Karnataka High Court
Peerappa S/O Bhimgond vs Mallappa S/O Bhimgond (Died)Lrs on 30 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
RSA No.7031/2008
BETWEEN:
1. PEERAPPA S/O BHIMGOND
SINCE DECEASED BY HIS LRs.
A) SRI. LAKSHMAN
S/O LATE PEERAPPA,
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE,
R/O WAD SULTANABAD VILLAGE,
TQ. HUMNABAD,
DIST. BIDAR-585328.
B) SRI. KASHINATH
S/O LATE PEERAPPA,
AGED ABOUT 47 YEARS,
OCC: AGRICULTURE,
R/O WADI SULTANABAD VILLAGE,
TQ. HUMNABAD,
DIST. BIDAR-585328.
C) SMT. LAXMIBAI,
D/O LATE PEERAPPA,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE,
R/O WADI SULTANABAD VILLAGE,
TQ. HUMNABAD,
DIST. BIDAR-585328.
2
D) SRI. CHANDRAKANT
S/O LATE PEERAPPA,
AGED ABOUT 45 YEARS,
OCC; AGRICULTURE,
R/O WADI SULTANABAD VILLAGE,
TQ. HUMNABAD,
DIST: BIDAR-585328.
E) SRI. SHARNAPPA
S/O LATE PEERAPPA,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE,
R/O WADI SULTANABAD VILLAGE,
TQ. HUMNABAD,
DIST. BIDAR-585328.
2. DHULLAPPA S/O BHIMGOND,
AGED ABOUT 60 YEARS,
OCC: AGRICULTURE,
R/O VILLAGE SULTANABAD WADI,
TQ: HUMNABAD, DIST: BIDAR.
... APPELLANTS
(BY SRI. RAVI.B.PATIL, ADVOCATE)
AND:
1. MALLAPPA S/O BHIMGOND
(DIED), BY LRS.
A. VAIJINATH S/O MALLAPPA
KALWADE (DHANURR)
DIED, BY HIS LRS.
i) SMT. NAGAMAMA
W/O LATE VAIJINATH,
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O DUBALGUNDI VILLAGE,
TQ: HUMNABAD, DIST: BIDAR-585328.
3
ii) SMT. SUNITA
W/O JAGANATH WAGE
D/O LATE VAIJINATH,
AGED ABOUT 30 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O ISLAMPUR VILLAGE,
TQ: BASAVAKALYAN, DIST: BIDAR-585328.
iii) SRIRANGA
S/O LATE VAIJINATH,
AGED ABOUT 28 YEARS,
OCC: AGRICULTURE,
R/O DUBALGUNDI VILLAGE,
TQ: HUMNABAD, DIST: BIDAR-585328.
iv) BAJRANG
S/O LATE VAIJINATH,
AGED ABOUT 26 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O DUBALGUNDI VILLAGE,
TQ: HUMNABAD, DIST: BIDAR-58328.
v) RAJU S/O LATE VAIJINATH,
AGED ABOUT 24 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O DUBALGUNDI VILLAGE,
TQ: HUMNABAD, DIST: BIDAR-585328.
b) KASHNATH
S/O MALLAPPA KALWADE DHANGAR,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE LABOUR,
R/O VILLAGE OTHAGI, TQ: HUMNABAD,
DIST: BIDAR.
c) SHASHIKANTH S/O SIDRAM,
AGED ABOUT 30 YEARS,
OCC: PRIVATE SERVICE,
R/O ISRO JEEV BHIMA NAGAR,
NEAR HAL ROAD, BENGALURU.
4
d) GANGAMMA W/O SIDRAM
AGED ABOUT 50 YEARS,
OCC: SERVICE,
R/O ISRO JEEV BHIM NAGAR,
NEAR HAL ROAD, BENGALURU.
e) SARASWAT W/O KALLAPPA DHANGAR,
AGED ABOUT 48 YEARS,
OCC: HOUSEHOLD, R/O KALGAPUR,
TQ: AURAD (B), DSIT: BIDAR.
f) TEJAMMA W/O KALLAPPA
(DIED), BY LR
SHIVKUMAR S/O KALAPPA HALLEDODI,
AGED ABOUT 25 YEARS,
R/O NILAMNALLI, TQ: BHALKI,
DIST: BIDAR.
g) VITHABAI W/O MALLAPPA KALWADE,
AGED ABOUT 80 YEARS,
OCC: NIL, R/O OTHAG,
TQ: HUMNABAD, DIST: BIDAR.
