This RSA is filed u/Sec. 100 of CPC against the Judgement & Decree dated 9 12.03 passed in R.A. No.168f96 on the file of the Addl. Civil ,Judge (Sr.Qn) and CJM, Mandya, allowing the appeal sand setting aside the Judgement and Decree dated ESESZB6 passed in os No.1o6/93 on the file of the Munsiff and JMC, Nagamangala. =1 ' *2 Rs' This RSAJ having been heafd""and, zesefivedssfer Judgment, this day Pachhapure_ Jr, 'pronQen¢efi_ the following: '. I * --. .' '. v Jueeeeeue The unsuecessfu§Wglaintiff has apgiéaehed this Court challenging the lJudgmefit_!end_ Decree of the lower appellate: Ceugt é1;eg:5g_ the« appeal cf the respondent5~ gee aeiemieeings the suit filed by the
appellant hexein Seeking the relief of declaration
and permanent injunction.
L\
V’«J ¢.¥JThegfaCt$ relevant for the purpose Sf this
appeelxareeesfufiderz
E eill be referring the parties as per their
itenk”ubefere the trial Court fer the purpose ef
.Jcenveeience,
The appellant herein who is the plaintiff
before the trial Court instituted the suit seeking
(Mil
the relief of declaration and permanent injunction
in respect of 3 items of the suit schedule
properties mentioned in the schedule to the piaint_
item No.1 is Sy. No.}3l/11A measuring 2 ggntae; item *
No.2 is Sy. No.123/14 measuring”~3p guntaegt ohereas
item No.3 is Sy. No.l23/16 meahurino 2 guntaS;T_fhe
plaintiff has made an afierfient in the plaintfithatw
Kundachikkegowda, the deceased propoeitus has 3 sons
by name Doddamalledoooaiti.e]ih*the’,$ather of the
defendants, ?uttaswamy§ondapnen§ptfinitkamallegowda.
Apart from figé ;git_sCheduie properties, there were
other properties ‘.onned”: hyi the propositus
KundaChikkegoQda*and his sons i.e., the father of
the defendants and ni§.brother Puttaswamygowda and
in a partition the suit schedule properties fell to
h,vthei share do: Puttaswamygowda, the second son of
Keneaehegkegewda. The third son Chikkamailegowda
had aie£t’_the family long back and was unheard.
u’VJPuttas#am§gowda was in possession and enjoyment of
vi%xthe_soit property till his death and his son by name
iflwiwfloduchikkegowda inherited the said properties and
éhwas in possession of them till he died leaving
behind his wife~Javaramma, who succeeded to the suit
soheduie properties and soid the same to the
%g
plaintiff for a valuable consideration under the
registered Sale Deeds dated 28.07.1993ax and
07.11.2994. The plaintiff was put in possessigaahf
the suit properties on the respectivej dates ‘and,
since then. has been jJ1 peacefgi enjoyment “ofg the”
properties} The revenue records refeai the heme of
the piaintiff and also his7vendor,”d
It is further averred that at no pointiof time,
the name of the fatherflof’theadefendants was entered
in the records and nor the sfiit sohedéle properties
fell. to his fsfisxe. 7_eutf ‘£akifig.msavantage of the
fact that htheretdwasgithe. heme of the original
propositus and-thefhoshsnd of the plaintiff’s vendor
and the l”4fiefendantfs*hame is also Chikkegowda, the
J”defendaets.are elaiming that they are the owners of
iothe “saith schedule properties through their late
father Dodeafiailegowda. In the revision, the suit
‘sehednie properties never fail to the share of the
:fether of the defendants and he is never in
_ possession of the suit schedule properties.
It is further averred that Ooduohikkegowda, the
husband of Jevaramma was in possession of the suit
schedule properties and inherited them from his
QM” ,,,,
father ?uttaswamygowda and certain mistakes were
committed while enteringh the names in the records
and the plaintiff’s vendor is Javarammeyfihefo.
Ooduehikkegowéa. who is none else than p£fieif§§¢;*a£.
