IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1244/2015 (DEC/POS) BETWEEN:
SRI N.ERANNA S/O LATE NAGAPPA AGED ABOUT 67 YEARS R/AT AMBEDKAR NAGARA MAREVANJI ROAD KADUR TOWN – 577 548 CHIKKAMAGALUR DISTRICT … APPELLANT (BY SRI A.LOURDU MARIYAPPA, ADVOCATE) AND:
OBALESH SINCE DEAD BY LR’S 1. MUTHI HALAMMA W/O LATE OBALESH AGED ABOUT 75 YEARS 2. SMT.NAGAMMA D/O LATE OBALESH W/O SUBRAYADU AGED ABOUT 60 YEARS 3. SMT.MEENA D/O LATE OBALESH W/O NAGARAJA AGED ABOUT 43 YEARS 4. SRI MANJUNATHA S/O LATE OBALESH AGED ABOUT 39 YEARS 5. SMT.LAXMI D/O LATE OBALESH W/O RAMA AGED ABOUT 36 YEARS R1 TO R5 ARE R/AT AMBEDKAR NAGARA KADUR TOWN CHIKKAMAGALURU DISTRICT RAMAPPA S/O LATE NAGAPPA DEAD BY LR’S 6. SMT.CHOUDAMMA W/O LATE RAMAPPA AGED ABOUT 54 YEARS R/AT AMBEDKAR NAGARA MARAVANJI ROAD KADUR TOWN CHIKKAMAGALUR DISTRICT LAXAMANA SINCE DEAD BY LR’S 7. PALLAVI D/O LAXMANA AGED ABOUT 32 YEARS R/AT AMBEDKAR NAGARA MARAVANJI ROAD KADUR TOWN – 577 548 GANGAMMA SINCE DEAD BY LR’S 8. NAGARAJA S/O LATE SHESHANNA AGED ABOUT 50 YEARS 9. JAGADEESHA S/O LATE SHESHANNA AGED ABOUT 47 YEARS 10. KUMARA S/O LATE SHESHANNA AGED ABOUT 45 YEARS R8 TO R10 ARE R/AT BALLARI CAMP LINGADAHALLI ROAD ASHOK NAGARA BIRURU – 577 116 ERALLAIAH S/O LATE B.MALIYANNA DEAD BY LR’S 11. K.S.GANGADHARAPPA S/O LATE K.M.ERALLAIAH AGED ABOUT 64 YEARS R/AT B.H.ROAD NEAR GOVERNMENT JUNIOR COLLEGE KADUR – 577 548 12. K.S.MALLESHAPPA SINCE DEAD BY LR’S 12(a) SMT.SAKAMMA W/O LATE K.E.MALLESHAPPA AGED ABOUT 62 YEARS 12(b) K.M.VASANTH KUMAR S/O LATE K.E.MALLESHAPPA AGED ABOUT 37 YEARS BOTH R12(a) & R12(b) ARE R/AT B.H.ROAD NEAR GOVERNMENT JUNIOR COLLEGE KADUR TALUK CHIKKAMAGALURU DISTRICT – 571 602 13. K.S.MARIYAPPA S/O LATE K.M.ERALLAIAH AGED ABOUT 54 YEARS R/AT NEAR GOVERNMENT JUNIOR COLLEGE B.H.ROAD, KADUR TOWN – 577 548 CHICKMAGALUR DISTRICT … RESPONDENTS (BY SRI A.G.NANJUNDA, ADVOCATE FOR R2, R3, R5 & R7-R10;SRI SANTHOSH R.NELKUDRI, ADVOCATE FOR R11, R12(a) & (b), R13; R4-SERVED; R2-R5 AS LR’S OF DECEASED R1 VIDE ORDER DATED 30.01.2019; APPEAL ABATES AGAINST R6 VIDE ORDER DATED 14.02.2019) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 13.04.2015 PASSED BY I ADDITIONAL DISTRICT & SESSIONS JUDGE AT CHIKKAMAGALURU IN R.A.NO.413/2006 AND TO SET ASIDE THE JUDGMENT AND DECREE DATED 07.03.2006 PASSED BY CIVIL JUDGE (SR.DN.) AND JMFC, KADUR IN O.S.NO.106/2002.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of defendant No.4 arises out of judgment and decree dated 13.04.2015 passed by I Additional District & Sessions Judge, Chikkamagaluru in R.A.No.413/2006. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of the appellants and confirmed the judgment and decree dated 07.03.2006 passed by Civil Judge (Senior Division), Kadur in O.S.No.106/2002.