2. MARUTHI S/O TIPGOND DIED LRs.
a. RATNAPPA S/O MARUTHI SIRSE,
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE,
R/O SULTANABADD WADI,
TQ: HUMNABAD, DIST: BIDAR.
b. RAMLING S/O MARUTHI SIRSEE,
AGED ABOUT 48 YEARS,
OCC: SERVICE,
R/O SULTANBAD WADI,
TQ: HUMNABAD, DIST: BIDAR.
c. MALLAPPA S/O MARUTHI DIED LRS.
UMAVATI W/O. LATE MALLAPPA SIRSE,
AGED ABOUT 35 YEARS,
5
OCC: HOUSEHOLD,
R/O SULTAN BAD WADI,
TQ: HUMNABAD,
DIST: BIDAR.
d. SHANKEREMMA W/O MARUTHI SIRSE,
AGED ABOUT 80 YEARS,
R/O SULTANBAD WADI,
TQ: HUMNABAD, DIST: BIDAR.
e. RADHABAI W/O MARUTHI SIRSE,
AGED ABOUT 65 YEARS,
R/O SULTANBAD WADI,
TQ: HUMNABAD,
DIST: BIDAR-585401.
f. BHAGARAMMA
W/O KALYANI CHANGENAVARU,
AGED ABOUT 65 YEARS,
OCC: HOUSEHOLD,
R/O ISLAMPUR,
TQ: BASAVAKALYAN,
DIST: BIDAR.
g. KASHAMMA S/O SHARNAPPA SIRSE,
AGED ABOUT 50 YEARS,
OCC: HOUSEHOLD,
R/O SULTANBAD WADI,
TQ: HUMNABAD, DIST: BIDAR.
h. CHANDRAKALA W/O SHARNAPPA PATAN,
AGED ABOUT 40 YEARS,
R/O BEHIND SHARANABASAVESHWAR TEMPLE,
DIST: GULBARGA.
i. PREMILA W/O KUPENDRA DHANOJI,
AGED ABOUT 35 YEARS,
R/O KAPLAPUR, TQ: BHALKI,
DIST: BIDAR.
6
j. LAXMIBAI W/O SHIVASHARANAPPA,
AGED ABOUT 28 YEARS,
R/O MUCHALAM, TQ: BASAVAKALYAN,
DIST: BIDAR.
k. KUNDAN BAI D/O MARUTHI
HANDIKERENAVARU @ RITA
W/O DAYANAND,
AGED ABOUT 25 YEARS,
R/O SULTANBAD WADI,
TQ: HUMNABAD, DIST: BIDAR.
... RESPONDENTS
(BY SRI. SANJEEVKUMAR C.PATIL, ADVOCATE
FOR R1(A)(i) TO R1(A) (iv) & R1(b);
NOTICE TO R1(c), R1(d), R1(f), R1(g),
R2(e), R2(i) ARE SERVED;
V/O DTD 04.03.2010 SERVICE OF NOTICE TO R2(a) TO
R2(d), R2(f) & R2(g) ARE HELD SUFFICIENT;
V/O DTD 04.03.2010 APPEAL DISMISSED
AGAINST R1(e), R2(h), R2(j) & R2(k)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO SET ASIDE IMPUGNED
JUDGMENT AND DECREE OF LOWER APPELLATE COURT
DATED 15.04.2008 MADE IN R.A.NO.29/2001 AND CONFIRM
THE JUDGMENT AND DECREE OF TRIAL COURT, THAT IS
PRINCIPAL CIVIL JUDGE (JN.DIVN.) HUMNABAD IN
O.S.NO.141/1983 DATED 10.09.2001.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.06.2022 COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
7
JUDGMENT
This appeal is filed is filed under Section 100 of Civil
Procedure Code, 1908 ('CPC' for short) by the Legal
Representatives of defendant No.1 against the judgment and
decree dated 15.04.2008 passed by the Civil Judge (Sr.Dn.) at
Basavakalyan ('First Appellate Court' for short) in Regular
Appeal No.29/2001.
2. For the sake of convenience, the parties herein are
referred with the original ranks occupied by them before the
trial Court.