Puttaswamygowda and not the 1″J¢efendant:EmThere_was”
a criminal complaint and ahtieipato;p4~p§;i% Wes
obtained by the plaintiff- and hothers; age Lin: the ;
circumstances, the defendahte’_$tarteo’Eihterfering
with the plaintiffM’;~5._ and
enjoyment of the suit schefifiie properties having no
right title fore interestg ox ggfiateoever title anfi
hence he ifistitetee_th§Jsuit praying for the relief
of declaratiQhfthat_heDis the absolute owner of the
suit scheéelep properties: and consequent permanent
injunction re$train:ng’ the defendants front causing
‘, anyr obstruction to the peaceful possession and
ehjoymemtfQf.£he suit scheéule properties.
The defendants appeared before the trial Court
:ane*filee written statement denying the allegations
_;méeé hand it is the specific contention of the
; defendants that the deceased Kundachikkegowda, left
“his only son Doddamaiiegowda, the father of the
eefendants and. that the suit schedule properties
eétcn
were in exclusive possession of their father after
the death of Kundachikkegowda. After the death of
their father, they have partitioned theaisuit
schedule properties and that the vendor p5fT«fihe*
plaintiff had no right or title of whatsoe§er’titleh
over the suit schedule property. f?hey;also ¢5ntena
that the name of the 1” defendant_eas in the recordlt
of rights and a false information Qasrgivefi to the
Revenue Authorities intorming he is dead and in the
circumstances, a complaint his “saidtato have been
fiied in ecaféésgii/i._99;:g pfzaintiff and
his vendor and the case is pending investigation.
They also conteed that the suit scheduie properties
are the ancestral properties of the defendants and
they got divided famiiy members in the year l9?5 and
“yVafugg” partition, the suit scheduie properties and
seme other preperties were fell to the share of the
i”‘ defendanti and that the E” defendant ends his
i’V family inembers are in possession and. enjeyment of
i*–the suit properties as absolute ewner. They aiso
d*cicontend that the plaintiff has not acquired any
ittitle to the suit scheduie properties under the
alleged registered Sale Deeds and in the
circumstances, sought for dismissal of the suit.
On the basis of these pleadings, the trial
Court has framed the following issues:
1) Whether the plaintiff proves that
is the absolute owner in lawfuldt”
possession and enjoyment of tshitfi
properties? ll
2) Soes the piaintiff proves alleged:
interference? ‘ 3 x W
3) Does the plaintiff’ entitled dthe
relief of permanent injunction?
4) What Order or deeteeikjp
Thereafter, “the ‘plaintiff was examined as
P.W.l, the_ witness ‘E:wsf2 tc> 5 and his vendor as
P.W.6 and in his evidence got marked the documents
.Exs.?li tC~’§5. The 1m’ defendant. was examined as
‘D,W,1i* the iwitnesses D Ws.2 and 3 and the 2″d
defendant. nae examined as D.w.4 and in their
f*_m evidence got marked the documents Exs.D1 to 13, The
d’ ‘tiiaifi Court after hearing the counsei for the
‘”parties and on appreciation of the material on
fxxecord heid that the suit schedule properties had
fallen t0 the share of Puttaswamygowda i e., the
second son of Kundachikkegowda and they have
,2’
hi
succeeded by Ooduchikkegowda; the husband of
Javaramma i.e., the vendor of the plaintiff_ and
therefore, it came to the conclusion that! the
plaintiff under the Sale Deeds has acquizéa[*afi~
absolute title to the suit schedule pro§ertiesL_ Itd
is in these circumstances, the trial Court granted a
decree in favour of the plaintiff declaring him asdz
absolute owner of the suit sehedule*9ro@erties and
also granted permanent iiinjunotion against the
defendants. Aggrieved hy the Judgfient and Decree,
the defendants’iV..f};}”ed__ ‘”Nro–.:_”lv6_8__/jl996 before the
Civil Judge [33, bed] and>after=hearing the learned
“I
counsel fer the p§r:ie§;.:he lower appellate Court
allowed. the “ap@eel; and; dismissed the suit of the
V appelfiaht herein by setting aside the Judgment and
“yVD¢c;§¢ holding that the suit schedule progerties
Qeref the goxoperties of the defendants and that
Java£emma’ ifeu; the vendor had. no title over the
u” suit sehedule properties to convey the same to the
‘.i@laihtl§f. So, aggrieved by the reversal ef the
‘ha Judgment and Decree of the trial Court hy the lower
Eappeilate Court, the plaintiff has approached this
Court in appeal. fif
3. This Court has framed the following
substantial question of law for consideration:
Whether the iower appellate Courtpoh
is justified in reversing the Judgment dVhi
and Decree passed by the trial Court by[“R’
ignoring the xaterial documents reiiedV
upon by the trial Cohrtlpwheniitheopii
alleged. ?alu Patti which gistzcontefided:
to be drawnr up at’ the time: of Lesai,W~
partition was set up he defendants to
contend that the properties are defined
in the said Palu Patti? ;}
4. I have heard the learned counsei for the
appellant and the respqfidents.
