LAKSHMAMMA v. SMT H P HALAPPA, SINCE DEAD BY LRs, 1(a)

Judgment

2. LAKSHMAMMA, W/O LATE GADALAPPA, AGED ABOUT 54 YEARS, AMENDED V/O 25.7.2024 SINCE DEAD BY LRs A2 & A3(a) TO A3(e) KENCHAPPA, S/O LATE GADALAPPA, AGED ABOUT 37 YEARS, BOTH ARE R/O A.K. COLONY ROAD, HEBBANDI VILLAGE, BHADRAVATHI TALUK, SHIMOGA DISTRICT - 577 301. ANUSHA V Location: High Court Of Karnataka

3. SHEKHARAPPA, SINCE DEAD BY LRS 3(a) SMT GANGAMMA, W/O LATE SHEKHARAPPA, AGED ABOUT 57 YEARS, R/O HEBBANDI VILLAGE, BHADRAVATHI TALUK, SHIMOGA DISTRICT 577 301. 3(b) SMT. VIJAYA, W/O RAMESH, AGED ABOUT 37 YEARS, R/O BIDARE, SHIMOGA TALUK 577 201. 3(c) SMT. SHAKUNTHALA, W/O VEERAPPA , D/O LATE SHEKHARAPPA, AGED ABOUT 36 YEARS, R/O NALLURU, CHANNAGIRI TALUK, DAVANAGERE DISTRICT 577 213. - 2 - NC: 2024:KHC:43469 RSA No. 212 of 2013 3(d) ESHWARA, S/O LATE SHEKHARAPPA, AGED ABOUT 32 YEARS, R/O HEBBANDI VILLAGE, BHADRAVATHI TALUK, SHIMOGA DISTRICT 577 301. 3(e) SMT ANU, W/O NAGAPPA, D/O LATE SHEKHARAPPA, AGED ABOUT 30 YEARS, R/O NALLURU VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 213.

[BY SRI R GOPAL, ADVOCATE (PH); V/O DTD 25.07.2024 A2 & A3 (a)-(e) ARE TREATED AS LRs OF A1] …APPELLANTS AND:

1. SMT H P HALAPPA, SINCE DEAD BY LRs, 1(a) SMT. H.P. GORAMMA, W/O LATE H P HALAPPA, AGED ABOUT 72 YEARS, 1(b) SMT. H.P. SHAKUNTHALA, W/O D.R. NATARAJ, AGED ABOUT 56 YEARS,

4. SMT. H.P. UMADEVI , W/O H.A. HONNAPPA, AGED ABOUT 54 YEARS, H.P. RUDRAPPA, S/O LATE H.P. HALAPPA, AGED ABOUT 50 YEARS, ALL ARE R/O HEBBANDI VILLAGE, BHADRAVATHI TALUK, SHIMOGA DISTRICT - 577 301. [BY SRI UMESH MOOLIMANI, ADVOCATE FOR SRI S.V. PRAKASH, ADVOCATE FOR R1 TO R4 (VC)] …RESPONDENTS - 3 - NC: 2024:KHC:43469 RSA No. 212 of 2013 THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 17.11.2012 PASSED IN R.A.NO.396/2004 ON THE FILE OF THE ADDL. DISTRICT JUDGE, SHIMOGA, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.8.1986 IN OS.NO.158/1981 ON THE FILE OF THE MUNSIFF & ADDL. JMFC., BHADRAVATHI. PASSED THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging judgment and decree dated 17.11.2012, passed by Addl. District Judge, Shimogga, in R.A.no.396/2004, reversing judgment and decree dated 16.08.1986, passed by Munsiff & Addl. JMFC., Bhadravati, in O.S.no.158/1981, this appeal is filed.

2. Facts in brief as stated are that, respondent herein filed O.S.no.158/1981 for relief of declaration that he was owner in lawful possession of suit schedule property and for permanent injunction restraining defendants, their agents, etc. from interfering with his peaceful possession and enjoyment of suit property, situated in Hebbandi village of Bhadravati taluk, bearing old Khanesumari no.74 and new no.75 and V.P.Janjer no.59 and 60, measuring East-West 40 ft. and North-South 160 ft. consisting of hut and three tamarind trees with kalli fence bounded on East by government land, West by land of - 4 - NC: 2024:KHC:43469 RSA No. 212 of 2013 H.P.Chandrashekarappa, North by Rajabeedi and South by land in Sy.no.2 described as 'suit property' in plaint.

