Nagappa S/O. Shivarudrappa ... vs Mahadevappa S/O. Duddappa ...
2022 Latest Caselaw 1183 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 27TH DAY OF JANUARY 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.S.A.NO.5404/2013 (DEC)

BETWEEN

1.    NAGAPPA
      S/O SHIVARUDRAPPA HONDAD,
      AGE : 57 YEARS,
      OCC: AGRICULTURE,
      R/O VADENPUR,
      TQ: HIREKERUR,
      DIST: HAVERI-581116.

2.    RUDRAPPA
      S/O SHIVARUDRAPPA HONDAD,
      AGE : 47 YEARS,
      OCC: AGRICULTURE,
      R/O VADENPUR,
      TQ: HIREKERUR,
      DIST: HAVERI-581116.

3.    MALLESHAPPA
      S/O SHIVARUDRAPPA HONDAD,
      AGE : 47 YEARS,
      OCC: AGRICULTURE,
      R/O VADENPUR,
      TQ: HIREKERUR,
      DIST: HAVERI-581116.
                                          ... APPELLANTS
(BY SRI AVINASH BANAKAR, ADV.)

AND
                             2




1. MAHADEVAPPA
   S/O SHIVARUDRAPPA HONDAD,
   AGE : 49 YEARS,
   OCC: GENERAL STORES,
   R/O VADENPUR,
   TQ: HIREKERUR,
   DIST: HAVERI-581116.

2. PARAMESHWARAPPA
   S/O DUDDAPPA HULLALAD,
   AGE : 37 YEARS,
   OCC: GENERAL STORES,
   R/O VADENPUR,
   TQ: HIREKERUR,
   DIST: HAVERI-581116.
                                        ... RESPONDENTS
(BY SRI P.G.MOGALI FOR R.2)
(NOTICE TO RESPONDENT NO.2 : DISPENSED WITH)

     THIS APPEAL IS FILED UNDER SECTION 100 OF THE

CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS COURT TO

SET ASIDE THE JUDGMENT AND DECREE DATED 23.03.2013

PASSED IN R.A.NO.30/2011 BY THE SENIOR CIVIL JUDGE &

JMFC, HIREKERUR AND THE JUDGMENT AND DECREE DATED

17.02.2007 PASSED IN O.S.NO.140/1999 BY THE CIVIL JUDGE

(JR.DN.) AND JMFC, HIREKERUR AND PRAYED FOR DECREE THE

SUIT OF THE PLAINTIFFS IN THE INTEREST OF JUSTICE AND

EQUITY.


     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,

THE COURT DELIVERED THE FOLLOWING:
                                    3




                         : JUDGMENT :

The captioned second appeal is filed by

unsuccessful plaintiffs who are questioning the

concurrent judgments and decree of the Courts below

in dismissing the suit filed by them.

2. Facts leading to the above said case are as

follows:

The appellants/plaintiffs have filed a suit for

declaration and for consequential relief of perpetual

injunction by contending that one Mallappa is the

propositus and he died in the year 1963. The

appellants/plaintiffs further contended that, the said

Mallappa had two wives namely Smt.Erawwa (1st wife)

and Smt.Maradewwa (2nd wife). Through Erawwa,

Mallappa had two sons namely Shivarudrappa and

Erabhadrappa. The appellants/plaintiffs contended

that, they are the sons of Shivarudrappa. The

appellants/plaintiffs further contended that, through

Maradewwa, Mallappa had three daughters namely

Gangawwa, Virupaxawwa and Basawwa. The

appellants/plaintiffs contended that, the present

defendants are the sons of second daughter namely

Virupaxawwa. The appellants/plaintiffs further

contended that the suit land bearing Sy.No.95/2

totally measured 17 acres 33 guntas. They further

contended that the propositus Mallappa under the

influence of his second wife Maradewwa, got allotted 5

acres of land towards maintenance. Accordingly,

mutation was effected under M.E.No.282 dated

27.12.1941. The appellants/plaintiffs further

specifically contended that Maradewwa was never in

possession of the alleged 5 acres, which was allotted

to her towards her maintenance. The appellants/

plaintiffs have specifically denied that Maradewwa was

cultivating the suit land. The appellants/plaintiffs have

further contended that the respondents/defendants on

the basis of concocted sale deed executed by

Maradewwa got their names mutated in the revenue

records and are obstructing appellants' peaceful

possession and enjoyment over the suit schedule

property measuring 6 acres 17 guntas. In the

alternative, the appellants/plaintiffs contended that

even if Maradewwa was allotted 5 acres towards her

maintenance, however she had no right to alienate 6

acres 17 guntas of land. Therefore, the

appellants/plaintiffs contended that the respondents/

defendants cannot claim title in excess of 5 acres.

Therefore, they sought relief of injunction over 1 acre

17 guntas in the suit schedule property.

3. Per contra, respondents/defendants have

filed written statement and stoutly denied the entire

averments made in the Plaint. The respondents/

defendants contended that their grandmother

Maradewwa has executed a registered sale deed

thereby selling 6 acres 17 guntas. They have

contended that after allotment of 5 acres there was

survey and while conducting durasti work the

authorities found that the property which was allotted

to Maradewwa in fact measures 6 acres 17 guntas.

Accordingly, mutation came to be effected under

M.E.No.390 and therefore the property which was

allotted to Maradewwa, extent was rightly shown as 6

acres 17 guntas. The respondents/defendants also

contended that when a varadhi was submitted by

respondents/defendants to mutate their names based

on the sale deed, the same was objected by father of

the appellants/plaintiffs. The revenue authorities

having rejected the objections proceeded to mutate

the names of respondents/defendants way back in the

year 1970. Therefore, respondents/defendants

contended that the present suit is barred by limitation

and the same is liable to be dismissed.