5. it is the contention of the learned counsei
~,for the appeilant that ____ there is ampie material on
“oreoord to prove that the propositus~Kundachikkegowda
had 3 song i;¢§} the eldest son Soéeamaliegowda {the
.father <dof"; the defendants}, the second son
.u*§sttaswam§gowda and the third son Chikkamallegowde.
i,lt is also his contention that there was a partition
R"=between Deddamallegowda anui Puttaswamygowda in the
eyear E975 and the suit schedule properties feli to
the share of Puttaswamygowda i,e; the second son of
, X
/
10
propositus~Kundachikkegowda. The said properties
were succeeded by his son Ooduchikkegowda, who died
leaving behind his wife Javaramma and it is she who
sold the properties to the plaintiffgiundsr* the,
registered Sale Deeds dated 28IU?;l9§3 fl and”
0741,1994. £~§e submits that $3 mj_–st;é1xé,.t-hé- §fa;the’r;fs
name of Ooduchikkegowda_ wag’ mcntiqned: Was”
Doddamallegowda instead Ho£i’_mentioning:€ it as
?uttaswamygowda and p thedphpdefendantsux taking
disadvantage of this fest inatfisnfeeord of rights
are making’ sv’fislse: claim v$§é:._tfiel suit schedule
propertiesf 39 sflbmifigpthst there was a partition
between the defendants in the properties fallen to
the share”of*Doddssalleqowda, the eldest son and the
V mutationu.entr§:_hss ‘been produced. at Ex.Pl7 which
ufl revesls the properties fallen to the share to each
of the defendants. He also submits that there are
many doouments which-reveal that Puttaswamygowda was
u”t the father–in–law’ of Javaramma and. another’ son of
Vupropositus~Kundachikkegowda viz , Chikkamallegowda
a~l had left the house and he was unheard of. So, it is
iphis contention that as the plaintiff had purchased
the property from Javaramma, who succeeded to the
said properties on the death of her husband
it/'””
-….u,,,
ll
Ooduchikkegowda, the plaintiff acquired an absolute
title and. the defendants have no right, title or
interest in the suit schedule properties.
Therefore, he submits that the trial Court on proper *
appreciation of the evidence on record had oranted a
decree and that the lower 7appellate .CoprtK hp
ignormg the material docLim§-n..ts iike VE>{9t.£”T%€–»».a;:jd 17′-‘
and also the documents prodnced by the_defendants,
committed an illegalityrin dismissing the suit.