3. The brief factual matrix leading to the case is that,
the plaintiff has filed a suit for declaration and alternatively
prayed for partition in the suit schedule property . It is the
case of the plaintiff that the suit survey No.112 was originally
owned by one Tarunnisa Begum Jagirdar and there was
dispute between Khaja Begum and defendant No.1 in respect
of suit survey number and it was also the subject matter of
145 Cr.PC. proceedings and the said proceedings ended in
favour of defendant No.1 holding him as possessor of the
same. Subsequently, Khaja Begum filed suit against
Defendant No.1. In the said suit, defendant No.1 has taken
plea on behalf himself and as well as on behalf of the plaintiffs
that, the suit survey number is owned by him. In the said
proceedings defendant No.2 was doing 'Pairwi' and as he
being the close relative of plaintiff and defendant, was well
conversant with the official work. There was an agreement
between the plaintiff as well as defendant Nos.1 & 2 to the
effect that, in case of success, defendant No.2 to be given
1/3rd share in suit survey number. Subsequently, the suit was
decided in favour of defendant No.1. As such, Khaja Begum
has preferred first appeal before the High Court.
Subsequently, after enforcement of Karnataka Land Reforms
Act, defendant No.1 on his behalf has filed an application
under Section 48A of the Act and he was declared as the
tenant. According to the plaintiff, he and defendant No.1 are
in joint cultivation and enjoyment of the suit schedule
property and as per the order of the Tribunal, he has also
jointly cultivating the suit land. It is the case of the plaintiff
that, in 1979, as per agreement, partition took place in
respect of the suit land and 1/3rd area measuring 5 acres 23
guntas land was exclusively allotted to the share of the
plaintiff which is shown in Red colour, while 1/3 rd portion of
the said suit shown in green colour was the share allotted to
defendant No.1 and another portion of land shown in blue
colour was given to defendant No.2, which is also measuring 5
acres and 23 guntas as per the agreement. It is asserted
that, the plaintiff is in possession and enjoyment of the suit
schedule property all along. After the death of defendant No.2,
his legal heirs have relinquished their share in favour of the
plaintiff and defendant No.1, who are enjoying 1/2 share each
in suit schedule property. It is further asserted that, as per
the order of the Tribunal, the name of defendant No.1 was
mutated in the record of rights. It is for the benefit of the
entire family. But, defendant No.1 taking undue advantage of
entries made in the record of rights in his name, by colluding
with others, causing interference with the lawful possession of
the plaintiff over the suit land. Hence, the plaintiff has filed a
suit for declaration. The plaintiff alternatively claims that, he
has got 1/2 share in the suit survey number totally measuring
16 acres and 17 guntas and prayed for partition and separate
possession of 1/2 share.
4. The defendants No.1, 3 & 4 have contested the
suit by filing written statement denying the allegations and
assertions made in the suit. The defendants have admitted
the relationship between the parties and earlier litigation
between Tarunnisa Begum pertaining to suit survey number as
well as the suit filed by Khaja Begaum. It is denied that,
defendant No.1 has fought litigation for himself and on behalf
of the plaintiff, as contended by the plaintiff. It is asserted
that the plaintiff by colluding with defendant No.2, filed this
false suit. It is contended that OS No.67/1968 filed by Khaja
Begum was disposed of on 19.04.1973 holding defendant No.1
as the actual cultivator and possessor of the same. However,
the Civil Court was not satisfied with the ownership of
defendant No.1. However, defendant No.1 is in exclusive
possession of the suit schedule property. He further
contended that occupancy rights were granted in his favour
exclusively. It is denied that the occupancy rights were
granted to defendant No.1 on his behalf and on behalf of the
plaintiff also. It is further denied that the plaintiff is in joint
possession of the suit schedule property along with defendant
No.1. The defendants further asserted that there was no joint
family as asserted and as such question of granting
occupancy rights jointly does not arise at all. The defendants
have also disputed the claim of partition. They further denied
the alleged relinquishment and defendant No.2 was
prosecuting on behalf of defendant No.1 and agreement etc.
Hence, by denying the claim of the plaintiff, the defendants
sought for dismissal of the suit.
5. However, defendant No.2 admitted the claim of
the plaintiff, but denied that he was doing 'Pairwi' on behalf of
defendant No.1 and requested to pass appropriate order in
accordance with law.
6. On the basis of the pleadings, the trial Court has
framed Eleven issues and one additional issue as under:-
i) Whether the plaintiff proves that he was in joint
possession of the suit survey number 112 of
Bothgi Village along with defendant No.1 till
partition in the year 1979?
ii) Whether the plaintiff proves that the defendant
No.2 has acted as Pairawi in proceedings in O.S.
