Veerupakshappa S/O Somappa Madar ... vs Kareppa S/O Mahadevappa Harijan
2022 Latest Caselaw 10985 Kant

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                                   RSA No. 100875 of 2017


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

           DATED THIS THE 20TH DAY OF JULY, 2022

                         BEFORE
           THE HON'BLE MR JUSTICE E.S.INDIRESH
     REGULAR SECOND APPEAL NO. 100875 OF 2017 (PAR-)
BETWEEN:

1.    VEERUPAKSHAPPA, S/O SOMAPPA MADAR @ HARIJAN
      AGE: 70 YEARS, OCC: AGRICULTURE,
      R/O: KARADAGI-581118,
      TQ: SAVANUR, DIST: HAVERI.

2.    KARIYAPPA, S/O SOMAPPA MADAR @ HARIJAN,
      AGE: 66 YEARS, OCC: AGRICULTURE,
      R/O: KARADAGI-581118,
      TQ: SAVANUR, DIST: HAVERI.

3.    SMT.LAXMAVVA, W/O FAKKIRAPPA MADAR @ HARIJAN,
      AGE: 52 YEARS, OCC: AGRICULTURE,
      R/O: KARADAGI-581118,
      TQ: SAVANUR, DIST: HAVERI.

4.    BHARAMAPPA, S/O SOMAPPA MADAR @ HARIJAN,
      AGE: 29 YEARS, OCC: AGRICULTURE,
      R/O: KARADAGI-581118,
      TQ: SAVANUR, DIST: HAVERI.

5.    MANJAPPA, S/O SOMAPPA MADAR @ HARIJAN,
      AGE: 22 YEARS, OCC: AGRICULTURE,
      R/O: KARADAGI-581118,
      TQ: SAVANUR, DIST: HAVERI.

6.    SMT.BHARATI, W/O HANUMAPPA HARIJAN,
      AGE: 24 YEARS, OCC: AGRICULTURE,
      NOW PRESENTLY R/O: KARADAGI-581118,
      TQ: SAVANUR, DIST: HAVERI.

7.    DURGAPPA, S/O SOMAPPA MADAR @ HARIJAN,
      AGE: 44 YEARS, OCC: AGRICULTURE,
      R/O: KARADAGI-581118,
      TQ: SAVANUR, DIST: HAVERI.
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                                      RSA No. 100875 of 2017


8.   SMT.SHARAVVA @ GANGAVVA
     W/O NINGAPPA HARIJAN,
     AGE: 62 YEARS, OCC: HOUSEHOLD,
     R/O: BELAVALKOPPA,
     TQ: SHIGGAON, DIST: HAVERI.
                                             ...APPELLANTS
(BY SRI. A P MURARI, ADVOCATE)

AND:

1.   KAREPPA S/O MAHADEVAPPA HARIJAN
     AGE: 44 YEARS, OCC: AGRICULTURE,
     R/O: KARADAGI-581118,
     TQ: SAVANUR, DIST: HAVERI.

2.   RAVINDRA, S/O MAHADEVAPPA HARIJAN,
     AGE: 39 YEARS, OCC: AGRICULTURE,
     R/O: KARADAGI-581118,
     TQ: SAVANUR, DIST: HAVERI.

3.   BASAVARAJ, S/O MAHADEVAPPA HARIJAN,
     AGE: 32 YEARS, OCC: AGRICULTURE,
     R/O: KARADAGI-581118,
     TQ: SAVANUR, DIST: HAVERI.

4.   SMT.SUSHILAVVA, W/O RAMESH HARIJAN,
     AGE: 37 YEARS, OCC: HOUSEWIFE,
     R/O: CHIKKAMALLUR, TQ: SHIGGAON, DIST: HAVERI.

