Karnataka High Court
Halagatti Shivappa @ Shivanand vs Ningappa S/O Basappa Megundi on 25 July, 2024
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NC: 2024:KHC-D:10649
RSA No. 5422 of 2009
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5422 OF 2009
BETWEEN:
HALAGATTI SHIVAPPA @ SHIVANAND
S/O HANAMAPPA @ HANUMANTAPPA
AGE: 55 YEARS, OCC: AGRI & SERVICE,
R/O BYAHATTI, TQ. HUBLI,
DIST. DHARWAD-581124.
...APPELLANT
(BY SRI S.S.PATIL AND H.N.GULARADDI, ADVOCATES)
AND:
1. NINGAPPA S/O BASAPPA MEGUNDI,
AGE: 60 YEARS, OCC: AGRICULTURE
R/O BYAHATTI, TQ. HUBLI,
DIST. DHARWAD-581124.
2. DYAMANNA S/O YALLAPPA HALAGATTI
AGE: 54 YEARS, OCC: AGRICULTURE,
Digitally signed R/O BYAHATTI, TQ. HUBLI,
by SAROJA
HANGARAKI DIST. DHARWAD-581124.
Location: HIGH ...RESPONDENTS
COURT OF (BY SRI. AVINASH BANAKAR FOR R1.,ADVOCATE)
KARNATAKA
DHARWAD THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
BENCH
DHARWAD JUDGEMENT & DECREE DTD: 15/04/2009 PASSED IN
R.A.NO.30/2007 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE
(SD) HUBLI, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGEMENT AND DECREE DTD: 10/01/2007 PASSED IN
O.S.NO:483/2003 ON THE FILE OF THE I ADDITIONAL CIVIL
JUDGE(JD), HUBLI, DECREEING THE SUIT FILED FOR PERMANENT
INJUNCTION.
THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:10649
RSA No. 5422 of 2009
JUDGMENT
The present second appeal is filed by defendant No.1 under Section 100 of Code of Civil Procedure, 19081 challenging the judgment and decree dated 15.4.2009 passed in RA.No.30/2007 by the I Additional Civil Judge (Sr.Dn), Hubli2 and the judgment and decree dated 10.1.2007 passed in OS No.483/2003 by the I Additional Civil Judge (Jr.Dn), Hubli3, whereunder the suit for injunction filed by the respondent No.1/plaintiff has been decreed by the Trial Court, which has been affirmed by the First Appellate Court.
2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.
3. It is the case of the plaintiff that originally 8 acres of land in R.S No.859/1 of Byahatti village, Hubli taluk, belonged to defendant No.2 and out of the said land, the plaintiff has purchased 4 acres of land in the year 2001. That subsequent to the said purchase, he is in actual possession and enjoyment of the suit property, without any interference whatsoever. That the defendants having no manner of right whatsoever tried to interfere and obstruct the plaintiff's 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as the 'first appellate Court' 3 Hereinafter referred to as the 'Trial Court' -3- NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 possession of the property purchased by him. Hence, the plaintiff has filed the suit for injunction.
4. The defendants entered appearance through their counsel and defendant No.1 filed his written statement. The defendant No.1 denied the plaint averments, and contended that the defendants No.1 and 2 are the co-owners and joint owners of the property, and are in actual possession of the suit property. That the defendants filed O.S No.161/1984 for partition and as per the judgment and decree passed in the said suit, as well as R.A No.27/1992, and FDP No.6/2003, the defendants are in actual possession of the suit property. That the plaintiff has no locus standi whatsoever to purchase the suit property during the pendency of the said litigation. It is contended that the alleged sale transaction between the plaintiff and defendant No.2 is not legal and valid, and the same is not binding on the defendant No.1. That when the defendants are in actual possession and the plaintiff is not in possession, the question of interference would not arise. Hence, the defendant No.1 sought for dismissal of the suit.
5. Consequent to the pleadings of the parties, the Trial Court framed the following issues:
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 i. "Whether the plaintiff proves that, he is in possession of the suit property? ii. Whether the plaintiff proves that, the obstruction of the defendants?
iii. Whether the defendants entitle for permanent injunction?
iv. What order or decree?
AMENDED ISSUE No.3 Whether the plaintiff is entitled to the relief of permanent injunction?"
6. The plaintiff examined himself as PW.1. Two witnesses have been examined as PW.2 and PW.3. Ex.P1 to Ex.P8 has been marked in evidence. The defendant No.1 has been examined as DW.1. Ex.D1 to Ex.D4 has been marked in evidence.
7. The Trial Court by its judgment and decree dated 10.1.2007, decreed the suit and passed the following order:
"The suit filed by the plaintiff is hereby decreed. The defendants are hereby directed by way decree of permanent injunction not to interfere and obstruct with plaintiff's peaceful possession over the suit schedule property.