3. It was stated that suit property was purchased from earlier title holder Smt.Durgamma w/o Giriyappa under registered sale deed dated 29.07.1967, fenced with Kalli and hut put up therein. Even tamarind trees were planted. Plaintiff was using it as vacant space for hay-stacking. It was stated Smt.Durgamma continued there with his leave and licence to kept watch. It was stated that plaintiff was in uninterrupted possession for more than 12 years. It was further stated defendants were residing opposite to suit property, defendant no.1 was a member of village panchayat and nurturing ill-will against plaintiff for filing complaint when defendant no.1 had attempted to take advantage of his position and knock of tamarind crop. It was stated when defendants renewed their bid in subsequent year, plaintiff filed suit.

4. Upon entering appearance, defendants filed written statement generally denying entire plaint averments. It was specifically stated V.P.Janjer no.59 160 ft. X 40ft. containing three fruit bearing tamarind trees and same was ancestral property. Gadlappa - husband of defendant no.1, was enjoying suit property for more than 10-12 years. - 5 - NC: 2024:KHC:43469 RSA No. 212 of 2013 Thereafter defendants were in possession and enjoyment and were harvesting tamarind crop every years, after obtaining permission from Range Forest Officer, Bhadravati. They also claimed to have put up house after obtaining licence from Kadadakatte Group panchayat. It was however specifically stated that one Giriyappa had a wife by name Durgavva, who died long back. It was stated that Durgamma referred to by plaintiff was not wife of Giriyappa. Plaintiff was bearing ill-will against as defendants, as they belonged to scheduled caste and plaintiff belonged to upper caste. Plaintiff had managed to get his name entered in village panchayat records by misrepresenting including property belonging defendants.

5. Defendants further specifically pleaded property bearing Janjer no.59 was in their possession and enjoyment from time of Gadlappa. Therefore as they were in continuous and peaceful possession for more than 12 years, suit filed by plaintiff was barred by adverse possession.

6. Based on pleadings, trial Court framed following issues:

1. Whether plaintiff proves that one Durgamma has title to the suit schedule property? - 6 - NC: 2024:KHC:43469 RSA No. 212 of 2013

2. Whether plaintiff proves that he has purchased the suit schedule property from one Durgamma by a sale deed dated 29.07.1967?

3. If so, whether plaintiff has title to the suit schedule property?

4. Whether plaintiff proves that defendants are interfering with his possession and enjoyment of the suit schedule property?

5. Whether plaintiff is entitled to the permanent injunction sought for?

6. Whether plaintiff is entitled to the declaration sought for?

7. Whether defendants have perfected their title to the suit schedule property by adverse possession?

8. Whether the suit is in time?

9. What decree or order?

7. Thereafter, plaintiff got examined himself and three others as PWs 1 to 4 and got marked Exs.P.1 and 2. In rebuttal, defendants examined four witnesses as DWs 1 to 4 and got marked Exs.D1 to D11.

8. On consideration, trial Court dismissed suit. Aggrieved thereby, plaintiff filed R.A.no.7/1986. On

03.10.1991 first appellate Court ('FAC' for short) allowed appeal reversing decree passed by trial Court.

9. Aggrieved, defendants had filed RSA no.149/1992. On consideration, this Court passed following judgment: - 7 - NC: 2024:KHC:43469 RSA No. 212 of 2013 "The defendant challenges the decree for declaration and Khanesumari old No. injunction in respect of 74, new No. 75, which is said to be divided as V.P. Jinjer Nos. 60 measuring 100 ft. 59 and x 150 ft. There are so many disputes between the parties and ultimately it is contended that V.P. Jinjer No 60 cannot be questioned by the defendant and therefore the title in respect of 60 has to be confirmed.

2. Now the plaintiff claims that 60 is only a part of new No. 75 and old Khanesumari No. 74. He was also contended that the defendant's L.Rs admitted the ownership of the plaintiff. Apart from that, there is tampering of the records.

3. On the other hand, the contention of the respondent, is that the panchayath records have been produced before the court and the court has not considered that aspect at all. It is vehemently contended by the counsel for the appellant that if the court has to come to the conclusion that the entire No.75 includes 59 and 60, his client is entitled to the entire property. In this view, he seeks remittal of the matter to the first appellate court for appointment of Commissioner and to find out whether 59 and 60 are forming part of new No. 74 and 75 and whether the entire suit schedule property belonging to the plaintiff under the sale deed of 1967. I feel that the request fo reasonable and to give one chance to the defendant to safeguard his property, if really he is entitled to the property. At the same time, I want to make it clear that VPC No. 60 shall be declared to be the property of the plaintiff. So far as VPC Junjer No. 59 is concerned, the first appellate court shaji appoint a Commissioner and find out: 1) What is the new number, whether it is 75 or not? 2) Whether Khanesumari No.75 has been sub- divided into VPC Nos. 59 and 60? 3) What is the total extent of the property covered and conveyed to the plaintiff in 1967, is it 18,000 sq. yards or not? 4) Whether the entries made in Ex.P.2 shows 160'x 40' refers to the same property or - 8 - NC: 2024:KHC:43469 RSA No. 212 of 2013 different property. If it be so, why such discrepancy has occurred."

