Karnataka High Court
Iholeppa Rajappa Pawar vs Sharavva W/O.Ishwarappa Angadi on 1 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 01ST DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.100079 OF 2014 (DEC & INJ)
BETWEEN
1. THOLEPPA RAJAPPA PAWAR
SINCE DECEASED BY LRS.,
1A. AMBAVVA W/O. LATE THOLEPPA GORE,
AGE: 59 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1B. RENAVVA W/O. KALKAPPA YALABUCHI,
AGE: 38 YEARS, DAUGHTER,
R/O. SHIVAJI PETH, GAJENDRAGAD,
RON, GADAG, 582114.
1C. PARASAPPA S/O.THOLEPPA GORA,
AGE: 35 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1D. HANUMANTHAPPA
S/O. THOLEPPA GORA,
AGE: 36 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1E. MALKAPPA S/O. THOLEPPA GORA,
AGE: 34 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1F. BHIMAPPA S/O. THOLEPPA GORA,
2
AGE: 25 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1G. RATNAVVA D/O.THOLEPPA GORA,
AGE: 15 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1H. RAJAPPA S/O. THOLEPPA GORA,
AGE: 10 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1I. AKSHATA D/O. THOLEPPA GORA,
AGE: 5 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
APPELLANTS 1(G) TO 1(I) ARE MINORS REPRESENTED BY
APPELLANT NO.1(A) AS MINOR GUARDIAN.
2. DAVALAPPA RAJAPPA PAWAR
AGE: 50 YEARS,
R/O. GAJENDRAGAD ,
TQ: RON, DIST: GADAG- 583101.
3. LAXMAN RAJAPPA PAWAR
AGE: 48 YEARS,
R/O. GAJENDRAGAD ,
TQ: RON, DIST: GADAG-583101.
4. PARASAPPA RAJAPPA PAWAR
AGE: 45 YEARS,
R/O. GAJENDRAGAD ,
TQ: RON, DIST: GADAG-583101.
5. YAMANAVVA W/O. RAJAPPA PAWAR
AGE: 85 YEARS,
R/O. GAJENDRAGAD ,
TQ: RON, DIST: GADAG -583101.
...APPELLANTS
3
(BY SRI. DEEPAK C MAGANUR, ADV., FOR A1(A TO I);
SRI. CHANDRASHEKHAR P PATIL, ADV., FOR A1(G TO I))
AND
1. SHARAVVA W/O.ISHWARAPPA ANGADI
AGE: MAJOR,
OCC: AGRICULTURE
R/O. GAJENDRAGADM, TQ: RON
DIST: GADAG
2. SHARANAPPA ISHWARAPPA ANGADI
SINCE DECEASED BY HIS LRS
2A. SHWETHA W/O. AMARESH HALAVAGALI
AGE: 30 YEARS,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
2B. SHILPA SIDDALINGAESH SHETTAR
AGE: 27 YEARS,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
2C. VEERESH SHARANAPPA ANGADI
AGE: 18 YEARS,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
3. DODDABASAPPA ISHWARAPPA ANGADI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
4. VEERAPPA ISHWARAPPA ANGADI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
5. SHREESHAILAPPA ISHWARAPPA ANGADI
SINCE DECEASED BY HIS LRS
5A. KAVITHA W/O. SHREESHAILAPPA ANGADI
4
AGE: 73 YEARS, OCC: AGRICULTURE
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
5B. KAVYA SHREESHAILAPPA ANGADI
AGE: 21 YEARS, OCC: AGRICULTURE,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
5C. KARTHIK SHREESHAILAPPA ANGADI
AGE: 18 YEARS, OCC: AGRICULTURE,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
6. BASAVARAJ ISHWARAPPA ANGADI
AGE: MAJOR, OCC: AGRICULTURE
R/O. GAJENDRAGAD,
TQ:RON, DIST: GADAG-583101.
