Karnataka High Court
Shri.Keludeppa S/O Hanumappa Jalgar vs Shri.Mallappa S/O Hanmappa Jogi on 26 June, 2024
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NC: 2024:KHC-D:8701
RSA No. 100291 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100291 OF 2018 (DEC/INJ-)
BETWEEN:
SHRI. KELUDEPPA S/O HANUMAPPA JALGAR
AGE: 54 YEARS, OCC: KSRTC DRIVER/AGRICULTURE
R/O. SARJAPUR, TQ: RON, DIST:GADAG,
NOW AT JALIHAL, TQ: BADAMI
DIST: BAGALKOT.
...APPELLANT
(BY SRI S.S.NIRANJAN, ADVOCATE FOR
SRI RAMAKRISHNA G. DHONGADI, ADVOCATE)
AND:
1. SHRI. MALLAPPA S/O HANMAPPA JOGI,
AGE: 33 YEARS, OCC: AGRICULTURE
R/O SARJAPUR, TQ: RON,
DIST: GADAG, NOW AT JALIHAL,
TQ: BADAMI, DIST: BAGALKOT,
Digitally signed
by SAROJA 2. SHRI PARASAPPA S/O HANMAPPA JOGI
HANGARAKI AGE: 40 YEARS, OCC: AGRICULTURE,
Location: HIGH R/O. SARJAPUR, TQ: RON,
COURT OF
KARNATAKA DIST: GADAG, NOW AT JALIHAL,
DHARWAD TQ: BADAMI, DIST: BAGALKOT.
BENCH ...RESPONDENTS
DHARWAD
THIS RSA IS FILED U/S. 100 OF CPC, 1908, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.2/2017 ON
THE FILE OF SENIOR CIVIL JUDGE AND JMFC, RON DATED
26.02.2018 AND SET ASIDE THE JUDGMENT AND DECREE IN
O.S.NO.230/2011 DATED 04.06.2014 PASSED BY THE CIVIL JUDGE
AND JMFC, RON AND DECREE THE SUIT OF THE PLAINTIFF
AWARDING HALF SHARE TO THE PLAINTIFF IN THE SUIT PROPERTY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:8701
RSA No. 100291 of 2018
JUDGMENT
The present second appeal is filed by the plaintiff under Section 100 of Code of Civil and Procedure, 19081 challenging the judgment and decree dated 26.02.2018 passed in R.A No.2/2017 by the Senior Civil Judge and JMFC, Ron2 and the judgment and decree dated 04.06.2014 passed in O.S No.230/2011 by the learned Principal Civil Judge and JMFC, Ron3, whereunder, the suit for partition filed by the plaintiff has been decreed granting 1/3rd share each to the plaintiff and defendants, 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) The relevant facts necessary for consideration of the present appeal are that the plaintiff filed a suit contending that he is the absolute owner of ½ share in the property bearing survey No.45/2, situated in Sarjapur village, Ron Taluk, which measures 5 acres 7 guntas and 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:8701 RSA No. 100291 of 2018 hence, he is the owner to an extent of 2 acres 23½ guntas. That the defendants owned the other ½ share by virtue of a family partition. That the plaintiff was in possession of the eastern side and defendants are in possession of the western side, but no boundaries have been fixed. That when the plaintiff approached the defendants to measure the respective portions and fix the boundaries, since the same was not accepted by the defendants and they started interfering with his possession of the property, the plaintiff filed a suit for declaration and consequential relief of injunction and also prayed for granting of ½ share along with separate possession.
4) The defendants entered appearance in the suit and contested the case of the plaintiff. It is contended by the defendants that the property belongs to the propositus Hanamappa, who had three children i.e., defendants No.1 and 2 (Parasappa and Mallappa) and Bylappa. That, since Hanamappa had developed bad habits, the elders of the village, to protect his family property, got executed a Gift -4- NC: 2024:KHC-D:8701 RSA No. 100291 of 2018 deed in the name of his children i.e., defendants No.1 and 2, and since Bylappa was a minor, the name of Dyamavva was shown as the minor guardian. That by taking advantage of her name appearing in the Gift deed, her name was also entered in the RTC extracts to the suit property along with the names of the children of Hanamappa. However, it is contended that since there was a condition of non-alienation, the Gift deed was a void document and the defendants are the absolute owners of the suit property. Hence, the defendants filed a counterclaim seeking to declare that they are the absolute owners of the suit property with consequential relief of injunction against the plaintiff.
5) To the counterclaim filed by the defendants, the plaintiff filed a rejoinder stating that the only daughter of Dyamavva is the mother of the plaintiff and hence, he has ½ share in the suit property. That the counterclaim of the defendants is barred by limitation.
