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2023 DIGILAW 1392 (KAR)

Somashekar v. State of Karnataka

2023-12-15

ASHOK S.KINAGI

body2023
JUDGMENT : Ashok S. Kinagi, J. 1. This second appeal is filed by the appellant challenging the judgment and decree dated 09.01.2013, passed in R.A.No. 137/2007 by the Senior Civil Judge, Hunsur, confirming the judgment and decree dated 17.09.2007, passed in O.S.No. 20/2003 by the Civil Judge (Jr.Dn.), Hunsur. 2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants. 3. The brief facts leading rise to filing of this appeal are as under: Plaintiff filed a suit for declaration of title and permanent injunction. It is the case of the plaintiff that the plaintiff is the absolute owner in possession of the suit schedule property bearing Sy.No. 13 measuring 2 acres situated in Hanchya Village, Kasaba Hobli, Hunsur Taluk. It is contended that the land bearing Sy.No. 13 measuring 4 acres was granted to one Siddalingaiah by Deputy Commissioner, Mysore on 09.04.1965. Since then, the said Siddalingaiah was in possession and enjoyment of the said property as the absolute owner. On 10.08.1983, the said Siddalingaiah executed a Will in favour of one K. Devappa i.e., the brother of plaintiff, bequeathing the said property. Siddalingaiah died in the year 1985. After his death, the Will came into force. It is contended that the plaintiff and his brother, viz. K.Devappa were living in joint family till the year 2001 and in joint possession and enjoyment of the above said 4 acre of land. There was a family arrangement between the plaintiff and K.Devappa on 31.03.2001. In the said arrangement, the plaintiff and his brother have partitioned the joint family properties by a registered partition deed dated 31.03.2001. In the said partition, the suit property i.e., 2 acres of land in Sy.No. 13 was fallen to the share of the plaintiff and he is in possession and enjoyment of the said suit schedule property as the absolute owner. It is contended that the plaintiff is paying land revenue in respect of the suit schedule property. Defendants No. 2 and 3 having no right, title or interest over the suit schedule property, tried to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The plaintiff had made several representations to defendant No. 2 to change the katha in his name. Defendant No. 2 has not passed any order. Defendants No. 2 and 3 having no right, title or interest over the suit schedule property, tried to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The plaintiff had made several representations to defendant No. 2 to change the katha in his name. Defendant No. 2 has not passed any order. It is contended that the plaintiff had obtained loan from Vysya Bank, Hunsur Branch on the suit schedule property. The defendant No. 2 issued an eviction notice on 27.06.2001 and defendant No. 3 issued notice on 09.01.2003, calling upon the plaintiff to vacate and handover the suit schedule property. Thus cause of action arose for the plaintiff to file the suit for declaration of title and permanent injunction. 4. Defendants filed written statement denying that land bearing Sy.No. 13 measuring 4 acres of Hanchya Village was granted by the Deputy Commissioner of Mysore in favour of one Siddalingaiah and it is also denied that Siddalingaiah was in possession of the suit schedule property and he has executed a Will in favour of K. Devappa bequeathing the suit schedule property bearing 4 acres in Sy.No. 13. It is contended that the suit schedule property is a Government land and plaintiff is trying to cultivate the suit land and cause of action shown in the plaint is false and imaginary. On these grounds sought for dismissal of the suit. 5. The Trial Court, on the basis of the above said pleadings, framed the following issues: (1) Whether the plaintiff proves that declaring him as absolute owner and possessor of the suit schedule property? (2) Whether the plaintiff proves alleged interference by the defendants in respect of suit schedule property? (3) Whether the plaintiff is entitled the relief of declaration and injunction as prayed for? (4)What order or decree? 6. In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got examined 3 witnesses as PW-2 to PW-4 and got marked 11 documents as Exs.P1 to P11. Defendant No. 2 - Tahsildar, Hunsur is examined as DW-1 and no documents were marked. The trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1 to 3 in negative and consequently dismissed the suit of the plaintiff. 7. Defendant No. 2 - Tahsildar, Hunsur is examined as DW-1 and no documents were marked. The trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1 to 3 in negative and consequently dismissed the suit of the plaintiff. 7. The plaintiff aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No. 137/2007, before the Senior Civil Judge, Hunsur. The First Appellate Court, after hearing the parties, has framed the following points for consideration: (1) Whether it is necessary to permit the plaintiff to produce additional documents and to lead evidence? (2) Whether the appellant / plaintiff has made out that judgment and decree passed by the trial Court is not based on sound principles of law and the facts and circumstances of the case and the same has to be interfered with? (3) What order? 