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Karnataka High Court

G E Chandrappa vs Smt Vishalakshamma on 12 March, 2024
Author: M.G.S. Kamal

Bench: M.G.S. Kamal

 -1-
NC: 2024:KHC:10185
RSA No. 443 of 2019

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 443 OF 2019 (DEC/INJ)
BETWEEN:
G.E. CHANDRAPPA,
S/O ESWARAPPA,
AGED ABOUT 57 YEARS,
R/O GONDICHATNAHALLI,
SHIVAMOGGA TQ & DIST-577 201.

...APPELLANT
(BY SRI. S.B. HALLI & SRI. G.C.SHANMUKHA, ADVOCATES)
AND:
1. SMT. VISHALAKSHAMMA,
W/O LATE RENUKAPPA,
AGED ABOUT 53 YEARS,

2. PANKAJA,
D/O LATE RENUKAPPA,
AGED ABOUT 35 YEARS,

Digitally 3. VIJAYAKUMAR,
signed by S/O LATE RENUKAPPA,
SUMA B N
AGED ABOUT 33 YEARS,
Location: High
Court of
Karnataka ALL ARE R/O GONDICHATNAHALLI VILLAGE,
SHIVAMOGGA TQ & DIST-577 201.
...RESPONDENTS
(BY SRI. P.N. HARISH, ADVOCATE FOR C/R1 TO R3)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGMENT & DECREE DATED 17.12.2018 PASSED IN R.A.NO.
57/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE,
SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 09.12.2011 PASSED IN
OS.NO.108/2003 ON THE FILE OF THE 1st ADDITIONAL SENIOR
CIVIL JUDGE AND CJM. SHIVAMOGGA.
 -2-
NC: 2024:KHC:10185
RSA No. 443 of 2019

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is filed by the plaintiff No.2 aggrieved by the judgment and decree dated 09.12.2011 passed in O.S.No.108/2003 on
the file of I Additional Senior Civil Judge and C.J.M., Shivamogga (hereinafter referred as 'the Trial Court') which is confirmed
by the judgment and order of the dated 17.12.2018 passed in R.A.No.57/2012 by the II Additional District Judge, Shivamogga
(hereinafter referred as 'First Appellate Court').

2. The above suit in O.S.No.108/2023 was filed by one Eshwarappa-plaintiff No.1 and G.E.Chandrappa-plaintiff No.2 against
one Smt.Vishalakshamma, defendant No.1 and her daughter Pankaja, defendant No.2 and her son Vijaykumar, defendant No.3
for the relief of declaration that the plaintiffs are the absolute owners of the suit schedule property and consequential permanent
injunction restraining the defendants from interfering with their possession.

NC: 2024:KHC:10185

3. The subject matter of the suit is 3 acres and 12 guntas of land in Sy.No.106 of Gondichatnahalli Village, Kasaba Hobli,
Shivamogga Taluk (Suit schedule property).

4. It is the case of the plaintiffs that;

(a). Original propositus one Karibasappa had three sons and five daughters namely Shekharappa, Eshwarappa (the plaintiff
No.1 herein), Mahadevappa, Basamma, Gowramma, Shivalingamma, Madamma and Karibasamma. One of the daughters
namely Madamma was married to one Gurupadappara Mahadevappa and their daughters Nagamma and Savithramma were
given in marriage to brother of plaintiff No.1 Mahadevappa and Ujjinappa of Gondichatnahalli respectively. That the first
plaintiff's brother Mahadevappa and his wife Nagamma had a son by name Renukappa. The defendant No.1 is the wife and
defendant Nos.2 and 3 are the children of said Renukappa.

(b). Said Gurupadappara Mahadevappa was not owning movable or immovable properties. He was also not having any source
of livelihood, as such he was living in the family of Karibasappa, the father of the plaintiff No.1 and said NC:
2024:KHC:10185 Karibasappa owned vast extent of land in several survey numbers situated in Gondichatnahalli Village. The
family of Karibasappa was purchasing the properties in the names of members of the family including Gurupadappara
Mahadevappa, As such suit schedule property was purchased by Karibasappa in the name of Gurupadappara Mahadevappa.

(c). It is further case of the plaintiffs that though the land was purchased in the name of Gurupadappara Mahadevappa, the same
belongs to family members of the plaintiffs. That without the knowledge of the members of the family, said Gurupadappara
Mahadevappa had surreptitiously bequeathed the suit schedule property in favour of his grand son Renukappa by executing a
registered Will dated 18.04.1973. However, upon the advice of the elders of the village, father of Renukappa namely
Mahadevappa agreed to effect the partition of the suit schedule property since the plaintiff No.1 was in possession and
cultivation of the said property. Accordingly, a palupatti was prepared on 10.03.1988 as per Ex.P7 in terms of which
Renukappa had relinquished his entitlement in favour of plaintiff No.1.