7. MANJUNATH ISHWARAPPA ANGADI
AGE: MAJOR, OCC: AGRICULTURE
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
8. MANJULA D/O. ISHWARAPPA ANGADI
AGE: MAJOR, OCC:HOUSEHOLD WORK
R/O. GAJENDRAGAD,
TQ: RON, DIST: GADAG-583101.
9. SMT. GANGAVVA
W/O. JAGADISHAPPA DUDAGI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. HUNAGUND, DIST: BAGALKOT
NOW AT NAVANAGAR, GAJENDRAGAD,
TQ: RON, DIST: GADAG-583101.
10. SMT. SHARANAVVA W/O. AMARESHAPPA
MADASHIRVAR @ BALIGAR
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. SINDHANOOR, DIST: RAICHUR,
PIN: 583227.
11. SMT. BABI W/O. MUTTAPPA KUDARI
5
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. GAJENDRAGAD,
TQ: RON, DIST: GADAG-583101.
12. RAJAVVA
W/O. SHANTAPPA MAREPPANAVAR
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. GAJENDRAGAD
TQ: RON, DIST: GADAG-583101.
13. DURAGAVVA
W/O. RAMCHDRAPPA JADHAV
AGE: MAJOR,
OCC: HOUSEHOLD WORK
R/O. GAJENDRAGAD
TQ: RON, DIST: GADAG-583101.
14. BALAVVA W/O.TIRUPATEPPA DODDAMANI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. GAJENDRAGAD
TQ: RON, DIST: GADAG-583101.
...RESPONDENTS
(BY SRI. B S KADIBAGIL, ADV., FOR R1, R2A & R2C, R3, R4, R5A
TO R5C, R6 TO R8;
R2B, R10 TO R14 - NOTICE SERVED UNREPRESENTED;
R9- SERVICE HELD SUFFICIENT)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE JUDGEMENT & DECREE DATED 21.12.2013 PASSED IN
R.A.NO.8/2006 BY THE SENIOR CIVIL JUDGE, RON, INSOFAR
HOLDING THAT THE BARE SUIT FOR DECLARATION WITHOUT
SEEKING POSSESSION OF THE SUIT PROPERTY NOT
MAINTAINABLE PARTLY REVERSING THE JUDGMENT AND DECREE
DATED 25.01.2006 PASSED BY THE LEARNED CIVIL JUDGE (JR.DN)
AND JMFC, RON IN O.S.NO.517/1995 AND DECREE THE SUIT OF
THE PLAINTIFF AS PRAYED FOR ALLOWING THIS APPEAL, IN THE
INTEREST OF JUSTICE AND EQUITY.
6
THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful
plaintiffs, who are questioning the concurrent judgment
and decree of the courts below wherein suit filed by
present appellants/plaintiffs seeking relief of declaration
and consequential relief of permanent injunction is
dismissed by both the Courts below.
2. The facts leading to the case are as under:
The subject matter of the second appeal is an
agricultural land measuring 2 acres 20 guntas in Survey
No.290/1 which was totally measuring 5 acres. The suit
land is the southern portion of survey No.290/1. The
appellants/plaintiffs have filed a suit by specifically
contending that the suit land is jointly owned and
possessed by the plaintiffs and defendant No.2. The
appellants/plaintiffs claimed that there is no partition
between the plaintiffs and defendant No.2. It is also
contended that suit land was Saranjam Inal Land and it
was regranted by the Authority to defendant No.2. They
also contended that in 1981, suit land was converted into
a new tenure. The appellants/plaintiffs have further
contended that their father sold half share to one
Raghunathsa Babusa Raibagi for repayment of loan. The
alienation was for family necessity. The half portion which
was sold was the northern portion and therefore, they
claim that remaining half portion which is on the southern
side is in joint possession of the plaintiffs and defendant
No.2. The appellants/plaintiffs further pleaded that
defendant No.2 was addicted to vices and therefore,
defendant No.1 has entered into collusive decree in
O.S.No.12/1988, which was passed on 31.01.1981
thereby admitting the right and title of original defendant
No.1 in the suit land. The appellants/plaintiffs have
specifically pleaded that original defendant No.1 had no
semblance of right in the suit schedule property and
taking advantage of bad vices of defendant No.2, he has
created an agreement to sale in 1973 and has come up
with a false suit in O.S.No.12/1988 asserting that he has
perfected his title by way of adverse possession. It is on
these grounds, the appellants/plaintiffs have filed present
suit for declaration by contending that the suit schedule
properties are joint family properties and therefore, have
claimed that the decree passed in O.S.No.12/1988 is
collusive decree.