2. By the judgment and decree impugned before the First Appellate Court, the trial Court decreed the suit of plaintiffs for declaration of title to plaint schedule ‘A’ and ‘B’ properties and possession of ‘B’ schedule property from defendant No.1 and for recovery of rent of Rs.1,830/- from 04.04.1994 till the date of filing of the suit.
3. One Erallaiah father of respondent Nos.11 to 13 filed O.S.No.106/2002 against defendant Nos.1 to 5 seeking declaration of title to plaint schedule ‘A’ and ‘B’ properties and for possession. Appellant was defendant No.4 Ramappa, Lakshmana and Gangamma were defendant Nos.1, 3 & 5 respectively.
4. For the purpose of convenience, parties will be henceforth referred to with their ranks before the trial Court.
5. Subject matter of the suit was plaint ‘A’ schedule property-land measuring 5 guntas in Survey No.125/1 of Kadur Village, Kadur and plaint ‘B’ schedule property a Mangalore tiled residential house bearing Assessment No.5264/5129 measuring 7.60 meters x 6.70 meters situated at Maravanje Road, Kadur which situated in plaint ‘A’ schedule property.
6. Case of plaintiffs in brief was as follows:
(i) Entire Survey No.125 measuring 10 guntas was sold by its erstwhile owners Bhootanna, Gollaranga and Hallappa under registered sale deed dated 23.02.1941 in favour of defendants’ father scavenger Nagappa. He in turn sold 5 guntas of land out of said 10 guntas in favour of K.R.Honnappa under registered sale deed dated 23.03.1968. Further scavenger Nagappa along with his sons Obalesha and Ramappa sold remaining 5 guntas to K.R.Honnappa under registered sale deed dated 02.05.1970. Thus K.R.Honnappa was the absolute owner of those properties.
(ii) Defendants continued to stay in the residential house situated thereon i.e. plaint ‘B’ schedule property. K.R.Honnappa sold 5 guntas to one G.Krishnamurthy under registered sale deed dated 05.10.1969. G.Krishnamurthy sold the said land in favour of plaintiff No.1 under registered sale deed dated 28.04.1971. Thereafter plaintiff No.1 purchased remaining 5 guntas under another registered sale deed dated 22.06.1972.
(iii) By virtue of those two sale deeds, plaintiff No.1 became absolute owner of entire 10 guntas. Under registered sale deed dated 30.06.1972, plaintiff No.1 purchased residential house from scavenger Nagappa i.e. plaint ‘B’ schedule property. After such purchase, defendant No.1 entered into rental agreement with plaintiff No.1 on 15.07.1972 and continued to be in possession of plaint schedule ‘B’ property as a tenant.
(iv) After selling the properties, scavenger Nagappa tried to interfere with plaintiff No.1’s possession and enjoyment. Therefore, he filed suit in O.S.No.128/1981 on the file of Munsiff Court, Kadur for permanent injunction. The said suit after contest was decreed on 16.02.1983. Against said judgment and decree, scavenger Nagappa preferred R.A.No.32/1983 before the Civil Judge (Junior Division), Tarikere. R.A.No.32/1983 was allowed on 23.06.1992 and the matter was remanded to the trial Court.
(v) After remand, scavenger Nagappa died on 13.06.1996. Plaintiffs filed an application to bring legal representatives of Nagappa on record in the said suit. However, Court dismissed the application and the suit holding that suit being for bare injunction, cause of action does not survive against the said children of Nagappa.