No order as to costs.
Draw decree accordingly."-5-
NC: 2024:KHC-D:10649 RSA No. 5422 of 2009
8. Being aggrieved, the defendant No.1 preferred R.A No.30/2007. The plaintiff entered appearance before the First Appellate Court and contested the same.
9. The First Appellate Court framed the following points for consideration:
i. "Whether the lower court is justified in holding that the plaintiff has established his lawful possession and enjoyment over the suit schedule property and alleged interference by the defendants and proceeded to decree the suit by answering issues 1 to 3 in the affirmative?
ii. Whether the findings given by the lower court on all the issues are perverse, capricious, unreasonable and so passed without appreciation of oral and documentary evidence in its true perspective which warrants any interference by this appellate court?
iii. What order?"
10. The First Appellate Court by its judgment and decree dated 15.4.2000, dismissed the appeal with cost and confirmed judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.
11. This Court vide order dated 17.2.2014, admitted the above appeal and framed the following substantial question of law:
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 "Whether the trial Court and the first appellate Court have committed a serious error in ignoring the material evidence on record more particularly when the Sale Deed came into existence prior to the allotment of shares u/S 54 of CPC as evident from Ex.D.4?"
12. Learned counsels for the appellant Sri.H.N.Gularaddi and Sri.H.N.Gularaddi vehemently contends that the suit for injunction ought not to have been entertained and injunction ought not to have been granted by both the Courts in view of the fact that the defendant No.2, who is vendor of the plaintiff and the defendant No.1 are admittedly co-owners of the suit property. Hence, the defendant No.2 could not have sold his portion and put the plaintiff in separate possession. That the plaintiff would be entitled to seek for allotment of the share that was allotted to defendant No.2 in the suit for partition filed between the defendants by participating in the final decree proceedings. He further contends that the plaintiff having purchased the property from defendant No.2 during the pendency of F.D.P. No.6/2003, the contention that he was in actual possession of suit property, ought not to have been accepted by both the Courts. Hence, he seeks for allowing of the above appeal and setting aside of the -7- NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 judgment and decree passed by the Trial Court and the First Appellate Court.
13. Per contra, the learned counsel for respondent No.1/plaintiff Sri.Avinash Banakar justifies the judgment and decree passed by the Trial Court, which has been affirmed by the First Appellate Court and submits that both the Courts having concurrently held that the plaintiff is in actual possession of the suit property, the injunction granted by the Trial Court which has been affirmed by the First Appellate Court is just and proper. That this Court ought not to interfere with the concurrent findings recorded by both the Courts. Hence, he seeks for dismissal of the above appeal.
14. The submissions of both the learned counsels have been considered and material on record has been perused.
15. Before noticing the contentions put forth by both the learned counsels, it is relevant to notice the findings recorded by the Trial Court and the First Appellate Court.
16. The Trial Court, while answering the issues framed for consideration, has recorded the following findings: -8-
NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 i. Admittedly, it is a bare suit for injunction and the point that should be determined is pertaining to possession and not regarding title; ii. The plaintiff has produced the certified copy of the record of rights pertaining to suit schedule property as per Ex.P1 to Ex.P3 which discloses that the plaintiff's name is forthcoming to an extent of 4 acres of land out of 18 acres in R.S No.859/1;
iii. The revenue records give rise to a presumption that the person whose name is entered is in actual possession of the suit property, unless and until the revenue documents are rebutted; Admittedly, the entries are of the year 2002-03 and till today the same stands unchallenged; iv. Ex.P4 is the sale deed as per which the plaintiff has become the absolute owner of the suit property and subsequent to this, there is a mutation entry wherein the sale transaction between the plaintiff and defendant No.2 has been entered. Further, there is a mention that -9- NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 the defendant No.2 was the absolute owner prior to the sale transaction vide Gift deed. The Gift transaction has been entered into Ex.P6, which is the mutation entry in the year 2002; v. The suit is not at all a comprehensive suit. The rights of the parties over the suit property is being considered or determined, to the limited extent of relief sought in the plaint. vi. The plaintiff has rightly established his possession over the suit property by appropriate document. If at all the defendants are aggrieved by the transaction which according to them is not binding upon them, it is not a proper forum, to adjudicate the same. The defendants have got every opportunity to challenge the same by seeking necessary declaration and relief as against Sale Deed, as per which, the plaintiff is claiming ownership of the suit property; vii. The defendants, who have produced Ex.D1 to Ex.D4, have failed to establish that they are in actual possession of the suit property.
