Smt. Sushilabai And Anr vs Smt. Basalingamma W/O ...
2021 Latest Caselaw 3324 Kant

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 15TH DAY OF SEPTEMBER 2021

                      BEFORE

      THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

       R. F. A. NO.200029 OF 2018 (DEC/INJ)

BETWEEN:

1.    SMT. SUSHILABAI
      W/O BASALINGAPPA PATIL,
      AGE:68 YEARS, OCC:AGRICULTURE,
      R/O KEMBHAVI, TQ.SHORAPUR,
      DIST.YADGIRI.

2.    SHANKARGOUDA
      S/O LINGANNAGOUDA PATIL
      AGE:66 YEARS, OCC:AGRICULTURE,
      R/O KEMBHAVI, TQ.SHORAPUR,
      DIST.YADGIRI.
                                        ...APPELLANTS
(BY SMT. SHARADA PATIL KULGERI, ADV.)

AND

SMT. BASALINGAMMA
W/O ERANNAGOUDA
D/O SIDANNAGOUDA POLICE PATIL
AGE: 20 YEARS, OCC AGRICULTURE
R/O FATTEPUR, TQ. SHORAPUR
DIST. YADGIRI - 585201
                                        ...RESPONDENT
(BY SRI. B BHIMASHANKAR, ADV.)
                                2



     THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 11.01.2018 PASSED IN
O.S.NO. 23/2017 ON THE FILE OF SENIOR CIVIL JUDGE,
SHORAPUR, WHEREIN, THE SUIT WAS DECREED WITH
COSTS.

     THIS RFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is filed challenging the judgment and

decree dated 11.01.2018, passed in O.S.No.23/2017

by the Senior Civil Judge, Shorapur.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants are the defendants and respondent is the

plaintiff before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiff filed a suit for declaration and perpetual

injunction in respect of land in Sy.No.2/1 measuring 1

guntas, totally measuring 2 acres 34 guntas (old

Sy.No.2/A) situated at Village Fathepur, Taluk

Shorapur, District Yadgir. It is the case of the plaintiff

that the plaintiff is the grand-daughter of defendant

No.1 and defendant No.2 is the natural brother of

defendant No.1. The father of plaintiff by name

Siddanagouda is the adopted son of defendant No.1.

The father of plaintiff died on 14.08.1993. After his

demise, dispute arose between the plaintiff and

defendant No.1. The plaintiff filed a suit in

O.S.No.306/1994 for partition and separate possession

on the file of Civil Judge, Shorapur, which was decreed.

Thereafter defendant No.1 preferred an appeal in

R.A.No.41/1998. Said appeal came to be allowed and

consequently the suit was dismissed. Plaintiff preferred

a second appeal before this Court in RSA No.818/2002.

During the pendency of the suit, parties amicably

settled the dispute as per family settlement deed dated

12.02.2004, and defendant No.2 is also a witness to

the said deed and matter ended in compromise. As per

the settlement deed, the suit property was allotted to

the share of plaintiff. Land to the extent of 2 acres 34

guntas towards eastern side was allotted to defendant

No.1 and accordingly on the strength of the settlement

deed, mutation was effected on 30.05.2004. It is

contended that the plaintiff is in peaceful possession

and enjoyment of suit property, without anybody's

interference, much less of defendants. It is contended

that the plaintiff is the owner in possession of the suit

property. The defendants, without having any title or

interest over the suit property and having knowledge of

earlier division of suit land as per the family settlement

deed, defendant No.1 executed a registered sale deed

dated 23.12.2015, in favour of defendant No.2 who is

her natural brother, showing wrong boundaries to the

property, more particularly towards western side, as it

is shown that land of plaintiff situated, instead of

eastern side. Soon after the knowledge of the same,

plaintiff approached the defendants and requested to

get the boundaries mentioned in the deed corrected,

but instead of doing so, they asserted the title over the

suit property stating that land towards western side

was allotted to the share of defendant No.1 in the

family arrangement and defendant No.1 is the owner of

the entire land. It is contended that on the basis of the

registered sale deed, defendants tried to interfere with

the peaceful possession and enjoyment and are trying

to dispossess the plaintiff from the suit property.

However, plaintiff resisted the illegal act of the

defendants. Hence cause of action arose to file the suit

and plaintiff filed the suit.

3.1. Defendant No.1 though appeared, did not

chose to file written statement. Defendant No.2 filed

written statement denying the averments made in the

plaint. It is denied that defendant No.1 has wrongly

executed a registered sale deed in favour of defendant

No.2. It is contended that defendant No.1 has rightly

executed registered sale deed in respect of suit land. It

is contended that the plaintiff taking undue advantage

of the old age of defendant No.1, has filed the suit to

harass the defendants. It is contended that the

defendant No.2 became the owner of suit property by

virtue of registered sale deed dated 23.12.2015, and it

is contended that as per the family settlement deed

and as per the compromise arrived between the

plaintiff and defendant No.1, defendant No.1 is the

owner and possessor of suit property and the plaintiff

has no concern over the suit property and there is no

cause of action to file the suit. Hence, prayed to

dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the plaintiff proves that the suit schedule property was allotted towards the share of plaintiff as per the RSA 818/2002?

