Mukappa S/O Narasimhappa vs Eramma
2022 Latest Caselaw 10890 Kant

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                                 RSA No. 100658 of 2014


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 18TH DAY OF JULY, 2022

                       BEFORE
        THE HON'BLE MR JUSTICE E.S.INDIRESH
 REGULAR SECOND APPEAL NO.100658 OF 2014 (DEC/INJ)
BETWEEN:

1.   MUKAPPA S/O NARASIMHAPPA
     AGED: ABOUT 60 YEARS,
     OCC: AGRICULTURIST,
     R/O: ARALIGANUR VILLAGE,
     TALUK: SIRUGUPPA-583121

2.   OBALESHAPPA S/O MUKAPPA
     AGED: ABOUT 35 YEARS,
     OCC: AGRICULTURIST,
     R/O: ARALIGANUR VILLAGE,
     TALUK: SIRUGUPPA-583121

                                          ...APPELLANTS

(BY SRI. GODE NAGARAJA, ADVOCATE)

AND:

1.   ERAMMA
     W/O LATE KURI HANUMANTHAPPA,
     AGE: 47 YEARS,
     OCC: AGRICULTURIST,
     R/O: ARALIGANUR VILLAGE,
     TALUK: SIRUGUPPA-583121

                                          ...RESPONDENT

(BY SRI SHIVARAJ V. HIREMATH, ADVOCATE)
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                                           RSA No. 100658 of 2014


      THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 28.02.2014
PASSED IN REGULAR APPEAL NO.57 OF 2013 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE, BELLARY, DISMISSING
THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE
DATED      30.03.2013   AND   THE     DECREE     PASSED     IN   OS
NO.163/2012 ON THE FILE OF THE CIVIL JUDGE AND JMFC,
SHIRUGUPPA,       DISMISSING         THE     SUIT   FILED        FOR
DECLARATION OF OWNERSHIP AND GRANT OF PERMANENT
INJUNCTION.

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

                        JUDGMENT

This Regular Second Appeal is filed by the plaintiffs

challenging the Judgment and Decree dated 28th February,

2014 in Regular Appeal No.57 of 2013 on the file of the

Principal Senior Civil Judge, Bellary confirming the Judgment

and Decree dated 30th March, 2013 in Original Suit No.163 of

2012 on the file of the Civil Judge and JMFC, Siruguppa,

dismissing the suit.

2. For the sake of convenience, the parties in this

appeal are referred to with their status and rank before the trial

Court.

RSA No. 100658 of 2014

3. It is the case of the plaintiffs that mother of the

plaintiff No.1 and grandmother of Plaintiff No.3-Smt.

K.Lakshmamma, was the owner of the suit schedule property

and she died on 24th July, 2000 and thereafter, the petitioners

are in possession of the suit schedule property, thus exercising

ownership in respect of the property in question. It is further

averred in the plaint that they came to know that the husband

of the defendant No.1-Kurihanumanthappa's name was effected

in the mutation entries as per the sale deed dated 06th

December, 2007 and therefore, the plaintiffs have filed suit in

Original Suit No.163 of 2012 seeking relief of declaration and

with consequential relief of permanent injunction.

4. On service of notice, the defendant entered

appearance, however, not filed detailed written statement. The

trial Court based on the plaint averments, framed points for

consideration. In order to prove their case, plaintiff No.2 was

examined as PW1 and got marked 13 documents as Exhibits P1

to P13. No evidence on the part of the defendant. The trial

Court, after considering the material on record, by its Judgment

and Decree dated 30th March, 2013 dismissed the suit and

being aggrieved by the same plaintiffs have preferred Regular

RSA No. 100658 of 2014

Appeal No.57 of 2013 on the file of the First Appellate Court

and same was resisted by the defendant. The First Appellate

Court, after re-appreciating the material on record, dismissed

the suit and being aggrieved by the same, the plaintiff has

preferred this Regular Second Appeal.

5. This Court, by order dated 27th June, 2022 has framed

the following substantial question of law:

"1. Whether the courts below are justified in

dismissing the suit of the plaintiffs?"

6. Heard Sri Gode Nagaraj, learned counsel appearing for

the appellant and Sri Shivaraj V. Hiremath, learned counsel

appearing for the respondent.

7. Sri Gode Nagaraja, learned counsel appearing for the

appellant argued that the trial Court, on erroneous finding,

dismissed the suit holding that the plaintiff is not entitled for

relief in the property. He further contended that both the

courts below have not properly assessed the fact that the

mother of the plaintiff No.1-Lakshmamma was not alive as on

RSA No. 100658 of 2014

06th December, 2007 and therefore, dismissing the suit by the

trial Court requires to be interfered with in this appeal.

8. Per contra, Sri Shivaraj V. Hiremath, learned counsel

for the respondent sought to jsutify the impugned Judgment

and Decree passed by the both the Courts below.

9. Having heard the learned counsel appearing for the

parties. The core question to be answered in this appeal is

whether Lakshmamma-mother of plaintiff No.1, had executed

registered Sale Deed in favour of the husband of the

defendant-Kurihanumanthappa on 06th December, 2007. In

this regard, I have given my anxious consideration to the death

certificate of Lakshmamma produced at Exhibit P6. Exhibit P6

reveals that the said Lakshmamma died on 24th July, 2000,

however, the sale deed dated 06th December, 2007-Exhibit P1

shows that the said Lakshmamma executed the registered Sale

Deed in favour of the husband of the defendant on 06th

December, 2007. Exhibit P6 issued by the Tahsildar, Siraguppa

disclose that the mother of plaintiff No.1-Lakshmamma died

petition 24th July, 2000. In that view of the matter, both the

Courts below have not applied their mind as required under law

RSA No. 100658 of 2014

and therefore, I am of the view that since the plaintiff has

proved the fact that the said Lakshmamma died on 24th

July,2000 and therefore, there is no possibility of execution of

registered Sale Deed dated 06th December, 2007 (Exhibit P1) in

favour of the husband of the defendant. Therefore, I am of the

view that both the Courts below have erred in dismissing the

suit. Accordingly, the plaintiffs have proved that the plaintiffs

are the absolute owner of the suit schedule property having

acquired the same from Lakshmamma (mother of Plaintiff No.1

and grandmother of plaintiff No.3) and as such, suit is decreed.

Therefore, the substantial question of law framed above

favours the plaintiff/appellants. In the result, I pass the

following:

ORDER

1. Appeal is allowed;

2. Judgment and Decree dated 28th February, 2014 in Regular Appeal No.57 of 2013 on the file of the Principal Senior Civil Judge, Bellary is set aside;

3. Judgment and Decree dated 30th March, 2013 passed in Original Suit No.163 of 2012 on the

RSA No. 100658 of 2014

file of Civil Judge and JMFC, Siruguppa is set aside.

4. Suit is decreed. Plaintiffs are the absolute owner in possession of the suit schedule property. Defendant is restrained from interfering with the peaceful possession of the suit schedule property by the plaintiffs.

Learned Additional Registrar General, Dharwad Bench is

requested to send the copy of this judgment to the learned

judges who have rendered the judgments before the trial Court

and before the First Appellate Court.

Sd/-

JUDGE

LNN