respondentsg”lksthfiitspolxthate _’the propositus–
Kundachlkkeoowda had.left sonly son Doddamallegowda,
the father’ of’ thez defendants and. that after the
death _of Knndachifikegowda, the properties were
J’succeeded: by the ~father ———- of the defendants and
htherea£ter}ptdthe defendants are engoying the
properties7 after partition. 80, also it is
‘contended that the record of rights also revea; that
‘the *nameN of the 1″ defendant and. his father all
_a:¢n§ land that 3avaramma, the vendor of the
g plaintiff’ had no right, title or interest in the
“suit schedule properties and. has not conveyed any
title txp the plaintiff. Renee ii; is submitted by
/”
l2
the learned counsel that the lower appellate Court
on proper appreciation of the material on record has
dismissed the suit and that the appellant has not
made out any grounds to call for any interference; ‘2
6. I have carefully scrutinized “tfiég materialv
placed on record in the contest of the suhmissiens
made by the learned counsel for the parties. jfhe”
first and foremost point that has to be taten into
consideration is .f\Whether~; ithe ubroposituse
Kundachikkegowda had left the en;§ sch or three sons
and to substantiate this contentionf’it is necessary
to look the afierments made by the plaintiff in para
2 of the plaintih it is stated that Kundachikkegowda
had 3 sons sis]? eldest son Doddamallegowda, second
J”son .§fittaswamygow”a” and last son Chikkamallegowda.
hAsathe third sen left the family long back and was
unheard, lathe’ suit schedule properties were
‘partitiofied between the eldest son and the second
‘$On’VandN that the defendants are the sons of
hpoddamallegowda i.e,, the eldest son of propositusw
aikuhdachikkegowda. Though this averment in the
Vésplaint has heen denied by the defendants, the
plaintiff–P.W.l in his evidence has stated about
2*’;
, / /’A
11?»;
MW
13
this fact and P.W.2 states that the suit schedule
properties were in possession of Javaramma, the
vendor of the piaintiff and that she succeeded to
the said properties through her husbanfi éahfi’ Hist
father Puttaswamygowda. He ialso states. in”_the”
evidence that Kundachikkegowdajhadvfi’sohsxvirfi;_K1}
Doddamelzegowda i.e., the.7f.atherA._o’f thjei”uglepfenrliahtsi.
(2) Puttaswamygowda and (fi)wp¢hikkamaiieooefia. So
also, P.W.3 supportshfheirefisighmof the other two
witnesses as far as the géhea1Qgyri%Dponcerned and
?.W.4, who is éfijfiifling ohher of the suit schedule
properties states that Javaramma was in possession
of these properties tiil=she soid the same. P.W.5
is the atfiestin§’Qitness for the Sale Deed produced
_ at E$rP2. dafie@HvG7;1l.l994, P.W.6mJavaramma, the
lfl vendor :or_ the suit schedule properties to the
piaihtiffrpstates in her evidence that her husband
Ooduohikkegowda was in possession of the properties
‘p”3ouring his life time and had succeeded in the suit
‘ Vusohadule properties through his father
E’a:?ufitaswamygow&a and she has produced’ Rxs,P2G and
:P2l, the patta book and revenue receipts
respectively in respect of the suit schedule
4*»
/
. _ xx”
properties. ykww
1%
7. Ex.P29 is the “Dana Pathra”, executed by
Javaramma on 26.12.1979. This is a registered
document and has come into existence at a t;me§fihen
there was no controversy between the defiendents end.
Javaramma and therefore, thew contents? fit: this”
document can be looked into as th%”fiete:;e§”ciece#of
evidence. The name of the execfitor has teen shown?