4. Apart from appointing the Commissioner to find out, the court also at the instance of the parties, summon the records of the Panchayath and find out the real facts available on record. the recorde are If tampered with, then the Court should take a serious view of the matter and deal with the same in accordance with law.

5. Thus, making it clear that so far as VPC Junjar No. 60 is concerned, the title in favour of the plaintiff is confirmed and the matter is remitted back to the first Appellate Court only to consider in respect of VPC Junjar No. 59. No doubt, It may be necessary for the Court to go into the question of 60 incidentally because of the direction given by this court. But whatever be the position, the first appellate court is directed not to touch upon 60 at all, and deal with only 59 and come to the right conclusion, after hearing the parties and allowing them to adduce evidence if they so desire. The parties are directed to appear before the first appellate court on 22-11- 1998".

10. Upon remand, plaintiff filed application amendment of plaint insofar as schedule of suit property. Description of suit property after amendment was as follows: East : Janjer no.59 West : Site of Chandrashekharappa North : Rajabeedhi and South : Land in Sy.no.2.

11. On re-consideration, first appellate Court allowed appeal in part, set-aside judgment and decree passed by trial Court and decreed suit insofar as following schedule: East : Property in janjer no.59 West: Site of Chandrashekharappa - 9 - NC: 2024:KHC:43469 RSA No. 212 of 2013 North : Rajabheeedi and South : land in Sy.no.2 of Hebbandi village, Bhadravathi tq.

12. But, in decree, it also showed 'suit schedule' as per amended plaint. Aggrieved, defendants have preferred this appeal.

13. Sri R.Gopal, learned counsel for defendants- appellants submitted, main ground for opposing plaintiff's suit before trial Court was that Smt.Durgamma, stated to be plaintiff's vendor was not wife of Giriyappa, but his wife was Durgavva, who had died prior to alleged sale deed. It was further sought to be contended, at time of remand, this Court had issued direction to first appellate Court to confine its finding insofar as Janjer no.59. It was submitted, as noted by first appellate Court even after amendment, description of suit property in amended plaint was property bearing Janjer no.59 as its eastern boundary even while plaintiff was claiming relief in respect of property bearing Janjer nos.59 and 60. In view of above facts, suit of plaintiff was liable for outright dismissal. It was submitted, as first appellate Court had failed to refer to pleading and evidence on record insofar as above facts. Hence, impugned judgment and decree called for interference. It was - 10 - NC: 2024:KHC:43469 RSA No. 212 of 2013 submitted, this Court, on 02.06.2016 had admitted appeal to consider following substantial questions of law: favour injunction " A) Whether the lower appellate court is justified in granting the decree for declaration of title and permanent plaintiff/respondents in respect of the In amended schedule property without deciding the disputed questions of existence by getting valid report as per the directions of this Hon'ble High court from a Competent commissioner appointed with regard to several questions raised by this Hon'ble court in the said order of remand in R.S.A No 149/1992 ? identity, boundaries and B) Whether the lower appellate court decreeing the suit even though it records a report of court commissioner is not an answer raised by this Hon'ble court in the order of though there is non- compliance of the observations directions of this court in the order of remand made in RSA No.149/92 in several other respects to resolve the dispute about boundaries? identity of property and favour injunction C) Whether the lower appellate court is justified in granting decree for declaration of title and for permanent respondents/plaintiff having regard to facts and materials on record and also having regard to the fact that Ex P1 of 1967 is not original sale deed and that P.W3, the executant of Ex PI was not the real owner and having regard to death of Durgavva W/o Giriyappa in 1959 as shown in death certificate- ExD10 and the defence and materials placed by the appellants in the case ? D) Whether the lower appellate court is Justified in not accepting the case of appellants right, title and possession as contended in the written statement having regard to oral and documentary evidence on record ? E) Whether re-appreciation of evidence and findings of lower appellate court is perverse and contrary to the - 11 - NC: 2024:KHC:43469 RSA No. 212 of 2013 materials on record, resulting in mis-carriage of justice and liable to be set-aside? F) Whether the points raised and findings recorded by lower appellate court is in confirmity with the requirements of order 41 rule 31 and whether lower appellate court is justified in reversing the well considered judgment of trial court without recording findings as to how the findings of trial court is illegal or unsustainable?"

