Shivappa S/O Basappa Tarihal vs Chidambar Yallappa Tarihal
2022 Latest Caselaw 572 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 13TH DAY OF JANUARY 2022

                         BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.5652/2013 (DEC/INJ)

BETWEEN

SHIVAPPA
S/O BASAPPA TARIHAL
AGE: 36 YEARS,
OCC: AGRICLUTURIST,
R/O.RAMAPUR SITE,
SAUNDATTI,
TQ: SAUNDATTI,
DIST: BELAGUM,
PINCODE: 591126.
                                             ... APPELLANT

(BY SRI NARAYAN V YAJI, ADV.)

AND

1.     CHIDAMBAR YALLAPPA TARIHAL
       SINCE DIED BY HIS LRS.,

1(A)   SMT.AYALAMMA
       W/O CHIDAMBAR TARIHAL,
       AGE AKBOUT 65 YEARS,
       OCC: HOUSEHOLD WORK,
       R/O.RAMAPUR SITE,
       SAUNDATTI,
       TQ: SAUNDATTI,
       DIST: BELGAUM.
       PINCODE: 591126.

2.     YALLAPPA
       S/O CHIDAMBAR TARIHAL
       AGE: 50 YEARS,
       OCC: AGRICULTURIST,
       R/O RAMAPUR SITE,
                            2




     SAUNDATTI,
     TQ: SAUNDATTI,
     DIST: BELGAUM,
     PINCODE: 591126.

3.   SURESH
     S/O CHIDAMBAR TARIHAL,
     AGE: 35 YEARS,
     OCC: AGRICULTURIST,
     R/O.RAMAPUR SITE,
     SAUNDATTI,
     TQ: SAUNDATTI,
     DIST: BELGAUM,
     PINCODE: 591126.

4.   SMT.AKKAVVA
     W/O RAMAPPA GADAD,
     AGE: 33 YEARS,
     OCC: HOUSEHOLD,
     R/O.NEGINAHAL,
     TQ: BAILHONGAL,
     DIST: BELGAUM,
     PINCODE: 591102.

5.   SMT.SIDDAMMA
     W/O ASHOK PAGAD,
     AGE: 31 YEARS,
     OCC: HOUSEHOLD,
     R/O.BASARAKOD,
     TQ: BAILHONGAL,
     DIST: BELGAUM,
     PINCODE: 591102.
                                         ... RESPONDENTS

(BY SRI J.S.SHETTY AND ANAND C.DESAI ADV.)

      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 15.04.2013 IN
R.A.NO.13/2012, AS IT IS ILLEGAL AND CONSEQUENTLY
CONFIRM THE JUDGMENT AND DECREE PASSED BY THE
LEARNED CIVIL JUDGE AND J.M.F.C SOUNDATTI IN
O.S.NO.177/2008 DATED 25.09.2012

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




                     : JUDGMENT :

Though this appeal is listed for admission, with

the consent of learned counsel appearing for both the

parties, the same is taken up for final disposal.

2. The captioned second appeal is filed by

defendant questioning the divergent findings of the

Courts below only in regard to relief of injunction is

concerned.

3. Facts leading to the above said case are as

follows.

The respondents/plaintiffs filed a suit for

declaration and injunction by specifically contending

that the suit schedule property is joint family ancestral

property and that the alleged relinquishment deed

dated 18.06.1999 executed by plaintiff No.1 in favour

of defendants is null and void and not binding on the

plaintiffs and by way of consequential relief sought

perpetual injunction against the defendant restraining

them from alienating the suit schedule property.

4. Respondents/plaintiffs in support of their

contention examined plaintiff No.2 as PW.1 and

produced two documents vide Exs.P.1 and P.2. The

present appellant/defendant in support of his

contention examined himself as DW.1 and produced

documentary evidence vide Exs.D.1 to 9.