as Javeramma; wife of dodech}khegonde,dEson of
Puttaswamygowda. So elsofl gt fifidjis the ieqistered
Sale Deed dated O9.0ls;$tQ egecutedegyhjavaramma and
she has heenih descrshedevtashlhthe wife of
Ooduchikkegondéh son cf Putteswemygowda. Ex.P3l is
the cettified *§5§Y dot .the “Dana Pathra” dated
28.12.1979 and :a§a:afima, wife of Ooduchikkegowda,
V son of Euttaswa¢ygoQda, has executed this document
a} ifi.féfiont of defendants 1 to 3 and she has stated in
th;s deed thet the defendants are the sons of the
senior dwcle?of her husband. So, if the contents of
u'” these degtments are looked into, they cleaxly go te
Q*ve3tabiish that Kundachixkegowda had left behind him
E~.this§ eldest son Doddamallegowda ands the second” son
4:Puttaswamygowda. Though there is run reference of
the third sen Chikkamallegowda, as he left the house
and he is unheard since then, as the gartition
15
between the eldest son and second son as aiieced bf
the piaintiff, the fact as to whether
Kundachikkegowda left behind him his third eon by
name Chikkamallegowda does not assume. fany
importance. But, anyhow, these docufientaH would h
prove that Doddamallegowda and Pfittaswamyoowda are
the two brothers and the defencants are the Sofie ofe
Doddamallegowda and oodu.¢’hi;;xe§;cwda._ ‘V the”
husband of Javarammai~”–§aahg. the” . eon of
Puttaswamygowada. As thege_a§;fi§éhtg have come into
existence at tbé time fihen there wee no controversy
or allegatioA,het@eefii?he partieeh the contents can
be accepted to p£ove_theVaverments in the plaint.
8. hxow, as _con§d be seen from the oral
_ evidence ‘of flfW-l__ire(, ____ the 1″‘ defendant, in the
hgchief&examination he states that his father was the
only esonflatoi his grandfather. In the croasw
_examinationf’ though it is suggested that his
.u*§randfather had three sons by name Doddamaiieqowda,
h,?uttasfiamygowda and Chikkamallegowda, he denies the
h”usaee. But, he admits that the husband’s name of
eJavaramma is Ooduohikkegowda and her- husband’s
father’s name was ?uttaswamygowdaL He yieads
ei
16
ignorance about the father’s name of
Puttaswamygowda. He states that uptil his date of
evidence, he did not make any enquiry as to the name
of the father of Puttaswamygowda. This conductgon
the part of D.W.l is unnatural and supports ftaé_
version of the plaintiff and the documents referred*
to in the above paras. Soap th§piEér§SF§t,§f_ the
material evidence made available! by the :plaintiff”c
clearly proves that theV: grandfather ftof the
defendants had thfee ffi%§h$4″Vr ffihén eldefit
Doddamallegowda i e., Wthe fathefi tfip the defendants
and the secqndk_§uttaswamygo§daV_was the father of
Ooduchiskegowda7iae,kKthe husband of Javaxamma and
to this ektent, it could be said that the defendants
_ have put up a false defence of their father heing
l; the 5n1§ son to their grandfatherwKundachikkegowda.
“9. “f:t? is not in dispute that the sutt
fpropertiesv are the ancestral properties of
:Kundachihkegowda, the grandfather of the defendants
.hand father of Puttaswamygowda, who left behind him
~d his only son Ooduchikkegowda and apart from the suit
‘ properties, there were other properties as well for
X”
the joint family. aigmw
17
10. D.W,l in the cross~examination states that
in the properties fallen to the share of his father,
the three brothers have partitioned the properties
and a mutation entry to that effect ,hasfy§ée5,
certified. In the circumstances, considering”this”
admission of D.W.l, if the mdtation entry”produm;d
by the plaintiff at Ex Pl7 is dlooked; into, hit ;
reveals MR No.14/79-80 and pertains to the partition
between the sons v%ft Doddaflallegowda hi e., the
defendants in the presence of,the%%lderly persons
and the 1″ colfimn in thisdmfitatioe entry pertains to
the land heldphg the faoilg, fihereas the 2″d column
which contains wgéjfichedele refers to the properties
fallen to* the ‘gbé;é= ar the 1″ defendant, the Bxd
_ columh x’WhiCh’p contains ‘B’ Schedule are the
A; properties fallen to the share of the 3″j defendant
ahdV {he h4§’ficolumn which contains ‘C’ Schedule
refers to the properties fallen to the share of the
i”V,2″é defehdant. The Revenue Authorities have
‘. certified that after receipt of the information
fv referring this partition, a notice was issued and
;”there were no obfiections by anybody and in the
circumstances, the mutation entry was certified on
25.06.1980. There is no appeal against this
s’/””=~ …. ..
