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2025 DIGILAW 1785 (KAR)

Bommanna, S/o Kare Erappa v. Oblamma

2025-12-11

M.G.UMA

body2025
JUDGMENT : M G UMA, J. The plaintiff in OS.No.234/1994 on the file of the learned Additional Civil Judge (Jr.Dn.) and JMFC, Sira (hereinafter referred to as 'the Trial Court' for short) is impugning the judgment and decree dated 21.12.2002 dismissing the suit for declaration of title and for permanent injunction, with costs and the judgment dated 16.07.2009 passed in RA No.78/2007 on the file of the learned Civil Judge (Sr.Dn.), Sira (hereinafter referred to 'the First Appellate Court' for short), dismissing the appeal by confirming the judgment and decree passed by the Trial Court. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. The facts of the case in brief are that, the plaintiff filed the suit OS.No.234/1994 against defendant Nos.1 and 2 seeking declaration of his title and for permanent injunction, restraining them from interfering with his peaceful possession and enjoyment of the land situated at Yeliyur village, Kasaba Hobli, Sira Taluk bearing Sy.No.306, Khata No.275, measuring 4 acres 18 guntas with boundaries mentioned therein. ('the schedule property' for short). It is stated by the plaintiff that he is the owner in possession and enjoyment of the schedule property. It was belonging to his father, late Kare Erappa S/o Bomma Naika. The khata was standing in his name and he was in possession and enjoyment of the same. After the death of his father, the plaintiff became the owner. Defendant No.1 in collusion with defendant No.2 tried to interfere with the schedule property, laying false claim, even during the lifetime of Kare Erappa, the father of the plaintiff. Father of the plaintiff with an intention to give quietus to the false claim made by the defendants, agreed to pay a sum of Rs.8,000/- to defendant No.1, who in turn, agreed to sell all her rights, title and interest in the suit schedule property in favour of the father of the plaintiff. Pursuant to the same, defendant No.1 executed a registered sale deed dated 05.05.1983 in favour of the plaintiff's father relinquishing all her right, title and interest and thereby, the father of the plaintiff became the absolute owner in possession of the property. 4. Pursuant to the same, defendant No.1 executed a registered sale deed dated 05.05.1983 in favour of the plaintiff's father relinquishing all her right, title and interest and thereby, the father of the plaintiff became the absolute owner in possession of the property. 4. It is stated that even though the document is styled as relinquishment deed, the recitals in the same discloses that it is a sale deed executed by defendant No.1 by accepting the valuable consideration of Rs.8,000/-. Accordingly, the khata was standing in the name of father of the plaintiff, since from 1987 to 1988 and he was paying the revenue. The father of the plaintiff died about three months before filing the suit, leaving behind the plaintiff as his legal representative. Thus, the plaintiff is in possession and enjoyment of the suit schedule property. 5. It is stated that the defendants started to interfere with the plaintiff’s peaceful possession and enjoyment of the schedule property with an intention to take forcible possession and therefore, the plaintiff filed a suit for declaration of his title and for permanent injunction against the defendants. 6. Defendant Nos.1 and 2 have appeared before the Trial Court and filed the written statement. The contentions taken by the plaintiff regarding ownership of the property by his father being in possession and enjoyment of the same as khatedar are all denied. It is also denied that defendant Nos.1 and 2 in collusion with one another are interfering with the peaceful possession and enjoyment of the plaintiff or his father Kare Erappa. It is also denied that Kare Erappa with an intention to give quietus to the claim made by the defendants, paid a sum of Rs.8,000/- and defendant No.1 in turn executed a registered relinquishment deed or a sale deed, giving up all her right, title and interest and thus the father of the plaintiff, and thereafter, the plaintiff was in possession and enjoyment of the schedule property. 7. It is stated by the defendants that defendant No.1 had never executed any document dated 05.05.1983 as alleged in the plaint nor she has received any consideration of Rs.8,000/- from the father of the plaintiff. She never delivered possession of the said land. Thus, the defendants have denied the genuineness of the document relied on by the plaintiff. 