Research › Search › Judgment

Karnataka High Court · body

2024 DIGILAW 207 (KAR)

Chikkaboraiah v. Kenchegowda

2024-03-11

RAJENDRA BADAMIKAR

body2024
JUDGMENT : Rajendra Badamikar, J. - This is the plaintiff's second appeal challenging the judgment and decree dated 28.02.2005 passed by the Civil Judge (Jr.Dn.) and JMFC, Nagamangala, in OS No.109/1999, which is confirmed by the Senior Civil Judge and JMFC, Nagamangala, in RA No.67/2006 vide Judgment dated 30.07.2007. 2. For the sake of convenience, the parties herein are referred as per the ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case are as under: The plaintiff-Chikkaboraiah has filed a suit for declaration and consequential relief of permanent injunction pertaining to suit schedule properties measuring 8 guntas in Sy. No.142/3 and 38 guntas in Sy. No. 249 of Bheemanahalli Village with specific boundaries referred thereunder. It is the contention of the plaintiff that the land measuring 1 acre 24 guntas in Sy. No.142/3 and land measuring 4 acres 27 guntas in Sy. No.249 situated in Bheemahahalli Village were originally owned by Boregowda, son of Muddegowda, who was the grand father of the plaintiff. The said Boregowda had six sons namely Chikkamuddegowda, Kallugudigowda, Javaregowda, Ningegowda, Chikkaboregowda and Chikkananjegowda. Out of them, Chikkaboregowda is the father of plaintiff. It is alleged that, in the oral partition between the father of plaintiff and uncles, the suit said schedule properties had fell to the share of the father of the plaintiff. But, in spite of oral partition, the katha and RTC continued in the name of the grandfather of the plaintiff. It is alleged that, after the death of his grand father and father, the plaintiff got changed the katha in M.R. No.13/1994-95 and he continued in possession as absolute owner of said suit properties. It is alleged that the defendants are in no way related to the family of plaintiff and they have no right, title and interest over the suit properties. It is further alleged that, the name of the father of defendants is also Boregowda, as such, by taking advantage of the same, the defendants have created frivolous and fictitious documents in order to get the katha changed in their names and hence, they have no right, title or interest over the suit schedule properties. It is alleged that, by taking advantage of the order of the Assistant Commissioner of Pandavapura, in R.Mis. It is alleged that, by taking advantage of the order of the Assistant Commissioner of Pandavapura, in R.Mis. No.117/97-98 dated 27.10.1998, the defendants attempted to dispossess the plaintiff from the suit schedule properties, and hence, he filed a suit for declaration and permanent injunction in respect of suit schedule properties. 4. The defendants appeared before the trial Court and filed their written statement disputing the claim of the plaintiff. It is disputed that the suit schedule properties were originally owned by Sri. Boregowda, son of Muddegowda and they have also denied the alleged oral partition between the plaintiff's father and his uncle and the suit schedule properties being fallen to the share of plaintiff's father. It is also contended that the mutation in the name of plaintiff was challenged before the Assistant Commissioner, Pandavapura, and the said mutation was set aside by the Assistant Commissioner by order dated 10.09.1998. According to the defendants, the plaintiff has given a false Genealogical Tree and it is further asserted that the writ petition filed by the plaintiff challenging the said order of Assistant Commissioner came to be dismissed. According to the defendants' case, Kenchegowda, who was the propositus, had two sons by name Manjegowda and Boregowda and the suit schedule properties belong to Kenchegowda, the grand father of defendants. It is contended that the suit schedule properties were in joint possession of defendants' father and their uncle and on 10.03.1965, there was a partition of schedule properties and as per partition deed, in Sy. No.142/3, out of 1 acre 26 guntas, the land measuring 16 guntas had fallen to the share of 1st defendant and the land measuring 17 guntas had fallen to the share of 2nd defendant and 33 guntas fell to the share of 3rd defendant. It is asserted that, the 3rd defendant-Chikkaningaiah had sold 12 guntas in Sy. No.142/3 out of 33 guntas derived through partition to one Ramaiah son of Hottppa of Bindiganavile Village about 5 years earlier itself. It is asserted that the plaintiff is giving wrong boundaries of suit schedule properties and it is asserted that the land in Sy. No.249/3 measuring 4 acres 28 guntas was also divided among defendants in partition held on 10.03.1965. The defendants denied the other contentions of the plaintiff and sought for dismissal of the suit. 5. It is asserted that the plaintiff is giving wrong boundaries of suit schedule properties and it is asserted that the land in Sy. No.249/3 measuring 4 acres 28 guntas was also divided among defendants in partition held on 10.03.1965. The defendants denied the other contentions of the plaintiff and sought for dismissal of the suit. 5. On the basis of the above pleadings, the trial Court has framed four issues and additional issue, as under:- i) Whether plaintiff proves that he is in lawful possession of suit schedule property? ii) Whether plaintiff proves the alleged interference caused by the defendants? iii) Whether plaintiff is entitled for the relief as claimed in the plaint? iv) What decree or order? Additional Issue: i) Whether plaintiff proves that he is the absolute owner of suit schedule property deriving the title through oral partition and revenue records changed to plaintiff's name in M.R. No.13/94-95? 