No.67/1968, before the Civil Judge Court, Bidar,
and in other proceedings and he further proves
that the defendant No.2 acted as power of
attorney of defendant No.1 in all the
proceedings, and he spent money for the said
proceedings for defendant No.1?
iii) Whether the plaintiff proves that there was
agreement between the plaintiff, defendant
No.1 and defendant No.2 to the effect that, in
case of success, the defendant No.2 be given
1/3rd share in the suit survey number?
iv) Whether the plaintiff proves that there was
partition in between him, defendant No.1 and
defendant No.2 after 8 days of ugad of 1979 and
in that partition the suit land measuring 5 acres
23 guntas out of Sy. No.12 as shown in red
colour in the sketch map produced by him, has
been allotted to him and as such, he is the
absolute owner, occupier and possessor of the
suit land?
v) Whether the plaintiff proves that, L.Rs. of
defendant No.2 have relinquished their half
share ie., about 2 acres 32 guntas in favour of
the plaintiff, which is towards west of the suit
land, in the month of January, 1988?
vi) Whether the plaintiff proves that, the defendants
caused illegal interference and obstruction in
peaceful cultivation and possession of the suit
land?
vii) Whether the defendant Nos. 1, 3 & 4 proved
that the suit of the plaintiff is not maintainable
in the present from as contended in the W.S. of
them?
viii) Whether the defendants No.1, 3 and 4 proved
that there is no cause of action to plaintiff to file
this suit?
ix) Whether the defendants No.1, 3 and 4 proved
that they are entitled for compensatory costs of
Rs.500/- with 2% interest from the date of the
suit till realisation of the same.
x) Whether the plaintiff proves that he is entitled
for the relief sought?
xi) What decree or order?
Additional Issue:
1. Whether the plaintiff proves that alternatively, he is
entitled for partition and separate possession of his
half share in the suit land Sy. No.123 of village
Othagi?
7. The plaintiff got examined himself as PW.1 and
seven witnesses were examined as PWs.2 to PW.8. Further,
the plaintiff has produced 14 documents, which are marked at
Ex.P1 to Ex.P14. The defendant No.1 was examined as DW.1
and one witness was examined on behalf of Defendants, as
DW.2.
8. After hearing arguments and perusing the oral and
documentary evidence, the trial Court has answered issue
Nos. 1 to 6 and 8 to 11 and 12 (additional issue) in the
negative, while Issue No.7 came to be answered in the
affirmative and ultimately dismissed the suit.
9. Being aggrieved by dismissal of the suit, the
plaintiff has filed a regular appeal in RA No.29/2001 on the file
of the First Appellate Court challenging the judgment and
decree passed by the trial Court.
10. The First Appellate Court, after re-appreciating the
oral and documentary evidence, has allowed the appeal by
setting aside the impugned judgment of the trial Court.
Though the First Appellate Court has refused to grant
declaration, it granted partition in favour of the plaintiff to the
extent of half share. Being aggrieved by the judgment and
decree of the First Appellate Court, this appeal is filed.
11. Heard arguments advanced by the learned counsel
for the appellant/defendants and the learned counsel for
respondent/plaintiff. Perused the records.
12. Learned counsel for the appellant/defendants
would contend that absolutely there is no pleading in the
entire plaint regarding existence of the joint family and
defendant No.1 being Kartha of the joint family. He would
further argue that the tenancy rights were exclusively granted
in favour Defendant No.1, as such, the trial Court has
appreciated the oral and documentary evidence in a proper
perspective. He would further contend that the First Appellate
Court, only on stray admission given by DW.2 has come to a
conclusion that the tenancy was a joint tenancy and enuring
for the benefit of joint family, without there being any material
evidence in this regard. He would further contend that, the
plaintiff admitted regarding earlier proceedings wherein all
along it is held that defendant No.1 is in possession. The
plaintiff claims to be a joint owner of the suit property. But, no
material evidence is placed in this regard. The First Appellate
Court has wrongly granted alternative relief of partition. The
plaintiff has also claimed relinquishment, but that is not
established. The learned counsel would further contend that,
absolutely there is no material evidence to show that the
plaintiff was jointly cultivated the suit property and a joint
family being in existence. He would further contend that the
judgment of the First Appellate Court clearly discloses that, it
up-held the findings on Issue Nos.2, 3, 4 & 6 in favour of
defendant No.1. But, in view of admission given by DW.2 with
regard to joint cultivation, the First Appellate Court came to a
conclusion that, the property was under joint cultivation and
decreed the suit, which is erroneous. He would contend that
the First Appellate Court though considered the admission of
DW.2, failed to consider the admission given by plaintiff
himself and ignored the same. The findings on entire issues
disclose that they were in favour of defendant No.1. Hence,
he would contend that the entire approach of the First
Appellate Court is erroneous and in the absence of any
material evidence regarding joint family and joint cultivation,
the First Appellate Court has committed an error in decreeing
the suit for partition. Hence, he would seek for allowing the
appeal and prayed for dismissal of the suit.
