Sri Narasimha Murthy v. Sri. G. Krishnappa

((((((((((((HC-KAR, NC:(2026:KHC:40457( RSA(No.(688(of(2018( ( ,,,,,,,,,, , CNR:(KAHC010273502018( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA(AT(BENGALURU(

RD DATED(THIS(THE(3 (DAY(OF(AUGUST,(2026(

BEFORE(

THE(HON'BLE(MR.(JUSTICE(V(SRISHANANDA(

REGULAR(SECOND(APPEAL(NO.(688(OF(2018((DEC/INJ)(

BETWEEN:(( ( , SRI.,NARASIMHA,MURTHY, S/O.,VENKATARAVANAPPA,,

AGED,ABOUT,68,YEARS,, AGRICULTURIST,, ARKUNDA,VILLAGE,, MANCHENAHALLI,HOBLI,,

GOWRIBIDANUR,TALUK,-,561,208., …APPELLANT, (BY,SRI.,M.S.,VARADARAJAN,,ADVOCATE),

AND:(

( , SRI.,G.,KRISHNAPPA, S/O.,LATE,GOVINDAPPA,,Digitally SINCE,DEAD,BY,HIS,LRS.,,signedtiby , MALATESH , K0C

1., SMT.,VANAJAKSHI,, Location: D/O.,LATE,G.KRISHNAPPA,,HIGH COURT0OF W/O.,LATE,VEERAPPA,, KARNATAKA AGED,ABOUT,61,YEARS,, SINCE,DEAD,BY,HER,LRS, , 1(A)., SRI.,MURALI, S/O,LATE,P.N.,VEERAPPA, AGED,ABOUT,36,YEARS, R/AT,OLD,WATER,TANK,ROAD, ((((((((((((HC-KAR, NC:(2026:KHC:40457( RSA(No.(688(of(2018( ( ,,,,,,,,,, , CNR:(KAHC010273502018( ( ( PAVAGADA,TMC,,PAVAGADA, TUMKUR,DISTRICT,-,561,202., , 1(B)., SRI.,RADHA, W/O,SAMPATH,KUMAR, AGED,ABOUT,33,YEARS, R/AT,ARKUNDA,VILLAGE,, MANCHENAHALLI,HOBLI,, GOWRIBIDANUR,TALUK,-,561,208., ,

2., SRI.,GOVINDA, S/O.,LATE,G.,KRISHNAPPA,, AGED,ABOUT,59,YEARS,, ,

3., SRI.,RADHAKANTHA, S/O.,LATE,G.,KRISHNAPPA,, AGED,ABOUT,57,YEARS,, AGRICULTURIST,, ,

4., SMT.,MANJULA, D/O.,LATE,G.,KRISHNAPPA,, W/O.,LATE,RAMAPPA,, AGED,ABOUT,55,YEARS,, ,

5., SRI.,ADINARAYANA, S/O.,LATE,G.,KRISHNAPPA,, AGED,ABOUT,53,YEARS,, AGRICULTURIST,, ,

6., SMT.,KAMAKSHI, D/O.,LATE,G.,KRISHNAPPA,, W/O.,ADINARAYANA,, AGED,ABOUT,51,YEARS,, , ((((((((((((HC-KAR, NC:(2026:KHC:40457( RSA(No.(688(of(2018( ( ,,,,,,,,,, , CNR:(KAHC010273502018( ( (

7., SRI.,CHANDRAKEERTHI, S/O.,LATE,G.,KRISHNAPPA,, AGED,ABOUT,43,YEARS,, PAINTER,, ,

8., SMT.,GAYATHRI, D/O.,LATE,G.,KRISHNAPPA,, W/O.,SINGARAPPA,@,SEENAPPA,, AGED,ABOUT,47,YEARS,, ,

9., SRI.,VENKATADRI, S/O.,LATE,G.,KRISHNAPPA,, AGED,ABOUT,45,YEARS,, LIC,AGENT,, ,

10., SRI.,SAMPATH,KUMAR, S/O.,LATE,G.,KRISHNAPPA,, AGED,ABOUT,37,YEARS,, ,

11., SMT.,RATHNAMMA, W/O.,LATE,SEETHARAMAPPA,, AGED,ABOUT,71,YEARS,, ,

12., SRI.,NARAYANASWAMY, S/O.,LATE,SEETHARAMAPPA,, AGED,ABOUT,51,YEARS,, ,

13., SRI.,SHESHADRI, S/O.,LATE,SEETHARAMAPPA,, AGED,ABOUT,30,YEARS,, ,

14., SMT.,LAKSHMI,DEVAMMA,@,LAKSHMAMMA, D/O.,LATE,SEETHARAMAPPA,, W/O.,SEENAPPA,, AGED,ABOUT,39,YEARS,, ((((((((((((HC-KAR, NC:(2026:KHC:40457( RSA(No.(688(of(2018( ( ,,,,,,,,,, , CNR:(KAHC010273502018( ( (

