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2023 DIGILAW 50 (KAR)

K. H. Channabasappa v. K. H. Maheshwarappa

2023-01-06

V.SRISHANANDA

body2023
JUDGMENT/ORDER 1. Present appeal is directed against the judgment and decree dtd. 7/4/2006 passed in OS No.122/2004 on the file of the Civil Judge (Sr. Dn.), Harihar, whereby the suit of the plaintiff is decreed as prayed for. 2. The parties are referred to as plaintiff and defendants for the sake of convenience as per their original rankings before the Trial Court. 3. Brief factual matrix of the case are as under: Plaintiff filed a suit seeking cancellation of the portion of the decree passed in OS No.28/2003 dtd. 23/10/2003, in respect of 'C' schedule property and as well as cancellation of the portion of the partition deed dtd. 15/12/2003 executed by late K.H. Parameshwarappa and defendants relating to the suit land of the plaintiff shown as 'A' schedule in the said partition deed which has been allotted to Parameshwarappa son of Channabasappa. Case of the plaintiff further reveals that plaintiff is the owner of the agricultural land bearing Survey No.493/B measuring 4 acres 83 cents situated at Hiremeghala gere village, Arasikere Hobli, Harappanahalli Sub-Division, Davangere District bounded on East - land belonging to B.Siddappa; West - land belonging to Gurappala Halamma; North - land belonging to Hadapada Sharanappa and South - land belonging to Hanumanthappa [hereinafter referred to as the 'suit schedule property'] . 4. It is the further case of the plaintiff that plaintiff purchased the suit property by virtue of the sale deed dtd. 13/7/1998 from its original owner Sri Pujar Mahadevappa for a valuable consideration in a sum of Rs.1, 64, 000.00. After purchase of the suit property, plaintiff got mutated the revenue entries in the concerned records and was enjoying the suit property. Title to the vendor of the plaintiff Pujar Mahadevappa is based on the court auction sale dtd. 2/12/1993. 5. The father of the first and second defendants and husband of the third defendant Sri K.H. Parameshwarappa died in the month of June 2004 leaving behind his son, daughter and wife. During the life time of Parameshwarappa, the first defendant filed a suit for partition in OS No.28/2003 seeking partition and separate possession of his share against his parents. 6. It is further contended by the plaintiff that the said suit in OS No.28/2003 ended in a compromise decree dtd. 23/10/2003. During the life time of Parameshwarappa, the first defendant filed a suit for partition in OS No.28/2003 seeking partition and separate possession of his share against his parents. 6. It is further contended by the plaintiff that the said suit in OS No.28/2003 ended in a compromise decree dtd. 23/10/2003. It is further contended that the said suit is a collusive suit and clandestinely suit property of the plaintiff was included as the joint family property in 'C' schedule in OS No.28/2003 without there being any documents whatsoever to substantiate that the suit property was the joint family property of K.H. Parameshwarappa. It is further contended that few documents were created by Parameshwarappa and first defendant got included the suit property into the scope of OS No.28/2003 and therefore, the compromise decree passed in OS No.28/2003 is not binding on the plaintiff. 7. It is also pleaded that defendants and late Parameshwarappa thereafter entered into registered partition deed on 15/12/2003 wherein Parameshwarappa got the suit property as his share. Subsequent to the registration of the partition deed, the revenue entries were mutated in the name of K.H. Parameshwarappa when the plaintiff came to know about the illegalities committed by the defendants by obtaining encumbrance on 10/5/2004, when he approached the Canara Bank for loan facility based on the suit property. He was shocked and surprised to see the name of Parameshwarappa and thereafter, collected necessary documents and came to know about the partition deed dtd. 15/12/2003 and decree in OS No.28/2003 and immediately, he approached the revenue authorities and objected for change of katha. The said application was registered in dispute No.CR.23/2004-05. He also contacted the defendants in this regard but his efforts were went in vain and therefore, left with no alternative, the plaintiff filed the suit seeking aforesaid prayer. 8. Upon service of suit summons, defendants entered appearance through the Advocate and first defendant filed a detailed statement which has been adopted by the other defendants. In the written statement and plaint averments were denied in toto and contended that the suit property is the joint family property of the defendants and therefore, the suit is to be dismissed. The defendants specifically denied that the defendants have manipulated the revenue entries and concocted the documents in respect of the suit properties and filed a false suit and sought for dismissal of the suit. 9. The defendants specifically denied that the defendants have manipulated the revenue entries and concocted the documents in respect of the suit properties and filed a false suit and sought for dismissal of