IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.761/2019 C/W REGULAR SECOND APPEAL NO.760/2019 IN R.S.A.NO.761/2019 BETWEEN:
SRI M.KRISHNAPPA S/O LATE MARICHENNAPPA AGED ABOUT 69 YEARS R/AT HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT – 562 103 … APPELLANT (BY SRI PADMANABHA MAHALE, SENIOR COUNSEL FOR SRI LEELADHAR H.P., ADV.,) AND:
1. SRI H.J.CHANDRASHEKAR S/O LATE H.JAYANARASHIMAIAH AGED ABOUT 68 YEARS DISMISSED ASSISTANT DIRECT OF FISHERIES GOVT. OF KARNATAKA BENGALURU PRESENTLY R/AT HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT – 562 103 2. SMT.PUSHAPA W/O H.J.CHANDRASHEKAR AGED ABOUT 54 YEARS R/AT HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT – 562 103 3. SMT.CHENNAMMA SINCE DEAD BY HER LRs ALREADY ON RECORD R-4 TO R-7 SRI H.S.RAMAMURTHY SINCE DEAD BY HIS LRs 4. SHOBA W/O LATE H.S.RAMAMURTHY AGED ABOUT 49 YEARS 5. KUMARI DEEPIKA D/O LATE H.S.RAMAMURTHY AGED ABOUT 25 YEARS 6. KUMARI YESHWANTH D/O LATE H.S.RAMAMURTHY AGED ABOUT 23 YEARS SL.NO.4 TO 6 ARE R/AT POOJA NIVASA 1ST FLOOR SUBHASHNAGAR, NEAR ARKESHWARA KALYANAMANTAPA THARABANAHALLI VILLAGE HESARAGHATTA HOBLI BENGALURU NORTH TALUK – 562 103 7. SRI SHIVAKUMAR S/O SHIVANNA AGED ABOUT 35 YEARS R/AT HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT – 562 103 …RESPONDENTS (BY SRI M.N.UMASHANKAR, ADV., FOR C/R1, R-2 & R-7) IN R.S.A.NO.760/2019 BETWEEN:
SRI M.KRISHNAPPA S/O LATE MARICHENNAPPA AGED ABOUT 69 YEARS R/AT HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT – 562 103 … APPELLANT (BY SRI PADMANABHA MAHALE, SENIOR COUNSEL FOR SRI LEELADHAR H.P., ADV.,) AND:
1. SRI H.J.CHANDRASHEKAR S/O LATE H.JAYANARASHIMAIAH AGED ABOUT 61 YEARS DISMISSED ASSISTANT DIRECT OF FISHERIES GOVT. OF KARNATAKA BENGALURU PRESENTLY R/AT HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT – 562 103 2. SMT.PUSHAPA W/O H.J.CHANDRASHEKAR AGED ABOUT 54 YEARS R/AT HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT – 562 103 3. SRI H.J.LAKSMINARASHIMAIAH @ PILLAPPA S/O LATE H.JAYANARASHIMAIAH AGED ABOUT 49 YEARS R/AT HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT – 562 103 SRI SHIVANNA SINCE DEAD BY HIS LRs SRI H.S.RAMAMURTHY S/O SHIVANNA SINCE DEAD BY HIS LRs 4. SHOBA W/O LATE H.S.RAMAMURTHY AGED ABOUT 49 YEARS 5. KUMARI DEEPIKA D/O LATE H.S.RAMAMURTHY AGED ABOUT 25 YEARS 6. KUMARI YESHWANTH D/O LATE H.S.RAMAMURTHY AGED ABOUT 23 YEARS SL.NO.4 TO 6 ARE R/AT POOJA NIVASA 1ST FLOOR SUBHASHNAGAR, NEAR ARKESHWARA KALYANAMANTAPA THARABANAHALLI VILLAGE HESARAGHATTA HOBLI BENGALURU NORTH TALUK – 562 103 7. SRI SHIVAKUMAR S/O SHIVANNA AGED ABOUT 35 YEARS R/AT HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT – 562 103 SMT.CHENNAMMA W/O SHIVANNA SINCE DEAD BY HER LRs ALREADY ON RECORD R-4 TO R-7 …RESPONDENTS (BY SRI M.N.UMASHANKAR, ADV., FOR C/R1, R-2 & R-7) THESE APPEALS ARE FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED: 20.12.2018 PASSED IN R.A.NO.67/2010 AND R.A.No.66/2010 RESPECTIVELY, ON THE FILE OF THE VIII ADDL. DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEALS AND CONFIRMING THE JUDGMENT AND DECREE DATED:04.02.2010 PASSED IN O.S.NOS.1318/2005 & 683/1997 RESPECTIVELY, ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.), BANGALORE [R] DISTRICT, BANGALORE.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two appeals of the plaintiff arise out of the common judgment and decree dated 20.12.2018 in Regular Appeal No.66/2010 c/w Regular Appeal No.67/2010 passed by the VIII Additional District & Sessions Judge, Bengaluru Rural District, Bengaluru.
