Karnataka High Court
M.Sakrappa S/O. Kotrappa vs N.Mangalamma W/O. Basappa on 17 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.5846/2013 (DEC)
BETWEEN
M.SAKRAPPA S/O. KOTRAPPA
SINCE DECEASED BY HIS LRS
1. N.BASAMMA W/O. SAKRAPPA
AGE: 66 YEARS, OCC:HOUSEHOLD WORK
2. N. KOTRESHI S/O. SAKRAPPA
AGE: 40 YEARS, OCC: AGRICULTURE
3. N.MANJUNATH S/O. SAKRAPPA
AGE: 37 YEARS, OCC: AGRICULTURE
4. N. PARAMESH S/O. SAKRAPPA
AGE: 33 YEARS, OCC: AGRICULTURE
5. N. SHIVAKUMAR S/O. SAKRAPPA
AGE: 29 YEARS, OCC: AGRICULTURE
ALL ARE R/O. THIMALAPUR VILLAGE HOSPET,
DIST: BELLARY
... APPELLANTS
(BY SRI.GANGADHAR S.HOSAKERI, ADV.)
AND
1. N.MANGALAMMA W/O. BASAPPA
AGE: 48 YEARS,
OCC: AGRICULTURE
2
2. BASAPPA S/O. KOTRAPPA
AGE: 62 YEARS,
BOTH ARE R/O. KECHINABANDI VILLAGE H B HALLI,
DIST: BELLARY NOW AT BELLARY
... RESPONDENTS
(BY SRI.T.HANUMAREDDY, ADV. FOR R1 & R2)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC SEEKING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE PRL.
SENIOR CIVIL JUDGE, HOSPET DATED 28.06.2013 PASSED IN
R.A.NO.57/2012 IN DISMISSING THE APPEAL FILED BY THE
APPELLANTS CONFIRMING THE JUDGMENT AND DECREE DATED
17.08.2012 IN O.S.NO.68/2007 BY THE ADDL.CIVIL JUDGE (JR.DN.)
H.B.HALLI, AND DISMISS THE SUIT OF THE PLAINTIFF.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned regular second appeal is filed by the
defendants questioning the concurrent finding of the courts
below in decreeing the suit filed by respondents-plaintiffs
declaring plaintiffs as absolute owners and in possession of
the suit schedule property and the present appellants-
defendants are restrained by an order of perpetual
injunction.
2. Brief facts of the case are that:
Plaintiff No.2 and deceased No.1 are full brothers. It
is not in dispute that this property is owned by plaintiff
No.1's father i.e., property was owned by father-in-law
plaintiff No.2. Therefore, the property under dispute is not
the joint family ancestral property of plaintiff No.2 and
deceased defendant No.1. Now let me refer to the facts of
the present case on hand.
3. The respondents-plaintiffs filed suit for
declaration and injunction by claiming that erstwhile owner
namely, Siddalingappa who is the father of plaintiff No.1
and father-in-law of plaintiff No.2 has bequeathed land
bearing Sy.No.154/B under registered Will in favor of the
plaintiffs. Therefore, respondents-plaintiffs claim that they
are absolute owners and they are in exclusive possession
of the suit schedule property. Respondents/plaintiffs
further contended that after the death of their father, they
have acquired right and title on the basis of Will executed
by said Siddalingappa. Therefore, they claimed that they
are in exclusive possession and enjoyment over the suit
schedule property. Respondents-Plaintiffs further
contended that appellants-defendants have no manner of
right and title in respect of the suit schedule property.
4. It is claimed that the deceased sole defendant,
who is the brother of plaintiff No.2, got his name mutated
to the revenue records to an extent of 4 acre 80 cents and
the said mutation is illegal and not binding on plaintiffs.
Since defendant got his name mutated to the revenue
records highhandedly and behind the back of plaintiffs, the
present suit is filed seeking relief of declaration and
consequential relief of injunction.
5. On receipt of summons, the original defendant
contested the proceedings by filing written statement and
specifically denied the title of the plaintiffs over the suit
property. The defendant contended that the plaintiffs have
voluntarily executed partition deed in favour of defendant
for the purpose of raising loan to develop land and
therefore, mutation is effected in the name of original
defendant in respect of 4 acre 80 cents and therefore,
sought for dismissal of the suit.
6. The Trial Court having examined the registered
Will dated 20.03.1984 executed by the father of plaintiff
No.1, has come to conclusion that Siddalingappa i.e.,
father of plaintiff No.1 was the owner of the suit property
and during his lifetime has bequeathed the suit land in
favour of plaintiffs 1 and 2 jointly. Having examined Ex.P1,
the Trial Court was of the view that the father of plaintiff
No.1 viz., Siddalingappa had no male issues and plaintiff
No.1 being his sole daughter, out of love and affection, has
bequeathed the suit property in favour of his daughter and
son-in-law i.e., plaintiff No.2. Therefore, placing reliance on
Ex.P1, the Trial Court has come to the conclusion that in
terms of bequeath made by Siddalingappa, plaintiffs 1 and
2 have succeeded to the suit land as absolute owners.
Though the defendants have claimed that the suit property
was partitioned between plaintiff No.2 and deceased sole
defendant, however on perusal of the records, the Court
found that the mutation is effected in the absence of any
registered document. Though defendants claimed that
there is a partition deed, however by way of rebuttal
evidence, defendants have not chosen to produce any
documentary evidence. On these set of reasons, the Trial
Court has proceeded to dismiss the suit in its entirety
holding that the plaintiffs are absolute owners, in lawful
possession and enjoyment of the suit property and
therefore, the defendants were restrained by way of
perpetual injunction from interfering with plaintiffs'
peaceful possession and enjoyment over the suit property.
The said judgment is confirmed by the First Appellate Court
in R.A.No.57/2012.
7. Heard the learned counsel for the appellants-
defendants and the learned counsel for the respondents-
plaintiffs. Perused the judgment under challenge.
8. The suit property was admittedly owned by one
Siddalingappa, who is none other than the father of plaintiff
No.1. The said Siddalingappa has bequeathed the suit land
under registered Will dated 20.03.1984 as per Ex.P1 in
favour of plaintiff No.1. If this property was owned by the
father of plaintiff No.1, then this court is of the view that
both the Courts below were justified in declaring the
plaintiffs as absolute owners based on Ex.P1-Will and were
justified in consequently issuing perpetual injunction
against the defendants. If the property was owned by the
father of plaintiff No.1, then the contention of the
defendants that there was family partition and in the said
partition, the defendant was allotted 4 acre 80 cents,
cannot be accepted. Therefore, both the Courts have
rightly declared the plaintiffs as absolute owners of the suit
property and have not accepted the contention of the
defendants. The property in question is not a joint family
property of plaintiff No.2 and the defendant. In fact, the
suit property was owned by the father-in-law of plaintiff
No.2. If this aspect is taken into consideration, there
cannot be a partition between two brothers in respect of
property, which is not owned by their family. If plaintiff
No.2 has succeeded on the basis of a Will, which was
executed by his father-in-law, it is his absolute property
and he has succeeded along with his wife. Therefore, there
is no question of there being a partition between plaintiff
No.2 and sole defendant. Even otherwise, to substantiate
their claim, the defendants have not produced the partition
deed. In that view of the matter, both the courts were
justified in decreeing the suit and the concurrent findings
recorded by the Courts below would not warrant
interference by this Court in an appeal filed under Section
100 of CPC. Accordingly, the appeal being devoid of merits
stands 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
MBS/YAN/-
