SRI. RAMAIAH @ THAMMAIAH v. NONE

Judgment

#2. SRI. D. NANJAPPA AGED ABOUT 69 YEARS SRI. D KARADIGAIAH AGED ABOUT 26 YEARS R2 ID DEAD BY LR'S R2(A) LALITHAMMA W/O. KARADIGAIAH, PRASHANTH N V Location: High Court of Karnataka …APPELLANTS - 2 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR MAJOR-AGE NOT KNOWN TO APPELLANT R2(B) MANJUNATHA W/O. KARADIGAIAH, MAJOR-AGE NOT KNOWN TO APPELLANT BOTH ARE R/AT. WARD NO.24, UPPRAHALLI, NEAR URDU SCHOOL, 7TH CROSS, TUMAKURU - 572102

SRI. D KEMPAIAH AGED ABOUT 53 YEARS R3 IS DEAD BY LR'S R3(A) CHIKKATHAYAMMA W/O. LATE D. KEMPAIAH, MAJOR-AGE NOT KNOWN TO APPELLANT R3(B) UMESH W/O. LATE D. KEMPAIAH, MAJOR-AGE NOT KNOWN TO APPELLANT BOTH ARE R/AT ARAKERE VILLAGE, DANDIVASHIVARA HOBLI, TURAVEKERE TALUK, TUMKURU DISTRICT-577227 RESPONDENT 1 TO 3 ARE THE SONS OF LATE DYAMAIAH, AND RESIDING AT ARAKERE VILLAGE, DANDINASHIVARA HOBLI, TURUVEKERE TALUK, AND 2ND RESPONDENT AT TUMAKURU-572 227

#4. SMT. DODDAMMA, D/O LATE NANJAIAH, W/O. BEERAIAH, AGED ABOUT 78 YEARS, RESIDING AT JELLIPALYA, HAMLET OF DODDAGOLLAHALLI, HEBBUR HOBLI, TUMKUR TALUK-572120

#5. SMT. DODDAMMA W/O. LATE. RAMAIAH, - 3 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR

#9. AGED ABOUT 70 YEARS SRI. HUCHHAIAH, S/O LATE RAMAIAH AGED ABOUT 75 YEARS SRI. BEERAPPA S/O LATE NARASIMHAIAH AGED ABOUT 50 YEARS RESIDING AT HEBBIGERE COLONY, C/O BHAGYA, CHIKKABANAVARA, BANGALORE-560 090 SMT. LAKSHMAMMA, W/O LATE KEMPAIAH, AGED ABOUT 72 YEARS RESIDING AT DOOR NO.3750, 12TH CROSS ROAD, GAYATHRI NAGAR, BANGALORE - 560 021 SRI. GANGADHARAIAH S/O HONNAMMA AGED ABOUT 60 YEARS RESIDING BEHIND NEW BUS STAND, CHIKKANAIKANAHALLI TUMKUR DISTRICT - 572 214 …RESPONDENTS (BY SRI. S.K. VENKATA REDDY, ADVOCATE FOR R1 (NOTICE TO R4 TO R8 ARE D/W V/O DT.27/3/12) SRI. S.G. LOKESH, ADVOCATE FOR R2(A) & (B) & R3 (A&B)) THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DTD 16.9.2009 PASSED IN R.A.NO.6/2006 (OLD R.A.NO.144/2000) ON THE FILE THE PRESIDING OFFICER, FAST TRACK COURT-II, TUMKUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 18.8.2000, PASSED IN O.S.NO. 642/1994, ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., TUMKUR. - 4 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR THIS RSA, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL JUDGMENT Defendant Nos.1 to 3 in O.S.No.642/1994 on the file of the learned Principal Civil Judge (Jr.Dn) and JMFC at Tumkur (hereinafter referred to as 'the Trial Court', for short), are impugning the judgment and decree dated 16.09.2009 passed in RA.No.6/2006 (Old RA.No.144/2000) on the file of the Fast Track Court-II at Tumkur (hereinafter referred to as 'the First Appellate Court', for short), allowing the appeal with costs, by setting aside the judgment and decree dated 18.08.2000 passed by the Trial Court and thereby decreed the suit of the plaintiffs for declaration and for permanent injunction against defendant Nos.1 to 3, while dismissing the suit against defendant Nos.4 to 9 as they are not proper parties to the suit.