3. Per contra, the original defendant No.1, on
receipt of summons, contested the proceedings. It is
relevant to note that defendant No.2 who entered into
compromise with defendant No.1 did not chose to contest
the proceedings and he was placed ex-parte. Pending
suit, defendant No.1 died and his legal heirs were brought
on record. Defendant No.1C filed written statement and
stoutly denied the entire averments made in the plaint.
Defendant No.1C has specifically contended that the suit
land is self-acquired property of defendant No.2 and
same was regranted to defendant No.2 in his individual
capacity. Therefore, defendant No.1C took a contention
that the present appellants have no semblance of right
and title over the suit schedule property and therefore,
have no locus-standi to question the lawful compromise
arrived at between the original defendant No.1 and
defendant No.2 in O.S.No.12/1988. Defendant No.1C
further contended that defendant No.2 has agreed to sell
suit land in favour of their ancestor i.e., defendant No.1
for sale consideration of Rs.9,500/- on 02.05.1973 and
they received earnest amount of Rs.8,000/- and in view
of the compromise recorded in O.S.No.12/1988,
defendant No.2 received balance consideration and has
entered into compromise thereby admitting the title of
the deceased defendant No.1 in O.S.No.12/1988.
Defendant No.1C also contended that the present
appellants have executed consent deed on 30.01.1988
admitting that the suit land is self-acquired property of
defendant No.2. On this set of defence, the legal
representatives of defendant No.1 sought for dismissal of
the suit by contending that even otherwise the present
suit filed after lapse of seven years is barred by time and
therefore, also pressed for dismissal of the suit as barred
by time.
4. The trail Court having assessed the oral and
documentary evidence on record answered issue No.1 in
negative by holding that the present appellants-plaintiffs
have failed to prove that the suit schedule property is
joint family ancestral property and while dealing with
issue No.2 has also recorded a finding that the
appellants/plaintiffs have failed to prove that defendant
No.1 has obtained a collusive decree in O.S.12/1988.
While examining Issue No.3 relating to limitation, Trial
Court has perused the date of compromise and has come
to conclusion that the present suit is squarely hit by
article 58 of the Limitation Act and has proceeded to
dismiss the suit as barred by limitation. The said
judgment and decree of the Trial Court was assailed in
appeal by appellants/plaintiffs in RA No. 8/2006. The
Appellate Court having independently assessed the
judgment and decree of the Trial Court has also come to
conclusion that the relief sought by appellants/plaintiffs is
barred by limitation. The appellate Court was also of the
view that the appellants/plaintiffs have miserably failed to
prove that the decree passed in O.S.No.12/1988 was a
collusive decree between the defendant No.1 and
defendant No.2. On these set of reasonings the First
Appellate Court has proceeded to dismiss the appeal.
5. It is against this concurrent judgment and
decree of the Courts below the present appellants are
before this Court.