5. The Trial Court having assessed the oral

and documentary evidence, answered Issue Nos.1 & 2

in the affirmative by holding that respondents/

plaintiffs have succeeded in proving that the suit

schedule property is the joint family ancestral

property and that the relinquishment deed executed

by their ancestor namely Chidambar in favour of

defendants is not binding on their share. However,

Trial Court while examining the Issue Nos.3 to 5 was

of the view that respondents/plaintiffs have failed to

establish that they are in lawful possession and

therefore the Trial Court was of the view that if the

respondents/plaintiffs are not in possession, suit filed

for declaration and consequential relief of injunction is

not at all maintainable and the same is hit by Section

34 of the Specific Relief Act, 1963.

6. Being aggrieved by the judgment and

decree of the Trial Court, the respondents/plaintiffs

preferred an appeal before the Senior Civil Judge,

Saundatti. The Appellate Court on appreciation of oral

and documentary evidence has independently

examined the cross-examination of DW.1. Having

meticulously examined the cross-examination of

DW.1, the Appellate Court found that the defendants

has admitted in unequivocal terms that his father and

plaintiff Nos.1 continued to be in joint possession even

as on 2003-2004. Therefore, the Appellate Court was

of the view that there is absolutely no clinching

evidence led in by the appellant/defendant to indicate

that his father was in exclusive possession during his

life time. On these set of reasonings, the Appellate

Court reversed the findings recorded by the Trial

Court on Issue Nos.3 to 5 and has allowed the appeal

and decreed the suit by recording a finding that the

suit schedule property is joint family ancestral

property and alleged relinquishment deed dated

18.06.1999 executed by plaintiff No.1 would not bind

on the shares of plaintiff Nos.2 to 5 and unless there

is a plea of ouster and evidence to indicate that the

other plaintiffs were also ousted from joint possession,

the respondents/plaintiffs are entitled for

consequential relief of injunction. On these set of

reasoning the appeal is allowed and suit is decreed.

7. It is against these divergent findings on

Issue Nos.3 to 5, the appellant/defendant is before

this Court.

        8.    Heard       learned        counsel         for      the

appellant/defendant         and        learned        counsel     for

respondents/plaintiffs.          Perused        the      judgments

rendered by the Courts below.

9. On perusal of the materials on record, this

Court would find that the suit property is admittedly

joint family ancestral property. The

appellant/defendant has contended that, the 1st

respondent has executed a relinquishment deed on

18.06.1999 and therefore has relinquished half share

in the suit schedule property. Both the Courts have

concurrently held that the suit schedule property is

coparcenery property. If that is so, then plaintiff Nos.2

to 5, who are not signatories to the relinquishment

deed would not lose their rights in the suit schedule

property. Plaintiff Nos.2 to 5 being the sons and

daughters of Chidambar Yellappa Tarihal (plaintiff

No.1) are coparceners and have got independent

right. Admittedly the parties are governed under

Bombay School of Law. Therefore, plaintiff No.1(A)

also is entitled for equal share on par with husband

and children, in the event there is a partition.

Therefore, the relinquishment deed executed by

husband of respondent No.1(A) and father of

respondent Nos.2 to 5 would not bind on plaintiff

Nos.2 to 5 as they have independent share in the suit

schedule property.

2. If respondent Nos.2 to 5 are coparceners

even if relinquishment deed is executed by the 1st

plaintiff, the respondent/defendant based on

relinquishment deed cannot claim exclusive possession

as the relinquishment deed executed by plaintiff No.1

would not bind their legitimate share. There is

absolutely no evidence indicating that pursuant to

relinquishment deed, plaintiff Nos.2 to 5 are also

ousted. There is absolutely no rebuttal evidence in

that regard. If plaintiff Nos.2 to 5 are coparceners and

admittedly the property is the coparcenery property,

defendant cannot assert exclusive possession and

therefore respondents/plaintiffs have rightly sought

consequential relief of injunction to restrain the

appellant/defendant from alienating the suit schedule

property. The Appellate Court has rightly assessed oral

and documentary evidence on record independently

and has rightly come to conclusion that respondent

Nos.2 to 5 are in joint possession. If the suit schedule

property is joint family ancestral property and if the

present appellant and respondents are in joint

possession, I do not find any infirmities in the

judgment and decree passed by the Appellate Court.

No substantial question of law arises. The appeal is

devoid of merits accordingly the same stands

dismissed.

Sd/-

JUDGE EM