Karnataka High Court
Waman S/O Appanna Panchal And Ors vs Kishanrao S/O Vithalrao Died Through ... on 27 June, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2024:KHC-K:4380
RSA No. 7207 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
REGULAR SECOND APPEAL NO. 7207 OF 2013 (DEC)
BETWEEN:
1. WAMAN S/O APPANNA PANCHAL,
AGED ABOUT 57 YEARS,
OCC: GOLDSMITH & CARPENTER,
2. KISHAN S/O APPANNA PANCHAL,
AGED ABOUT 49 YEARS,
OCC: CARPENTER,
3. MOHAN S/O APPANNA PANCHAL,
AGED ABOUT 44 YEARS,
OCC: CARPENTER,
Digitally
signed by
SHILPA R
ALL R/O. VILLAGE BHOSAGA,
TENIHALLI TQ: BASAVAKALYAN, DIST: BIDAR.
Location:
HIGH ...PETITIONERS
COURT OF
KARNATAKA
(BY SRI K. M. GHATE, ADVOCATE)
AND:
1. KISHANRAO S/O VITHALRAO
DIED THROUGH HIS LRS
A. GULYABAI
W/O LATE KISHANRAO PATIL,
AGED ABOUT 54 YEARS,
OCC. HOUSEHOLD,
-2-
NC: 2024:KHC-K:4380
RSA No. 7207 of 2013
R/O. BHOSGA VILLAGE,
TQ: BASAVAKALYAN, DIST: BIDAR.
B. SUNITA W/O RAM SALUNKE,
AGED ABOUT 37 YEARS,
OCC: HOUSEHOLD,
R/O. VILLAGE KASARE ASHTA,
TQ: LOHARA, DIST: OSMANABAD,
MAHARASTRA.
...RESPONDENTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF THE CPC PRAYING TO
ALLOW ABOVE REGULAR SECOND APPEAL AND SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE DATED 13.03.2013
PASSED BY CIVIL JUDGE (SR.DN.) AT BASAVAKALYAN, IN
R.A.NO.12 OF 2010, CONFIRMING THE JUDGMENT AND
DECREE DATED 23.01.2010, IN O.S.NO.54/2001 PASSED BY
CIVIL JUDGE (JR.DN.) BASAVAKALYAN.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs have preferred this regular second appeal under Section 100 of Code of Civil Procedure with a prayer to set-aside the judgment and decree dated 23.01.2010 passed in O.S.No.54/2001 by the Court of the Civil Judge (Jr.Dn.) and JMFC, Basavkalyan and the judgment and decree dated 13.03.2013 passed in -3- NC: 2024:KHC-K:4380 RSA No. 7207 of 2013 R.A.No.12/2010 by the Court of the Senior Civil Judge, Basavakalyan.
2. Heard the learned counsel for the parties.
3. The plaintiffs had filed O.S.No.54/2001 before the Court of the Civil Judge (Jr.Dn.) at Basavkalyan seeking a decree of declaration of ownership over the suit schedule property and also for consequential relief of perpetual injunction.
4. In the plaint, it was contended by the plaintiffs that the their father was the exclusive owner in possession of the suit schedule property which consists of a house bearing Grampanchayat No.23, measuring east-west 36 feet and north-south 48 feet situate at Ward No.1 of Bhosga Village, Basavkalyan Taluk. After the death of their father, plaintiffs had succeeded to the suit schedule property in which a hut with zinc sheet also existed. The defendants are unsocial element tried to interfere and obstruct the possession and enjoyment of the suit schedule property by the plaintiffs and it is in this -4- NC: 2024:KHC-K:4380 RSA No. 7207 of 2013 background, they had approached the Court seeking necessary relief against the defendant.
5. The defendant had filed written statement on their behalf denying the plaint averments and contended that the suit was filed only with an intention to grab the portion of his house bearing Grampanchayat No.1-17 which is wrongly shown as the suit schedule property bearing No.1-23. It was denied that the father of the plaintiffs was the owner in possession of the suit schedule property. It was contended that the defendant and his brother were the owners in possession of the suit schedule property and the plaintiffs had no title, right or interest over the same. It was further contended that taking advantage of the entry made in the revenue records in the name of the father, the plaintiffs have filed the suit making a false claim against the property of the defendant.
6. On the basis of the rival pleadings the Trial Court had framed as many as eight issues and in order to substantiate their case plaintiffs had examined three -5- NC: 2024:KHC-K:4380 RSA No. 7207 of 2013 witnesses as PW.1 to PW.3 and got marked 11 documents as Ex.P-1 to Ex.P-11. On behalf of the defendant, three witnesses were examined as DW.1 to DW.3 and 11 documents marked as Ex.D-1 to Ex.D-11. The Trial Court thereafter heard the arguments addressed on both sides and vide impugned judgment and decree dated 23.01.2010 dismissed the suit of the plaintiffs.
7. Being aggrieved by the same, the plaintiffs had filed R.A.No.12/2010 before the Court of the Senior Civil Judge at Basavkalyan and the said appeal was dismissed on 13.03.2013. Aggrieved by the concurrent findings recorded by the Courts below the plaintiffs are before this Court.
8. This Court had admitted this appeal on 24.09.2013 without framing any substantial question of law. Therefore, by order dated 20.06.2024 for the reasons stated in the said order this Court had called upon the counsel for the appellants to point out the substantial -6- NC: 2024:KHC-K:4380 RSA No. 7207 of 2013 questions of law that arises for consideration in this appeal.
