Shivagouda Lagamanna Hulagabali vs Annappa Bandu Kempawad
2022 Latest Caselaw 853 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 19TH DAY OF JANUARY 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

     REGULAR SECOND APPEAL NO. 5893 OF 2013 (DEC & INJ)

BETWEEN

       SHIVAGOUDA LAGAMANNA HULAGABALI
       SINCE DECEASED BY HIS LRS

1.     SMT. GANGAWWA
       W/O. SHIVAGOUDA HULAGABALI
       AGE: 62 YEARS,
       OCC: AGRICULTURE
       R/O. KRISHNA KITTUR -591 303
       TQ: ATHANI, DIST: BELGAUM

2.     PEERAGOUDA SHIVAGOUDA HULAGABALI
       AGE: 40 YEARS
       OCC: AGRICULTURE
       R/O.KRISHNA KITTUR-591 303,
       TQ: ATHANI, DIST: BELGAUM

3.     RAYAGOUDA SHIVAGOUDA HULAGABALI
       AGE: 36 YEARS,
       OCC: AGRICULTURE
       R/O. KRISHNA KITTUR-591 303,
       TQ: ATHANI, DIST: BELGAUM

4.     SIDRAM SHIVAGOUDA HULAGABALI
       AGE: 30 YEARS,
       OCC: AGRICULTURE
       R/O. KRISHNA KITTUR -591 303
       TQ: ATHANI, DIST: BELGAUM
                             2




5.   BASAGOUDA LAGAMANNA HULAGABALI
     AGE: 56 YEARS,
     OCC: AGRICULTURE,
     R/O. KRISHNA KITTUR -591 303
     TQ: ATHANI, DIST: BELGAUM

6.   CHANNAPPA LAGAMANNA HULAGABALI
     AGE: 58 YEARS,
     OCC: AGRICULTURE,
     R/O. KRISHNA KITTUR -591 303,
     TQ: ATHANI, DIST: BELGAUM

7.   MAHALING LAGAMANNA HULAGABALI
     AGE: 49 YEARS,
     OCC: AGRICULTURE,
     R/O. KRISHNA KITTUR -591 303,
     TQ: ATHANI, DIST: BELGAUM

8.   AVVANNA LAGAMANNA HULAGABALI
     AGE: 48 YEARS,
     OCC: AGRICULTURE,
     R/O. KRISHNA KITTUR -591 303,
     TQ: ATHANI, DIST: BELGAUM

9.   BALAPPA RAMAGOUDA HULAGABALI
     AGE: 46 YEARS,
     OCC: AGRICULTURE,
     R/O. KRISHNA KITTUR -591 303,
     TQ: ATHANI, DIST: BELGAUM
                                            ... APPELLANTS

(BY SRI. ABHISHEK C. PATIL, SRI. AKSHAY A KATTI AND
SRI. ANAND ASHTEKAR, ADVOCATES)

AND
1.  ANNAPPA BANDU KEMPAWAD
    AGE: 53 YEARS,
    OCC: AGRICULTURE
    R/O. AINAPUR-591 303,
    TQ: ATHANI, DIST: BELGAUM
                                  3




2.    SHARAVVA
      W/O. RAMAGOUDA HULAGABALI
      AGE: 61 YEARS,
      OCC: AGRICULTURE,
      R/O. KRISHNA KITTUR-591 303,
      TQ: ATHANI, DIST: BELGAUM

                                                      ...RESPONDENTS

      THIS RSA IS FILED U/O. XLII RULE 1 R/W SEC. 100 OF
CPC   1908,   AGAINST    THE     JUDGEMENT      &     DECREE      DATED
09.10.2013 PASSED IN R.A.NO.11/2008 ON THE FILE OF THE VII
ADDITIONAL DISTRICRT & SESSIONS JUDGE, BELGAUM AT
CHIKODI,    DISMISSING     THE    APPEAL,     FILED     AGAINST     THE
JUDGMENT AND DECREE DATED 10.12.2007 AND THE DECREE
PASSED IN O.S. NO.92/1989 ON THE FILE OF THE CIVIL JUDGE
& CIVIL JUDGE (SR.DN), ATHANI, DECREEING THE SUIT FILED
FOR DECLARATION AND INJUNCTION.

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

                           JUDGMENT

The respondent No.1-plaintiff filed a suit for

declaration and injunction in O.S.No.92/1989.

Respondent No.1-plaintiff contended that he has

purchased the suit property bearing Survey No.179/1

measuring 8 acres 12 guntas, which was originally owned

by one Kashinath Narayan Kudavekar and he sold it to

one Rayappa Bhimappa Halagbali under registered sale

deed dated 07.05.1951. Respondent No.1-plaintiff further

contended that Rayappa had three sons by name

Muttappa, Mallappa and Appasaheb and after the death of

Rayappa, his children's names were duly mutated in the

revenue records. The respondent No.1-plaintiff further

contended that he purchased the property from Muttappa

and his son under registered sale deed dated 13.04.1981

and his name was duly mutated in the revenue records.

