Karnataka High Court
M Jambanna S/O. Late ... vs M Maribasamma on 15 February, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.100474 OF 2014(DEC/INJ)
BETWEEN:
M.JAMBANNA, S/O LATE VEERABHADRAPPA,
AGED ABOUT 52 YEARS, AGRICULTURIST,
R/O SIDIGINAMOLA VILLAGE,
BELLARY TQ & DIST-583129.
...APPELLANT
(BY SRI.B.CHIDANANDA, ADV.)
AND:
SMT.M.MARIBASAMMA
W/O B.GURUNATH, AGED ABOUT 38 YEARS,
R/O GADEKAL VILLAGE,
VIDUPANAKAL MANDALAM,
ANANTHAPURA DIST, A.P STATE-515870
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 03.02.2012 MADE IN O.S.NO.445/2006, PASSED BY THE
LEARNED III ADDL.SENIOR CIVIL JUDGE, BELLARY, AND ALSO THE
JUDGMENT DECREE DATED 30TH APRIL 2014, MADE IN R.A.NO.28/2012.
PASSED BY THE LEARNED PRL.CIVIL JUDGE, IN THE INTEREST OF
JUSTICE AND EQUITY AND FURTHER TO DECREE THAE SUIT IN THE ENDS
OF JUSTICE AND EQUITY.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
2
JUDGMENT
The captioned second appeal is filed by unsuccessful
plaintiff who has questioned the concurrent judgments and
decrees of the Courts below wherein the suit filed the
appellant-defendant seeking perpetual injunction against
respondent-defendant is dismissed by both the Courts below,
whereas the counter claim filed by respondent-defendant
seeking the relief of declaration is allowed declaring
respondent-defendant as the absolute owner of the suit
schedule property.
2. For the sake of convenience, the parties are
referred to as per their rank before the trial Court.
3. The facts leading to the case are as under:
The plaintiff filed a bare suit for injunction in
O.S.No.445/2006. The plaintiff contended that defendant is
the daughter of one M. Karibasappa. The defendant's father
was the absolute owner in possession and enjoyment over the
suit schedule property bearing Survey No.103 totally
measuring 2 acres 98 cents. The plaintiff claims that
defendant's father executed a settlement deed in favour
plaintiff on 27.4.1996 and thereby transferred title over the
suit schedule property. On these set of pleadings, the plaintiff
claimed that since the date of execution of settlement deed,
he is in peaceful possession and enjoyment over the plaint
schedule property. The defendant, on the ground that she is
the daughter of said M. Karibasappa, is trying to interfere with
his peaceful possession, sought for perpetual injunction
against the defendant.
4. On receipt of suit summons, the defendant
contested the proceedings and stoutly denied the entire
averments made in the plaint. The defendant claimed that
she is the only daughter of late M. Karibasappa and her
mother Smt. Papamma died on 31.12.1998. Her father M.
Karibasappa died intestate on 21.3.2004 leaving behind the
defendant as the sole Class-I heir. She further specifically
contended that her father was the absolute owner and after
his death she has inherited the suit schedule property as a
Class-I heir and that she is in exclusive possession and
enjoyment over the suit schedule property. She further
contended that the plaintiff is her cousin brother and stoutly
denied the alleged settlement deed as set up by plaintiff and
further alleged that settlement deed dated 27.4.1996 is not
genuine and not an authenticated document.
5. The trial Court having assessed ocular and
documentary evidence answered issue Nos.1 to 3 in the
negative. The trial Court having meticulously examined the
material on record has come to the conclusion that the plaintiff
has failed to prove his lawful possession over the suit schedule
property and has also failed to prove the alleged interference
as claimed in the plaint. While answering additional Issue
No.1, the trial Court having taken note of Ex.P9 was of the
view that the plaintiff cannot assert right and title based on an
unregistered document. The trial Court was of the view that
on account of non-registration of document, the plaintiff
cannot assert title over the suit schedule property and also
cannot claim possession. In view of admitted set of facts and
relationship, the trial Court was of the view that the defendant
being the only daughter of M. Karibasappa has succeeded to
the suit schedule property by way of inheritance and
accordingly, proceeded to answer additional Issue No.1 in
favour of defendant. Consequently, the suit filed by plaintiff
was dismissed and counter claim was allowed declaring the
defendant as the absolute owner of the suit schedule property.
6. Feeling aggrieved by the judgment and decree of
the trial Court, plaintiff preferred only one appeal questioning
the judgment and decree passed in O.S.No.445/2006.
7. The appellate Court having independently assessed
the oral and documentary evidence has also examined Ex.P9
and having examined the same, which is the settlement deed,
was of the view that it is an unregistered document and
therefore, the plaintiff would not acquire any right and title
based on an unregistered document. The appellate Court was
also of the view that Ex.P9 has no legal sanctity and therefore,
on these set of reasoning, concurred with the findings and
conclusions arrived at by the trial Court. The appellate Court
also found that defendant was entitled for the relief sought in
the counter claim and therefore, found that the trial Court was
justified in declaring the defendant as the absolute owner and
in possession of the suit schedule property.
8. It is against these concurrent judgments and
decrees of the Courts below, the present second appeal is
preferred by the plaintiff.
9. Heard the learned counsel for appellant-plaintiff
and perused the judgments under challenge.
10. On examination of the material on record, this
Court wound find that the plaintiff is asserting right and title
on the basis of alleged settlement deed executed by the father
of defendant. From the material on record, it is also borne out
that the relationship of defendant with M. Karibasappa is not
at all disputed. The plaintiff having claimed right and title
over the suit schedule property, was required to prove the
same by producing cogent and clinching evidence to establish
his lawful possession pursuant to the settlement deed
executed by father of defendant. However, both the Courts
have held that the plaintiff would not acquire any right and
title on the basis ofan unregistered document.Ex.P9, which is
the settlement deed is an unregistered document and
therefore, there is no valid transfer of right and title and the
plaintiff cannot assert right and title over the suit schedule
property. Both the Courts have concurrently held the plaintiff
has failed to prove his lawful possession and enjoyment over
the suit schedule property. The suit filed by the plaintiff is
dismissed by both the Courts below.
11. One more relevant aspect, which has to be taken
into consideration is that even otherwise the claim of plaintiff
cannot be examined in the present case on hand as the
plaintiff has not chosen to challenge the judgment and decree
passed by the trial Court on the counter claim. While allowing
the counter claim, the trial Court has recorded a categorical
finding that defendant has succeeded in establishing her right
over the suit schedule property. By allowing the counter
claim, the trial Court has declared the defendant as the
absolute owner of the suit schedule property. The judgment
and decree passed in the counter claim is not at all challenged
by the plaintiff. In the absence of challenge to the judgment
and decree passed on the counter claim, it is a futile exercise
and the plaintiff cannot succeed in the present appeal as he
has accepted the judgment and decree of the trial Court on
the counter claim. In that view of the matter, I do not find
any infirmities or illegalities in the judgments rendered by the
Courts below. No substantial question of law arises.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
*alb/-
