IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA REGULAR SECOND APPEAL No.643 OF 2017 BETWEEN:
1. SHRI SEENAPPA AGED ABOUT 42 YEARS S/O. HANUMANTHU @ NADIPANNA 2. SHRI VENKATARAMAPPA AGED ABOUT 39 YEARS S/O. HANUMANTHU @ NADIPANNA 3. SHRI ANAND AGED ABOUT 36 YEARS S/O. HANUMANTHU @ NADIPANNA 4. SHRI MURALI AGED ABOUT 29 YEARS S/O. HANUMANTHU @ NADIPANNA 5. SHRI HANUMANTHU @ NADIPANNA AGED ABOUT 66 YEARS S/O LATE CHIKKA THIMMAIAH APPELLANTS AT SL.NOS.1 TO 5 ALL ARE RESIDING AT JODI AGRAHARA/GATTAHALLI VILLAGE, HOLUR HOBLI KOLAR TALUK – 563 101 6. SHRI HANUMANTHU AGED ABOUT 76 YEARS S/O DODDA THIMMAIAH 7. SHRI MUNIVENKATARAMAPPA AGED ABOUT 46 YEARS S/O LATE HANUMANTHU 8. SHRI NARAYANAPPA AGED ABOUT 41 YEARS S/O HANUMANTHU APPELLANTS AT SL. NOS.6 TO 8 ARE R/AT GATTAHALLI VILLAGE HOLUR HOBLI, KOLAR TALUK – 563 101. ... APPELLANTS (BY SRI.G.A. SRIKANTE GOWDA, ADV.,) AND:
SHRI T. GOPAL SETTY AGED ABOUT 58 YEARS S/O LATE THIPPA SETTY R/AT GATTAHALLI VILLAGE HOLUR HOBLI, KOLAR TALUK – 563101. ... RESPONDENT (BY SRI RAVI H.K., ADV., FOR SRI KANTHARAJA AND ASSTS., ADVs.,) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT & DECREE DATED 7.12.2016 PASSED IN RA.NO.47/2016 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 25.1.2016 PASSED IN O.S.NO.548/2011 ON THE FILE OF THE I ADDL. CIVIL JUDGE AND JMFC, KOLAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The defendants in O.S.No.548/2011 have preferred this appeal assailing judgment and decree dated 07.12.2016, passed by the Principal Senior Civil Judge at Kolar in R.A.No.47/2016 by which, the judgment and decree passed by the I Additional Civil Judge & JMFC, Kolar dated 25.01.2016 in O.S.No.548/2011 has been set aside and the suit filed by the respondent/plaintiff has been decreed.
2. For the sake of convenience, parties herein shall be referred to, in terms of their status before the trial court.
3. The respondent/plaintiff filed the suit seeking the relief of declaration of title and consequential relief of permanent injunction restraining the defendants, their agents, servants or anybody from interfering with the plaintiff’s peaceful possession and enjoyment of the property bearing survey No.95 (old survey No.1) measuring 28 guntas situated at Jodiholuru village, Holur Hobli, Kolar Taluk. The suit property has been described in detail in the schedule to the plaint. According to the plaintiff, he is the absolute owner of the said property and that his father, late Thippashetty has purchased the same from Honappa under registered sale deed dated 26.09.1966 and took possession of the same on that date. That the plaintiff’s father was in possession and enjoyment of the suit property and after his demise, plaintiff has succeeded to the said property, with the knowledge of the defendants. The plaintiff has planted mango trees in the said land and in survey No.5 of the same village, which is his another land he has dug a bore-well. He has cultivated the suit land by taking water from the said bore-well. Originally, survey No.1 measuring 02 acres 5 guntas was re- numbered as survey No.95 and it belonged to three brothers they are Papinayaka, Dodda Thimmanayaka and Honappa. They had effected partition in respect of the said land and accordingly, northern portion of 28 guntas was allotted to the share of Honappa, middle portion was allotted to Dodda Thimmanayaka and the southern portion of 29 guntas was allotted to the share of Papinayaka. That Honappa sold his share of 28 guntas to the father of the plaintiff, but Khata in respect of entire 02 acres 05 guntas continued in the name of defendant No.5. He managed to get the Khata to his name as per MR No.6/1990-91 without disclosing about the partition. That defendant No.5 in order to grab the entire land, filed a suit in O.S.No.91/1986 on the file of Munsiff, Kolar, in respect of the entire 02 acres 5 guntas of land. He compromised the said suit with plaintiff’s father and others by filing a compromise petition on 06.12.1991. In the said compromise petition, defendant No.5 has clearly admitted the sale of suit land to the father of plaintiff and that the defendants have no manner of right, title or interest over the suit schedule property. That the entire extent of survey No.95 measuring 02 acres 05 guntas was originally Inam land. Out of the said extent, the suit land has been sold to plaintiff’s father. Subsequent to the sale, it appears that the land has been re-granted in the name of defendant No.5. He suppressed the said sale and got the entire land re-granted as service inam land in his name. But he never made any efforts to take possession of the suit land from plaintiff and his father. Thereby, plaintiff perfected his right by way of adverse possession in respect of the suit land. That the defendants by taking advantage of the alleged re- grant are trying to interfere with plaintiff’s possession and disputing the title of the plaintiff. According to plaintiff he has resisted the illegal attempts of the defendants with the help of neighbours. But not being able to resist defendant’s attempt, has filed the suit.