NC: 2024:KHC:10185

(d). It is the further case of the plaintiffs that, despite execution of the palupatti dated 10.03.1988. Renukappa had applied for
change of khata of the suit property in his name on the strength of the Will and the plaintiff No.1 had also applied for change of
khata in his name on the strength of palupatti. That the Revenue Authorities accepting the mutation in favour of plaintiff No.1
in M.R.No:91/1988-89 on 01.08.1989 on the basis of no objection given by Renukappa and his father Mahadevappa and also
effected the mutation of Renukappa vide M.R.No:88/88-89 on the same day. Mahadevappa predeceased Renukappa who died
on 11.11.1993. Since they were aware of the suit property having been allotted in favour of plaintiff No.1 and also change of
khata in his name, revenue entries were not challenged at any time during their lifetime.

(e). It is further contended that, defendant No.1 was aware of these affairs of the family and despite being aware of all these
affairs had applied and got her name effected in the revenue records after the demise of Renukappa vide M.R.No:69/93-94.
That the registered deed of partition dated 06.02.1995 was entered into amongst the family members of the plaintiff in which
the suit schedule property was allotted to NC: 2024:KHC:10185 the share of the plaintiff No.2 and the khata was also duly
mutated in the name of plaintiff No.2 vide M.R.No:13/1995-96. As such, the plaintiff No.2 has been in exclusive possession
and enjoyment of the suit schedule property as absolute owner thereof. That the defendant No.1 on the ill advise of some
persons, preferred a appeal in P.D.A.No.86/88-89 against change of khata of the suit property and the same came to be
dismissed by the Assistant Commissioner on 03.08.1999. Aggrieved by the same the defendant No.1 preferred a revision
petition in R.P.No.36/1999-2000 before the Deputy Commissioner, which was allowed by a cryptic order dated 30.05.2002 and
a Writ Petition in W.P.No.22777/2002 (KLR) that was filed against the said order came to be dismissed by this Court by order
dated 17.09.2002. It is submitted that however there was an observation made in the said order that plaintiff No.2 could
establish title to the property in a properly instituted suit before the Jurisdictional Court. That during the pendency of the writ
proceedings khata of the suit schedule property came to be mutated in the name of the defendant vide M.R.No.1/2002-03,
which has no legal sanctity. It is further contended that taking advantage of the order passed by the Deputy Commissioner,
defendants were making efforts to NC: 2024:KHC:10185 trespass into the suit schedule property and to dispossess plaintiffs
therefrom, constraining them to file the present suit.
(f). Plaintiff No.1 passed away during the pendency of the suit, thereafter was represented by the plaintiff No.2 as his son.

(g). Defendant No.1 filed written statement for herself and on behalf of defendant Nos.2 and 3 being her minor children,
denying the plaint averments and also denying the claim of the plaintiffs that suit schedule property was purchased by the joint
family of Karibasappa in the name of Gurupadappara Mahadevappa and that he was residing in the family of Karibasappa as he
had no source of livelihood. Revenue proceedings right upto Writ Petition in W.P.No.22777/2002 are admitted.

5. That the suit property originally belonged to Gurupadappara Mahadevappa, that his grandson Renukappa was residing with
him and was looked after by him. Due to this and out of love and affection between the grandfather and grandson, he executed
a registered Will dated 18.04.1973 bequeathing the suit schedule property in his favour. Upon the demise of Gurupadappara
Mahadevappa, Renukappa became NC: 2024:KHC:10185 the absolute owner in possession and enjoyment of the suit schedule
property. That the plaintiffs taking advantage of similarity of the names of the family members are making efforts to illegally
knock-off the property belonging to the defendants. That based on the false and fabricated documents, the plaintiffs have
obtained mutation entries in their favour, which upon the challenge made by the defendants was reversed.

6. That the plaintiffs have concocted palupatti by obtaining signature of the Renukappa on some blank papers as he wanted to
have the khata changed in his name after the death of Gurupadappara Mahadevappa. It is also contended that the palupatti
dated 10.03.1988 being an unregistered document was not admissible in evidence. Hence, sought for dismissal of the suit.

7. Based on the pleadings, the Trial Court framed the following issues:

"1. Whether the plaintiffs prove that Madamma was married to Gurupadappara mahadevappa and they both were residing
with Madamma's father Karibasappa?

2. Whether plaintiffs prove that the family of Karibasappa used to purchase properties in the name of Gurupadappara
Mahadevappa as claimed in para 6?

NC: 2024:KHC:10185

3. Whether the plaintiffs prove their title to and possession over the suit property?

4. Whether the defendants prove that the suit property was an absolute property Gurupadappara Mahadevappa? of

5. Whether the plaintiffs are entitled for the relief sought?

 6. What Order or Decree?"

8. The plaintiff No.2 examined himself as PW.1 and two additional witnesses have been examined in his favour as PW.2 and
PW.3 exhibited 37 documents marked as Ex.P1 to Ex.P37. In order to prove their defence, defendant No.1 examined herself as
DW.1 and got one additional witness has DW.2. and exhibited 23 documents marked as Ex.D1 to Ex.D23. On appreciation of
the evidence the Trial Court answered issue No.1 partly in the affirmative, issue Nos.2, 3 and 5 in the negative and issue No.4
in the affirmative. Consequently dismissed the suit.

9. Aggrieved by the aforesaid judgment and decree, plaintiff filed a regular appeal in R.A.No.57/2012. Considering the grounds
urged the First Appellate Court framed the following points for consideration:

"1. Whether the appellant has made out a ground to allow the appeal?