2. The respondent No.1-plaintiff further

contended that his vendor-Rayappa had a brother by

name Lagamanna and Lagamanna's children are

defendants in the present suit. It is further stated that

Bhimappa owned Survey No.178/2 and 201/1.

Respondent No.1-plaintiff has also contended that

Bhimappa was in fact the head of the family and he was

managing the affairs of the family and Rayappa was in

fact residing separately from Bhimappa and Lagamanna.

It is the specific contention of respondent No.1-plaintiff

that property purchased by Rayappa on 07.05.1951 was

his self-acquired property and therefore, defendants'

branch has no semblance of right in the present suit land.

Appellants-defendants falsely laid a claim by contending

that they have got half share in the suit land. This

compelled the respondent No.1-plaitniff in filing present

suit in O.S.No.92/1989. The Trial Court on appreciation of

oral and documentary evidence, answered issue No.2 in

affirmative by holding that the respondent No.1-plaintiff

has established his right and title pursuant to registered

sale deed dated 13.04.1981 and he has also proved that

he is in lawful possession and enjoyment of the suit land.

While answering issue No.3, the Trial Court recorded a

categorical finding that appellants-defendants have failed

to prove that they have got half share in the suit

schedule property. The present appellants preferred an

appeal before the First Appellate Court in

R.A.No.11/2008. The First Appellate Court on

reappreciation of oral and documentary evidence,

concurred with the findings of the Trial Court and has

proceeded to dismiss the appeal. It is these concurrent

judgments, which are under challenge by the appellants-

defendants.

3. Learned counsel appearing for the appellants-

defendants would vehemently argue and contend before

this Court that the clinching evidence on record would

clearly establish that the suit schedule property is a joint

family ancestral property and therefore, he would submit

to this Court that the concurrent finding of the Courts

below in negativing issue No.3 suffers from perversity.

Placing reliance on Ex.D13, he would submit to this Court

that half share in suit schedule property was in fact

allotted to Lagamanna. Therefore, by placing reliance on

Ex.D13 coupled with the Court Commissioner's report at

Ex.D10, he would submit to this Court that these two

documents would clearly establish that the suit land is in

fact divided into two strips.

4. Heard the learned counsel appearing for

appellants. Perused the judgment under challenge.

5. I have also given my anxious consideration to

the records of the Courts below. The appellants-

defendants are asserting that in a family partition,

southern side land was allotted in favour of Lagamanna.

The Trial Court having meticulously examined Ex.D13 has

discredited Ex.D13 on the ground that it is totally

damaged and therefore, no credence can be attached to

Ex.D13. The Trial Court has also taken judicial note of the

fact that the plaintiff, who is examined as PW1, has

seriously disputed due execution of Ex.D13. It is also

noted by the Trial Court that the witnesses to the said

document at Ex.D13 are also not examined. The bond

papers, which are utilized to pen down the alleged terms

and conditions as per Ex.D13 were also not purchased by

Muttappa. It is forthcoming that the stamp papers were

purchased by one M. N. Shetakar on behalf of

Lagamanna. Therefore, both the Courts below have not

given any credence to the said document, which is set up

by the defendant. The other strong ground to discard

Ex.D13 by both the Courts below is that there is no

reference in regard to other survey numbers i.e. Survey

No.178/2 and 201/1. Both the Courts below having

meticulously examined the material on record, have come

to the conclusion that there was a partition within the

family i.e. more particularly between Lagamanna and

Muttappa in respect of properties bearing Survey

Nos.178/2 and 201/1 and this partition is of the year

1975. Both the courts below have also taken cognizance

of the fact that the plaintiff admits in his evidence the

partition between Lagamanna and sons of Rayappa

during the year 1975. Therefore, if there was a partition

in the year 1975, the disputed document at Ex.D13 which

is of the year 1964 cannot be believed and no credence

can be attached to this document. Both the Courts below

have rejected the defence set up by the appellant by

placing reliance on Ex.D13. The Courts below have not

taken note of the Commissioner Report, which would

have no relevance and it would not assist the Court in

assessing as to whether there was severance in the

family. After having taken note of these significant

details, which are recorded by both the courts below and

having taken note of the material documents, I am of the

view that the judgment and decree of the Courts below

do not suffer from any infirmity. The respondent No.1-

plaintiff has purchased the property from one Rayappa.

The said land was purchased by Rayappa and it is his

self-acquisition and there is a finding that it is the self-

acquired property. This view gets strengthened in view of

the materials on record, which indicate that there was a

partition between the vendor of the plaintiff and the

ancestors of the defendants and in the said partition, the

present suit land was not at all the subject matter. It

presupposes that suit land was self-acquired property of

Rayappa, who has purchased it way back in the year

1964. Therefore, no substantial question of law would

arise for consideration in the present case on hand. The

appeal is devoid of merits and is dismissed accordingly.

6. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE YAN