2. By the impugned judgment and decree, the First Appellate Court dismissed the appeals of the appellant and confirmed the judgment and decree dated 04.02.2010 in O.S.No.1318/2005 c/w O.S.No.683/1997 passed by the II Addl.Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore.
3. By the said judgment and decree, the Trial Court had dismissed the suit of the plaintiff/present appellant for declaration and for permanent injunction.
4. The appellant was the plaintiff and respondents-1 to 3 and 5 to 7 were the defendants in the above mentioned suits and respondents-4 to 6 are the legal representatives of one Ramamurthy, who was the son of original fourth defendant Shivanna. For the purpose of convenience, parties will be referred to henceforth as per their rankings before the trial Court.
5. Subject matter of the suit was 3 acres of land which constituted half portion in Sy.No.269 of Hesaraghatta village, Bangalore North Taluk. The land bearing Sy.No.269 in all measuring 5 acres 39 guntas originally belonged to the family of one Muniyappa. Muniyappa had six sons by names Doddachennappa, Hanumanthanna, Kariyappa, Marichannappa, Kempaiah and Chikkamunithimmaiah. Wife of Hanumanthanna predeceased him. Hanumanthanna died issueless. Plaintiff is the son of Marichannappa.
6. The case of the plaintiff in brief is as follows:
That on the death of Hanumanthanna, his interest in the ancestral joint family properties reverted to his surviving brothers. That there was a partition between Marichannappa and his brothers and in that partition, the property bearing Sy.No.269 measuring 5 acres 39 guntas was allotted to the share of Marichannappa. About 5 years prior to the filing of O.S.No.683/1997, there was a partition between himself and his brothers. In that partition, the suit property was allotted to his share. Therefore, he was the absolute owner and in exclusive possession of the said property since the partition.
That 4th and 5th defendants without any manner of right filed O.S.No.3374/1980 before the City Civil Court, Bangalore, setting up a false claim over the portion of the property. The said suit came to be dismissed. That judgment and decree was confirmed by the High Court in R.F.A.No.401/1984. Pending the said appeal, defendants-4 and 5 have executed collusive sale deed dated 28.10.1992 in favour of defendant No.2. Thereafter, defendants – 1, 2, 4 and 5 in collusion with each other executed the rectification deed dated 04.01.1997 to grab the property of the plaintiff. Therefore, in O.S.No.683/1997, plaintiff sought declaration of his title to the suit property and permanent injunction. In view of the execution of the rectification deed, the plaintiff filed subsequent suit in O.S.No.1318/2005 seeking declaration that rectification deed dated 04.01.1997 executed by defendant No.3 and her husband in favour of 2nd defendant is null and void and for permanent injunction.
7. Defence of the defendants is as follows:
The pedigree furnished by the plaintiff was disputed. Doddachannappa, his brothers as well as cousin brothers with Nanjamma had acquired large extent of property in khata No.10 of Hesaraghatta in the name of Doddachannappa. Hanumanthanna was the youngest brother of Doddachannappa @ Kuntanna. Doddachannappa and his five brothers divided the properties before 1937-38.
Hanumanthanna got the property as his share and was the absolute owner of the suit schedule property. Hanumanthanna had executed Will dated 14.11.1960 referring to his title. He later executed another Will dated 25.11.1967, which was nothing but the earlier Will except for inclusion of defendant Nos.4 and 5 as the additional legatees under the Will. Thus, he bequeathed the suit property in favour defendant Nos.4 and 5. They in turn sold the property to the second defendant under the registered sale deed dated 28.10.1992. There were some mistakes in the sale deed. Therefore, defendants-4 and 5 executed the rectification deed dated 4.1.1997 in favour of the second defendant. Second defendant is in lawful possession of 4 acres of land in Sy.No.269. The total measurement of Sy.No.269 was 5 acres 39 guntas out of which, Jayaramaiah was in illegal possession of 1 acre 20 guntas in North-East corner and Marichannappa was in illegal possession of 2 acres 2 guntas in Sy.No.268 and 1 acre 20 guntas in Sy.No.269.