4. In response to the suit summons and court notices from the trial court, defendants appeared and filed their written statement denying the allegations made in the plaint and contended that survey No.95 was originally survey No.1, that it measured 02 acres 05 guntas and that on the east, it was bound by Gramatana, west by Kaiwara Papanna’s land, north by land bearing survey No.5 i.e., plaintiff’s land and south by property of Narayanaswamy and Venkatareddy. That the said land originally was Talari Inam land and the inamdhar by name Thimmaiah died long time back and his wife, Gangamma was also no more leaving behind three sons namely, Papinayaka, Dodda Thimmappa and Honappa. They are dead and so are their wives. Papinayaka had three sons by name Chikkathimmaiah, Munishamappa, Gangappa and that apart from Munishamappa, the others are dead. Chikkathimmaiah has three sons, they are Venkateshappa, Hanumanthu i.e., defendant No.5, 2nd Narayanappa. Venkateshappa died leaving behind his legal representatives who are his wife and children. Whereas, defendant No.5 Hanumanthu had five children they are defendant Nos.1 to 4 and Venkatalakshmamma. The said Narayanappa died as bachelor. That the suit schedule property and other properties are Hindu Undivided joint family properties. They are not divided at any point of time. They are Inam land and after re-grant, the same was mutated in the name of defendant No.6. That the suit is bad for non-joinder of necessary parties and hence, the defendants prayed for dismissal of the suit.
5. On the basis of the aforesaid pleadings, the trial Court framed following issues:
“1. Whether the plaintiff proves that Honappa was the absolute owner of the suit schedule property?
2. Whether the plaintiff proves the registered sale deed dated 26.09.1956?
3. Whether the plaintiff is in lawful possession of the suit schedule property?
4. Whether the plaintiff perfected his title to adverse possession?
5. Whether the defendants prove the suit schedule property is the joint family property?
6. Whether the suit is bad for non joinder of necessary parties?
7. Whether the plaintiff proves the interference from the defendants?
8. Whether the plaintiff is entitled for the relief sought for declaration and injunction?
9. What order or decree?”
6. In support of his case, plaintiff examined himself as PW.1 and he produced sixteen documents which were marked as Exs.P1 to P16. Defendant No.2 was examined as DW.1 and one Thimmasetty was examined as DW.2. Defendants produced four documents which were marked as Exs.D1 to D4. On the basis of the said evidence, the trial Court answered issue Nos.1 to 4, 6 to 8 in the negative and issue No.5 in the affirmative and dismissed the suit by judgment dated 25.01.2016. Being aggrieved by the dismissal of the suit, plaintiff preferred regular appeal before the first appellate court, which, after hearing the learned counsel for the respective parties, framed the following points for its consideration:
“1. Whether the plaintiff proves to the satisfaction of the court that he has become the absolute owner in lawful possession of the schedule property?
2. Whether the plaintiff proves the interference over his enjoyment of the schedule property by defendants?
3. Whether the interference in the impugned judgment is called for?
4. What order?”
The first appellate Court on appreciating the evidence on record has answered point Nos.1 to 3 in the affirmative and decreed the suit. Being aggrieved by the judgment and decree of the first appellate court, the defendants have preferred this appeal.
7. I have heard learned counsel for the appellants as well as learned counsel for respondent and perused the material on record.
8. During the course of submission, learned counsel for the respective parties have also made available certified copies of the document produced before the trial court.
9. Appellant’s counsel submits that the respondent/plaintiff has failed to prove that the suit schedule property was purchased by his father and that the plaintiff has succeeded to the same after the demise of his father. Drawing my attention to the schedule, he contended that the plaintiff is seeking declaration and permanent injunction in respect of 28 guntas in survey No.95, but the boundaries stated in the plaint schedule do not tally with the boundaries mentioned in Ex.P1 which is stated to be the sale deed, on the basis of which the suit schedule property was purchased. He contended that in the absence and there being no proof to the effect that the plaintiff is the owner in possession of the suit schedule property, the first appellate court could not have decreed the suit. He submits that the trial court appreciating the documents available on record dismissed the suit. But the first appellate Court has reversed the judgment of the trial court and decreed the suit by declaring that the plaintiff is the absolute owner of the suit schedule property and as also granted the relief of consequential injunction. He submitted that substantial questions of law would arise in this appeal which would require admission of the appeal for a detailed hearing.