#2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

#3. Facts of the case in brief are that, plaintiff Nos.1 to 3 have filed the suit O.S.No.642/1994 against defendant Nos.1 to - 5 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR 10 seeking declaration of their title to the suit properties and for permanent injunction restraining them from interfering with the plaintiffs' peaceful possession and enjoyment over the suit properties. Schedule attached to the plaint describes plot Nos.1 and 2 marked as 'ICKJ' and 'LMNH' in the accompanying rough sketch measuring 30 guntas and 10 1/2 guntas respectively with separate boundaries. The plaint rough sketch also identifies these two plots which form part of larger extent of land measuring 6.03 acres in Sy.No.25/2 situated at Puradakatte village, Hebbur Hobli, Tumkur Taluk.

#4. It is the contention of the plaintiffs that, they are the children of one Kempaiah, who is the son of propositus-Kathri Huchaiah. The said Kathri Huchaiah was owning the land, who effected oral partition amongst his sons and each one of them got 1 acre 1/2 guntas in Sy.No.25/2. All the sons of Kathri Huchaiah were enjoying their respective shares. Dyamaiah, the father of the plaintiffs was also enjoyed 1 acre 1/2 guntas of land consisting of plot Nos.1 and 2 i.e. 30 guntas + 10 1/2 guntas. It is contended that defendant No.1 by playing fraud and misrepresenting the facts got the sale deeds from one Kempamma, the first wife, and Honnamma, the second wife of - 6 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR Kathri Huchaiah and her son Gangadharaiah, Lakshmamma, Doddamma and others. Defendant No.1 later sold the properties which he had purchased to his own son Ningappa i.e. defendant No.3. Defendant No.2 appears to have purchased 30 guntas of land from Doddamma. Defendant No.3 appears to have purchased 25 guntas from Huchaiah. In the revenue records, the name of father of the plaintiffs is not forthcoming though he was enjoying 1 acre 1/2 gunta of land. However, plaintiffs continued to cultivate the land being in possession and enjoyment of the same. Defendant Nos.1 to 3 alleging that they have purchased the properties including the schedule properties started interfering with the plaintiffs' possession and enjoyment. Therefore, they filed suit seeking declaration of their title and for permanent injunction.

#5. Defendant Nos.1 to 3 have appeared before the Court and filed their written statement denying the contentions taken by the plaintiffs and contended that, the plaintiffs are not entitled for any reliefs.

#6. It is contended that the plaintiffs have approached the Court with imaginary claim. It is contended that defendant No.2 - 7 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR had purchased 30 guntas of land from Doddamma, wife of Dyamaiah. Defendant No.3 purchased 25 guntas Huchaiah. It is denied that the plaintiffs are enjoying 1 acre 1/2 gunta of land as shown in the plaint sketch.

#7. It is contended that defendant Nos.1 to 3 have purchased the lands from lawful owners and on the basis of sale deeds, they are in possession and enjoyment of the same. It is contended that there is no cause of action for the suit and therefore, the suit is not maintainable. Defendants contended that under 5 different sale deeds, they have purchased several bits of land and they are in exclusive possession and enjoyment of the entire extent of land. The plaintiffs have never in possession or any portion of the properties. Hence, prays for dismissal of the suit.

#8. Other defendants have not filed the written statement nor they have contested the matter.