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NC: 2024:KHC-D:8701 RSA No. 100291 of 2018
6) Consequent to the pleadings of the parties, the Trial Court framed the following issues and additional issues:
ISSUES i. "Whether the plaintiff proves that he is the absolute owner of suit schedule property?
ii. Whether the plaintiff further proves that he is in lawful possession and enjoyment of the suit schedule property?
iii. Whether the plaintiff further proves that defendants are illegally interfering in his peaceful possession and enjoyment over the suit schedule property?
iv. Whether the suit is bad for non-joinder of necessary parties?
v. Whether the defendants prove that they are the absolute owners of the counterclaim property bearing R.S No.45/2 measuring 5 acre 7 guntas?
vi. Whether the defendants prove that they are in lawful possession and enjoyment of the suit schedule property?
vii. Whether the defendants further prove that the plaintiff is interfering in their peaceful -6- NC: 2024:KHC-D:8701 RSA No. 100291 of 2018 possession and enjoyment over the counterclaim property?
viii. Who is entitled for what relief?
ix. What order or decree?
ADDITIONAL ISSUE i. Whether the plaintiff proves that the counterclaim of the defendants is barred by law of limitation?"
7) The plaintiff examined himself as PW.1. Ex.P1 to Ex.P9 have been marked in evidence. The defendant No.1 examined himself as DW.1. Ex.D1 to Ex.D3 have been marked in evidence.
8) The Trial Court by its judgment and decree dated 04.06.2014, decreed the suit and granted 1/3rd share to the plaintiff and 2/3rd share to the defendants jointly.
9) Being aggrieved, the plaintiff preferred R.A No.2/2017. The defendants entered appearance before the First Appellate Court and contested the said proceedings.
The First Appellate Court framed the following points for consideration:
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NC: 2024:KHC-D:8701 RSA No. 100291 of 2018 i. "Whether the Trial Court has committed an error by ignoring the principles of natural justice, and by not properly appreciating the evidence placed on record in a judicious manner, came to the wrong conclusion in connection with the case of the appellant?
ii. Whether the impugned judgment and decree calls for the interference by this Court?
iii. What order or decree?"
10) The First Appellate Court by its judgment and decree dated 26.02.2018, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.
11) Learned counsel for the appellant contends that the plaintiff is in actual possession of 2 acres 23 ½ guntas out of 5 acres 9 guntas of the suit property and hence, entitled for ½ share in the suit property. He further contended that both the Courts have concurrently erred in awarding 1/3rd share to the plaintiff. Hence, he seeks for -8- NC: 2024:KHC-D:8701 RSA No. 100291 of 2018 allowing of the appeal and granting of the reliefs sought for.
12) The submissions of the learned counsel for the appellant have been considered and material on record has been perused.
13) It is forthcoming that both the Courts have recorded a concurrent finding that vide Gift deed (Ex.P9), the suit property has been gifted by Hanamappa in favour of Smt.Dyamavva and his children Mallappa and Parasappa. That both the Courts have concurrently noticed the Mutation Registration No.6/2007-08 and 2009-2010 (Ex.P6 and Ex.P7) and that the total extent of the suit property stands in the joint names of the plaintiff and the defendants.
14) In Ex.P6, mode of acquisition of the property has been mentioned as pavati and in Ex.P7, mode of acquisition of property has been mentioned as ancestral.
The death certificate of Hanamappa Parasappa Jogi (Ex.P3) reveals that he died on 02.10.1976 and the death -9- NC: 2024:KHC-D:8701 RSA No. 100291 of 2018 certificate of Dyamavva Bailappa Jogi (Ex.P4) reveals that she died on 27.04.1990. The records produced by the defendants also demonstrate that the revenue records in respect to the suit property stood in the name of Hanamappa Parasappa Jogi. It has been held that, since the Gift deed (Ex.P9) has been executed more than 30 years prior to the suit and there is no material to discard/disbelieve the same and also having regard to the fact that the revenue records stand jointly in the name of the plaintiff and defendants No.1 to 3.
15) The Trial Court has rightly awarded 1/3rd share to the plaintiff and 2/3rd share to the defendants jointly. The First Appellate Court upon a re-appreciation of the oral and documentary evidence on record, has recorded a finding that the plaintiffs and the defendants are entitled to 1/3rd share each in the suit property and dismissed the appeal filed by the plaintiff.
16) The appellant has failed in demonstrating that the appellant/plaintiff is entitled to ½ share and that the share
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NC: 2024:KHC-D:8701 RSA No. 100291 of 2018 awarded by the Trial Court and the First Appellate Court to the plaintiff of an extent of 1/3rd is contrary to any specific, oral or documentary evidence on record.
17) In view of the aforementioned, the appellant has failed in demonstrating that any substantial question of law arises for consideration in the above appeal. Hence, the above appeal is dismissed as being devoid of merit at the stage of admission itself.
18) In view of the dismissal of the above appeal, I.A No.1/2018 for stay is also dismissed.
Sd/-
JUDGE pmp CT:GSM List No.: 1 Sl No.: 39