4. By way of counter claim, respondents/

defendants also contended that the suit property was

allotted to Maredewwa towards her maintenance and

therefore as per the provisions of Section 14 of Hindu

Succession Act, Maradewwa become the absolute

owner and during her life time she has sold the suit

property under a registered sale deed and therefore

the respondents/defendants claim that they are

absolute owners and they are in exclusive possession.

5. The Trial Court having assessed oral and

documentary evidence, while dealing with Issue No.9

has come to conclusion that the present suit filed by

appellants/plaintiffs seeking declaration and

consequential relief of injunction is barred by time.

While answering Issue Nos.2 to 5, the Trial Court has

answered the said issues in the negative and has

recorded a finding that the appellants/plaintiffs have

failed to prove that the Maradewwa had no authority

to execute sale deed in favour of defendants and

therefore refused to grant relief of declaration to

declare the sale deed executed by Maradewwa in

favour of respondents/defendants as null and void. On

these set of reasonings the Trial Court proceeded to

dismiss the suit.

6. Feeling aggrieved by the same, the

appellants/plaintiffs preferred an appeal before the

Appellate Court in R.A.No.30/2011. The Appellate

Court having re-appreciated the oral and documentary

evidence on record independently, has concurred with

the findings of the Trial Court. The Appellate Court has

taken note of categorical admissions given by PW.1

who has admitted that excluding 6 acres 17 guntas,

their family has effected partition in the remaining

extent. Therefore, the Appellate Court on re-

appreciation of materials on record has also come to

conclusion that it presupposes that the

appellants/plaintiffs while effecting partition in the

remaining extent have consciously excluded 6 acres

17 guntas. The Appellate Court on re-appreciation of

material on record has also come to conclusion that

the appellants/plaintiffs have failed to establish their

lawful possession in respect of 1 acre 17 guntas. On

these set of reasonings, the Appellate Court has

dismissed the appeal. It is against this concurrent

judgments and decree of the Courts below, the

appellants/plaintiffs are before this Court.

7. Heard learned counsel appearing for the

appellants/plaintiffs and learned counsel appearing for

the respondents/defendants. Perused the judgments

under challenge and also records.

8. Though the appellants/plaintiffs initially

disputed the title of Maradewwa, however, in the later

part of plaint and during trial have conceded that

Maradewwa acquired right title to an extent of 5 acres.

Their main contention was when only 5 acres was

allotted to Maradewwa, she had no authority to

alienate 6 acres 17 gutnas of land in Sy.No.95/2B and

therefore they contend that even if Maradewwa has

executed a sale deed in favour of respondents/

defendants, they would acquire valid right and title

only to an extent of 5 acres and not 6 acres 17

guntas.

9. This Court has to examine as to whether

the appellants/plaintiffs have questioned the sale deed

immediately. On perusal of materials on record, this

Court would find that father of appellants/plaintiffs did

object the mutation by filing objection. Therefore,

there were mutation proceedings way back in the year

1970. The contention of the appellants/plaintiffs was

that the respondents/defendants cannot claim right

and title as Maradewwa had no right and title over the

suit schedule property. In the year 1970, the

appellants' father had in fact denied the title of

Maradewwa. Overruling the objections raised by the

father of appellants/plaintiffs mutation was effected.

Therefore if respondents/defendants names were duly

mutated in the terms of sale deed dated 09.10.1969

executed by Maradewwa to an extent of 6 acres 17

guntas, it was incumbent on the part of the appellants'

father and appellants to challenge the sale deed within

three years as contemplated under Article 58 of the

Limitation Act. The present suit is filed in the year

1998. Therefore, the suit filed by the appellant

questioning the sale deed dated 09.10.1969 is

hopelessly barred by limitation.

10. The materials on record would also indicate

that the appellants/plaintiffs have accepted the title of

respondents/defendants to an extent of 6 acres 17

guntas. It is elicited in the cross-examination that the

appellants/plaintiffs excluding 6 acres 17 guntas have

partitioned the remaining extent in Sy.No.95/2B. The

partition is effected within the family members of

appellants/plaintiffs excluding 6 acres 17 guntas, this

presupposes that the title and possession of

respondents/defendants to an extent of 6 acres 17

guntas, is in fact admitted by the appellants/plaintiffs.

11. The materials on record would also indicate

that pursuant to allotment of 5 acres in favour of

Maradewwa, way back in the year 1941, a survey was

carried and in the said survey it was found that

Maradewwa was in fact in possession of 6 acres 17

guntas. Therefore, based on durasti work, the

authorities have rightly mutated the name of

Maradewwa to an extent of 6 acres 17 guntas under

M.E.No.390. This mutation is also not challenged by

the father of appellants/plaintiffs or the present

appellants/plaintiffs. Both the Courts have

concurrently held that Maradewwa acquired valid right

and title pursuant to allotment of suit land in lieu of

her maintenance. It is a trite law that any property

allotted to a Hindu female towards her maintenance

which is a pre-existing right would blossom under

Section 14(1) of Hindu Succession Act and she would

become absolute owner of the property allotted

towards her maintenance. Therefore, the title has

validly passed on to respondents/defendants who are

none other than the grandchildren of Maradewwa.

12. Therefore, the judgments and decree

passed by the Courts below are in accordance with

law. No substantial question of law arises. The appeal

is devoid of merits and accordingly the same stands

dismissed.

Sd/-

JUDGE EM