15., SMT.,SUSHEELAMMA, D/O.,LATE,SEETHARAMAPPA,, W/O.,JANARDHANAPPA,, AGED,ABOUT,34,YEARS,, ,

16., SMT.,VIJAYALAKSHMI, D/O.,LATE,SEETHARAMAPPA,, W/O.,HARINATH,, AGED,ABOUT,33,YEARS,, ,

17., SMT.,G.,SUMITHRA, D/O.,LATE,SEETHARAMAPPA,, W/O.,VENKATARAMU,, AGED,ABOUT,30,YEARS,, ,

18., SMT.,RAMAKKA, W/O.,LATE,RAMAPPA,, AGED,ABOUT,65,YEARS,, SINCE,DEAD,BY,HER,LRS, , RESPONDENTS,NO.19,TO,22,WHO,ARE, HER,LRS,ARE,ALREADY,ON,RECORD, AND,THEY,ARE,TREATED,AS,LRS,OF,, DECEASED,RESPONDENT,NO.18., ,

19., SRI.,MADANAGOPAL, S/O.,LATE,RAMAPPA,, AGED,ABOUT,34,YEARS,, ,

20., SMT.,ACHAMMA, D/O.,LATE,RAMAPPA,, AGED,ABOUT,32,YEARS,, ,

21., SMT.,LAKSHMI,DEVI, ((((((((((((HC-KAR, NC:(2026:KHC:40457( RSA(No.(688(of(2018( ( ,,,,,,,,,, , CNR:(KAHC010273502018( ( ( D/O.,LATE,RAMAPPA,, W/O.,SRINIVASA,MURTHY,, AGED,ABOUT,30,YEARS,, ,

22., SMT.,PANKAJAKSHI, D/O.,LATE,RAMAPPA,, W/O.,VALAPPA,, AGED,ABOUT,28,YEARS,, , , RESPONDENTS,NO.1,TO,22,ARE, RESIDING,AT,ARKUNDA,VILLAGE,, MANCHENAHALLI,HOBLI,, GOWRIBIDANUR,TALUK,-,561,208., …RESPONDENTS, (BY,SRI.,S.,VENKATESH,AITHAL,,ADVOCATE,FOR,R2,,R3,,R5,,,, ,,,,,,R7,AND,R9,,R10;, ,,,,,,R1(A),AND,R1(B),ARE,SERVED;, ,,,,,,R4,AND,R19,ARE,SERVED;, ,,,,,,R6,-,SERVED;, ,,,,,,R8,SERVICE,HELD,SUFFICIENT, ,,,,,,R11,TO,R13,SERVICE,HELD,SUFFICIENT;, ,,,,,,NOTICE,TO,R14,TO,R17,,R20,TO,R22,ARE,, ,,,,,,DISPENSED,WITH;, ,,,,,,R18,-,DEAD,,R19,TO,R22,ARE,LRS,OF,DEAD,R18), , , THIS,RSA,IS,FILED,UNDER,SEC.100,OF,CPC.,,AGAINST, THE, JUDGMENT, AND, DECREE, DATED, 16.12.2017, PASSED, IN, RA,NO.152/2012,ON,THE,FILE,OF,THE,SENIOR,CIVIL, JUDGE, AND, JMFC,, GOWRIBIDANUR,, DISMISSING, THE, APPEAL, AND, CONFIRMING,THE,JUDGMENT,AND,DECREE,DATED,28.7.2012, PASSED,IN,OS,NO.198/2000,ON,THE,FILE,OF,THE,ADDL.,CIVIL, JUDGE,AND,JMFC,,GOWRIBIDANUR., , THIS,APPEAL,,COMING,ON,FOR,ADMISSION,,THIS,DAY,, JUDGMENT,WAS,DELIVERED,THEREIN,AS,UNDER:, ,

CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

ORAL JUDGMENT

¶1Heard.

¶2Unsuccessful plaintiff is the appellant challenging the dismissal of the suit in O.S.No.198/2000 dated 28.07.2012 which was confirmed by the First Appellate Court in RA No.152/2012 dated 16.12.2017.

¶3Facts of the case are as under:

3.1. A suit for declaration and permanent injunction came to be filed in respect of following property (hereinafter referred to as suit property): "The land bearing Sy.No.9/6 about 0.17 guntas in extent assessed at Rs.2.28 out of which 0.8½ guntas bounded on the East by Sy.No.9/2 and Rajakaluve West by Gramatana North by Seetharamappa and others lands South by Narasimhaiah's land."