Second defendant is in lawful possession of 4 acres and remaining 19 guntas is again in illegal possession of fourth defendant. Suit is not properly valued, thus, prayed for dismissal of the suits.
8. On the basis of such pleadings, the Trial Court framed the following issues:
“Issues in O.S.NO.683/1997 (RSA NO.760/2019) 1. Whether the plaintiff proves that he is the owner and in possession of the suit land?
2. Whether the plaintiff further proves that the defendant is illegally interfering in the peaceful possession and enjoyment and trying to trespass over the suit land as contended in the plaint?
3. Whether the defendants prove that the suit of plaintiff is not properly valued and court fee paid is insufficient?
4. Whether the defendants prove that the suit filed by the plaintiffs is false and vexatious and same is liable to be dismissed with exemplary cost as contended in the written statement?
5. Whether the plaintiff is entitled for the relief of declaration and permanent injunction as prayed in the plaint?
6. What order or decree?
Issues in O.S.NO.1318/2005 (RSA NO.761/2019 1. Whether plaintiff proves that he is absolute owner and in exclusive possession of the suit property?
2. Whether plaintiff proves that defendant No.3 and 4 to defeat the rights of the plaintiff have created a rectification deed without any authority on 4-1-1997 thereby it is null and void?
3. Whether plaintiff proves that defendants are interfering in his peaceful possession and enjoyment of the suit property?
4. Whether plaintiff is entitled for relief sought?
5. What order or decree?”
9. The trial court consolidated both the suits and recorded common evidence. On behalf of the plaintiff, PWs-1 to 3 were examined and Ex.P1 to P10 were marked. On behalf of the defendants, DWs-1 to 6 were examined and Ex.D1 to D50 were marked.
10. The trial court after hearing both parties by common judgment and decree dismissed the suits on the following grounds:
(i) Plaintiff has approached the court for declaration of his title, therefore, burden of proving his case is on him. Plaintiff traces title throu**gh his father Marichannappa. But his pleadings and evidence regarding partition between Marichannappa and his brothers are very vague.
(ii) Defendants-3 and 4 set up title to the property under Will in their suit filed in 1980. But plaintiff did not bring the suit for declaration of title within three years therefrom. Therefore, the suit is barred by time.
(iii) Plaintiff did not seek declaration regarding the Will set up by defendants-4 and 5, declaration regarding the sale deed dated 28.10.1992 and sought declaration only with regard to rectification deed.
(iv) Plaintiff virtually sought relief regarding sale deed dated 28.10.1992, therefore, the suit was not properly valued and the court fee paid was insufficient.
(v) In the earlier suit in O.S.No.3374/1980, the possession of defendants-4 and 5 was held proved and even the Will in their favour was held proved.
(vi) The revenue entries stood in the name of Hanumanthanna and after the execution of Will in favour of defendants – 4 and 5. Plaintiff did not seek relief of possession, therefore, suit as framed was not maintainable.
11. Plaintiff challenged the said judgment and decree of the courts below in R.A.No.66/2010 c/w R.A.No.67/2010 before the VIII Additional District & Sessions Judge, Bengaluru Rural District, Bengaluru.
The first appellate court by the impugned judgment and decree concurring with the reasonings and findings of the trial court dismissed the appeals.
12. Sri.Padmanabha V.Mahale, learned Senior Counsel appearing on behalf of Sri.H.P.Leeladhar for the appellant – plaintiff seeks to assail the judgments and decrees of the courts below on the following grounds:
(i) Admittedly the suit property was the ancestral properties of plaintiff’s grandfather and plaintiff’s father and uncles;
(ii) In R.F.A.No.401/1984, this Court held that the partition between the brothers is not proved. In that event, property continues to be the joint family property and Hanumanthanna was not competent to bequeath the said property;
(iii) When the defendants set up the Will, burden was on them to prove that. The courts below wrongly shifted the burden on the plaintiff and there was no need for the plaintiff to seek declaration regarding Will.
(iv) The courts below misread the judgments in R.F.A.No.401/1984 and O.S.NO.3374/1980 i.e., Exs.P4 and P10 to say that the Will was held proved.
According to him, these are the substantial questions of law for consideration.