the suit. 9. Based on the rival contentions of the parties, following issues have been raised: "(1) Whether plaintiff proves that he is the owner of suit schedule property as per the sale deed dt.13/7/98 ? (2) Whether plaintiff further proves that the defendants by mis-leading to the court and to cause legal injury and hardship to the plaintiff got compromised the decree in 0.S.No.28/03 in respect of suit schedule property which is belonging to him and the said decree is not binding upon him? (3) Do defendants prove that the suit schedule property is their joint family property and they are in possession and enjoyment of the same? (4) Do defendants further prove that the suit is bad for non-joinder of necessary party i.e., vendor of plaintiff? (5) Whether plaintiff proves that he is in possession and enjoyment of suit schedule property on the date of filing the suit? (6) Whether plaintiff further proves that the defendants have caused un-lawful obstruction for his possession and enjoyment of suit schedule property? (7) Whether plaintiff is entitled for reliefs as sought for? (8) What decree or order?" 10. In order to prove the case of the plaintiff, plaintiff got examined himself as PW-1 and relied on 19 documents which were exhibited and marked as Exs.P1 to P19 comprising of certified copy of the sale deeds, partition deed, RTC extracts, Tax paid receipts, certified copies of the order sheet, plaint, amended plaint, valuation slip, written statement, compromise petition, decree, list of documents, General Power of Attorney, letter of requisition, notice and encumbrance certificate. 11. In order to prove the case of the defendants, first defendant Channabasappa is examined as DW-1, but did not place any defence evidence in respect of his contentions. On conclusion of the trial, the learned Trial Judge after hearing the parties in detail and on cumulative consideration of the oral and documentary evidence on record, decreed the suit of the plaintiff as under: "The suit of the plaintiff is hereby decreed with costs against the defendants. It is hereby ordered & decreed that the decree passed in O.S.No.28/03 on the file of this court dt. It is hereby ordered & decreed that the decree passed in O.S.No.28/03 on the file of this court dt. 23/10/3 in respect of 'C' schedule property which is mentioned in the said decree in respect of present suit schedule property is hereby cancelled. It is further hereby ordered and decreed that the partition deed dt.15/12/3 in respect of 'A' schedule property which is mentioned in the said partition deed with respect to present suit schedule property which is fallen to the share of Parameshwarappa S/o Channabasappa at the office of Sub-Registrar, Harappananalli in Book No.1 at Sl.No.2015 is hereby cancelled. Further it is ordered and decreed that the defendants are hereby permanently restrained from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. Draw decree accordingly." 12. Being aggrieved by the said judgment and decree, the defendants are in appeal on the following grounds: "That the judgment and decree passed by the lower court is opposed to law and probabilities of the case. That the Lower court has not taken in to consideration oral and documentary evidence and has come to a wrong conclusion. That the Lower court ought to have dismissed the suit filed by the respondents. That the Lower court seriously erred in law in holding that the respondent (Plaintiff) is the owner of the suit schedule property. The said findings recorded by the Trial court is totally erroneous. That the court below seriously erred in law in relying upon Ex.P.1 to P.3 which are certified copies. That the court below fail notice that the respondent failed to produce the original copies of the sale deed which are inadmissible in evidence. This aspect of matter is not at all considered by the Trial Court. That the Trial Court seriously erred in law in coming to the conclusion. That the appellants have obtained a compromise decree in 0.S.No.28/03 behind the back of the respondent. That the court below fail to notice that the respondent is not a necessary party, since the properties comprised in 0.S.No. 28/2003 belongs to the Joint family of the appellants. This aspect of the matter is not at all considered by the Trial Court. That the court below fail to notice that one Tulajappa has executed the G.P.A in favour of the father of the 1st appellant. Hence he was the owner of the suit schedule property. This aspect of the matter is not at all considered by the Trial Court. That the court below fail to notice that one Tulajappa has executed the G.P.A in favour of the father of the 1st appellant. Hence he was the owner of the suit schedule property. This aspect of the matter was not at all considered by the Trial Court. That the Court below seriously erred in law in holding that the partition deed as per Ex.P.3 was collusive and playing fraud on the part of the respondents. That court below ought to have dismissed the suit for non-joinder of the necessary parties, since the vendor of the respondent has not made the party to the suit." 13. The learned counsel for the appellant Sri Sanath Kumar Shetty K. vehemently contended that the Trial Court has grossly erred in decreeing the suit of the plaintiff. He also argued that the remedy for the plaintiff was to approach the very same court which passed the compromise decree and not to file a separate suit and therefore, sought for allowing the appeal. 