(vi) Defendant No.1 stopped paying the rent denying the jural relationship in respect of plaint schedule ‘B’ property. Therefore, plaintiffs filed H.R.C.No.1/1994 for eviction of defendant No.1 in the said petition. Defendant No.1 denied the jural relationship. Therefore, plaintiffs withdrew the said petition reserving right to file suit for declaration and possession.
(vii) One amongst the sons of plaintiff No.1 by name K.E.Hiriyanna filed O.S.No.51/1993 before the Civil Judge (Senior Division), Tarikere for partition. The said suit was decreed on 27.11.1997. Accordingly, final decree proceeding in FDP No.1/1997 was initiated. Later it was transferred to Civil Judge (Senior Division), Kadur and renumbered as FDP No.8/2001.
(viii) During the pendency of the said proceeding, the parties to the proceedings entered into compromise and suit schedule properties were allotted to the share of plaintiff No.1. Plaintiff No.1 conveyed 1/3rd portion of plaint schedule ‘A’ property to plaintiff No.2 under registered gift deed dated 15.04.2002. In view of denial of title of the plaintiffs and to handover possession to them, present suit is filed.
7. Defendant No.1 and legal representatives of defendant No.2 did not appear to contest the case. Defendant No.4 filed written statement which was adopted by defendant Nos.3 and 5.
Defence of defendant Nos.3 and 4 in brief was as follows:
(i) Plaintiffs title to the plaint schedule properties was denied. Nagappa sold only eastern 5 guntas in Survey No.125 to K.R.Honnappa under registered sale deed dated 02.05.1970. Sale of remaining 5 guntas to K.R.Honnappa under registered sale deed dated 23.03.1968 was denied. Further sale by K.R.Honnappa in favour of plaintiff No.1 was also disputed. Therefore, further sale did not convey any right to plaintiff No1. Proceedings in O.S.No.128/1981 and H.R.C.No.1/1994 were admitted. Execution of the gift deed by plaintiff No.1 in favour of plaintiff No.2 was denied. When defendants were not tenants, question of payment of rent or claiming arrears do not arise at all. Thus they sought for dismissal of the suit.
8. On the basis of such pleadings, the trial Court framed the following issues:
1) Whether the plaintiffs prove that plaintiff No.1 is the absolute owner of suit ‘A’ schedule property?
2) Whether the plaintiffs prove that they got absolute right and title over the suit properties by virtue of various sale deeds as stated in the plaint?
3) Whether the plaintiffs prove that under a compromise decree in F.D.P.8/2001, they got the property in CGHB in ‘A’ & ‘B’ schedule properties?
4) Whether the plaintiffs prove that they are entitled for the relief of declaration of their ownership over the suit properties?
5) Whether the plaintiff No.2 is entitled for the relief of possession of ‘B’ schedule properties?
6) Whether the plaintiffs are entitled for arrears of rentals from 04.04.1994 at the rate of Rs.1,830-00 in respect of ‘B’ schedule property?
7) Whether the plaintiffs are entitled for relief of permanent injunction?
8) Whether the plaintiffs are entitled for alternative relief of possession of ‘A’ schedule property?
9) Whether the defendants prove that suit is bad for mis-joinder of cause of action?
10) Whether the valuation made by plaintiffs and court fee paid are proper?
11) What decree or order?
9. Parties adduced evidence. On behalf of plaintiffs, PW.1 to PW.7 were examined and Ex.P1 to Ex.P41 were got marked. On behalf of defendants, DW.1 to DW.3 were examined and Ex.D1 to Ex.D16 were marked.
10. The trial Court after hearing the parties decreed the suit holding that sale of plaint schedule ‘A’ property of which plaint schedule ‘B’ property was a part in favour of K.R.Honnappa and in turn from K.R.Honnappa to the vendors of plaintiff No.1 was proved. The trial Court further held that since defendants disputed the jural relationship, but they were in possession of property, they are liable to pay rent at the rate of Rs.1,830/- for the period from 04.04.1994 till the date of filing of the suit and at the rate of Rs.15/-per month from the date of suit till the date of decree.