5.   KAREVVA, W/O RAMAPPA GOUDANAYAKAR,
     AGE: 32 YEARS, OCC: AGRICULTURE,
     R/O: GOUDAGERI, TQ: KUNDAGOL,
     DIST: HAVERI.
                                           ...RESPONDENTS

      THIS RSA IS FILED UNDER SECTION 100 R/W. ORDER
41 RULE 1 OF CPC AGANST THE JUDGMENT AND DECREE
DATED 28.08.2017 PASSED IN R.A.NO.56/2015 ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, HAVERI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 10.04.2015, PASSED IN O.S.NO.208/2013
ON THE FILE OF THE CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, SAVANUR, AND DECREE THE
SUIT IN O.S.NO.208/2013 WITH COSTS THROUGHOUT.
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                                         RSA No. 100875 of 2017


     THIS APPEAL COMING ON FOR HEARING THIS DAY.
THE COURT DELIVERED THE FOLLOWING.

                           JUDGMENT

This Regular Second Appeal is filed by the plaintiffs,

challenging the judgment and decree dated 28.08.2017 passed

in R.A.No.56/2015 on the file of the Principal Senior Civil Judge

and CJM, Haveri (hereinafter referred to as 'the First Appellate

Court', for brevity), confirming the judgment and decree dated

10.04.2015 passed in O.S.No.208/2013 on the file of the Civil

Judge and Judicial Magistrate I Class, Savanur (hereinafter

referred to as 'the trial Court', for brevity), dismissing the suit

of the plaintiffs.

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

appeal shall be referred to in terms of their status and ranking

before the trial Court.

3. The relevant facts for adjudication of this appeal are

that, the father of the plaintiffs - Somappa Madar was the

owner of the land bearing Survey No.100A/3A to an extent of

02 acres 35 guntas out of 03 acres 03 guntas and father of the

defendant - Mahadevappa Madar claims to be the owner of the

remaining land to an extent of 08 guntas. It is the case of the

RSA No. 100875 of 2017

plaintiffs that, the father of the plaintiffs was cultivating the

land to an extent of 2 acres 38 guntas and the remaining 8

guntas of land was cultivated by the father of the defendants.

It is further stated that, after the death of the father of

plaintiffs and defendants, the plaintiffs and defendants were

cultivating the suit schedule property jointly. It is averred that,

there was no partition taken place between the parties and the

defendant No.1 taking undue advantage of the illiteracy of the

plaintiffs, changed the record of rights in respect of the suit

schedule property by colluding with the Revenue Officers. As

such, the plaintiffs have filed O.S.No.208/2013 before the trial

Court seeking the relief of partition and separate possession in

respect of the suit schedule property.

4. After service of notice, defendants 1 and 3 to 5

entered appearance and filed detailed written statement

denying the averments made in the plaint and sought for

dismissal of the suit.

5. The trial Court based on the pleadings on record

formulated the issues for its consideration. In order to

establish their case, plaintiff No.1 was examined as PW1 and

RSA No. 100875 of 2017

got marked four documents as Exhibits P1 and P4. Defendant

No.1 was examined as DW1 and no documents were produced

on behalf of the defendants.

6. The trial Court, after considering the material on

record, by its judgment and decree dated 10.04.2015,

dismissed the suit. Feeling aggrieved by the same, the

plaintiffs have preferred Regular Appeal No.56/2015 before the

First Appellate Court and same was resisted by the contesting

respondents. The First Appellate Court, after re-appreciating

the entire material on record, by its judgment and decree dated

28.02.2007 dismissed the appeal and consequently, confirmed

the judgment and decree passed by the trail Court in

O.S.No.208/2013. Feeling aggrieved by the same, plaintiffs

have preferred these Regular Second Appeals.

7. This Court has formulated the following substantial

question of law while admitting the appeal, which reads as

under:

"Whether both the Courts below were justified in dismissing the suit of the plaintiffs under Section 8 of the Hindu Succession Act"

RSA No. 100875 of 2017

8. Heard the learned counsel Sri. A. P. Murari,

appearing for the appellants. Respondents are served and

unrepresented and remained absent.

9. Sri A. P. Murari, learned counsel appearing for the

appellant argued that, the trial Court having affirmed issue

No.1 and 2 affirmatively, ought not to have dismissed the suit

filed by the plaintiffs. He further contended that, there is no

registered document conveying the title in respect of the suit

schedule property by the plaintiffs, to an extent to ½ share in

favour of the defendants and therefore, he contended that, the

finding recorded by the trial Court requires interference in this

appeal.