7. It is stated by the defendants that defendant No.1 had never executed any document dated 05.05.1983 as alleged in the plaint nor she has received any consideration of Rs.8,000/- from the father of the plaintiff. She never delivered possession of the said land. Thus, the defendants have denied the genuineness of the document relied on by the plaintiff. It is contented that the plaintiff and his father might have concocted the document by misrepresentation, coercion and fraud and therefore, the document is void. 8. It is stated that the transaction alleged by the plaintiff dated 05.05.1983 was during pendency of RA No.11/1981 before the District Court, Tumkur, which had arisen out of the judgment and decree dated 17.08.1981 passed in OS No.47/1978 on the file of the learned Civil Judge, Madhugiri in respect of the suit schedule property. Therefore, without the permission of the Court, such a document could not have been executed between the parties. Since the appeal in question was pending, the plaintiff could not have instituted a suit claiming right under the disputed document dated 05.05.1983, which was never intended to be executed. The plaintiff has never produced the said document dated 05.05.1983 reporting acquisition of right over the suit schedule property till 28.05.1994 i.e., filing of the suit before the Trial Court. 9. It is stated that the appellant in RA No.11/1981 has preferred RSA.No.264/1995 before this Court. But the same came to be dismissed long back. Thus it is contented that, it is the defendants who are in possession and enjoyment of the entire suit schedule property. The plaintiff in collusion with the revenue authority got false entries in the revenue records, which was challenged before the revenue authority. Thus, it is stated that it is the defendants, who are in possession and enjoyment of the suit schedule property and the plaintiffs are not entitled for any relief. 10. On the basis of these pleadings, the following issues came to be framed by the Trial Court: i. Whether the plaintiff proves his title to the suit schedule property? ii.Whether the plaintiff further proves that he is in possession and enjoyment of the suit schedule property on the date of suit? iii.Whether the plaintiff further proves the defendants interfered in possession and enjoyment of the suit schedule property? ii.Whether the plaintiff further proves that he is in possession and enjoyment of the suit schedule property on the date of suit? iii.Whether the plaintiff further proves the defendants interfered in possession and enjoyment of the suit schedule property? iv.Whether the plaintiff further proves that the defendant No.1 executed registered sale deed dated 05.05.1983 in favour of plaintiff's father Kare Erappa relinquishing all her rights, title and interest by receiving Rs.8,000/- as stated in para - 3 of the plaint? v.Whether the defendants proves that regd.sale deed dated 5.5.1983 not genuine one and it might have come into existence out of misrepresentation, coercion and fraud played by the plaintiff's father? vi.Whether the defendants prove that the reg.sale deed dt.5.5.1983 is without consideration hence void in law? vii.Whether defendants proves that they are in possession of the suit schedule property? viii.Whether the plaintiff entitled for the relief sought for? ix.What order or decree? 11. The plaintiff examined PWs.1 to 5 and got marked Exs.P1 to 10 in support of his contentions. The defendants examined DWs.1 to 3 and got marked Exs.D1 to 3 in support of their defence. The Trial Court after taking into consideration all the materials on record, answered Issue Nos.1 to 4 and 8 in the negative, issue No.7 in the affirmative and issue No.5 as does not arise for consideration. Accordingly, the suit of the plaintiff was dismissed with costs. Being aggrieved by the same, the plaintiff has preferred RA.No.78/2007. The First Appellate Court on re-appreciation of materials on record, dismissed the appeal by confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, the plaintiff has preferred this second appeal. 12. This Court vide order dated 15.12.2010, has formulated the following substantial questions of law for consideration: "1. Whether both the Courts below were justified in dismissing the suit in the face of the defendant's having taken up three distinct defences, which were directly contrary to each other and the defendant was not in a position to sustain all of them? 2. Whether the Courts below were justified in dismissing the suit of the plaintiff when the onus was on the defendant in terms of Section 110 of the Indian Evidence Act?" 13. Heard Sri B B Sagar, learned counsel for the appellant and Sri K Hanumantharayappa, learned counsel for respondent Nos.1 and 2. 