18
mutation entry and in pursuance of this entry, the
9
names of the respective brothers i.e.,_ the
defendants have been enteredi in the recordsg and
excluding the properties fallen to thei share “of,
these defendants, it can be inferred.that the other’
portions of the properties do net: belong “to ‘the
defendants and that they must hare goneyto the share ;
of Puttaswamygowda and afteri his “a§5th, hhis son
Ooduchikkegowda has to inherit then and on his death
it was Javaramma, his twifeh succeeded? to the said
property.
11$ Nowdso far as the.§roperty in item N951 in
the schedule ige i Sygf§o:l3l/11A measuring 2 guntas
is concerned,i the “mutation entry Ex.?17 contains
Jdthish§y1aNQ,l31fllwat S1. No.3 of column No.1 at the
hbaak page ans it totally measures 9 guntas. Out of
this revisien survey number in the partitien amongst
fthe defiandants 3% guntas as gone to the share efi the
hi% “defendant, no share is allotted to the Bfl
–fldefendant and the Zmi defendant was allotted 3%
–j’guntas in this survey number’ So, out of the totai
i area of 9 guntas, the remaining 2 guntas is not the
progerty ef the defendants as could be seen from
2′
19
Ex.P17 and therefore, it could be inferred that this
iand was fallen to the share of Puttaswamygowde and
inherited by Javaramma on the death of her hnsband
Ooduchikkegowéa and also father–in–law.
12. Ex.P18 is the record of right bi revisinnu
Sy. No.131/11B measuring 3% gfintas~and the 5iae’5f
the 15″ defendant is entered in the reeerds as per_l
the mutation entry at EX.P1lT, Ex.Pl9 is the record
of rights of revisicnfl’Syi $31131/l§C measuring 3%
‘V . I’:
guntas fallen to the_share of the at defendant as
per mutation” entryl ati Ex,?lT,M: Thereby, the
remaining 2ignntas have been shown in the property
extract et<Ex;Pl6Wand it is numbered as revision
Sy. NQr13l/ETA and the name of Javaramma, wife of
Jd09d$¢$ikke9OWda 'was' in record earlier to the
dpfirehese bf this property by the piaintiff and after
the.purchaee. her name has been deleted and the name
fof the filaintiff has been entered.
=__i3. So far as the second item cf the property
i.r:hearing Sy. No.123/14 measuring 3 guntas is
iconcerned, it was measuring’ totally 6 guntas as
shown in the 15′ column of Ex P17 and 3 gnntas of
land out of this survey numbe* has fallen t0 the
‘-._,…
20
share of the lfli defendant and no share has been
allotted to defendants 2 and 3. So, if this land
was wholly the land of the father of the deUfe.x:i’dants
and 6 gutas of total land could_fhafedfheeng
partitioned by the defendants. mBut,5the?fadt”that”
the only 3 guntas was taken by the l” defendant and
the other defendants did.not take eny share in the ;
property leads to an inference that the rehaining 3
guntas of land hadh fallen _he the Ashare of
Puttaswamygowdah the father dfffiodhefiikkegowda and
to substantiatefthis version: Ex pfih the record of
rights reveal the naheflof.§a§3ramma, the vendor of
the plaintiff add her flame has been shown in this
revision Sy;lNo}1§3/likheasurimg 3 guntas, Ex.P7
V the reoord of rights reveal the name of Javaramma,
lg wife of doddchikkegowda to this property and as this
property is hot mentioned in the mutation entry at
Ex.PL7,_a’direct inference could be drawn that this
u'” preperhy fell to the share of Puttaswamygowda, the
A” second brother of floddamallegowdar Exs.P8 to E0 are
E”efithe record of rights of revision Sy. No.l23/14
fitpropertyr for the year l988–89 to 1996-95 and the
name of Javaramma appears in the owners and
cultivator’s column.
21
l4. ?he third item of the suit land is Sy.