11. Defendant No.4-present appellant challenged the said judgment and decree before the First Appellate Court in RA No.413/2006. Other defendants did not challenge the said judgment and decree. The First Appellate Court by impugned judgment and decree concurred with the reasoning and findings of the trial Court and dismissed the appeal.
12. This being second appeal under Section 100 of Code of Civil Procedure, 1908 can be admitted for hearing only if appellants make out that case involves substantial questions of law for consideration. The Hon’ble Supreme Court in Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] has held that on the questions of fact, the First Appellate Court is the last Court unless some perversity is shown in the judgments of the Courts below. It was further held that to be a question of law, there must be first a foundation laid to it in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Courts of facts.
13. In the light of the aforesaid judgment, on the question of fact, the First Appellate Court is the last Court. This Court has to see whether there is any substantial question of law in the case.
14. Sri A.Lourdu Mariyappa, learned Counsel for the appellant submits that plaintiffs claim to have purchased properties from K.R.Honnappa. He further submits that said K.R.Honnappa himself in O.S.No.128/1981 deposed before the Court that he has not executed sale deed, Courts below overlooked such material evidence and that constitutes substantial question of law.
15. He further submits that K.R.Honnappa’s wife was examined as DW.2 in this case. She also disputed the sale, the Courts below ignored her evidence and that constitutes substantial question of law.
16. Per contra, Sri Santhosh R.Nelkudri, learned Counsel for respondent Nos.11, 12(a) & 12(b) and 13 submits that though said K.R.Honnappa and his wife denied execution of sale deed, plaintiffs examined the attestors to the sale deeds and son of the scribe to prove the sale deeds. He further submits that though K.R.Honnappa and his wife disputed the same, they did not file any suit seeking declaration or cancellation of the sale deed. They were all 30 years old documents. Therefore, they were rightly accepted by Courts below. Thus, there is no substantial question of law.
17. Defendants did not dispute that entire 10 guntas in Survey No.125 belong to their father scavenger Nagappa. They also did not dispute sale of 5 guntas of land in favour of K.R.Honnappa under registered sale deed dated 02.05.1970.
18. Under such circumstances, the only dispute was with regard to sale of 5 guntas in Survey No.125 by Nagappa in favour of K.R.Honnappa under Ex.P2 registered sale deed dated 23.03.1968. Though defendants in their written statement disputed the sale of the said property to K.R.Honnappa under Ex.P2, as admitted by themselves, they examined the very same K.R.Honnappa in O.S.No.128/1981 on their behalf to deny the sale deed executed by him in favour of plaintiff No.1 under Ex.P6 dated 22.06.1972. They also examined the wife of K.R.Honnappa in the present suit. Plaintiff produced sale deeds Ex.P2 and Ex.P6. Though defendants denied execution of sale deed dated 23.03.1968 and further sale in favour of plaintiffs on 22.06.1972 under Ex.P6, neither Nagappa nor K.R.Honnappa filed any suit seeking declaration regarding the said sale deed or for cancellation of the said sale deeds.
19. Further plaintiffs produced title deeds of themselves and their predecessor in title which were marked from Ex.P2 to Ex.P7. They examined the attestors to the documents and the son of scribe as PW.1 to PW.5. Further, Ex.P2 and Ex.P6 were more than 30 years old documents and Courts below raised presumption regarding their correctness by invoking Section 90 of Indian Evidence Act.
20. Under such circumstances, it cannot be said that the approach of the Courts below was perverse in evaluating evidence and deciding the issues in the case.
As defendants disputed the jural relationship, HRC No.1/1994 was withdrawn. O.S.No.128/1981 was dismissed on the ground that cause of action will not survive against the heirs of defendants. Therefore, the orders in those cases have no bearing on the case on hand and Courts below have rightly considered them. This Court does not find any substantial question of law in the case. The appeal is dismissed.
KSR Sd/- JUDGE