IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL NO.2368 OF 2008 BETWEEN:
SRI NAREPPA, S/O KAKI SIDDANNAGARI VENKATAPPA, SINCE DEAD BY HIS LRS 1. SMT.MUNIYAMMA, AGED ABOUT 65 YEARS, W/O LATE NAREPPA.
2. SRI D.N.VENKATADRI, AGED ABOUT 48 YEARS, S/O LATE NAREPPA.
3. SRI D.N.CHANDRASHEKAR, AGED ABOUT 44 YEARS, S/O LATE NAREPPA.
4. SRI D.N RAVI, AGED ABOUT 40 YEARS, S/O LATE NAREPPA.
(CAUSE TITLE AMENDED AS PER COURT ORDER DATED: 05.07.2017) APPLICANTS 1 TO 4 ALL ARE R/AT DIMBALA VILLAGE, RONUR HOBLI, SRINIVASAPURA TALUK, KOLAR DISTRICT. ...APPELLANTS (BY SRI N BAYYA REDDY, ADVOCATE FOR LRS) AND:
1. SRI VENKATESHAPPA, S/O KAKI SIDDANNAGARI VENKATAPPA, AGED ABOUT 61 YEARS.
2. SRI B NARAYANA SWAMY, S/O LATE BYRAPPA, AGED ABOUT 43 YEARS, BOTH ARE R/AT DIMBALA VILLAGE, RONUR HOBLI, SRINIVASAPURA TALUK, KOLAR DISTRICT – 563135.
…RESPONDENTS (BY SRI RAVISHANKAR, ADVOCATE FOR SRI M SHIVAPRAKASH, ADVOCATE) ***** THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.03.2008 PASSED IN R.A.NO.65/2006 ON THE FILE OF THE ADDL. DISTRICT-FTC-IV, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 06.01.2006 PASSED IN OS 192/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, SRINIVASAPUR.
THIS RSA COMING FOR FURTHER HEARING ON THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree passed in R.A.No.65/2006 which came to be dismissed on 25.03.2008 thereby confirming the judgment and decree dated 06.01.2006 passed in O.S.No.192/2003 on the file of Civil Judge (Jr.Dn.) & JMFC, Srinivaspur, wherein the original suit of plaintiff Nareppa was dismissed.
2. In order to avoid overlapping and confusion, the parties are addressed with reference to their status and ranks as stood before the trial Court.
3. In the beginning, the original suit came to be filed by plaintiff Nareppa S/o Kaki Siddannagari Venkatappa against Venkateshappa S/o Kaki Siddannagari Venkatappa and B Narayanaswamy S/o late Byrappa for the relief of declaration of title and permanent injunction. The said suit was instituted before the trial Court on 05.08.2003 and it was dismissed on 06.01.2006.
4. The plaintiff claims ownership and possession over the landed property bearing Sy.No.129/1 measuring 1 acre 6 ½ guntas consisting of Mango garden, out of 2 acres 13 guntas situated at Champalli Village, Ronur Hobli, Srinivaspur Taluk.
5. The plaintiff claims that, plaintiff, defendant No.1, father of defendant No.2 and one Ramappa are natural brothers and sons of Kaki Siddannagari Venkatappa. The said Venkatappa had a brother by name Pedda Byranna.
6. The said Pedda Byranna had only son by name Siddanna. After the death of Siddanna and Pedda Byranna, the plaintiff’s father acted as a Manager of the joint family. The suit schedule property is stated to have purchased in his name and later plaintiff’s father and Siddanna S/o Pedda Byranna partitioned the joint family properties, wherein northern half portion fell to the share of plaintiff’s father and the southern half portion fell to the share of Siddanna S/o Pedda Byranna. The said partition was stated to be a oral partition. After the death of plaintiff’s father, father of defendant No.2 i.e., Byranna, was separated from the joint family by taking his share excluding the suit schedule property. The plaintiff, defendant No.1 and their brother Ramappa were stated to be in possession of the suit schedule property. Plaintiff also claims that plaintiff, defendant No.1 and Ramappa orally divided the suit schedule property into three parts, out of which 17 guntas fell to the share of plaintiff; 17 guntas fell to the share of defendant No.1 and 12 ½ guntas fell to the share of Ramappa. Ramappa exchanged his 12 ½ gunta in possession of plaintiff by taking plaintiff’s land in Sy.No.53. The plaintiff claims that on 14.12.1978, defendant No.1 sold his share of 17 guntas in the suit property in favour of the plaintiff for a valuable consideration and delivered the possession. In view of the registered sale deed, defendant No.1 transferred his right, title and interest in the suit survey number land in favour of the plaintiff and consequentially the katha and other revenue records were transferred into the name of plaintiff. Defendant Nos.1 and 2 appeared and contested the suit. The learned trial judge, on the basis of the oral and document evidence produced on behalf of both parties, dismissed the suit. Against which plaintiff preferred the regular appeal, which also came to be dismissed. Against which, plaintiff presented this second appeal.
