IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR SECOND APPEAL No.864 OF 2012 (DEC-INJ) BETWEEN:
T N KRISHNAIAH S/O NARAYANAPPA MERCHANT, AGRICULTURIST R/AT CHELUR VILLAGE, BAGEPALLY TALUK-561207 (BY SRI : MANJUNATHA B.R., ADVOCATE) ... APPELLANT AND:
1. T N SATHYANARAYANA SETTY S/O THALLAM NARAYANAPPA AGED ABOUT 64 YEARS CLOTH MERCHANT 2. T S JEETHENDRA S/O SATHYANARAYANA SETTY AGED ABOUT 29 YEARS MERCHANT 3. D A RAMESH BABU S/O D ANNADA KRISHNAIAH SETTY AGED ABOUT 54 YEARS MERCHANT 4. D A PANI RAJU S/O D ANANDA KRISHNAIAH SETTY AGED ABOUT 49 YEARS MERCHANT 5. SMT RUKMANIYAMMA W/O LATE ANANDA KRISHNAIAH SETTY AGED ABOUT 76 YEARS HOUSEHOLD LADY.
6. NAGA ROHIT S/O D A RAMESH BABU REP.BY HIS GUARDIAN D.A.RAMESH BABU THE 3RD DEFENDANT.
7. D.A. RADHAKRISHNAIAH SETTY S/O D ASHWATHAIAH AGED ABOUT 66 YEARS MERCHANT 8. D.R. SURESH BABU ADOPTED SON OF D.A. RADHA KRISHNAIAH SETTY MAJOR, MERCHANT ... RESPONDENTS (BY SRI : HARISH KUMAR M S, ADV. & SRI D.C.GANGADHARA, ADV. FOR R1 & R2) *** RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.02.2012 PASSED IN R.A.NO.81/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM., CHICKBALLAPUR, DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED: 23.3.2011 PASSED IN O.S.NO.84/2008 ON THE FILE OF THE CIVIL JUDGE AT BAGEPALLI. TRIAL COURT DISMISSED THE SUIT, APPELLATE COURT DISMISSED THE APPEAL. THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL IS COMING ON FOR ORDERS THIS DAY,COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This second appeal is filed by the appellant-plaintiff being aggrieved by the judgment passed by the Civil Judge, Bagepalli, (hereinafter referred to as ‘Trial Court’) in O.S. No.84 of 2008 having dismissed the suit of the plaintiff and the same was confirmed by the Senior Civil Judge and CJM, Chickballapur, (hereinafter referred to as 1st Appellate Court’) in R.A.No.81/2011.
2. Heard arguments of the learned counsel for the parties.
3. For the sake of convenience, the parties are referred to as they are referred to in the original suit before the Trial Court.
4. The case of the plaintiff is that, plaintiff filed a suit for declaration declaring that he is the absolute owner of the suit schedule property and for permanent injunction restraining the second defendant or anybody claiming under second defendant from interfering with the suit schedule property measuring 2 acres 35 guntas situated at Chelur Village, Bagepally Taluk, Chikkaballapura District.
5. The plaintiff got amended the prayer column seeking amendment that the decree to be passed declaring that the plaintiff has perfected his title by adverse possession and to declare that the sale deed of the defendant No.2 dated 27.03.2008 executed by defendants Nos.3 to 8 in favour of defendant No.2 is null and void and not binding on the plaintiff. Further case of the plaintiff is that, plaintiff and the 1st defendant are brothers. 2nd defendant is the son of the 1st defendant. Defendants 3 to 8 are the vendors of the suit schedule property in dispute. The suit schedule property in Sy.No.246 measuring 2.35 guntas on eastern side portion fallen to the share of the plaintiff.
6. The entire property was purchased earlier jointly by the father of the plaintiff and grand father of the 3rd defendant, Dhoniparthi Ramaiah way back in the year 1927 i.e. on 08.11.1927. Thereafter the properties were divided among three by 2/3rd share of the plaintiff and 1/3rd share to Doniparthi Ramaiah. Accordingly the revenue entries were also changed into their respective names. Recently the plaintiff came to know that the defendants 3 to 8 sold their 1/3rd share to the 2nd defendant by a registered sale deed dated 27.03.2008 by showing the property of the plaintiff on the eastern side instead of western side which was fallen to the share of Dhoniparthi Ramaiah. The act of the defendants is deliberately with a view to setting up a claim to the land owned by the plaintiff. A fraud has been discovered by the plaintiff and filed the suit for declaration that he is the owner of the suit schedule property situated on the eastern side and restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property and to declare that plaintiff has perfected his title by adverse possession.
