Smt.Puttavva vs Yallappa S/O Ningappa Uppin
2022 Latest Caselaw 408 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 11TH DAY OF JANUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA.NO.100084/2017 (DEC)
BETWEEN


1 . SMT.PUTTAVVA
    W/O NAGAPPA BENAKANALLI,
    AGE: 41 YEARS,
    OCC: HOUSEHOLD WORK,

2 . SMT.SHARADA
    W/O YALLAPPA BENAKANALLI
    @ HATTIMAUUTR,
    AGE: 34 YEARS,
    OCC: HOUSEHOLD WORK,

   APPELLANT NOS.1 AND 2 ARE
   R/O: YALAVAGI,
   TQ: SAVANUR,
   DIST: HAVERI-581118.

                                               ... APPELLANTS
(BY SRI.N.P.VIVEKMEHTA, ADV.)


AND

1 . YALLAPPA S/O NINGAPPA UPPIN,
    AGE: 41 YEARS,
    OCC: AGRICULTURE,

2 . YALLAPPA
    S/O MALLAPPA UPPIN,
    AGE: 46 YEARS,
    OCC: AGRICULTURE,
                              2




3 . NINGAPPA
    S/O MALLAPPA UPPIN,
    AGE: 41 YEARS,
    OCC: AGRICULTURE,

4 . BASAVARAJ
    S/O MALLAPPA UPPIN,
    AGE: 36 YEARS,
    OCC: AGRICULTURE,

   RESPONDENTS ARE ALL
   R/O: YALAVAGI,
   TQ: SAVANUR,
   DIST: HAVERI-581118.

                                            ... RESPONDENTS

(BY SRI.VISHWANATH S.BICHAGATTI, ADV. FOR R1 TO R4)


     THIS APPEAL IS FILED UNDER 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DT:23.01.2016 PASSED IN R.A. NO.
9/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE,
HAVERI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DTD:20.12.2014 PASSED IN O.S. NO. 48/2009 ON THE
FILE OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
SAVANUR, DECREEING THE SUIT FILED FOR DECLARATION AND
PERMANENT INJUNCTION.



     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                     3




                             JUDGMENT

The captioned Regular Second Appeal is filed by the

unsuccessful defendants questioning the concurrent

findings of the courts below in decreeing the suit filed by

the respondents/plaintiffs declaring them to be the

absolute owners of the suit schedule property and granting

consequential relief of injunction.

2. The brief facts leading to the case are as

follows: Respondents/plaintiffs filed a suit claiming that

open space bearing VPC No.413/A1 measuring 5 guntas,

East-West 75 feet, North-South 70 feet situated at Yalavagi

village of Savanur Taluk is ancestral property. The

respondents/plaintiffs contended that the suit schedule

properties which are described as Schedule A & B in the

plaint were owned and possessed by propositus of the

plaintiffs namely, Yallappa G.Uppin. The

respondents/plaintiffs contended that propositus Yallappa

purchased the suit schedule property under a registered

sale deed dated 23.12.1945 for a sale consideration of

Rs.96/-. The respondents/plaintiffs further contended that

pursuant to acquisition of valid right and title under the

registered sale deed, the propositus Yallappa's name was

duly mutated in the revenue records under M.E.No.1322 of

Yalavagi village. After the death of Yallappa, the father of

plaintiff No.1 namely, Ningappa and father of plaintiff Nos.2

to 4 namely, Mallappa both succeeded to the properties left

behind by the propositus Yallappa.

3. Respondents/plaintiffs have further contended

that plot No.27 in Sy.No.82/A8 is totally measuring 11

guntas. The plaintiffs' ancestors together have alienated a

portion of plot No.27 measuring 4 guntas and 11¾ annas

in favour of Fakirappa Benakanahalli under a registered

sale deed dated 05.03.1970. Having sold 4 guntas 11

annas, the plaintiffs' ancestors namely, Ningappa and

Mallappa retained 6 guntas and 4 ¼ annas and therefore,

the present plaintiffs claim that even though a portion of

the suit schedule property was sold by their ancestors

under registered sale deed dated 05.03.1970, they

continued to be owners of 6 guntas 4 ¼ annas.

Respondents/plaintiffs further contended that on account of

change of jurisdiction from revenue to VPC, Village

Panchayat Yalavigi has assigned VPC No.413/A and

respondents/plaintiffs name was duly mutated to the VPC

records. The respondents/plaintiffs have further contended

that road was formed between Schedule A and B properties

and on account of formation of road, the property retained

by the respondents/plaintiffs was split into two portions.