6. The plaintiff got examined himself as PW.1 and on his behalf three witnesses were examined as PWs. 2 to 4 and he placed reliance on Exs.P1 to P12. The two defendants got themselves examined as DWs.1 & 2 and placed reliance on 18 documents as per Exs. D1 to D18. 7. The learned Civil Judge after appreciating the oral and documentary evidence, has answered Issue Nos. 1 to 3 and additional issue in negative and ultimately dismissed the suit. Being aggrieved by this judgment and decree, the plaintiff has approached the Senior Civil Judge, Nagamangala in RA No.67/2006 and the learned Senior Civil Judge, after re-appreciating the oral and documentary evidence, has dismissed the appeal by confirming the judgment and decree passed by the trial Court. Being aggrieved by these concurrent findings, the plaintiff is before this Court. 8. Heard the arguments advanced by the learned counsel for the appellant/plaintiff and the learned counsel for the respondents/defendants. Perused the records. 9. It is the contention of the appellant/plaintiff that, the original owner was Boregowda and the plaintiff is the grand son of Chikkaboregowda and himself was the son of Chikkaboraiah. It is asserted that the suit schedule properties were fallen to the share of the father of plaintiff i.e., Chikkaboregowda, and defendants though asserted that the suit schedule properties were owned by Kenchegowda, son of Boregowda, the same is not substantiated. It is asserted that the suit schedule properties were fallen to the share of the father of plaintiff i.e., Chikkaboregowda, and defendants though asserted that the suit schedule properties were owned by Kenchegowda, son of Boregowda, the same is not substantiated. He would also contend that, the revenue records disclose the name of plaintiff's grand father i.e., Chikkaboregowda and Exs.P1, P2, P3, P6 and P10 establish the claim of the plaintiff. He would further contend that, the defendants are strangers to his family and now the argument regarding defendants filing a suit, wherein the plaintiff deposing in favour of the said person has no relevancy, as the said deposition was not confronted to the plaintiff. Hence, he would contend that, both the courts below have committed error in appreciating the oral and documentary evidence. Hence, he would seek for allowing the appeal by setting aside the impugned judgment and decree passed by both the courts below, by decreeing the suit of the plaintiff. 10. Per contra, the learned counsel for respondents/defendants would contend that the plaintiff himself is not certain as to whether the suit is restricted to 08 guntas and 38 guntas in suit Sy Nos. 142/3 and 249 of Bheemanahalli Village, as the evidence of PW.1 discloses that the suit is filed in respect of entire property, which discloses that the plaintiff is unaware of the exact measurement of the suit property and also it is asserted that, after the death of plaintiff, his LRs. were brought on record. But, the name of the present plaintiff and the name referred in the death extract are totally different and identity of the plaintiff is in dispute. He would contend that the entire case is based on alleged oral partition and reporting the same to the concerned Revenue Officials. He would contend that the plaintiff's father died about 50 years back as per his own admission, but the allegations were that the partition has taken place in 1972, which does not inspire the confidence of the Court. It is further asserted that the plaintiff has approached the Court asserting acquisition of title on the basis of oral partition. But, when the oral partition itself is not proved, question of declaring the plaintiff as owner in respect of schedule properties does not arise at all. It is further asserted that the plaintiff has approached the Court asserting acquisition of title on the basis of oral partition. But, when the oral partition itself is not proved, question of declaring the plaintiff as owner in respect of schedule properties does not arise at all. He would also contend that the weakness of the defendants is not a ground for the plaintiff and he would succeed or fall on his own pleading. Hence, he would seek for dismissal of the appeal. 11. This Court by order dated 02.03.2010 has framed the following substantial questions of law as under:- i) Whether the Courts below were justified in dismissing the suit of the plaintiff without any issue as to the claim of the defendants claiming title to the property being adjudicated? ii) Whether the trial Court was justified in negating the documents produced to support the case of the plaintiff that the property stood in the name of his grand father over a substantial period of time? iii) Whether the First Appellate Court was justified in endorsing the finding of the trial Court in this regard? 