#9. On the basis of these pleadings, following issues came to be framed. - 8 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR ISSUES "(1) ªÁ¢UÀ¼ÀÄ vÁªÀÅ zÁªÁ µÉqÀÆå(cid:21)ï ¸ÀéwÛUÉ ¸ÀA¥ÀÆtð ªÀiÁ°ÃPÀgÁV zÁªÉ ºÀÆrzÀ ¢£ÀzÀAzÀÄ vÁªÀÅ CzÀgÀ PÁ£ÀÆ£ÀħzÀÞ ¸Áé¢üãÀzÀ°è EgÀÄvÉÛêÉA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉ? (2) 1 jAzÀ 3£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ vÁªÀÅ zÁªÁ µÉqÀÆå(cid:21)ï ¸ÀéwÛUÉ ¸ÀA¥ÀÆtð ªÀiÁ°ÃPÀgÉAzÀÄ ºÉýPÉÆAqÀÄ PÁ£ÀÆ£ÀĨÁ»gÀªÁV ªÁ¢AiÀÄgÀ zÁªÁ ¸ÀéwÛ£À ¸Áé¢üãÁ£ÀĨsÀªÀPÉÌ vÉÆAzÀgÉAiÀÄÄAlĪÀiÁrzÁÝgÉ JA§ÄzÀ£ÀÄß ªÁ¢UÀ¼ÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉ? (3) F zÁªÉAiÀÄÄ HfðvÀªÁUÀĪÀÅ¢®è ªÀÄvÀÄÛ PÁ®«Äw «ÄÃjzÁÝVzÉ JA§ÄzÀ£ÀÄß ¥ÀæwªÁ¢ 1 jAzÀ 3 gÀªÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉ? (4) 1 jAzÀ 3£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ zÁªÁ µÉqÀÆå(cid:21)ï ¸ÀévÀÛ£ÀÄß CzÀgÀ PÁ£ÀÆ£ÀħzÀÞ ªÀiÁ°ÃPÀjAzÀ Rjâ¹, D ªÀÄÆ®PÀ CzÀgÀ ¸ÀA¥ÀÆtð ªÀiÁ°ÃPÀgÁV ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°ègÀÄvÉÛÃªÉ CzÀÝjAzÀ F zÁªÉAiÀÄÄ ªÀeÁ DUÀ¨ÉÃPÉA§ÄzÀ£À£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉ? (5) G¨sÀAiÀÄ ¥ÀPÀëPÁgÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀ CxÀªÁ rQæUÉ CºÀðjzÁÝgÉ?"

#10. The plaintiffs examined PWs.1 and 2 and got marked Exs.P1 to 10 in support of their contentions. Defendants examined DWs.1 to 3 and got marked Exs.D1 to 15 in support of their defence. The Trial Court, after taking into consideration all these materials on record, answered issue Nos.1, 3 and 4 in the negative, issue No.2 held does not survive for consideration and accordingly dismissed the suit of the plaintiffs.

#11. Being aggrieved by the same, the plaintiffs have preferred RA.No.6/2006. The First appellate Court, on re- appreciation of the materials on record, passed the impugned - 9 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR judgment and decree, allowing the appeal and decreeing the suit of the plaintiffs. Being aggrieved by the same, defendant Nos.1 to 3 are before this Court.

#12. This Court vide order dated 17.08.2010, formulated the following substantial questions of law: (i) Without recording a specific finding about the source of acquisition of the properties in question, was the appellate Court right in decreeing the suit for declaration of title of the respondents-plaintiffs? (ii) Whether the lower appellate Court was justified in not relying upon the provisions of Section 101 of the Evidence Act to negative the claim of the plaintiffs? (iii) Whether the lower appellate Court was justified in granting relief of declaration of title in the absence of partition deed and/or entries in the revenue records in respect of the suit land?

#13. Heard Sri. V.B. Siddaramaiah, learned counsel for the appellants, Sri. S.K. Venkata Reddy, learned counsel for respondent No.1 and Sri. S.G.Lokesh, learned counsel for respondent Nos.2(a) & (b) and 3(a) & (b). Perused the materials including the Trial Court records. - 10 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR

#14. It is the contention of the plaintiffs that, they are the absolute owners in possession of plot Nos.1 and 2 described in the schedule, totally measuring 1 acre 1/2 gunta in Sy.No.25/2 of Puradakatte village, Hebbur Hobli, Tumkur Taluk. Admittedly, there are no title deeds in favour of the plaintiffs to prove their title. It is the contention of the plaintiffs that, they are the sons of Kempaiah and grandsons of Kathri Huchaiah, who was the propositus.