3.2. Plaintiff claimed that his father Venkataravanappa acquired the suit property by way of a sale deed in the year 1972 from the wives of Narayanappa. Wife of Narayanappa are Adilakshmamma and Aluvelamma. Narayanappa said to have executed the registered Will in favour of Adilakshmamma and Aluvelamma.

3.3. Narayanappa's title to the suit property is claimed by the plaintiff at a partition between Narayanappa and his brothers in the year 1957. Defendants are the children of one of the brothers of Narayanappa.

3.4. Plaintiff claim that due to oversight, land in Sy.No.9/6 was not mentioned in the sale deed executed by the wives of Narayanappa in favour of the plaintiff but RTC and other revenue documents were mutated into the name of the father of the plaintiff pursuant to the sale deed. Thus, plaintiff is the owner-in-possession of the suit property after the death of his father and earlier to that, it was his father was in possession of the suit property.

3.5. Defendants being the children of Govindappa, being the brother of Narayanappa, taking advantage of non-mentioning of land bearing Sy.No.9/6 in the sale deed executed by wives of Narayanappa started interfering with the suit property. There were revenue proceedings before the Assistant Commissioner and plaintiff realized that the land in Sy.No.9/6 was not mentioned by the wives of Narayanappa in favour of the father of the plaintiff and thus sought for declaring that he is the owner of the suit property and sought for injunction as plaintiff continued to be in possession of the suit property.

¶4Pursuant to the suit summons, defendants entered appearance and filed written statement denying the plaint averments in toto.

¶5Learned Trial Judge after raising necessary issues, recorded the evidence of the parties and dismissed the suit of the plaintiff.

¶6Being aggrieved by the same, an appeal came to be filed in RA No.152/2012.

¶7Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the material on record, dismissed the appeal.

¶8Being further aggrieved by the same, plaintiff is before this Court, in this second appeal.

¶9Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum would contend that a mistake in non-mentioning the land bearing Sy.No.9/6 in the sale deed executed by Adilakshmamma and Aluvelamma being the wives of Narayanappa, the nephews of Narayanappa have started disturbing the peaceful possession and enjoyment of the suit property of the plaintiffs and thus sought for admitting the appeal on the following substantial questions of law: "i) Have not the Court's below committed an error in law in dismissing the appellant's suit for the reason that in Ex.P12, the sale deed dated 08-02-1972 there is no reference to the suit schedule property, without appreciating that:

a) Omission to include suit the schedule property in Ex.P12 is due to an inadvertent and bonafide mistake; b) That a suit for declaration that Ex.P12 includes the suit schedule property also and that omission to include it is only by a mistake, is maintainable. c) When the intention of the vendors under Ex.P12 to include the suit schedule property also in that sale deed is very clear.

ii) Has not the Lower Appellate Court committed an error in holding that plaintiff and his father should have taken recourse to Section 26 of the Specific Relief Act, seeking rectification of Ex.P12, without appreciating that even without resorting to that section, an independent suit for declaration that Ex.P12 includes the suit schedule property also is maintainable.

iii) Has not the Lower Appellate Court committed an error in holding that the suit is barred by limitation.

iv) Have not both the Courts below committed an error in relying upon Section 15 of the Hindu Succession Act, when the suit property along with others are conveyed by Aluvelamma and Adilakshmamma in favour of plaintiff's father under Ex.P12.?"

¶10Per contra, learned counsel for the respondents supports the impugned judgments.

¶11Having heard the arguments of both sides, this Court perused the material on record meticulously.

¶12On such perusal of the material on record, plaintiff claims the title of Narayanappa to the suit property at a partition between Narayanappa and his brothers in the year 1957.

¶13Pertinently, said partition deed is not placed on record. Thus, whether at all Narayanappa has got the suit property bearing Sy.No.9/6 which had been allotted to Narayanappa or not itself is not forthcoming on record. Further, no proof is placed on record in this regard.

¶14If Narayanappa himself did not possess the land bearing Sy.No.9/6, he could not have bequeathed the same in favour of his wives. Thus, it should be inferred that Adilakshmamma and Aluvelamma did not convey land bearing Sy.No.9/6 in the sale deed executed by them in favour of the father of the plaintiff.

¶15Thus, theory put forward on behalf of the plaintiff that due to oversight, suit property is not mentioned in the sale

deed cannot be countenanced in law that too from the year 1972 to 2000 when the suit is filed.

¶16When both the Courts have noted that there was no legal right made out by the plaintiff to seek for declaratory relief and consequently, dismissing the suit by the Trial Court confirmed by the First Appellate Court does not require any further consideration before this Court having regard to the scope of Section 100 of Code of Civil Procedure.

¶17Accordingly, the following: ORDER i. Admission declined. ii. Appeal is dismissed.

Sd/- (V SRISHANANDA) JUDGE

KAV List No.: 1 Sl No.: 46