8. The First Appellate Court, on re-assessment of the oral and documentary evidence, answered points Nos.1 and 2 in negative and consequently dismissed the appeal filed by the plaintiff and confirmed the judgment and decree passed by the trial Court. The plaintiff, aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal. 9. Heard learned counsel for the plaintiff. 10. Learned counsel for the plaintiff submits that the plaintiff is the absolute owner of the suit schedule property by virtue of Will dated 10.08.1983, executed by Siddalingaiah in favour of K. Devappa who is none other than the brother of the plaintiff. He also submits that there was partition between K.Devappa and the plaintiff. In the said partition, suit schedule property was fallen to the share of the plaintiff. Hence the plaintiff became the absolute owner and accordingly he was paying the tax in respect of the suit property. He submits that the plaintiff in order to establish his ownership and possession over the suit schedule property and also Will executed by Siddalingaiah in favour of K. Devappa, examined witnesses. The courts below have failed to appreciate the material evidence placed on record. He submits that the judgments and decrees passed by the courts below are arbitrary and erroneous. Hence on these grounds, prays to allow the appeal. 11. Perused the records and considered the submissions of learned counsel for the plaintiff. 12. The plaintiff in order to prove his case, examined himself as PW-1. He submits that the judgments and decrees passed by the courts below are arbitrary and erroneous. Hence on these grounds, prays to allow the appeal. 11. Perused the records and considered the submissions of learned counsel for the plaintiff. 12. The plaintiff in order to prove his case, examined himself as PW-1. He has deposed that the suit land was granted by the Deputy Commissioner, Mysore, in favour of one Siddalingaiah. The said Siddalingaiah executed a Will in favour of K.Devappa, who is none other than the brother of plaintiff, bequeathing the said granted land. There was partition between the plaintiff and K.Devappa. In the said partition, the suit schedule property was fallen to the share of the plaintiff. The plaintiff became the absolute owner of the suit schedule property and the plaintiff is paying tax in respect of suit property. Plaintiff has produced documents in support of his case. Ex.P1 is the certified copy of partition deed; Ex.P2 and P3 are the copy of ROR in respect of land bearing Sy.No. 13; Ex.P4 is the certified copy of patta book; Ex.P5 is the record of right; Ex.P6 is the index of land; Ex.P7 is the notice from Revenue Inspector; Ex.P8 is the notice issued by the Tahsildar; Ex.P9 is the certified copy of Encumbrance certificate; Ex.P10 is the death certificate and Ex.P.11 is the certified copy of Will. From the perusal of the oral and documentary evidence recorded on behalf of the plaintiff, the plaintiff has not produced the grant certificate alleged to have been issued in favour of Siddalingaiah. The plaintiff has not produced any record to show that the said land was granted in favour of Siddalingaiah. It is contended that Siddalingaiah had executed a Will in favour of K.Devappa bequeathing the suit schedule property. Before proving the execution of Will, the burden is on the plaintiff to establish that the said land was granted in favour of Siddalingaiah, though the defendants in the written statement have denied that the land was granted in favour of Siddalingaiah. 13. In rebuttal, the defendants examined the Tahsildar as DW-1 and he has deposed that the land bearing Sy.No. 13 measuring 4 acres of Hanchya Village was not granted in favour of Siddalingaiah. The said land is a Government land. The plaintiff tried to cultivate the said Government land. 14. 13. In rebuttal, the defendants examined the Tahsildar as DW-1 and he has deposed that the land bearing Sy.No. 13 measuring 4 acres of Hanchya Village was not granted in favour of Siddalingaiah. The said land is a Government land. The plaintiff tried to cultivate the said Government land. 14. The Courts below considering the oral and documentary evidence, held that the plaintiff has failed to prove that the plaintiff is the absolute owner of the suit schedule property on the basis of alleged Will. The trial Court was justified in holding that the plaintiff has failed to prove that the plaintiff is the absolute owner in possession of the suit schedule property and also failed to prove the alleged interference by the defendants and rightly dismissed the suit. The First Appellate Court on re-assessment of oral and documentary evidence, affirmed the judgment and decree passed by the trial Court. Both the courts below have concurrently recorded the finding of facts against the plaintiff. The plaintiff has failed to prove that the suit land was granted in favour of Siddalingaiah and said Siddalingaiah had no title to execute the Will in favour of K. Devappa and further the plaintiff is not in possession of the suit schedule property. Both the courts below considering the material placed on record, have rightly passed the impugned judgments and decrees. Hence, I do not find any grounds to interfere with the impugned judgments and decrees passed by the courts below and find any substantial question of law that arises for consideration in this appeal. 15. Accordingly, I proceed to pass the following: ORDER: The appeal is dismissed. Consequently, the judgments and decrees passed by the courts below are confirmed. No order as to the costs.