#15. The plaintiffs produced several revenue documents. Ex.P1 is the record of rights for the years 1968-69 to 1973-74. The names of all the sons of Kathri Huchaiah are shown in column No.9 and the names of Ramaiah, Kempaiah, Thimmaiah, Huchaiah and Kempamma in column No.12. But in subsequent RTCs i.e., Exs.P2, 3 and 4, there is reference to one Nanjamma in column No.9. According to plaintiffs, Nanjamma is not concerned to the schedule properties or the larger extent of the same. It should have been Nanjaiah. But unfortunately, there is no such pleading nor evidence before the Trial Court. There is also reference to one Ramaiah in column No.12 as per Exs.P1 to 4. There is no explanation as to who is this Ramaiah. Interestingly, in Ex.P3, the RTC for the year 1983-84 to 1987- - 11 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR 88, there is reference to the names of defendant Nos.1 and 2 in column No.12. In Ex.P4 also, there is reference to the names of defendant Nos.1 to 3. But in none of these RTCs relied on by the plaintiffs, the names of the plaintiffs appear in any of the columns. There is no explanation whatsoever in this regard. Admittedly, the plaintiffs have not challenged any of these entries in the revenue records.

#15. The defendants have produced Exs.D6 to 13-RTCs for the years 1981-82 till 1994-95. In all these RTCs, there are reference to the names of defendant Nos.1 and 2 and defendant Nos.1 to 3, in some of the RTCs. These entries were never challenged by the plaintiffs at any point of time. There are no documents worth mentioning to accept the contention of the plaintiffs that either they have acquired title over the schedule plot Nos.1 and 2 through their father or they are in possession and enjoyment of the same as on the date of the suit. As rightly contended by the learned counsel for the appellants, the interference alleged by the plaintiffs to have the cause of action for filing the suit for declaration and for permanent injunction do not describe as to who interfered, when and how interfered with the possession of the plaintiffs. - 12 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR When there are no materials that are supporting the contentions of the plaintiffs, it cannot be held that the plaintiffs are entitled for any reliefs.

#16. It is contended by the learned counsel for the plaintiffs that Exs.D1 to 4 and 15 are the sale deeds relied on by the defendants to contend that they have purchased various portions of the larger extent of Sy.No.25/2 and even if the sale deeds are to be taken into consideration, there remains 1 acre 1/2 gunta of land which was acquired by the plaintiffs. No such claim was made by the plaintiffs before the Trial Court. Unfortunately, the plaintiffs have not sought for appointment of Commissioner to measure the property and to file a report along with the sketch. There is no evidence to prove the possession of the properties to claim permanent injunction.

#17. The contention of the learned counsel for the plaintiffs that the sale deeds Exs.D1 to 4 and 15 do not tally with the larger extent of land in Sy.No.25/2 may not be a ground to grant the relief of declaration and permanent injunction in favour of the plaintiffs when they have failed to prove either their title or possession over the schedule property. Under - 13 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR these circumstances, I am of the opinion that the plaintiffs are not entitled for the comprehensive relief of possession and also for permanent injunction.

#18. I have gone through the impugned judgment and decree passed by the First Appellate Court. The Court has ignored all these facts and circumstances and has not considered the acquisition of right by the plaintiffs or the source of acquisition to claim declaration. The First Appellate Court has not taken into consideration Section 133 of the Karnataka Land Revenue Act in appreciating the contentions of the parties in the light of various revenue records relied on by the plaintiffs and the defendants. Under these circumstances, I am of the opinion that the substantial questions of law are to be answered in favour of the defendants and against the plaintiffs. Answered accordingly and proceed to pass the following: ORDER (i) The appeal is allowed with costs. (ii) The judgment and decree dated 16.09.2009 passed R.A.No.6/2006 (Old - 14 - NC: 2025:KHC:49562 RSA No. 1368 of 2009 HC-KAR R.A.No.144/2000) on the file of the Fast Track Court-II at Tumkur, is set aside. (iii) Consequently, the judgment and decree dated

18.08.2000 passed in O.S.No.642/1994 on the file of the learned Principal Civil Judge (Jr.Dn) and JMFC at Tumkur, is restored. Registry to send back the Trial Court records along with copy of this judgment. Sd/- (M G UMA) JUDGE MKM CT:VS List No.: 1 Sl No.: 2