13. Per contra, Sri.M.N.Umashankar, learned Counsel for the respondents/defendants seeks to support the impugned judgments and decrees of the courts below on the following grounds:
(i) Though defendant Nos.4 and 5 have set up the Will in the earlier suit O.S.No.3374/1980 and the plaintiff was aware of the sale deed dated 28.10.1992, plaintiff did not seek declaration with regard to said documents. Therefore, suit as framed was not maintainable;
(ii) There was a cloud on the title. Ex.P29 was a registered Will executed on 23.11.1967. In the absence of any denial in the pleading of the plaintiff regarding execution of the Will or testamentary capacity of Hanumanthanna, there was no need for the defendants to prove the Will;
(iii) When the plaintiff seeks declaration of his title, it was for him to prove his case to succeed and he cannot rely on the weakness of the other side;
(iv) In the earlier suit, the subject matter was only 19 guntas out of Sy.No.269. Therefore, dismissal of the earlier suit will not enure to the benefit of the plaintiff.
14. This being a second appeal under Section 100 CPC can be admitted for hearing, only if it is shown that the matter involves a substantial question of law for consideration.
15. The Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. AIR 2001 SC 965, has held that first appellate court is the final court of facts and such findings of fact remain immune from challenge before the High Court in second appeal unless perversity is shown. It was also held that even on the question of law, after 1976 amendment to the CPC, the first appellate court is the final court. Even if its decision on a question of law is erroneous may not be vulnerable before the High Court in second appeal unless it is a substantial one.
16. In Gurnam Singh (Dead) by LRs & Others –vs- Lehna Singh (Dead) by LRs. AIR 2019 SC 1441, the Hon’ble Supreme Court held that existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. It was further held that the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Apex Court; OR (iii) Based on in-admissible evidence or no evidence.”
17. In the light of the above said judgments, now this Court has to see whether the judgments and decrees of the courts below are contrary to any applicable law, judicial precedents of the Supreme Court or based on inadmissible evidence or no evidence.
18. It is the specific case of the plaintiff that the partition between his father and uncles was after the death of Hanumanthanna and since Hanumanthanna was issueless, the property reverted to plaintiff’s father and brothers and thereafter there was a division in the family. He further claimed that in that division, Sy.No.269 had fallen to his father’s share and later there was partition between him and his brothers.
19. This Court in R.F.A.No.401/1984 though held that there was no exact evidence of the partition, observed that the parties were in possession of the property in separate bits.
20. When the plaintiff came to the court claiming title to the property, it was for him to plead and prove when Hanumanthanna died, when partition took place between his father and other surviving brothers, then when the partition took place between him and his brothers. The pleadings in that regard were as bald as possible. He had no explanation why the revenue entries were standing in the names of defendant Nos.3 and 4 and Hanumanthanna. It was not even stated when Hanumanthanna died.
21. So far as the Will set up by defendant Nos.4 and 5, that was the registered Will dated 23.11.1967. That Will was set up in the earlier suit as long back as in the year 1980. The said document was 30 years old document.
22. The Hon’ble Supreme Court in Kalidindi Venkata Subbaraju and others –vs- Chintalapati Subbaraju and others AIR 1968 SC 947 relying on the earlier judgment of Privy Council in Munnalal – vs- Mt.Kashibai AIR 1947 PC 15 held that presumption under Section 90 of the Evidence Act regarding 30 years old document applies to the Will also. It was further held that the actual execution and attestation of the Will could be presumed under Section 90 and that presumption extends to the testamentary capacity of the testator also, even in the absence of examination of attesting witnesses.
23. Under such circumstances, as rightly held by the courts below, the plaintiff should have sought declaration with regard to the Will as well as the sale deed dated 28.10.1992. Without seeking declaration with regard to the said documents, the plaintiff sought declaration only with regard to the rectification deed dated 23.11.1967. Further by the aforesaid documents, a cloud was created on the title of the plaintiff as long back as in the year 1980. Therefore, if at all plaintiff wanted to sue for declaration of his title, he should have filed suit within three years therefrom as required under Article 58 of the Limitation Act. Therefore, the trial court was justified in holding that the suit was barred by time.
24. Since in the earlier suit, possession with regard to Sy.No.269 was held in favour of defendant Nos.4 and 5, the plaintiff should have sought relief for declaration of title and possession, therefore, suit as framed was not maintainable as held by the courts below.
25. The observation of the trial court that in earlier proceedings, Will was held proved was with reference to the judgment of the trial court and not with reference to the judgment of this Court in R.F.A.No.401/1984. Even otherwise, under the facts and circumstances of the case stated above, it does not vitiate the entire judgment.
26. This Court does not find any substantial question of law to admit the appeals. Therefore, the appeals are dismissed with costs.
In view of disposal of the appeals, pending I.As. do not survive for consideration and stood disposed of.
Sd/- JUDGE KNM/-