No.l23/16 measuring 2 guntas and as could be seen
from $x.Pl7, in the 1″ column at the back page? the
total land measures 2 guntas and this has been sheen
as the property fallen to the share_:¢f’dfhe niflgu’
defendant. In the circumstances, whenfthe.p§a;nt;ff
rely upon documents Ex.P17, they have to adcept theu
contents of the same and whenmthis*;andEwas only 2
guntas and it had the 1″
defendant, 2 am of piaintiff
cannot claim 4any_ interest aid_ thee land. ?he
plaintiff ‘reevordddodf rights in this
land ate Exse§LIH to Wifiw and though the name oft
Puttaswamygowdax”‘handd;4 his son Chikkegowda
V {Ooduehixkegofidajv continued in the records and
nfl thereafter dthe “name of Javaramma was shown and
ekcept the entries in the record of rights, there is
no materiadf placed on record to show’ that this
u’* eroperty had fallen to the share of Puttaswamygowda,
‘V the younger brether of the father of the defendants,
x*adi am of the opinion that the extent of the land at
Ditem No.3, the plaintlff has not shown that this was
given t0 the share of Puttaswamygowda, in the
partition between the brothers and has no deeumefits
f
22
of partition has been produced by both the parties
and except relying upon Ex.P17, an inference that
Javaramma being the successor of this property
cannot be drawn solely on the basis of the géc5rd*af.
rights produced by the plaintiffp
15. So far as the property at item_Nos.i and 2
of the suit schedule properties are concerned} the,l
record of rights admitted ins the evidence reveal
that the name of Chik§egowda,isfolnDoddamallegowda
was entered earlier and under fl§qP€g”Uavaramma had
given. a report Eto thei Revenue’ Authorities one the
death of her’fh§1usE>arxd'”«v!f:’hj_kk.ecf’owda [Ooduchikkegowda]
that she was the*oniy Legal representative and her
name may be entered in the records. This entry Came
xdto Eek oertifiedh”by* the Revenue Authorities after
dnotice{%fihich has been produced at Ex.P6. It is
reiafiant”§¢:9nete that prior to the name of
fJavarafi$a, Vher husband’s name was shown in the
:re&ords was Chikkegowda, s/o. Doddamallegowda has
_ since dead, report to enter her name after the death
;ld£° her husband. A complaint came to be filed
‘against Javaramma and the plaintiff for giving false
information and concocting the Revenue documents
/
§$’*«._$<:::
3/ “‘
23
stating that Chikkegowda, s/o. Doddamallegowda had
expired and that Javaramma is the successor heing
the wife of Chikkegowda and it reveals free kthe
evidence that a private complaint in this ;¢§a;a=;gt
pending. The perusal of Ex 2g reveals, thatfl the”
report was given to the Revenue Authorities to enter
the name of Javaramma, as- her ‘husband7s;aname} wast;
also Chikkegowda, to enter her name in the records
of the property bearing .revisiQ4nfl$y~ fies 131/11A,
123/14, 123/16 and measures
2 guntas, Syjd+¥o.li3/ie5 maégerggf 3 guntas, Sy.
z\zo.123/16 and Sy. No.}.23/18
measurééolfi ?ee€§ei!ddoVfar as Sy. No.12lfllA and
123/14 are concerned there is mention in Ex.P17, the
_ report uregaxdingi partition between the defendant.
nflVs§;e£heEscrfitiny of the documents reveais that by
mistake; then; was an entry in the record of rights,
memtioning_Dthe father’s name of Chikkegowda as
u'”3fioddamai;egowda instead of Futtaswamygowda and this
Vieistahe continued all along till the death of
.tadCh£kkegewda and as the husband of fiavaramma i.eH
$Chikkegowda had died, the repert was given under
Ex.Pé to the revenue authorities. The defendants
have tried their best to take the advantage of the
(?<"'»,.;'ii:':g
24
name of Boddamallegowda as the father of Chikkegowda
iooduchikkegowdaj in the records and claiming an
interest to these properties as well as inherited by
them though Ex.P17 which has no reference tgatwo,
these properties as they never tell to the share of”
their father in the partition between both*the sons
of Kundachikkegowda. But, insofar as the properties ;
at item Nos 2 and 2 in thelscheduleufiroherties are
concerned, there isj ample aeaterial to Ashow that
Javaramma was Vthe vPersonr:whQdd}hfierited these
properties throdgh her husband and his father and so
far as theflTthird tsniti schedule property is
concerned,rthongh[there is some evidence, but_it is
not sufficient to firovefthat it fell to the share of
_ Puttaswamygowda in View of the fact that in Ex.P1?