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009
17. The Fist Appellate Court, while considering the points framed for consideration, has recorded the following findings:
i. The defendant had produced Ex.D1 memo submitted by the Court Commissioner in F.D.P. No.6/2003, wherein, the present appellant was plaintiff, and vendor of the plaintiff was defendant, and defendants No.1 and 2 are brothers and they are having several properties. Ex.D2 is a Commissioner report which reads as along with the other property in block No.859, 14 acres as per preliminary decree, the present appellant Shivappa was having 1/3rd share in the said block No.859, as also it was reported that block No.859 was also divided into 3 portions and northern share was given to the present appellant. Ex.D3 is the panchanama drawn on this spot on 17.4.2002, and Ex.D4 is the certified copy of final decree;
ii. No doubt, the Court Commissioner has divided the entire extent in block No.859/1 of 14 acres
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 into 3 divisions and according to the Commissioner report, 1/3rd of the portion was allotted to the share of the present appellant on the said date. If, it is proved before the Court that in the said block No.859/1B, 4 acres of land was already in the possession of the plaintiff, the question of handing over of possession to the present appellant does not arise at all for the simple reason that the plaintiff was not a party in F.D.P. No.6/2003. No notice was served on him. He was not a party to the mahajar; iii. It is worth to appreciate that the original Sale Deed executed by defendant No.2, dated 30.05.2001, is produced by the plaintiff that 4 acres of land covering the boundary shown in the Sale Deed was sold in favour of present plaintiff for valuable consideration of ₹2,17,000/-;
iv. During the pendency of the appeal and R.A No.27/92, the defendant No.2 had sold 4 acres of land in favour of plaintiff through a registered
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 Sale Deed(Ex.P4) and that application filed by the appellant to raise the ground that the suit is not maintainable, on the ground of lis pendence, has been rightly been dismissed by the lower Court, on the ground that it is not a declaratory suit of title and only for limited purpose of possessory remedy;
v. PW.1 has made it clear that on the date of purchase of the said 4 acres from the vendor, he was the owner of the land, and his name was found in the R.T.C;
vi. Ex.P2 shows that as per the Court decree in the year September 2003, 4 acres of land in block No.359/1A was issued in the name of defendant No.1. Ex.P3 is the R.T.C. showing the name of the plaintiff in respect of 859/1B 4 acres of land. Ex.P7 is R.T.C. pertaining to suit property for the year 2003 shows the name of plaintiff. Ex.P8 is the sketch obtained by survey department in the year 2003, which clearly shows that the southern portion from out of 8
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 acres, 4 acres which is mentioned in Ex.P2 R.T.C. of 2003 as per decree was standing in the name of the plaintiff;
vii. It appears that out of 14 acres in the said block No.859, present appellant Shivappa was entitled to 1/3rd share. Therefore, he claims that he is entitled to an other 26 and half guntas, and he started interfering with the possession of the plaintiff can very well be gathered from the circumstances.
viii. Both the witnesses, Ex.P2 and Ex.P3, have spoken that they are the agriculturists and resident of Byahatti village and they are cultivating the lands situated adjacent to R.S No.859/1B. Therefore, facts are within the knowledge of the independent witnesses, who have unequivocally stated that since 2001 onwards from the date of purchase of 4 acres of land of the suit property, the plaintiff is in lawful possession and enjoyment, and is cultivating the said land. That defendant No.1 is not at all
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 in possession of any portion of the suit property;
ix. The plaintiff has clearly given extent and boundaries of 4 acres of land in his possession and by virtue of Ex.P4, registered Sale Deed, purchased it for consideration and his name is appearing in the records;
x. Here what is spoken by PW.1 and PW.2 in their examination-in-chief that from date of purchase of 4 acres of land suit property the plaintiff, in collusion with defendant No.2 started interfering previous to filing of the suit, and they have unequivocally stated that defendant No.1 is trying to encroach 26 guntas of land in R.S No.859/1B extent of 4 acres in possession of the plaintiff. What indicates that these independent witnesses who are in know of the matter that R.S No.859/1A, 4 acres as per R.T.C. (Ex.P2), since from the date of year 2003 as per Court decree is standing in the name of plaintiff. Only southern portion of 4 acre suit
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 property 859/1B as per R.T.C. standing in the name of the plaintiff. That means, as per the recitals of registered Sale Deed (Ex.P4), the plaintiff has purchased in the southern portion 4 acres covering the boundary shown in the suit schedule and he was inducted in possession by his erstwhile owner.
xi. His vendor might be a co-owner with the present appellant and there might be a pending suit. But the point for consideration that the plaintiff was inductive in possession by virtue of the registered Sale Deed;
xii. The recitals of the registered Sale Deed regarding handing over of possession, which has been acted upon. The entries in R.T.C. and mutation also show that in column 12(3), 4 acres of land in actual possession of the plaintiff. Therefore, the plaintiff is in lawful possession and enjoyment of the suit property since 30.05.2001 from the date of registered sale deed stands established.