2. Whether the appellant is entitled for relief as prayed for?

3. What Order?"

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NC: 2024:KHC:10185

10. On re-appreciation of the evidence the First Appellate Court answered point Nos.1 and 2 in the negative and consequently
dismissed the appeal. Being aggrieved by the aforesaid judgment and order passed by the First Appellate Court, plaintiff is
before this Court.

11. Sri. S.B.Halli, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted
that the Trial Court and the First Appellate have grossly erred in dismissing the suit without appreciating the fact that
Renukappa the husband and father respective defendants has voluntarily relinquished his share, right, title and interest in the
suit property in terms of Ex.P7-Palupatti dated 10.03.1988 and that based on the said document name of plaintiff No.1 was
mutated in revenue records. It is his submission that, in furtherance to the above a registered deed of partition was entered into
between the family members of the plaintiff, in terms of which the suit schedule property has been allotted to the share of
plaintiff No.2. He submits that neither Mahadevappa nor his son Renukappa had challenged the revenue entries that were
effected in the name of plaintiff No.1 in respect of suit schedule property based on Palupatti-

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NC: 2024:KHC:10185 Ex.P7. Thereby admitting and confirming the act of relinquishment of share, right, title and interest by
Renukappa in favour of plaintiff No.1. He submits that the Trial Court and the First Appellate Court without appreciating
Palupatti-Ex.P7 merely on the premise of same not having been registered have grossly erred in dismissing of the suit, resulting
in perversity giving raise to substantial question of law to be considered at the hands of this Court.

12. Per contra, Sri. P.N. Harish, learned counsel for the respondents justifying the judgment and decree passed by the Trial
Court and confirmed by the First Appellate Court submitted that the entire suit of the plaintiff is based on Ex.P7 which is an
unregistered document, inadmissible in the law. He submits that subject matter of the alleged document being the suit schedule
property value of which is more than Rs.100/- requires mandatory registration, in the absence of which the plaintiff cannot
claim to have derived any share, right, title and interest in the said immovable property. As regard the other grounds urged in
the memorandum of the appeal, learned counsel for the respondents submitted that Trial Court and the First Appellate Court
have adverted to all the factual

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NC: 2024:KHC:10185 circumstances pleaded by the plaintiff and have held the same in the negative, warranting no
interference at the hands of this Court and he submits that no substantial question of law would arise for consideration. Hence
seeks for dismissal of the appeal.

13. Heard. Perused the records.

14. Though, a foundational pleading is laid by the plaintiff to the effect that the suit schedule property was purchased by
Karibassappa in the name of Gurupadappa Mahadevappa, no acceptable material evidence has been produced by them in
justification of the said pleading. In other words Gurupadappa Mahadevappa being the absolute owner of the suit property as
claimed by the defendants has remained unchallenged. Gurupadappa Mahadevappa has admittedly executed a registered Will
dated 18.04.1973 bequeathing the suit property in favour of his grand son Renukappa the husband and father of the defendants
respectively. The plaintiff has not challenged the said Will either. In other words the plaintiff has admitted execution of said
Will by Gurupadappa Mahadevappa in favour of Mahadevappa. Thus, Renukappa upon the demise of Gurupadappa
Mahadevappa admittedly has become

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NC: 2024:KHC:10185 absolute owner of the suit schedule property by virtue of the said Will.

15. Plaintiff is heavily relying upon Ex.P7 purported Palupatti dated 10.03.1988 which is an unregistered document to establish
his right, title and interest. Interestingly, even according to the plaintiff, neither Gurupadappa Mahadevappa nor his son
Mahadevappa nor even his grandson Renukappa were the family members of Karibasappa. As such, plaintiff entering into a
deed of partition with said Renukappa is incomprehensively. A deed of partition or Palupatti cannot create any right, title and
interest in favour of the person who had no pre-existing rights in the property. Further a partition is only recognition and
identification of the pre-existing rights. Creation or destruction of any right, title and interest in respect of any immovable
property value of which is more than Rs.100/- has to be by way of a conveyance requiring registration as mandatorily required
under Section 17 of the Registration Act, 1908.

16. This being the factual and legal aspect of the matter, the plaintiff cannot claim to have acquired his right, title and interest in
respect of suit schedule property measuring 3 acres

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NC: 2024:KHC:10185 and 12 guntas valuing more than Rs.100 under an unregistered Palupatti at Ex.P7. Thus, the plaintiff
cannot claim to have derived any semblance of right over the suit schedule property. It may be that the plaintiffs have been able
to manage to get their name entered in the revenue records, which has been set- aside by the Revenue Authorities and the same
is confirmed by this Court in its Order passed in W.P.No.22777/2002. Thus, not only the title deeds, even the revenue entries
have been rectified restoring the name of Renukappa/defendant in respect of the suit schedule property.

In that view of the matter, no substantial question of law of any nature whatsoever would arise for consideration in this appeal.
Appeal is dismissed confirming the judgment and decree passed by the Trial Court and the First Appellate Court.

Sd/-

JUDGE RL