IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.NO.1781/2005(DEC) C/W M.F.A.NO.6989/2010 (CPC) R.S.A.NO.1781/2005 BETWEEN 1. SRI VENKATARAMAIAH DEAD BY LEGAL REPRESENTATIVES 1(a) SMT.RANGAMMA, W/O LATE VENKATARAMAIAH, AGED ABOUT 75 YEARS, 1(b) SMT.GOWRAMMA, D/O LATE VENKATARAMAIAH, AGED ABOUT 54 YEARS, 1(c) SRI GIRIYAPPA, S/O LATE VENKATARAMAIAH, AGED ABOUT 50 YEARS, 1(d) SMT.SIDDAGANGAMMA, D/O LATE VENKATARAMAIAH, AGED ABOUT 48 YEAS, 1(e) SRI SUKUMAR S/O LATE VENKATARAMAIAH, AGED ABOUT 46 YEARS, ALL ARE RESIDENTS OF HANCHIMALLANAHALLI VILLAGE, KORATAGERE TALUK.
2. JAYAMMA W/O ERAMUDDAIAH @ NARASIMHARAJU MANGALAVADA NIDAGAL HOBLI, PAVAGADA TALUK HEALTH VISITOR PHC ... APPELLANTS (BY SRI G S BALAGANGADHAR, ADVOCATE) AND 1. SMT.GAVIRANGAMMA W/O LATE MUDLAPPA 2. SMT.SIDDAGANGAMMA D/O MUDLAPPA 3. SMT.AKKAMMA D/O MUDLAPPA 4. SMT.VENKATESHA S/O MUDLAPPA 5. SRI SHIVAKUMAR S/O MUDLAPPA 6. SMT.KAVALLAMMA D/O MUDLAPPA R1 TO R6 ARE R/O HANCHIMALLANAHALLI VILLAGE KORATAGERE TALUK 7. GOVINDARAJU S/O 1ST DEFENDANT AGRICULTURIST, HANCHIMALLANAHALLI VILLAGE KORATAGERE TALUK, TUMKUR DISTRICT. ... RESPONDENTS (BY SRI M B CHANDRACHOODA, ADVOCATE FOR R1 TO R6, VIDE ORDER DATED 03.11.2016, NOTICE TO R7 DISPENSED WITH) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 30.6.2005 PASSED IN R.A.NO.193/04 ON THE FILE OF THE II ADDL. DIST. JUDGE, TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DT.14.6.96 PASSED IN O.S.NO.213/89 ON THE FILE OF THE MUNSIFF AND JMFC, KORATAGERE.
M.F.A.NO.6989/2010 BETWEEN 1. SRI VENKATARAMAIAH DEAD BY LEGAL REPRESENTATIVES 1(a) SMT.RANGAMMA, W/O LATE VENKATARAMAIAH, AGED ABOUT 75 YEARS, 1(b) SMT.GOWRAMMA, D/O LATE VENKATARAMAIAH, AGED ABOUT 54 YEARS, 1(c) SRI GIRIYAPPA, S/O LATE VENKATARAMAIAH, AGED ABOUT 50 YEARS, 1(d) SMT.SIDDAGANGAMMA, D/O LATE VENKATARAMAIAH, AGED ABOUT 48 YEARS, 1(e) SRI SUKUMAR S/O LATE VENKATARAMAIAH, AGED ABOUT 46 YEARS, ALL ARE RESIDENTS OF HANCHIMALLANAHALLI VILLAGE, KORATAGERE TALUK.
2. SMT. JAYAMMA W/O ERAMUDDAIAH @ NARASIMHARAJU AGED ABOUT 52 YEARS, R/O ANCHIMARANAYALLI, KORATAGERE TALUK, TUMKUR DISTRICT. ... APPELLANTS (BY SRI G S BALAGANGADHAR, ADVOCATE) AND :
1. SMT.GAVIRANGAMMA, W/O LATE MUDALAPPA, AGED ABOUT 57 YEARS, R/O ANCHIMARANAYALLI, KORATAGERE TALUK, TUMKUR DISTRICT.
2. SMT.SIDDAGANGAMMA, D/O LATE MUDALAPPA, W/O GANGADHARAPPA, AGED ABOUT 30 YEARS, R/O BITTANAKURIKE, C.N.DURGA HOBLI, KORATAGERE TALUK, TUMKUR DISTRICT.
3. SMT.AKKAMMA, D/O LATE MUDALAPPA, W/O RANGANNA, AGED ABOUT 38 YEARS, R/O TUMBUGANAHALLI C.N.DURGA HOBLI, KORATAGERE TALUK, TUMKUR DISTRICT.