7. In response to the summons issued by the defendants 1 and 2, they jointly appeared and filed their written statement and other defendants Nos. 3 to 8 have also filed written statement. Defendants Nos.1 and 2 have denied the averments made in the plaint in respect of suit schedule property. However, they have admitted the origin of the suit schedule that it was also earlier belonged to Thulasi Krishnappa and he sold the property in favour of Thallam Narayanappa and Dhoniparthi Ramaiah. However they have denied that during partition held between Thallam Narayanappa and Dhoniparthi Ramaiah, the eastern 2/3rd portion allotted to the share of Thallam Narayanappa and western 1/3rd portion allotted to the share of Dhoniparthi Ramaiah. But they contended that the western 1/3rd portion was allotted to Thallam Narayanappa and Eastern 1/3rd portion has been allotted to Dhoniparthi Ramaiah whereby they are enjoying their shares respectively.
8. After the death of Thallam Narayanappa, his sons got partitioned the property under a un-registered palupatti. In the said partition, 1/3rd portion i.e. western portion was allotted to the share of plaintiff and 1/3rd portion i.e. middle portion was allotted to the 1st defendant, thereby the 1st defendant was enjoying the middle portion and plaintiff was enjoying the western portion as per the palupatti dated 12.06.1983 and further contended that Doniparthi Ramaiah died leaving behind defendants 3 to 8 as his legal heirs. They are in possession and enjoyment of the suit schedule property. They sold the property in favour of the 2nd defendant. Neither the plaintiff nor the 1st defendant has any right, title or interest over the suit schedule property. Hence they prayed for dismissal of the suit.
9. Defendants Nos.3 to 8 also filed written statement which is similar to the written statement filed by defendants Nos.1 and 2 and they contended that they are not necessary parties to the suit and suit is bad for non-joinder of necessary parties and hence liable to be dismissed. On these grounds defendants 3 to 8 prayed for dismissal of the suit.
10. Based on the rival pleadings, the trial court has framed the following issues and additional issues.
“1) Whether the plaintiff proves that, the eastern 2/3rd portion of Sy.No.54/3 was allotted during the partition and he was in such possession as asserted in para No.4 of the plaint?
2) Whether plaintiff proves that, there was division in between him and defendant No.1 about eastern side 2/3rd share in Sy.No.54/3(246)?
3) Whether plaintiff proves that, he is in actual possession of the suit property towards eastern side as on the date of the suit?
4) Whether plaintiff proves the alleged interference of the defendants?
5) Whether the plaintiff proves that, he is entitled for relief as sought for?
6) What order or decree?
Addl. Issues framed on 9.7.2009 1) Whether the defendants No.1 and 2 prove that, at a partition by a Palu Patti dated 12.6.1983, the plaintiff got the western 1/3rd portion and the first defendant got middle 1/3rd portion of the entire old Sy.No.54/3 and new Sy.No.246?
2) Whether the defendants No.3 to 8 prove that, the succession-in-interest got the eastern 1/3rd portion and continue in possession of the eastern portion ?
Addl. Issue No.1 framed on 12.3.2010 1) Whether the suit is bad for non-joinder of necessary parties?
Addl. Issue No.1 framed on 1.6.2010 1) Whether plaintiff proves that, the defendants No.3 to 8 have no requisite marketable title or possession over the suit schedule property?
2) Whether the plaintiff proves that, he has perfected his title by way of adverse possession?
3) Whether the plaintiff proves that, the sale deed dated 27.3.2008 executed by defendants No.3 to 8 in favour of defendant No.2 is null and void and not binding on him.?”
11. The plaintiff in order to substantiate his case, plaintiff himself examined as P.W.1 and he has examined two more witnesses as P.Ws.2 and 3 and got marked 12 documents as per Ex.P.1 and P.12. On behalf of the defendants, defendant No.1 is examined as D.W.1. 2nd defendant examined as D.W.2 and 3rd defendant examined as D.W.3 and examined one witness D.W.4 and have produced 21 documents which were marked as Exhibits D.1 to D.21.