9. Learned counsel for the appellants having reiterated the grounds urged in the appeal memorandum submits that the documents at annexures Ex.P-1 to Ex.P-4 would clearly demonstrate that the father of the plaintiffs was the owner of the suit schedule property. He submits that the oral and documentary evidence clearly demonstrate that plaintiffs' father and after him, the plaintiffs were in possession of the suit schedule property and therefore, the Trial Court ought to have declared the title of the plaintiffs based on the possession of the suit schedule property by the plaintiffs and also Ex.P-1 to Ex.P-
4. He submits that the substantial questions of law that arise for consideration in this appeal are :
1) Whether the Courts below were justified in ignoring Ex.P-1 to Ex.P-4 which demonstrates that the plaintiffs' father was the owner of the suit schedule property ?-7-
NC: 2024:KHC-K:4380 RSA No. 7207 of 2013
2) Whether the Courts below were justified in dismissing the suit though the plaintiffs had established their title over the property by virtue of continuous possession over the same?
10. In support of his arguments, he has placed reliance on the judgment of the Coordinate Bench of this Court in the case of Smt.Jayamma Venkatram and another vs. Smt.Ashraf Jahan Begum and another1.
11. It is the specific case of the plaintiffs that the father of the plaintiffs was the lawful owner in possession of the suit schedule property bearing Grampanchayat No.1-23. According to the plaintiffs, the suit schedule property consists of an ancestral house of the plaintiffs wherein a hut with zinc sheet existed which was being used by the plaintiffs to tie and feed fodder to their cattle. Plaintiff No.1 examined himself as PW.1 and two other witnesses were examined on behalf of plaintiffs as PW.2 and PW.3. Documents produced by the plaintiffs in support 1 2020 (5) Kar.K.J 235 -8- NC: 2024:KHC-K:4380 RSA No. 7207 of 2013 of their case are the revenue records of the suit property and also certain tax paid receipts. No title document of the suit schedule property was produced by the plaintiffs.
12. The defendants on the other hand have contended that the suit schedule property belongs to them and the same bears panchayat house No.1-17 and the boundaries of the suit schedule property tallies with the property bearing panchayat House No.1-17. The tax paid receipts produced by the plaintiffs at Ex.P-5, Ex.P-6, Ex.P-9 and Ex.P-10 are relating to the house No.1-35 and not to the suit schedule property bearing No.1-23. Ex.P-1 is the assessment register of the property bearing House No.2-23. The boundary of the said property is not mentioned in the said document. Ex.P-11 is for mutation proposal and perusal of the same would go to show that it was neither sanctioned nor rejected by the competent authority. The defendant also produced Ex.D-1 which is a map issued by the competent authority and perusal of the same would go to show that the boundary of the suit -9- NC: 2024:KHC-K:4380 RSA No. 7207 of 2013 schedule property, if compared with the map Ex.D-1 would go to show that the suit schedule property bears house No.1-17 and not house No.1-23. In the cross-examination of PW.1, it is admitted that there is a lane towards the southern side and thereafter the house of the defendant bearing No.1-16 exists adjacent to House bearing No.1-17, House No.1-16, House No.1-18 and House No.1-19 are found in the map Ex.D.1. From a reading of the cross- examination of PW.1 along with Ex.D-1, it is evident that the boundaries shown in the suit schedule property relates to house bearing No.1-17 and not to house bearing No.1-
23.
13. Though the plaintiffs have categorically stated that there is a cattle shed existing in the suit property, but during the course of cross-examination PW.1 has admitted that no such cattle shed exists in the suit schedule property. PW.-1 has also admitted the boundaries of the written statement schedule properties which relates to property bearing House No.1-17.
- 10 -
NC: 2024:KHC-K:4380 RSA No. 7207 of 2013
14. The Trial Court as well as the Appellate Court have held that the description of the suit schedule property has been wrongly given by the plaintiffs and they have failed to prove that they are the absolute owners in possession of the suit schedule property.
15. Having regard to the oral evidence placed on record by the defendants which is in line with the contention of the defendants in their written statement and also the map Ex.D-1 issued by the competent authority, I am of the opinion that the Courts below were justified in not placing reliance on Ex.P-1 to Ex.P-4 documents produced by the plaintiffs in support of their prayer made in the plaint. The plaintiffs have also failed to prove that they and their father were in continuous possession of the suit schedule property. On the other hand, the defendants have proved that the suit schedule property is in their possession and the contention raised by the defendants in their written statement has been proved by the evidence of DW.1 which is corroborated by
- 11 -
NC: 2024:KHC-K:4380 RSA No. 7207 of 2013 the evidence of DW.2 and DW.3. Since the plaintiffs have failed to prove that they are in possession of the suit schedule property, the Courts below have rightly dismissed their suit for declaration of their title based on a stray entry made in the revenue records which stands in the name of their father. Therefore, I am of the view that no substantial question of law arises for consideration in this appeal as sought to be contended by the learned counsel for the appellants.
16. It is trite that unless any substantial question of law arises for consideration in a regular second appeal the same cannot be entertained and in exercise of powers under Section 100 of Code of Civil Procedure the concurrent findings of fact recorded by the Courts below cannot be interfered with. Since the plaintiffs have failed to prove their possession over the suit schedule property the judgment in the case of Smt.Jayamma Venkataram (supra) on which the reliance was placed by the learned Advocate in support of his arguments cannot be made
- 12 -
NC: 2024:KHC-K:4380 RSA No. 7207 of 2013 applicable to the present case. Under the circumstances, I do not find any merit in this regular second appeal, accordingly, the same is dismissed.
Sd/-
JUDGE sn List No.: 2 Sl No.: 1