4. SRI VENKATESHA, S/O LATE MUDALAPPA, AGED ABOUT 36 YEARS, 5. SRI SHIVAKUMAR, S/O LATE MUDALAPPA, AGED ABOUT 34 YEARS, R4 & R5 R/O ANCHIMARANAYALLI, KORATAGERE TALUK, TUMKUR DISTRICT.
6. SMT.KAVALAMMA D/O LATE MUDALAPPA, W/O JAYAREDDY, AGED ABOUT 32 YEARS, R/O DODDAPALYA, C.N.DURGA HOBLI, KORATAGERE TALUK, TUMKUR DISTRICT. …RESPONDENTS (BY SRI M.B.CHANDRACHOODA, ADVOCATE FOR R1 TO R6) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 17.06.2010 PASSED ON I.A.NO.1 IN MISCELLANEOUS NO.2/2008 ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKUR, REJECTING I.A.NO.1 FILED UNDER SECTION 5 OF LIMITATION ACT, CONSEQUENTLY DISMISSING THE MISCELLANEOUS PETITION.
THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The second appeal in RSA.No.1781/2005 and miscellaneous first appeal in MFA.No.6989/2010 are filed by the common defendants in OS.No.213/1989 and OS.No.269/1989 on the file of Munsiff and JMFC, Koratagere.
2. The facts leading to these two appeals are as under;
(a) The aforesaid two suits were filed by one Mudlappa S/o Thimmaiah. One of the suits in OS.No.213/1989 was filed by Mudlappa against his brother Venkataramaiah, his son Govindaraju and daughter Jayamma. Initially, this suit was filed in OS.No.308/1985 on the file of Principal Munsiff, Madhugiri for the relief of declaration and permanent injunction in respect of eastern half portion of Sy.No.9 of Hanchimallanahalli, C.N.Durga Hobli, Koratagere Taluk, Tumkakuru District, which totally measured 10 acres 14 guntas and for other consequential reliefs. The said suit in OS.No.308/1985 was subsequently transferred to the Court of Munsiff and JMFC, Koratagere and renumbered as OS.No.213/1989.
(b) Whereas another suit filed by very same plaintiff in OS.No.269/1989 was against his brother Venkataramaiah and his daughter Jayamma. The said suit was earlier numbered as OS.No.329/1986 on the file of Principal Munsiff, Madugiri, subsequently transferred to the Court of Munsiff and JMFC, Koratagere, and renumbered as OS.No.269/1989. The relief sought in this suit is for declaration and permanent injunction with reference to a plot measuring 20 feet x 20 feet in Sy.No.9 of Hanchimallanahalli, C.N.Durga Hobli, Koratagere Taluk, Tumakuru District.
3. The records would indicate that defendants 1 to 3 in OS.No.213/1989 and defendants 1 and 2 in OS.No.269/1989 filed written statement denying execution of palu patti between the plaintiff and his brother - 1st defendant. However, in principle it is accepted that there was a partition between the brothers several years prior to the filing of both suits, wherein eastern half portion of Sy.No.9 was granted to the share of plaintiff and western half portion of said land was granted to the share of 1st defendant. So far as this distribution is concerned, there is no dispute. In fact, the dispute is mainly with reference to plot measuring 20 feet x 20 feet in a portion of Sy.No.9 situated on its western side, hence, execution of palu patti is also denied inasmuch as the case of the plaintiff mainly dependents upon the recitals in palu patti, which is produced and marked in the trial court as Ex.P1, wherein while dividing the property between the parties there is reference to plot measuring 20 feet x 20 feet being allotted to the share of plaintiff in the western half portion of Sy.No.9, which is allotted to the share of 1st defendant.
4. In the trial court, by the time both the suits reached the stage of evidence, plaintiff – Mudlappa died and his legal representatives came on record. The wife of plaintiff was examined as PW.1 and two of the signatories to Ex.P1 – palu patti dated 12.7.1978 were examined as PWs.2 and 3. The only document relied upon by the plaintiffs in support of their case is palu patti, where the signature of 1st defendant is identified at Ex.P1(b), P1(c), P1(d) and P1(e) and the signature of PW.3 at Ex.P1(a).
5. As against the evidence of plaintiffs, on behalf of the defendants, 1st defendant examined himself as DW.1 and he also examined two other independent witnesses as DWs.2 and 3. In addition to oral evidence, they have produced and marked 5 documents as Exs.D1 to D5, which are RTC extracts.