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009
18. It is forthcoming from the aforementioned that, both the Courts, noticing that the Sale Deed dated 30.05.2001 (Ex.P4) was executed in favour of the plaintiff and noticing the revenue records, wherein, the name of the plaintiff has been entered into, consequent to the said Sale Deed (Ex.P4), has recorded a finding that the plaintiff has demonstrated that he is in actual possession of the suit property and hence, granted injunction.
19. It is relevant to note that the undisputed fact situation is that the defendant Nos.1 and 2 were co-owners of the suit property, and a suit in O.S No.161/84 was pending between the said parties for partition of the suit property. That during pendency of R.A No.27/92, the defendant No.2, executed the registered Sale Deed dated 30.05.2001 (Ex.P4) in favour of the plaintiff. It is further relevant to note that the final decree proceedings in F.D.P No.6/2003 was initiated pursuant to the preliminary decree passed in O.S No.161/84 and in the said final decree proceedings, the Commissioner report (Ex.D2) has been filed on 19.04.2002, pursuant to which, the final decree in F.D.P. No.6/2003 (Ex.D4) has been drawn. It is clear that the Sale Deed in favour of the plaintiff was executed by defendant
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 No.2, who is a co-owner of the suit property, before the final decree has been drawn.
20. In this context, it is relevant to note the following judgments:
i) The Hon'ble Supreme Court in the case of Siddeshwara Mukharjee Vs. Bhubneshwar Prasad Narain Singh4 has held as follows:
11. The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphatary, who appeared in support of the appeals, could not satisfy us that in law client was entitled to joint possession on and from the date of purchase.
(emphasis supplied)
ii) The Hon'ble Supreme Court in the case of Manikayala Rao, Vs. M. Narasimhaswami and others5 held has follows:
15. As earlier stated the High Court held that Art. 144 applied. The application of this article 4 AIR 1953 SC 487 5 AIR 1966 SC 470
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 seems to us to present great difficulties to some of which we like to refer, That article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. Now it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased.
(emphasis supplied)
iii) In the case of Ramdas V. Sitabai & Ors6 has relying on its earlier judgment rendered in the case of Manikayala Rao Vs. M. Narasimhaswami and others has held as follows:
5. Without there being any physical formal partition of an undivided landed property, a co-
sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share."
(emphasis supplied) 6 AIR 2009 SC 2735
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009
iv) A Division Bench of Patna High Court in the case of Sheonandan Prasad Sao, Vs. Ugrah Sao and others7 held as follows:
15. There is thus a preponderance of Judicial opinion in favour of the view that alienation of an undivided share in a joint property whether by private treaty or under execution sale does not operate to cause severance in status and does not destroy the right of survivorship between the alienating member and the remaining members.
(emphasis supplied)
21. Having regard to the settled position of law as aforementioned, it is not open to a co-owner to alienate any specific portion of the joint property owned by him along with a co-owner. It is also relevant to note that, in the event, a co- owner alienates his share of a joint property, the remedy open to a purchaser is to file a suit for partition.
22. In the present case, the plaintiff has instead, filed a suit for injunction. It is further pertinent to note that the plaintiff has not participated in the final decree proceedings in F.D.P No.6/2003, wherein, he ought to have sought for allotment of the property purchased by him to the share of his vendor/defendant No.2, which he has failed to do. 7 AIR 1960 Patna 66
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009
23. The Trial Court and the First Appellate Court has undertaken a detailed appreciation of the factual matrix which it ought not to have undertaken.
24. Having regard to the aforementioned, it is clear that the judgment and decree passed by the Trial Court, which is affirmed by the First Appellate Court, is contrary to the aforementioned settled proposition of law. Hence, the substantial question of law is required to be answered in the affirmative.
25. However, it is relevant to note that it shall be open to the plaintiff to challenge the final decree passed in F.D.P No.6/2003, and if such a challenge is made, the same shall be considered without considering any objection as to limitation.
26. Hence, the following:
ORDER i. The above appeal is allowed subject to the observations made at para No.25 herein above;
ii. The judgment and decree dated 10.1.2007 passed in OS No.483/2003 by the I Additional Civil Judge (Jr.Dn), Hubli, as
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NC: 2024:KHC-D:10649 RSA No. 5422 of 2009 affirmed by the judgment dated 15.4.2009 passed in RA.No.30/2007 by the I Additional Civil Judge (Sr.Dn), Hubli, are set aside.
Sd/-
JUDGE PMP List No.: 1 Sl No.: 58/CT:GSM