2. Whether the Courts below were justified in dismissing the suit of the plaintiff when the onus was on the defendant in terms of Section 110 of the Indian Evidence Act?" 13. Heard Sri B B Sagar, learned counsel for the appellant and Sri K Hanumantharayappa, learned counsel for respondent Nos.1 and 2. Perused the materials including the Trial Court records. 14. The plaintiff relies on Ex.P1 styled as relinquishment deed to prove his title. According to the plaintiff, it is in fact the sale deed executed by defendant No.1 in favour of plaintiff’s father. Even though such a contention was taken in the plaint, the plaintiff, who is examined as PW1 never deposed that this document is a sale deed executed by defendant No.1. 15. Even though, the plaintiff contended in the plaint that Ex.P1 is the sale deed executed by defendant No.1 by accepting the consideration amount of Rs.8,000/-, the recitals in Ex.P1 do not support such contention. As per the recitals, the father of plaintiff and defendant No.1 were having joint rights and they were in joint possession and enjoyment of the properties. Under Ex.P1, defendant No.1 has relinquished his right. Therefore, by no stretch of imagination, Ex.P1 could be considered as the sale deed for any consideration as contented by the plaintiff. 16. The plaintiff has not examined any of the attesting witnesses in support of his contention to prove Ex.P1. It assumes importance when the defendants categorically denied execution of this document. Plaintiff examined PW2- the scribe and PW3 - the son of attesting witness. It is not the contention of plaintiff that none of the attesting witnesses to Ex.P1 are alive or could not be examined before the Court. 17. The evidence of PW2 - the scribe of Ex.P1 is also not helpful to the plaintiff as during cross-examination it is elicited that he identified the signature of the executor of the document only at the instance of Kare Erappa i.e., father of the plaintiff. PW2 categorically pleads ignorance about personal knowledge regarding the executant of document, whether it was defendant No.1 or not. Plaintiff in his evidence categorically stated that he was not present when Ex.P1 was executed. Under such circumstances, there is no evidence, which is acceptable in support of execution of Ex.P1 by defendant No.1. 18. PW2 categorically pleads ignorance about personal knowledge regarding the executant of document, whether it was defendant No.1 or not. Plaintiff in his evidence categorically stated that he was not present when Ex.P1 was executed. Under such circumstances, there is no evidence, which is acceptable in support of execution of Ex.P1 by defendant No.1. 18. It is also pertinent to note that during cross examination of PW1, he stated that the attesting witness Abdul Rehman is alive and residing at Hannehalli. Therefore, there is no reason for non-examination of the said attesting witness, when execution of the document, is in serious dispute. 19. PW1 categorically denied the suggestion that the defendants are in possession of the suit schedule property. He also examined PWs.4 and 5 who have deposed that they have seen the father of the plaintiff and thereafter the plaintiff being in possession of suit schedule property since about 20 years. During cross-examination, nothing has been elicited from these witnesses to disbelieve their versions. Defendant No.1 examined herself as DW1, and she asserted that she is in possession of suit schedule property. Defendants examined DWs.2 and 3 to depose that it is the defendants who are in possession and enjoyment of the schedule property. Therefore, it is oath against oath regarding possession of schedule property where the plaintiffs are claiming that they are in possession and the defendants are claiming contrary to the same. 20. Learned counsel for the respondents contended that possession of the property was with defendants, which is apparently inconsistent with his contention that, they have obtained decree for declaration of their title and for possession against the father of the plaintiff. When it is not the contention of defendants that they have obtained possession of the schedule property either from the father of plaintiff or by the plaintiff, defendants are not entitled to take such inconsistent defence. 