lfl there is mention of this property having fallen to
theVsharepofhthe }?t defendant, Further though the
defehdantssciaim that there was a partition in the
u”V2year l97$, no documents have been produced” The
a[s3rtition Deed said to have been deyosited in the
R”g bank has not been secured and Ex.Pl7 is dated
h25.06.l98G. when the defendants were in custody of
the Partition Deed of the year 1975, they ought to
have been produced the same before the court. When
32′
K.»
25
Ex.P17 is their own document, they cannot resiie
from its contents.
16. The trial Court though granted
in favour of the plaintiff did
consideration the fact that etne”*plaintifriprelied
upon Ex.P17, the HmtationVen\}y and £h§i¢ui£p¢gem_
No.3 was shown to have fallen to the Share or tne lfil
defendant jJ1 the p@rtition”wnnilignoring.tnis fact
had relied upon only ptnefiy%eoe#d:*of rights and
granted the relief- {éuti eo £§¥ 3% the Property at
item Nos 1 and E:of’tne suit scheduie properties are
conoernedp it took into consideration the documents
Ex.P6 and *1? ‘tfiep,regordf of rights and. the oral
eviden¢e and oame to a right conclusion in granting
xdthe-relief»of declaration so far as item Nos 1 and 2
Fof the suit schedule properties are concerned.
‘y17,*’Ferther, nhe lower appellate Court allowed
u’V the appeal of the defendants and dismissed the suit
‘. ignoring Ex.P17 an undisputed. motatioe entry and
.lWv:aiso the record. of rights pertaining to the said
;”itena Nos.l and 2 and. committed. a grave error on
relying’ upon the xnistake committed. by” the Revenue
Authorities in showing ‘the name of’ the husband. of
//*””
e ;’*\)¥,
3;
26
Javaramma as Chikkegowda, s/o. Doddamallegowda, a
meticulous examination of the materiai placed on
record would make it clear that the defendants have
taken a false defence and they suppressed* the,
material facts about their father havingdalbrotner=
by name Puttaswamygowda and the progertiescfalienqto
the share of Puttaswamygowda lwere not pshown dial
Ex.P17 and from this material on record, it could
have drawn a direct inferengg that suit item Nos.l
and 2 were the properties_which;fe1I so the share of
Puttaswamygowdag the husbandis father of Javaramma.
18s Thedilofier rapnellate Court had. a duty to
scrutinize’the’e§idenceWproperly and to draw proper
inference free the efiidence led by the parties and
xdit committed. an” error in allowingc the appeal at
ileast re the extent of properties at item Nos 1 and
2 of the schedule to the plaint. In that View of
fthe oateer I answer the substantiai question of law
:paktiy is affirmative and partly in negative holding
— than the apyellate Court was justified in reversing
” ‘the decree of the triai Court so far as item No.3 of
i the suit schedule property is concerned and negative
insofar as the properties at item nos.1 and 2 to the
27
schedule are concerned. In that view of the matter,
I proceed to pass the following:
ORDER
The appeal is allowed ix: part. The Jedomefit”
and Decree of the courts _below jareVflmodified.u
Granting the relief as prayed insofar as”itehfHos;1
ands 2 i.e., property *:bearihg 2 Syi1d:Noal3i/1lAdd
measuring 2 guntas and Syd rfio,l23f14a Measuring 3
guntas by the trial Gorrtiis-restored and the claim
of the plaintiff/appe;;aht as redards item No.3 i.e_
Sy, No.l23/ifiédgeasfirifiqd 2″_dofi§as is dismissed.
There 1.5., no ‘order’-..a;; costs.
ddddd JUDG