6. On perusal of the judgment under challenge
this Court would find that the appellants/plaintiffs have
stated that their father had already sold half share in
agricultural land bearing Survey No.290/1, which was
infact totally measuring 5 acres. In view of alienation, the
suit land which is situated in southern side is assigned
survey No.290/1B measuring 2 acres 20 guntas. If
appellants'/plaintiffs' father has already alienated the
northern half share in favour of one Raghunathsa Babusa
Raibagi, then this Court would find that prima-facie the
appellants/plaintiffs have no locus-standi to question the
compromise decree passed in O.S.12/1988. The
appellants'/plaintiffs' contention is that the land was
Saranjam Inam land and it was regranted to defendant
No.2 in the capacity of a manager and therefore, the re-
grant enure to the family of appellants/plaintiffs and the
family of defendant No.2. Even if this contention is
accepted and the regrant was infact not in individual
capacity of defendant no.2, from the admitted set of facts
in the pleadings, which is culled out in the judgment of
the Trial Court, this Court would find that the father of
the plaintiffs has already sold his half share to one
Raghunathsa Babusa Raibagi. I have examined the sketch
which is annexed with the plaint. Even in the sketch, the
plaintiffs have clearly admitted that the northern portion
measuring 2 acre 20 guntas was sold by the plaintiffs'
father. If this material aspect is taken into consideration,
then the contention of the appellants/plaintiffs that they
continued to be in joint possession in the remaining
extent along with defendant No.2 cannot be acceded to.
If their father has already sold out half portion, then they
cannot assert and further claim right in remaining half
share, which was owned by defendant No.2. Both the
courts below have meticulously examined the clinching
evidence on record coupled with Ex.D1, which is a
consent deed executed by the present appellants/
plaintiffs admitting the terms of compromise decree. The
present appellants are estoped from further claiming a
share in the southern portion which is present suit land.
The legal representatives of defendant No.1 have
examined DW3, who is a witness to the consent deed and
has withstood test of cross-examination. He has
categorically deposed in ocular evidence that in his
presence, appellants 1 to 4 have signed the consent
deed. The respondents/defendants have also examined
DW4 and DW5 to indicate that the legal representatives
of defendant No.1 are in exclusive possession. Coupled
with this, if compromise decree is also looked into, both
the Courts have come to the conclusion that pursuant to
compromise decree passed in O.S.No.12/1988,
possession was handed over to defendant No.1 by
defendant No.2.
7. If appellants/plaintiffs have no semblance of
right in the remaining half share, which is owned by
defendant No.2, then both the Courts were justified in
holding that the appellants/plaintiffs have failed to prove
that the compromise decree arrived at between
defendant No.1 and defendant No.2 in O.S.No.12/1988 is
not proved to be a collusive decree. One more relevant
aspect which needs to be examined in the present case
on hand is appellants/plaintiffs having approached the
Court by specifically alleging that the compromise decree
passed in O.S.No.12/1988 is a collusive, were required to
enter the witness box to lead evidence. Both the Courts
have taken judicial note of this fact that
appellants/plaintiffs have not chosen to enter the witness
box. On the contrary, they have prosecuted the present
suit by leading evidence through GPA Holder. This factual
aspect also goes against the claim of appellants/plaintiffs,
who have not chosen to enter the witness box. Both the
courts were justified in drawing adverse inference against
the present appellants/plaintiffs.
8. In regard to limitation, admittedly, the consent
deed was executed by appellants/plaintiffs on
30.01.1988. Both the Courts have concurrently held that
respondents/defendants have succeeded in proving the
execution of consent deed by the present appellants. The
clinching evidence on record clearly demonstrates that
the appellants/plaintiffs admitted the terms of
compromise decree and consequently executed a consent
deed in favour of defendant No.1. If this consent deed
was executed on 30.01.1988, then both the Courts were
justified in answering issue No.3 relating to limitation in
affirmative by recording a categorical finding that suit
filed in the year 1995 is barred by limitation in terms of
Article 58 of the Limitation Act. The concurrent findings
recorded by the Courts below clearly establish that the
appellants/plaintiffs have no locus-standi to question the
decree passed in O.S.No.12/1988. Even otherwise, the
prayer sought in the present plaint cannot be entertained
as the relief claimed is barred by limitation in terms of
Article 58 of the Limitation Act. No substantial question of
law is involved in the present appeal. Accordingly, the
appeal being devoid of merits is hereby dismissed.
9. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are dismissed accordingly.
SD/-
JUDGE
YAN