10. Per contra, learned counsel for respondent/ plaintiff supporting the judgment of the first appellate court contended that the trial court has not appreciated Exs.P11 and P12, which are produced in the plaint filed in O.S.No.91/1986 by appellant No.6 herein. In that suit, the plaintiff as well as defendant No.5 were parties amongst others. The said suit was filed in respect of 02 acres 02 guntas in survey No.95 plus 03 guntas of phut kharab. In the said suit, there was a compromise and in the compromise, the suit against the respondent/plaintiff was dismissed after recording that the respondent/plaintiff’s father had purchased 28 guntas of land from Honnappa who is none other than the uncle of defendant No.6 and that he is in possession and further the sale is also registered.
11. Learned counsel for respondent/plaintiff therefore, submitted that having regard to Exs.P11 and P12, the first appellate court decreed the suit and that the said documents be read in the light of Ex.P1 which would clearly establish the fact that the plaintiff is the owner in possession of suit land measuring 28 guntas and the judgment and decree of the first appellate court would not call for any interference, as no substantial question of law would arise in this appeal. He therefore submits that the appeal may be dismissed.
12. Having heard the learned counsel for the parties and on perusal of the materials on record as well as the certified copies of the documents, which have been made available by the learned counsel for the respective parties, it becomes clear that the subject matter of dispute is 28 guntas of land in survey No.95 (old survey No.1). According to the appellants, the said land was an inam land and that the said land was re-granted in the name of the appellants and that no portion of the said land has been sold to the respondent/plaintiff. Infact, the plaintiff has relied upon the plaint in O.S.No.91/1986 and the compromise arrived at in that suit to contend that what has been sold under Ex.P-1 is in survey No.95 (old survey No.1) measuring 28 guntas and the sale made by Honnappa – the uncle of defendant No.6 in favour of plaintiff’s father has been admitted in the compromise petition filed in O.S.No.91/1986. On a reading of the plaint in O.S.No.91/1986 (Ex.P-11) it becomes clear that the appellant No.6 herein had filed the said suit by arraying appellant No.5 herein as defendant No.3 therein and respondent herein as defendant No.4 in that suit apart from others. The said suit was in respect of 02 acres 02 guntas plus 03 guntas of phut kharab in survey No.95. Appellant No.6 herein sought declaration of his right, title and interest in the said property. However, the said suit was compromised with defendant Nos.1 to 4 in the said suit and defendant No.4 therein is none other than respondent/plaintiff herein. In compromise petition at paragraph No.2 it is clearly stated as under:
“2. The plaintiff admits that he has sold 28 guntas of land in favour of the Ist defendant and one of the suit schedule property in Sy.No.95 and the same is in the possession of himself and his brother - the 2nd defendant. The sale deed is dated 26.11.1966. Likewise, the plaintiff’s uncle Honnappa has sold another 28 guntas of land in favour of the 4th defendant and he is in possession of it. The said sale deed is also registered.”
(underlining by me) 13. The 6th appellant-defendant herein, who was the plaintiff in that suit has admitted that he has sold 28 guntas of land in favour of the 1st defendant in that suit i.e., Narayanaswamy and the same is in the possession of himself and his brother - 2nd defendant in that suit. More significantly it has been also stated that plaintiff’s uncle, Honnappa has sold another 28 guntas of land in favour of 4th defendant and he is in possession of it. The said sale is also registered. The 4th defendant therein is the respondent/plaintiff herein. Therefore, the suit as against the respondent/plaintiff herein, who was 4th defendant was dismissed. While dismissing the said suit, the Munsiff Court, at Kolar in O.S.No.91/1986 took into consideration the fact that 28 guntas of land was sold in favour of respondent/plaintiff herein. The plaintiff is claiming right, title and interest in the said piece of land in survey No.95. His claim is with regard to 28 guntas of land in the said survey number, which he claims under a sale deed, which fact has been admitted by defendant Nos.4 and 5 in O.S.No.91/1986. The admission made by defendant No.5 in O.S.No.91/1986 has been considered by the first appellate court to hold that what has been sold as per Ex.P1 is 28 guntas in survey No.95. In view of the said admission in Ex.P12, the first appellate Court has answered the points raised by it in favour of respondent/plaintiff. It is also noted from paragraph No.23 of the judgment of the first appellate court that the suit schedule land was part of inam land attached to the village office. Having regard to the decision of this Court in the case of Lakshmana Gowda’s reported in 1981(1) KLJ page 1 and Syed Basheer Ahmed’s case reported in ILR 1980(2) KAR page 892, any land attached to the village office purchased by a third party would enure to the benefit of said purchaser on the same being re-granted to the alienor. In that view of the matter, the first appellate court has held that respondent’s father having purchased the suit schedule land under Ex.P1, which has also been corroborated by Ex.P12 – compromise petition, has decreed the suit. I do not find any infirmity with judgment of the first appellate court. No substantial question of law would arise in this appeal. Hence, the appeal is dismissed.
Parties to bear their respective cost.
In view of the dismissal of the appeal, I.A.No.1/2017 also stands dismissed.
Sd/- JUDGE HJ