12. The Trial Court after considering the oral and documentary evidence on record has answered issue Nos.1, 2, 3, 4 and 5, in the negative, additional issue No.1 and 2 in the affirmative, Additional issue No.2 dated 12.03.2010, additional issue Nos.1, 2 and 3 dated 01.06.2010 in the negative and consequently dismissed the suit of the plaintiff.
13. Plaintiff being aggrieved by the judgment and decree dated 23.3.2011 passed by the trial court in O.S.84/2008 challenged the same in R.A.No.81/2011 before the Senior Civil Judge and CJM, Chickaballapur. The lower appellate court by impugned judgment and decree dated 7.10.2014 dismissed the appeal by affirming the judgment and decree passed by the trial court. Challenging the concurrent findings passed by the courts below, the plaintiff has preferred this second appeal.
14. The learned counsel for the plaintiff has contended that both the courts below committed an error in dismissing the suit of the plaintiff even though admitted the facts that originally the property measuring 10 acres were purchased by the father of the plaintiff, 1st defendant and one Doniparthi Ramaiah on 08.11.1927. Subsequently, they divided 1/3rd each. The suit schedule property measuring 2 acres 35 guntas fallen to the share of the plaintiff, it is the property situated on the eastern side, whereas the defendants Nos. 3 to 8 who are the legal representatives of Doniparthi Ramaiah sold 2/3rd of the land to 2nd defendant even though the said portion has been allotted to the share of the plaintiff in order to deny the right of the plaintiff. In spite of producing the documents Exs.P.1 to P.12, entries in the Record of rights, Index of lands and patta books, the Trial Court had committed an error in dismissing the suit as the revenue entries clearly goes to show that plaintiff is in possession and enjoyment of the suit schedule property from the partition made among themselves and further contended that the Trial Court also erred in relying upon the boundaries reflected in Ex.D.6, the copy of palupatti, no original documents were produced. Therefore, both the courts below committed error in admitting Ex.D.6 which is copy of palupatti and hereby dismissed the suit of the plaintiff.
15. Per contra, learned counsel appearing for the respondents-defendants supported the judgment of both the courts below and seriously contended that plaintiff has not produced any documents to show that the property has been divided among the plaintiff and others and one Doniparthi Ramaiah. However, in the year 1983, the plaintiff and defendant No.1 were divided their shares among themselves including other property and based upon the said partition, names of the plaintiff and defendants have been shown in RTC extracts, Ex.P.3. Even in Ex.P.4 palu patti issued by the authorities clearly goes to show that eastern portion of the 1/3rd property was fallen to the share of Doniparthi Ramaiah and 2/3rd share allotted to both the brothers out of which middle portion has been fallen to the share of defendant No.1 which clearly shows that the eastern portion of the suit schedule property had fallen to the share of Doniparthi Ramaiah. Therefore, defendants Nos. 3 to 8 who are the legal representatives of Doniparthi Ramaiah have executed the sale deed on 27.03.2008 in favour of second defendant. Based on the oral and documentary evidence on record, the court below dismissed the suit and there is no substantial question of law involved in this appeal to admit the appeal and to hear the matter on merits.
16. Upon hearing learned counsel for both the parties, plaintiff as well as defendants and perusing the records which goes to show that it is admitted fact that previously land measuring 10 acres was purchased by Tallam Narayanappa and Doniparti Ramaiah vide sale deed dated 8.11.1927 in Sy.No.54/3 new Sy.No.46. It is also not in dispute that Tallam Narayanappa and Doniparti Ramaiah divided the property equally among themselves. Plaintiff though has contended that 2 acres 35 guntas of land out of 10 acres of land i.e. 1/3rd of the property was fallen to the share of the father of the plaintiff, the same was denied by defendant No.1 and other defendants.