2. Whether the plaintiff further proves that the defendants trying to interfering into the suit schedule property alleging that the 1st defendant executed registered sale deed in favour of 2nd defendant with respect of suit schedule property?

3. Whether the defendant No.2 proves that as per the family settlement deed the defendant No.1 he is in the owner and possessor of the suit schedule property?

4. Whether the plaintiff is entitle declaration and perpetual injunction as prayed?

5. What order or decree?

3.3. Plaintiff in order to prove her case, examined

herself as PW-1 and got marked Ex.P1 to P10. On the

other hand, defendant No.2 was examined as DW-1

and defendant No.1 was examined as DW-2 and no

documents were marked. The Trial Court, after hearing

both sides and considering the oral and documentary

evidence on record, held that the plaintiff has proved

that the suit schedule property was allotted to the

share of plaintiff as per RSA No.818/2002 and further

held that plaintiff has proved that defendants are trying

to interfere with the suit property alleging that the

defendant No.1 executed registered sale deed in favour

of defendant No.2 with respect of suit schedule

property and further held that defendant No.2 has

failed to prove that as per the family settlement deed,

defendant No.1 is the owner and possessor of suit

schedule property and further held that the plaintiff is

entitled for declaration and perpetual injunction and

consequently decreed the suit of the plaintiff as prayed

for.

3.4. The defendants aggrieved by the judgment

and decree passed by the Trial Court, have filed the

present appeal.

4. Heard learned counsel for the defendants and

learned counsel for the plaintiff.

5. Learned counsel for the defendants submits

that in the settlement deed, the suit property had fallen

to the share of defendant No.1 i.e., towards western

side and not towards eastern side and eastern side had

fallen to the share of plaintiff. She further submits that

though defendant No.2 has submitted an application to

the Tahsildar to survey the suit land, inspite of service

of notice, plaintiff did not turn up for the survey. She

further submits that the Trial Court has committed an

error in decreeing the suit of the plaintiff. Hence, on

these grounds, she prays to allow the appeal.

6. Per contra, learned counsel for the plaintiff

supports the impugned judgment and decree passed by

the Trial Court. Hence prayed to dismiss the appeal.

7. Perused the records and considered the

submissions made by learned counsel for the parties.

8. The points that arise for consideration in this

appeal are as under:

1. Whether the plaintiff proves that the suit schedule property was allotted to her share as per the family settlement deed dated 12.02.2004?

2. Whether the defendants prove that the judgment and decree passed by the Trial Court is arbitrary and capricious and requires interference by this Court?

9. It is the case of the plaintiff that plaintiff has

filed a suit in O.S.No.306/1994 for partition and

separate possession against the defendants. The said

suit came to be decreed by the Trial Court. Defendant

No.1 aggrieved by the judgment and decree passed in

the said suit, preferred an appeal in R.A.No.41/1998.

The First Appellate Court allowed the appeal and

reversed the judgment of the Trial Court and dismissed

the suit of the plaintiff. The plaintiff, aggrieved by the

judgment and decree passed by the First Appellate

Court, preferred a second appeal before this Court in

RSA No.818/2002. During the pendency of the said

appeal, plaintiff and defendant No.1 entered into a

compromise and accordingly executed a settlement

deed as per Ex.P1. Defendant No.2 has signed as a

attesting witness to Ex.P1, admitting its contents.

Plaintiff was examined as PW-1 and she has reiterated

the plaint averments in the examination-in-chief.

During the course of cross-examination, nothing has

been elicited in the evidence of PW-1. In rebuttal,

defendant No.2 was examined as DW-1. During the

course of cross-examination, DW-1 has admitted his

signature on Ex.P1. On perusal of Ex.P1, the western

portion of land in Sy.No.2/A (Sy.No.2/3) measuring 2

acres 34 guntas was allotted to the share of plaintiff

and eastern portion was allotted to the share of

defendant No.1. The defendants are not disputing

about the contents of Ex.P1. As per Ex.P1, defendant

No.1 is not the owner of Sy.No.2/A (Sy.No.2/3)

measuring 2 acres 34 guntas towards western side.

Defendant No.1 is the owner of land towards eastern

side. Without having a title, defendant No.1 has

executed registered sale deed in favour of defendant

No.2 on 23.12.2015, in respect of suit property.

Hence, defendant No.2 has not acquired any title over

the suit schedule property under the said registered

sale deed. Defendant No.1 is the owner of Sy.No.2/3

towards eastern side. If at all defendant No.2 has got

any grievance, defendant No.2 can get the same

rectified by executing a rectification deed.

10. In view of the above discussion, point No.1 is

answered in favour of plaintiff holding that the plaintiff

is the owner of suit schedule property and defendants

have failed to prove that the suit property has fallen to

the share of defendant No.1, as per the family

settlement deed dated 12.02.2004. Accordingly, the

Trial Court after considering the material on record,

was justified in decreeing the suit of the plaintiff.

11. As far as point No.2 is concerned, defendants

have not made out any grounds for interference by this

Court. Hence, point No.2 is answered against the

defendants.

12. Accordingly, the appeal is dismissed.

SD/-

JUDGE

RD