The appellants/defendants who are not related to the

plaintiffs and who have no semblance of right and title over

Schedule A and B properties started obstructing and this

compelled the respondents/plaintiffs to seek declaration

claiming absolute ownership over the suit schedule

property and also sought consequential relief of perpetual

injunction against the appellants/defendants.

4. The appellants/defendants on receipt of

summons tendered appearance and filed written

statement. The appellants/defendants stoutly denied the

entire averments made in the plaint. Appellants/defendants

contended that the suit schedule properties originally

belonged to one Parasappa Benakanahalli and after his

death, his daughters succeeded and in the year 2007 they

have exchanged their khatas as owners and since then

appellants/defendants claim that they are in exclusive

possession and enjoyment over the suit schedule property.

5. Respondents/plaintiffs and appellants/

defendants to substantiate their respective claim have let

in ocular evidence and also produced documentary

evidence. On perusal of the same, this court would find

that Commissioner was also appointed and based on the

respective instructions given by respective parties, the

Commissioner notified the plaintiffs and defendants

and having surveyed the suit schedule property

has furnished his report at Ex.C5. The Commissioner has

also produced hand sketch which is marked as Ex.C6.

6. The trial court having assessed oral and

documentary evidence and also having taken note of the

admission given by D.Ws.2 and 3 in the cross-examination

has proceeded to answer issue Nos.1 and 2 in the

affirmative, thereby holding that respondents/plaintiffs

have succeeded in proving that they are absolute owners in

possession and enjoyment of the suit schedule property as

on the date of the suit. While dealing with issue No.2, the

trial court has recorded a categorical finding that the

evidence on record would clearly indicate that there is

interference by the appellants/defendants. While

considering issue Nos.3 and 4, the trial court has answered

the said issues in the negative.

7. Based on these set of reasoning and conclusion,

the trial court has proceeded to decree the suit. The

appellants/defendants being aggrieved by the judgment

and decree of the trial court preferred an appeal before the

first appellate court. The first appellate court on re-

appreciation of oral and documentary evidence has

independently assessed the oral and documentary evidence

on record and has come to the conclusion that the suit

property bearing VPC Nos. 413/A1 and 413/A2 are part

and parcel of Sy.No.82/A8. Referring to Exs.P3 and P4, the

first appellate court has also concurred with the finding

arrived at by the trial court and has come to the conclusion

that the respondents/plaintiffs have succeeded in

establishing their title over the suit schedule property

having parted a portion of the property by executing a

registered sale deed in favour of one Fakirappa

Benakanahalli as per Ex.P4-sale deed. The first appellate

court was also of the view that though

appellants/defendants have set up title over the suit

schedule property, however, except entry in VPC extract,

no documents are produced by the appellants/defendants

to substantiate their claim over the suit schedule property.

The first appellate court having concurred with the finding

and reasons assigned by the trial court has proceeded to

dismiss the appeal. It is against these concurrent judgment

and decree of the courts below the appellants/defendants

are before this court.

8. Heard the learned counsel for the appellants,

learned counsel for the respondents and perused the

records. I have bestowed my anxious consideration to the

reasons assigned by the courts below.

9. Respondents/plaintiffs are asserting right and

title over the suit schedule property through their ancestor

Yallappa who purchased the suit schedule property under

registered sale deed dated 23.12.1945. The

respondents/plaintiffs have also succeeded in

demonstrating that they being the legal heirs and grand

children of Yallappa have inherited the property through

their ancestor. The clinching evidence would also indicate

that plaintiffs ancestors namely, Ningappa and Mallappa

have sold the portion of the suit schedule property in

favour of one Fakirappa and have retained 4 guntas 11

annas. Ex.P4 is the sale deed in favour of grandfather of

plaintiffs herein. The respondents/plaintiffs have placed on

record consequent mutation entry as per Ex.P5. The RTC

extract as per Ex.P6 and also VPC property extract as per

Exs.P7 to P10. These documents clearly indicate that the

suit schedule property is ancestral property of the

respondents/plaintiffs family. These documents is further

corroborated by the Commissioner's report as per Ex.C5.

The Commissioner in his report has stated in unequivocal

terms that the suit schedule property is the property which

is referred in the sale deed executed in favour of

grandfather of respondents/plaintiffs. If these clinching

evidence adduced by the respondents/plaintiffs are taken

into consideration, I am of the view that both the courts

below have rightly dealt with the matter and have come to

the conclusion that the respondents/plaintiffs have

succeeded in establishing their right and title over the suit

schedule property. Though title is set up by the

appellants/defendants, there is absolutely no rebuttal

evidence led by the appellants/defendants. In that view of

the matter, I do not find any substantial question of law in

the present case on hand.

The appeal is devoid of any merits is accordingly,

dismissed.

Sd/-

JUDGE MBS/-