6. Based on the evidence, the trial court which had framed 5 issues in OS.No.213/1989 and 6 issues in OS.No.269/1989 answered all the relevant issues in favour of the plaintiff in accepting the plaint averments and denying the defence raised by defendants, consequently, decreed the suits of the plaintiff for the relief of declaration and injunction. Being aggrieved by the same it is seen that two appeals are filed, one in RA.No.56/1996 which is in respect of OS.No.213/1989 which was initially filed in the Court of Civil Judge (Sr.Dn), Madhugiri and subsequently transferred to the Court of II Additional District and Sessions Judge, Tumakuru and renumbered as RA.No.193/2004. So far as the second appeal arising out of OS.No.269/1989 is concerned, which was in RA.No.57/1996 on the file of Civil Judge (Sr.Dn), Madhugir, also subsequently transferred to III Additional District and Sessions Judge, Tumakuru and renumbered as RA.No.224/2004. Though these two appeals are arising out of common judgment and decree, they were heard by two different Courts.
7. It is seen that the appeal in RA.No.224/2004 which was in a different court was not pursued properly by the appellants, who are defendants in OS.No.269/1989, hence, said appeal was dismissed for default on 1.9.2005. It is seen that seeking restoration of said order a miscellaneous petition was filed in Misc.No.2/2008 which also came to be dismissed by order dated 17.6.2010. As against this order, MFA.No.6989/2010 is filed.
8. So far as RA.No.193/2004 is concerned, when said appeal was taken up for final disposal it is seen that the lower appellate court has taken up the said appeal and discussed not only the merits of judgment and decree in OS.No.213/1989 but also discussed the merits of judgment and decree so far as it pertains to OS.No.269/1989 and proceeded to confirm the common judgment rendered in said suits on 14.6.1996, consequently dismissed the appeal in RA.No.193/2004 by its judgment and decree dated 30.6.2005. It is this judgment which is under challenge in RSA.No.1781/2005.
9. These two appeals, one in RSA.No.1781/2005 and another in MFA.No.6989/2010 are taken up together for consideration. The sum and substance of the grounds urged in RSA.No.1781/2005 are that the trial Court has not properly appreciated the pleadings and evidence available on record while deciding the prayer for declaration and injunction in two different suits, one in respect of title of plaintiff to eastern half portion of Sy.No.9 of Hanchimallanahalli village and another in respect of plot measuring 20 feet x 20 feet situated in the western half portion of Sy.No.9 allotted in favour of 1st defendant in both the suits and that the said plot is said to be given to the plaintiff in view of the fact that the house which was give to him is smaller under the palu patti dated 12.7.1978.
10. The learned counsel for the appellants has vehemently argued before this Court that the common judgment and decree passed in both the suits by the trial court and the judgment and decree rendered by the lower appellate court in RA.No.193/2004 where it has discussed the judgment and decree passed in OS.No.269/1989 which is not part of said appeal and giving a finding in confirming the judgment and decree passed in both the suits, is erroneous. Therefore, the same is required to be set aside not only on merits but also on technicalities. He would further submit that by setting aside the judgment passed in RA.No.193/2004, the said matter is required to be remanded to the lower appellate court for fresh consideration and while doing so, the appeal in MFA.No.6989/2010 should be allowed and the appeal in RA.No.224/2004 should be restored and remanded to the lower appellate court for reconsideration along with another appeal in RA.No.193/2004.
11. To substantiate his contentions, the learned counsel for appellants would bring to the notice of this Court the facts of both the cases as well as evidence led in by both the parties before the trial court and also the grounds urged in the lower appellate court. On going through the same it is clearly seen that, the fact that parties to both suits are one and the same i.e., in one suit plaintiff and his brother - 1st defendant along with his two children are parties, whereas, in another suit the plaintiff and his brother - 1st defendant along with his daughter are parties and the son of 1st defendant who is party in first suit is not made as a party in second suit, is not in dispute. It is also not in dispute that the suit schedule property in both the suits is Sy.No.9 of Hanchimallanahalli village. However, in the first suit (OS.No.213/1989) the declaration that is sought is in respect of eastern half portion of Sy.No.9 and in the second suit (OS.No.269/1989) the declaration sought is in respect of plot measuring 20 feet x 20 feet situated in the western half portion of said survey number, which is admittedly allotted to the share of 1st defendant.