21. It is not the contention of defendants that after dismissal of RSA No.264 of 1995 as per Ex.D3, defendant Nos.1 and 2 regained the possession of schedule property. Therefore, it is to be affirmed that plaintiff is in possession and enjoyment of the schedule property and he is entitled for permanent injunction to protect his possession till he is evicted under due process of law by executing the decree passed in OS.No.47 of 1978, which was confirmed in RSA No.264 of 1995. 22. Therefore, it is to be affirmed that plaintiff is in possession and enjoyment of the schedule property and he is entitled for permanent injunction to protect his possession till he is evicted under due process of law by executing the decree passed in OS.No.47 of 1978, which was confirmed in RSA No.264 of 1995. 22. In OS No.47 of 1978, Obalamma and Lakshmakka i.e., the defendants herein were the plaintiffs. Kare Erappa i.e., the father of the plaintiff herein was the defendant in the said suit. The father of the plaintiff herein being the defendant in OS No.47 of 1978 challenged the judgment and decree passed by the Trial Court by preferring the appeal in RA No.11 of 1981, but the same came to be dismissed as per Ex.D2. He had preferred the second appeal before this Court in RSA No.264 of 1995. It was also dismissed vide judgment dated 31.07.1995. By the time, RSA came to be disposed off, appellant Kare Erappa had died and his children were brought on record. Thus the plaintiff in the present suit was arrayed as plaintiff No.3 in the second appeal. 23. When admittedly the suit OS.No.47 of 1978 was decreed and judgment and decree has reached finality on dismissal of second appeal by this Court in RSA No.264/1995, the plaintiff cannot seek for declaration of his title, as he stepped into the shoes of his father, who suffered the decree in OS No.47 of 1978. Under these circumstances, I am of the opinion that plaintiff is not entitled for declaration of his title. However, he is entitled for grant of permanent injunction against the defendants with regard to the possession, till he is evicted under due process of law. 24. It is interesting to note that the plaintiff herein has filed the present suit on 28.05.1994 i.e., during the pendency of RSA No.264 of 1995. It is not the contention of the defendants herein that they have obtained the possession of the schedule property from the plaintiff before disposal of RSA No.264 of 1995 before this Court. It is also not the contention that they got the possession by executing the decree passed in OS No.47 of 1978 through process of law. The revenue records exhibited in the present case stand in the name of the plaintiff. It is also not the contention that they got the possession by executing the decree passed in OS No.47 of 1978 through process of law. The revenue records exhibited in the present case stand in the name of the plaintiff. Under such circumstances, I do not find any reason to accept the contention of the defendants that they are in possession of the schedule properties. Hence, the plaintiff even though not entitled for decree of declaration of his title, is entitled for permanent injunction to protect his possession till he is evicted in accordance with law. In view of the above, the substantial questions of law are answered in favour of the appellant and against the respondent. Therefore, the impugned judgment and decree passed by the Trial Court and the First Appellate Court are liable to be set aside. 25. Accordingly, I proceed to pass the following: ORDER (i) The appeal is allowed in part (ii) The judgment and decree dated 21.12.2002 passed in OS No.234 of 1994 on the file of the learned Additional Civil Judge (Jr.Dn.) and JMFC., Sira, which was confirmed in judgment dated 16.07.2009 passed in RA No.78 of 2007 on the file of the learned Civil Judge (Sr.Dn.), Sira, dismissing the suit of the plaintiff is modified as under: a) The suit of the plaintiff in OS No.234 of 1994 is decreed in part. b) The claim of the plaintiff for declaration of his title on the basis of sale deed - Ex.P1 dated 05.05.1983 is dismissed c) The claim of the plaintiff for permanent injunction against the defendants in respect of the schedule property is decreed. d) The defendants or anybody claims through or under them are restrained by a decree of permanent injunction from dispossessing them from the schedule property, till he is evicted under due process of law. Registry to draw the decree accordingly and send back Trial Court records along with copy of this judgment along with decree.