17. In pursuance of the documents, the plaintiff has not produced any documents to show that the share of the plaintiff measuring 2 acres 35 guntas fallen to his share. However, it is not in dispute that the plaintiff and 1st defendant are brothers and as per Ex.P.3, their names have been shown jointly in respect of a portion of the property measuring 2 acres 35 guntas each and similarly the name of one Ananda Krishna legal heir of Doniparti Ramaiah has been shown as owner of the same survey measuring 2 acres 35 guntas and his name was mutated as per MR 538 664 IHR 38/82-83. Thereafter, 1st defendant’s name was mutated as per IMO No.31/89-90. Though it is admitted fact that the property has been jointly purchased by three persons as stated above on 8.11.1927 but there is no document to show that when this property has been divided equally among them. The plaintiff is not able to show that what was the date on which they got their share and portion of land allotted to plaintiff’s father and father of the first defendant. Ex.P.3 corroborates with Ex.P.1, record of rights. The index of land, Ex.P.2 also reveals the change of names of the plaintiff and others. Ex.P.4-mutation register extract though it reveals a portion of the property allotted to them, but none of the documents show that the plaintiff was in possession of the suit schedule property which was on eastern side of the land in Sy. No.54/3 new No.246 out of 8 acres 24 guntas after excluding kharab and waste land out of 10 acres 8 guntas. On the other hand, it is a specific case of the defendants that eastern side of the property measuring 2 acres 35 guntas was allotted to Doniparti Ramaiah and after his demise, his legal heirs were in possession of the said land and they have sold the portion of the land to 2nd defendant by its sale deed dated 27.03.2008. Whereas the 1st defendant categorically stated that the eastern side of the property is fallen to the share of Doniparti Ramaiah and middle portion was fallen to his favour out of the family partition dated 12.06.2008 between plaintiff and other family members.
18. In support of his contention the 1st defendant produced Ex.D.6, copy of palupatti, wherein the plaintiff, 1st defendant and family members were partitioned the portion of property in Sy.No.54/3 which was fallen to their father’s share and also other properties. This document has been objected by the plaintiff while adducing the evidence.
Subsequently, during the cross examination, 1st defendant was permitted to produce and marked the documents before the trial court. Though it was challenged by the plaintiff by filing W.P.No.9316/2011, the same came to be withdrawn in view of the disposal of the suit by the trial Court. However, a liberty was granted to the plaintiff to urge the said documents as a ground in the first appellate court. The plaintiff denied the partition between himself and 1st defendant and among family members in respect of the property of Tallam Naranayappa.
19. Counsel for the respondents brought to the notice of this Court that as per Ex.P.4, out of property fallen to the share of father of the plaintiff and first defendant, they have divided equally under the said partition held on 12.06.1983 wherein it was contended that the eastern 1/3rd share had fallen to the share of Doniprathi Ramaiah. Even if the said documents are not considered, the property fallen to the share of their father on the western side and during that partition the share fallen to the 1st defendant was middle portion in between the share of the plaintiff as well as Doniparthi Ramaiah.
20. During cross-examination of D.Ws.1 to 3, the counsel for plaintiff suggested that no partition took place as per `palupatti’ dated 12.06.1983. It is suggested by the counsel for plaintiff during cross-examination of DW1 that 5 acres in suit survey number is proposed to be acquired by the Government for the purpose of construction of houses to the landless people. The property of Doniparthi Ramaiah i.e. the father of defendants Nos. 3 to 8 fallen on the eastern side. There is best piece of evidence that the plaintiff denied Ex.D.6 but learned counsel for the respondents submitted that the original of Ex.D.6 was with the plaintiff he has suppressed the same before the Court. No doubt the original document might be in the custody of the plaintiff but it has not been produced. However, plaintiff is unable to produce any documents to show that his share is fallen on the eastern side of the property. Though P.Ws.2 and 3 deposed on behalf of the plaintiff but no documents were produced in support of their contention.
21. On the other hand, the property of defendants No.1 to 8 fallen on the eastern side, but they are not able to prove their contentions. It is the duty of the plaintiff to prove his contention taken in the suit. The plaintiff shall stand on his own leg in proving the case and he cannot take the advantage of weakness of the defendants. Therefore the trial court as well as first appellate court after considering the material evidence on record rightly dismissed the suit of the plaintiff. Absolutely there is no substantial question of law involved in this appeal to interfere in the concurrent finding of both the courts below. Therefore, the appeal being devoid of merit is liable to be dismissed.
Accordingly, the appeal is dismissed.
Sd/- JUDGE HR