14. Per contra, learned counsel representing the respondent Sri M. Vinaya Keerthy, supported the impugned judgment clandestinely and contended that the alleged compromise in the suit and by active collusion, they have included the suit property in OS No.28/2003 which has been rightly appreciated by the learned Trial Judge while passing the impugned judgment and decree and sought for dismissal of the appeal. 15. In view of the rival contentions of the parties, the following points would arise for consideration: (i) Whether the defendants have made out a case that the suit property is the joint family property and therefore, defendants and Sri Parameshwara is justified in including the suit property as 'C' schedule property in OS No.28/2003? (ii) Whether the defendants/appellants further prove that the suit filed by the plaintiff is not maintainable ? (iii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference? (iv) What order? 16. In the case on hand, in order to prove the case of the plaintiff, plaintiff got examined himself as PW-1 by filing an affidavit in lieu of his examination in chief. In the said affidavit he reiterated the contents of the plaint in verbatim and sought for decreeing of the suit. (iv) What order? 16. In the case on hand, in order to prove the case of the plaintiff, plaintiff got examined himself as PW-1 by filing an affidavit in lieu of his examination in chief. In the said affidavit he reiterated the contents of the plaint in verbatim and sought for decreeing of the suit. He relied on 19 documentary evidence which were exhibited and marked as Exs.P1 to P19, comprising of certified copies of the sale deeds, partition deed, RTC extracts, Tax paid receipts, certified copy of the order sheet, plaint, amended plaint, valuation slip, written statement, compromise petition, decree, list of documents, GPA executed by Tulujappa, letter of requisition, Notice issued by Deputy Tahasildar, Nadakacheti of Arasikere, Encumbrance certificate in support his oral testimony. 17. In his cross examination he has answered that original of Ex.P1 is misplaced. He admits that his vendor got the title as per the order passed by court in Execution Case No.8/1993 and Court Commissioner has executed the sale deed in favour of his vendor. He admits that Poojar Mahadevappa s/o.Gurushan is his vendor and he has not produced the sale deed executed in favour of the said Poojar Mahadevappa in pursuance of the order passed in Exe.Case No.8/93. He denies the suggestion that his vendor did not derive any right, title and interest in the suit property in the sale deed executed by the Court Commissioner. He pleaded ignorance about the Power of Attorney vide Ex.P16. He denied the suggestion that Ex.P16 is executed by the father of the first defendant in his favour. He also denies the suggestion that first defendant was in possession of the suit property in pursuance of Ex.P16. He pleaded ignorance about the pendency of original suit No.28/2003 which is filed for partition by first defendant against his father, mother and sister. He admits that he is resident of Kadabji village and defendants are residents of Chikkamegalageri village. He admits that the suit property bearing Survey No.493/B being the part of Chikkamagalageri village of Harappanahalli taluk, there could not be the same Survey number being allotted by the land of the first defendant. He denied the suggestion that as per the well wishers of the village, defendants have entered into compromise vide Ex.P14 in OS No.28/2003. He admits that he has not furnished the mutation register extract in respect of the suit property. 18. He denied the suggestion that as per the well wishers of the village, defendants have entered into compromise vide Ex.P14 in OS No.28/2003. He admits that he has not furnished the mutation register extract in respect of the suit property. 18. He denies that noting the defects in Ex.P2, Tahasildar has rejected his application seeking transfer of revenue entries. He denied the suggestion that even though he was not having right, title and interest over the suit property, he colluded with the revenue authorities and got his name entered in Exs.P4 to P6. He denied the suggestion that when revenue entries are transferred in his name, the defendants were not notified. He denied the suggestion that under Ex.P2 he did not derive possession over the suit property. 