12. It is seen the presence of Jayamma (daughter of 1st defendant), who is 3rd defendant in first of the suits and 2nd defendant in second suit is for the reason that, prior to filing of these two suits 1st defendant is said to have sold his share of the property in Sy.No.9 in favour of his daughter under a registered sale deed, wherein it is stated that he has committed an error in conveying 24 guntas of excess land i.e., more than what was allotted to him as could be seen from the pleadings. The records would also indicate that 1st defendant got the said property reconveyed to his name as per the statement made by him in the written statement. In any event, whether it is in the name of 1st defendant or his daughter – Jayamma is of no consequence. In fact, what is required to be considered is the right of plaintiffs with reference to eastern half portion of suit schedule property and so far as western half portion is concerned, it is only to an extent of plot measuring 20 feet x 20 feet as seen in Ex.P1 – palu patti. Hence, bone of contention is execution of said palu patti.
13. It is seen that the 1st defendant in both the suits though admit partition between himself and plaintiff with reference to land bearing Sy.No.9, he has denied execution of patlu patti dated 12.7.1978 at Ex.P1 for the reason that this is the document which supports the case of the plaintiff with reference to his title to plot measuring 20 feet x 20 feet situated in western half portion of said survey number. Therefore, it is seen that, the 1st defendant some how to deny above said plot to the plaintiff has denied existence of palu patti on technical grounds, with reference to execution of said document, its existence and also acceptance of the same by the Courts below.
14. However, as could be seen from the records in the trial court the legal representatives of original plaintiff while trying to establish the partition between the parties under palu patti dated 12.7.1978 would lead evidence through PW.1, who is the wife of original plaintiff and also through PW.2-Puttarangappa and PW.3-Narasimhaiah, who were present at the relevant point of time when the palu patti was drafted and signed by and between the brothers. Besides PW.2 there is one more witness who is said to be Rangadamaiah and the said person affixing his signature is confirmed by PW.2. As against said evidence of plaintiff, 1st defendant as DW.1 and other two witnesses examined by him would only try to orally assert that Ex.P1 – palu patti was not executed. However, at the time of cross-examination it is clearly seen that when Ex.P1 and the signature of 1st defendant therein with his admitted signatures in the written statement as well as vakalath and other admitted signatures are confronted to him in the open Court, he has accepted his signature on Ex.P1. It is this aspect which is taken judicial note of by the trial court when the suits are decided. In fact, the trial court after looking into all these aspects has proceeded to accept the existence of palu patti dated 12.7.1978 at Ex.P1 and execution of the same when one of the witnesses i.e., PW.3 himself has identified his signature along with the signature of 1st defendant and the same being confirmed by one of the persons in whose presence said document at Ex.P1 is prepared and executed, namely PW.2, who has also affixed his thumb impression to said document. Therefore, this Court find that the judgment rendered by the trial court with reference to both the suits appears to be just and proper. Now the technical issue arises here.
15. As could be seen from the records it is seen that two appeals are filed, one in RA.No.193/2004 in challenge to judgment in OS.No.213/1989 and another in RA.No.224/2004 in challenge to judgment in OS.No.269/1989. As stated supra, second appeal in RA.No.224/2004 was not pursued diligently by the appellants, hence, the same was dismissed and the miscellaneous petition filed seeking restoration also came to be dismissed. The dismissal of miscellaneous petition is in challenge before this Court in MFA.6989/2010.
16. Assuming for a moment, if the said MFA.No.6989/2010 is accepted and allowed, this Court will have to restore RA.No.224/2004 and remand the matter back to lower appellate court for reconsideration. Similarly, if the grounds urged in RSA.No.1781/2005 are accepted in holding that there is an error on the part of lower appellate court while deciding RA.No.193/2004 in wrongfully considering the prayer in RA.No.224/2004, therefore, the said judgment is required to be set aside, then said appeal also will have to be sent back for reconsideration. Whereas in the fact situation, what is required to be seen is, what is to be considered in RA.No.193/2004. If that is required to be considered, then, it is sending both the matters back to the lower appellate court in directing the parties to re-agitate the whole issue.
17. Incidentally, when RSA.No.1781/2005 came up before this court for admission on 18.9.2014 this Court framed the substantial questions of law, which revolve around the same point. The said substantial questions of law read as under:
1. Whether both the courts below were justified in relying upon the unregistered document Exhibit P-1, palupatti, in granting the relief?
2. Whether the First Appellate Court was right in taking only one appeal, when the trial Court judgment is common judgment in respect of two suits, clubbed together and another appeal was before another Court?”
18. Heard the learned counsel for the appellants in both RSA as well as MFA and the learned counsel for respondents in both the appeals and perused the judgments impugned, oral and documentary evidence available on record.