14. Learned counsel sought for answering said substantial questions of law in favour of appellant and to allow appeal.

15. On other hand, Sri.Umesh Moolimani, learned counsel appearing for Sri S.V. Prakash, counsel for respondents no.1 to 4 sought to oppose appeal. It was submitted, this Court in R.S.A.no.149/1992 while remanding matter to first appellate Court had directed it to confine adjudication only in respect of property bearing Janjer no.59 by holding that property bearing Janjer no.60 was belonging to plaintiff. But, first appellate Court had instead of giving finding regarding property bearing Janjer no.59 had passed decree insofar as property bearing Janjer no.60. It was submitted, since defendants had accepted findings of this Court in RSA no.149/1992, they could not maintain appeal insofar as declaration granted in respect of property bearing Janjer no.60, which had attained finality. On said ground, sought dismissal of appeal. - 12 - NC: 2024:KHC:43469 RSA No. 212 of 2013

16. Heard learned counsel and perused impugned and decree.

17. Sum and substance of substantial questions of law framed would be: "Whether judgment and decree passed by first appellate Court is contrary to pleadings and evidence on record and passed without following directions issued by this Court in RSA no.149/1992?"

18. Perusal of judgment and decree passed by fist appellate Court reveals that it had taken due notice of directions issued by this Court and also appointed Court Commissioner. It had also called for records from office of Bhadravati City Municipal Council. However, taking note of effect of amendment to plaint schedule, it disposed of appeal. It observed finding of this Court that enquiry was to be with regard property bearing Janjer no.59 only.

19. It referred to deposition of DW.1, wherein, DW1 had stated that measurement of property bearing Janjer no.59 belonging to him was 40 ft. X 160 ft. It further refers to admission during his cross-examination that Basappa and Giriyappa were brothers; Durgamma wife of Giriyappa, was shown to be owner of area measuring 40 ft. X 160 ft., which was having a hut and some vacant area. And referring to - 13 - NC: 2024:KHC:43469 RSA No. 212 of 2013 admission that Kenchappa was shown to be owner in possession of land measuring 40 ft. X 160 ft. and defendants had inherited property from Kenchappa. Insofar as dispute regarding identity of Durgamma, it refers to she being examined as PW.3 and her daughter as PW.4. It observes that there was no reason to disbelieve their evidence.

20. Thereafter examining description of suit property by plaintiff, especially Eastern boundary as property bearing Janjer no.59, it held relief cannot be claimed in respect of property when same property is included in boundary description also. On said grounds it modified judgment and decree passed by trial Court and confined relief only in respect of property with boundaries admitted by DW1 i.e., property bearing Janjer no.60 measuring East-West 40 ft. and North-South 160 ft.

21. Merely on ground that decree passed by first appellate Court also mentions description of 'suit property' after amendment of plaint, it cannot be contended that it had committed any error. Decree passed expressly states it to be confined to property bearing Janjer no.60 measuring 40 ft. X 160 ft.

22. Observations made by this Court in RSA no.149/1992, especially in para no.3 and 5 are: - 14 - NC: 2024:KHC:43469 RSA No. 212 of 2013 "3. ….. At the same time, I want to make it clear that VPC No. 60 shall be declared to be the property of the plaintiff….. "5.…… But whatever be the position, the first appellate court is directed not to touch upon 60 at all, and deal with only 59 and come to the right conclusion, after hearing the parties and allowing them to adduce evidence if they so desire…."

23. Thus, there would be no other conclusion than that title of plaintiff insofar as property bearing Janjer no.60 stood concluded in favour of plaintiff, that too in a appeal filed by defendants themselves. Hence, first appellate Court had only clarified measurements of said property as per admission of defendant no.1, which would be fully justified. Therefore substantial question of law framed are answered in negative. Consequently, following: ORDER Appeal is devoid of merit and stands dismissed, with clarification that judgment and decree passed by first appellate Court is confined to property with following: - 15 - NC: 2024:KHC:43469 RSA No. 212 of 2013 "SCHEDULE Old Khanesumari no.74, New no.75, in V.P. Janjer no.60, measuring East-West: 40 feet and North-South: 160 feet bounded by; East : Property in Janjer no.59 West : Site of Chandrashekharappa North : Rajabeedhi and South : land in Sy.no.2 of Hebbandi village, Bhadravati tq." Sd/- (RAVI V HOSMANI) JUDGE PSG List No.: 1 Sl No.: 46