12. The contention of the plaintiff is that, he is the owner of the suit schedule property and he acquired title through is father, as, the suit schedule property was allotted to the share of his father in the family partition. But, absolutely no document has been produced to prove that there was an oral partition as asserted by the plaintiff between his father and his uncles. No wardi was submitted and all along it is asserted that the name of grand father continued in the property extract and if at all there was a partition, what prevented the father of the plaintiff to get mutated his name in the suit schedule properties is not explained. Apart from that, it is evident that, all along katha of the suit schedule properties were mutated in the names of defendants and the partition in the family of defendants was proved by mutation entries of 1965. Since the plaintiff is claiming title through oral partition, he is required to prove the same. Further, he did not reveal as to what are the properties partitioned and which portions were allotted to his uncles. The entire evidence is completely silent in this regard. Since the plaintiff is claiming title through oral partition, he is required to prove the same. Further, he did not reveal as to what are the properties partitioned and which portions were allotted to his uncles. The entire evidence is completely silent in this regard. Though the plaintiff is placing reliance on certain entries, but they were based on the mutation of the name of the plaintiff. But the mutation in the name of plaintiff was set aside by the Assistant Commissioner in the appeal. The said order is admittedly challenged by the plaintiff before this Court in a writ petition and that writ petition also came to be dismissed. 13. Further, the plaintiff has not even pleaded as to how many brothers he got and what are the shares allotted to his brothers. Interestingly, the plaintiff has cleverly concealing all material aspects and there is no material evidence as to which shares were allotted to his brothers and which property was allotted to the share of the plaintiff. The plaintiff has not filed this suit on behalf of his family, but he filed the suit in his individual capacity. Hence, he is also required to prove that not only the suit schedule property was allotted to the share of his father and again the suit property was allotted to his share in the partition between himself and his brothers. But this portion of evidence is also silent. Since the plaintiff has approached the Court, the burden is on the plaintiff to prove his title and source of acquisition of title and he cannot rely on or take advantage of the weakness of defendants. The plaintiff has also not produced any document to show that he paid land revenue and was in possession of suit schedule properties all along. 14. The plaintiff all along asserted that, there was partition between his father and uncles in the year 1972. But, he did not assert as to what are the properties allotted to the share of his uncles and what prevented his father to get the katha changed in his name. But, in further cross-examination, PW.1 admitted that his father died about 50 years back. If his father died about 50 years earlier itself, then question of partition in the year 1972 does not arise at all. But, in further cross-examination, PW.1 admitted that his father died about 50 years back. If his father died about 50 years earlier itself, then question of partition in the year 1972 does not arise at all. The plaintiff himself is not certain about the exact extent of suit schedule properties also and he has failed to prove his possession over the suit schedule properties also. On the contrary, the documents produced by the defendants disclose that there was a partition between the defendants on 10.03.1965 and this is authenticated by the evidence. No such document is produced by the plaintiff. Apart from that, admittedly the Kenchegowda has filed OS No.107/1997 against one B. Ramegowda in respect of suit property bearing Sy. No.249 and it is the specific contention of the defendants that the plaintiff has deposed in the said suit on behalf of said Ramegowda. Ex.D18 is the certified copy of the judgment and much arguments were advanced that the said Chikka Boregowda is entirely different from the present plaintiff and it is argued that the depositions were not confronted. But, in the entire cross-examination of DWs. 1 & 2, it is not specifically denied that the plaintiff has not deposed in OS No.107/1997. PW.4 in his cross-examination has admitted that he himself has signed partition deed- Ex.D1, which was confronted to him, which is a partition between the defendants. Hence, the evidence of PW.4 would support the case of defendants rather than the plaintiff. Since the plaintiff has approached the Court, the burden is on him to substantiate his case, but the plaintiff has failed to do so. The oral and documentary evidence clearly establish that the plaintiff has failed to prove his title based on oral partition over the suit schedule property. He has not filed suit on behalf of the family, but he has filed suit in his individual capacity and his brothers were also not examined to prove the alleged partition. 15. Considering the above facts and circumstances it is evident that, considering the claim of defendants does not arise at all, as there is no counter claim and hence the title of defendants cannot be adjudicated. Since the plaintiff has approached the Court, he has to prove his title. 15. Considering the above facts and circumstances it is evident that, considering the claim of defendants does not arise at all, as there is no counter claim and hence the title of defendants cannot be adjudicated. Since the plaintiff has approached the Court, he has to prove his title. Further the trial Court is justified in negating the documents produced by the plaintiff as they do not have any relevancy, in view of setting aside mutation in the name of plaintiff by the Assistant Commissioner. Considering these facts and circumstances, the Appellate Court is justified in endorsing the finding of the trial Court. Hence, all the substantial questions of law are answered in affirmative in favour of respondents and against the plaintiff. As such, the appeal being devoid of any merits, does not survive for consideration and accordingly, I proceed to pass the following: ORDER This Regular Second Appeal stands dismissed. In the circumstances, there is no order as to costs of this appeal.