19. After hearing the learned counsel for the parties and on going through the judgments of both the courts below as stated supra what is to be seen is, the rights of the parties based on palu patti which is at Ex.P1. Admittedly, it is not a registered document but a document which is recorded with reference to partition. In fact, the partition is not denied and it is accepted by both the plaintiff as well as 1st defendant. The only thing that is disputed is, drawing up of palu patti as referred to in the plaint. If that is to be examined, then the said document will have to be considered and if it is taken up for consideration, it will reveal allotment of 20 feet x 20 feet in western half portion of Sy.No.9 of Hanchimallanahalli in favour of plaintiff, who is already allotted entire eastern half portion for himself in said survey number. It is mainly to counter this i.e., allotment of said plot, the existence of Ex.P1 is opposed by 1st defendant and his children in both the suits.
20. When the evidence available on record is seen, it discloses that one of the witnesses to document at Ex.P1 identified his signature as well as another witness who was present at the time of preparation and execution of document. He had also spoken regarding existence of said document. Hence, acceptance of the same by both the courts below appears to be just and proper. Further, as could be seen, palu patti is with reference to recording of a past event of division of property between plaintiff and 1st defendant. Therefore, the said document does not require registration as contemplated under Section 17 of the Registration Act. In any event, the document at Ex.P1 is presently not before the Court and the same is destroyed. However, that itself should not be allowed to be taken advantage by the 1st defendant, who has otherwise failed to prove before both the courts below about non execution of said document. Therefore, this Court would hold that since execution of palu patti regarding the past event is established as stated supra, acceptance of the same by both the courts below, appears to be just and proper.
21. Coming to the second substantial question of law, which is framed with reference to whether lower appellate court was justified in deciding the grounds urged in both the appeals by looking in to the grounds urged in one appeal, could not be accepted in the normal circumstance. But in the present set of facts, both the suits as well as both the appeals are by same set of persons, the main contesting parties to the suits are two brothers, i.e., plaintiff and 1st defendant, the disputed point between them is with reference to preparation of palu patti dated 12.7.1978 pursuant to partition of joint family property. The existence of joint family property which is land bearing Sy.No.9 situated at Hanchimallanahlli village, is not dispute. It is also not in dispute that the property in question i.e., land bearing Sy.No.9 is divided between the plaintiff and 1st defendant in equal share in plaintiff taking eastern half portion and 1st defendant taking western half portion. The dispute is only in respect of whether plot measuring 20 feet x 20 feet was given to the share of plaintiff situated in the western half portion allotted to 1st defendant. The bone of contention between the brothers could be decided with the assistance of palu patti at Ex.P1. The said document was available on the file of the lower appellate court, while it was dealing with the common judgment and decree challenged in two different appeals. Though, one of the appeals was dismissed by then, for non prosecution, in the remaining appeal with reference to judgment and decree in OS.No.213/2004 the said document was available for consideration. Admittedly, the said appeal was with reference to declaration granted in favour of the plaintiff towards eastern half portion of the property. The material available on the file of lower appellate Court was sufficient to decide the claim of plaintiff’s plot in the western half portion, which was decided in favour of the 1st defendant in said suit. Therefore, the lower appellate court had all the material to consider the existence or otherwise of plot measuring 20 feet x 20 feet in western half portion of Sy.No.9, in addition to the dispute in respect of the subject matter of appeal pending consideration, which according to this Court appears to be just and proper in the present set of facts and circumstances.
22. Though in principle, method adopted by the lower appellate court appears to be technically wrong, in the peculiar facts and circumstances where both the parties to the appeals being one and the same, the subject matter of property in both the appeals being one and same and the judgment and decree which was subject matter of challenge in both the appeals being the common judgment and decree, the finding rendered by the lower appellate court in accepting the common judgment and decree in its entirety i.e., deciding the dispute in RA.Nos.193 and 224 of 2004 in one of the appeals viz., RA.No.193/2004, appears to be just and proper. Therefore, by answering the 2nd substantial question of law in favour of the plaintiff in the original suit and against the appellants herein, the second appeal is dismissed.
23. Since this Court is of the considered opinion that the judgment and decree in R.A.No.193/2004 does not call for interference, the Judgment passed therein would include the Judgment in challenge in R.A.No.224/2004. Therefore question of considering MFA No.6989/2010 to recall the judgment and dismissal for default in R.A.No.224/2004, which is confirmed in Misc. No.2/2008 does not arise. Accordingly, the said appeal in MFA No.6989/2010 is also dismissed.
Sd/- JUDGE nd/-