7. The genealogical tree is filed. It is marked as Ex. P-1, which is as under:
GENEALOGICAL TREE Kaki Siddanna (dead)
Siddanna Byranna Ramanna Nareppa Venkateshappa (dead) (dead) (Plaintiff) (1st defendant) Pedda Redappa Chinna Redappa Seenappa Narayanaswamy (2nd Defendant) 8. Sri Bayya Reddy, learned counsel for the plaintiffs/appellants would submit that plaintiff became the full and absolute owner of the suit schedule property, as out of the total extent of 2 acres 13 guntas of land plaintiff Nareppa got 17 guntas and he purchased 17 guntas from defendant No.1-Venkateshappa. Learned counsel further submit that plaintiff has became the owner for having purchased 17 guntas from Venkateshappa under the registered sale deed dated 14.12.1978 marked as per Ex.P-2. The plaintiff further claims that he got 12 ½ guntas of land, out of suit survey number land exchanged from Ramappa. Learned counsel would further submit that the actual extent of suit survey number land thus came under the ownership of the plaintiff to the extent of 46 ½ guntas or 1 acre 6 ½ guntas. In this connection, apportionment of the property among the siblings of the plaintiff are as under:
1 acre = 40 guntas. 40 guntas + 6 ½ guntas = 46 ½ guntas, out of which the plaintiff got 17 guntas, defendant No.1-Venkateshappa got 17 guntas and Ramappa S/o Venkatappa. Thus, plaintiff claims ownership and possession of the said extent of 1 acre 6 ½ guntas.
9. Sri Ravi Shankar, learned counsel for respondents-defendants would submit that the claim of the plaintiff is against Section 92 of Indian Evidence Act. The plaintiff has brought up the defence of getting the transfer of property to the extent of 12 ½ guntas only to knock off all the said extent of property from defendant No.1. He would further submit that there is no basis for the claim of the plaintiff of ownership and possession to the extent of 1 acre 6 ½ guntas. In the circumstances of the case, total land of 2 acre 13 guntas came to be bifurcated earlier.
10. It is also submitted that none of the partition deeds are registered. However, there is no dispute regarding division of property 30 years back into two parts and the said matter has not been seriously disputed and it is in respect of share of Venkateshappa, the dispute started among his sons, incidentally were siblings.
11. The reckoning in respect of further partition among the brothers not supported by the documents is regarding 1 acre 6 ½ guntas in which this plaintiff Nareppa got 17 guntas.
12. The averments as pleaded in paragraph No.4 of the plaint is as under:
The plaintiff claims that, plaintiff, defendant No.1 and Ramappa orally divided the suit survey number land in three parts. Out of which, 17 guntas fallen to the share of the plaintiff , another 17 guntas fallen to the share of defendant No.1 and 12 ½ guntas fallen to the share of Ramappa.
However, this allotment or partition is disputed by the defendants. In this connection, it is necessary to place on record that the revenue records are not mutated or confirmed on the ground of partition. In this connection, it is necessary to reiterate the contention of the plaintiff in paragraph No.5 of the plaint that on 14.12.1978, defendant No.1 sold his share of 17 guntas in favour of the plaintiff for valuable consideration and delivered the possession.
13. On perusal of Ex.P-4 RTC extract for the year 1993-94 and 1994-95, wherein it is mentioned as 2 acres 13 guntas, thus revenue entries are not effected. Here it is also necessary to make note that despite the sale deed dated 14.12.1978 marked as per Ex.P-2, the said entry is also not forthcoming in Ex.P-4. Regard being had to the fact that the said sale is not disputed. With the above circumstances, it cannot be lost sight that the nature of suit is declaration and permanent injunction, wherein the plaintiff claims to have purchased 17 guntas from defendant No.1 and exchanged the property in other survey number in order to get 12 ½ guntas from Ramappa.
The further area of dispute between the parties is that 17 guntas of land which is claimed as having fallen to the share of plaintiff is disputed as stated above. There is no dispute in respect of 17 guntas and insofar as 12 ½ guntas of land is concerned, it is stated to have been exchanged from Ramappa. However, said Ramappa is not a party to the suit.
14. In the overall circumstances, the plaintiff is the owner of the property to the extent of 17 guntas. Regard being had to the fact that the other extent of 29 ½ guntas, the dispute is between the plaintiff and defendant No.1.
15. In the overall circumstances of the case, the relief of injunction is a possession remedy, it is followed by lawful possession, more particularly in the case plaintiff claims ownership as well. However, the extent of schedule property shown is as under:
SCHEDULE Property bearing Sy.No.129/1 measuring 1 acre 6 ½ guntas consisting of mango garden, out of 2 acre 13 guntas bounded on:
East by: Road West by: Property of Kagathi Venkatareddy North by: Property of Kambala Narayanaswamy South by: Property of Chinna Reddappa and Pedda Reddapa in same survey number.
Situated at Champali Village, Ronur Hobli, Srinivasapura Taluk.
16. For the reasons mentioned in detail, the plaintiff has not established the title over the total extent of land in Sy.No.129/1 situated at Champalli Village, Ronur Hobli, Srinivasapura Taluk.
17. Here it is necessary to mention that I.A.No.1/2018 filed by plaintiff under Order XLI Rule 27 read with Section 151 of CPC is disposed of by a separated order. Six documents, produced, are considered. Among the documents filed by the plaintiff, one is the sale deed stated to have been executed by Venkateshappa S/o Kaki Siddannagari Venkatappa, wherein the land is stated to have been sold in Sy.No.23/3 to the extent of 26 guntas. However, the same does not have relevance to the case.
18. In the circumstances, considering the extent and the possession claimed in the schedule property, I do not find any infirmity or lapse in the judgment and decree passed by the Courts below. Both the judgments deserve to be confirmed. Accordingly, appeal fails and it is rejected.
In view of disposal of the appeal, I.A.No.2/2008 does not survive for consideration. Accordingly, same is disposed of.
Sd/- JUDGE BSR