19. First defendant Channabasappa also filed affidavit in lieu of his examination in chief wherein he has reiterated the contents of the written statement and sought for dismissal of the suit. In his cross examination, he admits that he is acquainted with Kannada language and his father died on 20/5/2004. He admits that since there is no cordial relationship between his father, they were having separate residence. He admits that he had got an elder sister and filing of OS No.28/2003. He admits that he has included land in Survey No.493/D in OS No.28/2003, and he has furnished a Power of Attorney executed in favour of his father by the erstwhile land owner and except that documents he has not furnished any other documents to prove the ownership over the suit property. He admits that suit property is in the name of the plaintiff and neither himself nor his father has been examined as witness in OS No.28/2003. He further admits that suit OS No.28/2003 ended in compromise and based on the same, the partition deed was registered in the office of Sub Registrar, Harappanahalli. He admits that in Ex.P10, there is a mention that suit land is situated in Chikkamegalageri village. He admits that in respect of the suit property except the Power of Attorney marked at Ex.P-16, there is no other document. He pleaded ignorance that on 13/7/1998 suit property was purchased by the plaintiff from Poojar Mahadevappa in a sum of Rs.1, 64, 000.00. However, he admits that Poojar Mahadevappa purchased the suit property on 2/12/1993 in the court auction. He denies other suggestions. 20. He pleaded ignorance that on 13/7/1998 suit property was purchased by the plaintiff from Poojar Mahadevappa in a sum of Rs.1, 64, 000.00. However, he admits that Poojar Mahadevappa purchased the suit property on 2/12/1993 in the court auction. He denies other suggestions. 20. On cumulative consideration of oral and documentary evidence on record, it is crystal clear that suit property was put into auction in Ex.No.8/93 by Sri Poojar Mahadevappa. Thereafter, Poojar Mahadevappa was put into possession of the suit property. The revenue entries got transferred in the name of Poojar Mahadevappa certified copy of the sale deed marked at Ex.P1 dtd. 13/7/98 recites the same about the title in respect of the suit property. Likewise, Ex.P2 being the sale deed executed by the Court Commissioner on 2/12/1993 in favour of the Poojar mahadevappa. The said consideration is shown as Rs.1, 64, 000.00 in Ex.P1. 21. As could be seen from the above, it is the plaintiff who is the owner of the suit property. However, without there being any right, title and interest over the suit property, the same is included in the compromise decree entered into by first defendant and his family members in OS No.28/2003. 22. There is a specific admission by the first defendant in his cross examination that except General Power of Attorney executed by Tulajappa in favour of the father of the first defendant, there is no other document to establish the right, title and interest over the suit property. 23. Since the suit ended in a compromise, the learned Trial Judge who passed the compromise decree in Os No.28/03, did not bestow his attention as to the title of the first defendant or his family members over the suit property. The partition deed dtd. 15/12/2003 was registered in the office of the Sub. Registrar Harappanahalli based on the compromise decree. 24. It is settled principles of law that a person would not get any title over the suit property based on the power of attorney alone. As such, title of the defendant over the suit property is not established by the defendant. 15/12/2003 was registered in the office of the Sub. Registrar Harappanahalli based on the compromise decree. 24. It is settled principles of law that a person would not get any title over the suit property based on the power of attorney alone. As such, title of the defendant over the suit property is not established by the defendant. On the contrary, the materials on record clearly shows that the plaintiff has established his right, title and interest over the suit property by placing cogent and convincing evidence on record by tracing his title in his vendor namely Poojar Mahadevappa who purchased the suit property in a court auction in Execution No.8/1993. 25. Therefore, the materials on record clearly indicates that it is the plaintiff who is the absolute owner in possession of the suit property and inclusion of the suit property in OS No.28/1993 and said suit ending in a compromise between first defendant and his family members and pursuant thereof, partition deed is registered on 15/12/2003 in the office of the Sub. Registrar Harappanahally is thus bad in law and therefore, the learned Trial Judge was perfectly justified in decreeing the suit of the plaintiff as referred to supra. 26. Even after re-appreciation of the entire materials on record both on facts and law, this court is of the considered opinion that the grounds urged in the appeal memorandum are hardly sufficient to hold that the impugned judgment is suffering from legal infirmity or perversity. On the contrary, the impugned judgment is based on proper and sound re-appreciation of the materials on record logically. 27. In view of the foregoing discussion, this court is of the considered opinion that this court is not made out any good grounds whatsoever to interfere with the impugned judgment. Accordingly, Point Nos.1 & 2 are answered in the negative. 28. REG.POINT NO.3: In view of findings on Point Nos.1 & 2, above, pass the following order: ORDER Appeal is merit less and hereby dismissed. No order as to costs.