has also failed to consider that her husband has expired long back. The Court below failed to consider the requirements of law before accepting sufficient service of notice on the petitioner. Thus, the evidence placed on record is misled by the lower Court resulting in miscarriage of justice.
4. Based on the contention raised on the objection, the learned counsel for petitioner would strenuously contend that the Courts below have committed an error and had held that there was proper service of notice to the petitioner. The finding given by the Courts below are erroneous and unjustified. Thus, the impugned orders dated 18.8.2002 and 16.6.2009 are liable to be set aside.
5. Per contra, the learned counsel for respondents submits that the evidence placed on record clearly goes to show that there was proper service of notice to the petitioner. The findings given by the Court below are perfectly legal and justified. Hence, there are no valid grounds to interfere with the impugned order and the petition deserves to be dismissed.
6. In view of the rival contentions, the only question that arises for consideration is that whether there are valid grounds to set aside the impugned orders dated 08.08.2002 and 16.6.2009.
7. As could be seen from the records, in order to prove the non-service of notice/summons to the petitioner Smt. Lenkamma, one Sri Kambada Rangaiah who is said to be the relative of petitioner Lenkamma is examined as PW.1 and Sri Kariyanna who is said to be the resident of Veerannanahalli is examined as PW.2 and documents are marked as Ex.P1 to Ex.P5. Ex.P1- Power of attorney, Ex.P2- Decree copy, Ex.P3- Assistant Commissioner Court order copy, Ex.P4- W.P. 007/96 order copy and Ex.P5- Deputy Commissioner order copy. On the other hand, the five witnesses are examined to prove the service of notice/summons to the petitioner are examined as RW.1 to RW.5 and RW.1 is Jayanna the close relative of respondent. RW.2 is Lingaiah is said to be petitioner in Misc. Appeal No.31/1994. RW.3 Jothalappa is said to be the respondent of Veerannanahalli who is a witness to the mahazar drawn in respect of service of summons to petitioner Lenkamma through affixture. RW.4 Kavalingappa is none other than the husband of petitioner Lenkamma. RW.5 process server who has served the summons through affixture by going to the house of the petitioner at Veernanahalli. The documents are marked as R1 to R7.
8. It is pertinent to note that the only question involved in this Revision Petition is regarding the service of summons/notice to the petitioner. Thus, considering the other aspects on the merits of the case, whether the petitioner had acquired title or the respondent had brought his name into record of rights etc are irrelevant.
9. As already stated above, witnesses are examined to prove the service of summons to the petitioner through affixture. The evidence of all these witnesses namely Rw1 to Rw5 clearly goes to show that the affixture of summons was done and mahazar was drawn. The evidence of RW.3 Jothalappa who is the witness to the mahazar drawn in respect of summons through affixture. The process server is examined as RW.5. He has stated about service of summons through affixture as the petitioner Lenkamma refused to receive the summons. These witnesses are cross-examined at length but nothing is elicited to prove the dispute regarding service of summons to petitioner Lenkamma.
10. The next contention is that the name of the petitioner Lenkamma was not mentioned correctly with deliberate intention. According to the learned counsel for petitioner, the name of the petitioner was Lenkamma w/o “Kavalappa” but it was deliberately shown as Lenkamma w/o “Kavalingappa”. But it is pertinent to note that the husband of the petitioner is examined as RW.4. His name is Kavalingappa Puttakama Naik. He has deposed in evidence the examination in chief that petitioner Lenkamma is his wife and his name is “Kavalingappa” but not “Kavalappa”. He has admitted the genealogy which is marked as Ex.R2. In the cross-examination, he has stated that he had two wives. He has denied the suggestion that petitioner Lenkamma’s husband has died 20 years back and has further stated that he being her husband is alive. He has denied the suggestion that he was deposing the false evidence at the instance of Jayanna who is the relative of respondent. In all exhibited documents and Ex.R6 summons, the name of the petitioner is known as ‘Lenkamma w/o. Kavalingapa”. Thus, it is evident that, the name of the husband of petitioner is ‘Kavalingappa’ and not ‘Kavalappa’ as contended by appellant.
11. Learned counsel for the petitioner has not placed cogent evidence to show that witness RW.4 by name Kavalingappa is not the husband of the petitioner Lenkamma and there are no other doubtful circumstances to believe or disprove evidence of RW.4 and other witness examined on behalf of RW.4 regarding the service of summons/notice to petitioner Lenkamma.
12. Under these circumstances, the contention of the learned counsel for the petitioner that as there was no proper service of summons to petitioner Lenkamma, is devoid of merits.
13. For the foregoing reasons, there are no valid grounds to allow the petition.
Accordingly, the Revision Petition is dismissed.
Sd/- JUDGE SSD