10. In the light of the submission made by the learned

counsel appearing for the appellants, I have carefully

considered the finding recorded by both the Courts below and

perused the record. It is not in dispute that, father of the

plaintiffs - Somappa Madar and father of defendants -

Mahadevappa Madar were cultivating 2 acres 35 guntas and 08

guntas respectively in survey No.100A/3A totally measuring 3

acres 06 guntas of Karadagi village, Savanur Taluk. It is the

RSA No. 100875 of 2017

case of the plaintiffs that, the plaintiffs and defendants were

jointly cultivating the land in question. In order to understand

the relationship between the parties, it is relevant to extract

the pedigree of the parties, which reads as under:

Genealogy of Plaintiffs' family

Somappa Propositus (Died)

Maligevva wife (Died)

Virupaxappa Kariyappa Sharavva Fakkirappa Durugappa Died

Laxmavva

Bharamappa Manjappa Bharati

Genealogy of defendants' family

Mahadevappa (Propositus Died)

Somantevva wife (Died)

Kareppa Ravindra Basavaaj Susheelavva Karevva

RSA No. 100875 of 2017

11. Perusal of Exs.P1 and P2 - RTC extracts with regard

to survey No.100A/3A would indicate that, plaintiffs are owner

in possession of the land to an extent of 3 acres 2 guntas. It is

the case of the plaintiffs that, the suit schedule property is to

an extent of 2 acres 35 guntas out of 3 acres 02 guntas,

wherein the father of the plaintiffs had given 08 guntas of land

in favour of the father of the defendants. With regard to the

same, no documents had been shown by defendants before the

trial Court and it is not forthcoming from the written statement

filed by the defendants with regard to claiming of share in the

suit schedule property to an extent of 3 acres 02 guntas. In

this regard, the specific contention of the defendants at

paragraph 10 of the written statement is relevant and the same

is extracted below:

"10. That the R of R produced by the plaintiffs pertaining to suit property for the year 1993-94 till1999-2000 reveals that in suit property before the name of Madar Mahadevappa S/o. Kariyappa who is father of defendants is owner of the suit to the tone of 8 Annas i.e., half of suit property. That the suit property totally measuring 3 Acres 02 Guntas. That the defendants are the owners in possession to the tone of 1 Acre 21 Guntas. Plaintiffs falsely asserts that the defendants are having share of only 8 Guntas."

RSA No. 100875 of 2017

12. Undisputably, though the defendants claim that

they are the owners in possession to an extent of 01 acre 21

guntas, however, no documents have been produced before the

trial Court to exercise their ownership, nor proved their

possession in respect of 01 acre 21 guntas. However, perusal

of the documents produced by the plaintiffs would establish the

fact that the plaintiffs, though claimed 02 acres 35 guntas of

land, however, after considering the entries in the RTC records,

it is reflected that, the name of the father of the plaintiffs was

shown in the Record of Rights. It is well settled principle in law

that Records of Rights does not confer title to the parties and

the parties are liable to establish their right based on the

parental documents and prove their possession through

independent witnesses. In that view of the matter, I am of the

view that both the Courts below have not properly appreciated

the material on record and as such, the finding recorded by

both the Courts below is contrary to the oral and documentary

evidence produced by the parties. Suffice to say that no

documents were produced by the defendants to establish their

case even with regard to 8 guntas of land.

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RSA No. 100875 of 2017

13. In that view of the matter, I am of the view that the

finding recorded by both the Courts below is incorrect which

requires to be set right by allowing this Regular Second Appeal.

Appellants have made out a case and proved their title and

possession to an extent of 2 acres 35 guntas in Survey

No.100A/3A of Karadagi village and therefore, the substantial

question of law framed above favours the plaintiffs as after the

death of the father of the plaintiffs, plaintiffs succeeded in

terms of Section 8 of the Hindu Succession Act. In the result, I

pass the following:

ORDER

i. The appeal is allowed.

ii. The judgment and decree dated 28.08.2017 passed by the Principal Senior Civil Judge, Haveri, in R.A.No.56/2015 is set aside.

iii. The judgment and decree dated 10.04.2015 passed by the Civil Judge and Judicial Magistrate I Class, Savanur, in O.S.No.208/2013 is set aside. Suit of the plaintiffs is decreed.

Sd/-

JUDGE

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