13. Per contra, learned counsel for respondent/plaintiff
would support the judgment and decree passed by the First
Appellate Court. He would contend that the relationship
between the parties is admitted and as such the property
belongs to the family. He would further contend that there is
no material evidence to show that the property was
exclusively owned by defendant No.1 and the cross-
examination of DW.2 establish that the plaintiff is in
possession of 1/2 share of the suit schedule property.
Hence, he would support the judgment and decree and prayed
for dismissal of the appeal.
14. This Court on 28.02.2012, has framed the
following substantial questions of law for consideration:
i) Whether the First Appellate Court was justified in
reversing the finding of trial Court contrary to
the pleadings and evidence available on record?
ii) What order?
15. It is evident from the plaint pleadings that the
propositus was one Sidgonda. He had three sons by name
Laxgonda, Ning Gonda and Bhimgonda. Defendant is the
son of Laxgonda and defendant No.2 is the husband of the
sister of defendant No.1, while the plaintiff representing the
branch of Ning Gonda. It is also evident from the records
that the family does not possess any joint family property.
Very interestingly, the plaintiff in his entire plaint, no where
pleaded that the property is a joint family property, earlier
the father of defendant No.1 was the Kartha and now
defendant No.1 being the Kartha of the joint family. When
joint family does not exist, question of application of joint
family concept does not arise at all. All along, the plaintiff
contended that the occupancy rights were granted for the
benefit of the joint family. It is for the plaintiff to first
establish that, there existed a joint family, wherein
defendant No.1 was the Kartha of the joint family. But,
except some bald assertions in the evidence, no pleadings
are forthcoming in this regard and no evidence was also led
to prove existence of joint family.
16. The plaintiff further asserted regarding
agreement between the plaintiff, defendant No.1 and
defendant No.2 in pursuance of Pairwi done by defendant
No.2. Defendant No.2 himself disputed this aspect. The
trial Court has given a finding in favour of defendant No.1
in this regard against the plaintiff and this finding is also
confirmed by the First Appellate Court. Further, if at all
there existed a joint family, then quite naturally the plaintiff
and defendant No.1 would get equal share and question of
dividing 1/3rd share does not arise at all, as the plaintiff
represent one branch, while defendants No. 1 & 2
represent other branch. It is equally important to note
here that the plaintiff has pleaded that Ning gond had a
son by name Nag Gonda and he died issue-less. But, no
evidence is led as to who are all the legal heirs of Nag
Gonda and what the fate of his wife and the pleading in
that regard is completely silent.
17. Further, PW.1 in his evidence, all along
contended that there was a document to evidence the
agreement between the plaintiff as well as defendants-1 &
2. But, the same was not placed before the Court and
hence, the contention of the plaintiff in this regard cannot
be accepted and an adverse inference is required to be
drawn against him.
18. Further, it is all along contended that there was
a partition between the plaintiff, defendant No. 1 and
defendant No.2. The plaintiff claims that, there was a
document in this regard. If there is a document, nothing
prevented the plaintiff from producing the said document to
evidence that the suit property was treated as a joint
family property. The plaintiff is simply relying on the
evidence of PW.2 to PW.8. But, very interestingly, the First
Appellate Court has held in Para-42 of its judgment that,
their evidence is not consistent and corroborative with any
documentary evidence to believe that there was a partition
in the suit land in the year 1979. Hence, when the
evidence of PW.2 to PW.8 is inconsistent and not
corroborative, it has no relevancy. Then the burden shifts
on the plaintiff to establish existence of the joint family and
to prove that, defendant No.1 was acting as a Kartha. It is
important to note here that the plaintiff no where pleaded
that the father of Defendant No.1 was the Kartha. It is not
his case that, all three brothers were residing together
consisting of joint family. It is admitted that the family did
not posses any agricultural land.
19. On the contrary, defendant No.1 alone has filed
Form No.7 seeking occupancy rights and the Land
Tribunal has granted occupancy rights in his favour.
Further, in the earlier proceedings also, defendant No.1
has specifically taken a defence that he was the exclusive
owner in possession and his possession over the suit
property was all along up-held in the earlier litigation by
the Civil Court.
20. The First Appellate Court only on presumptions
come to a conclusion that the plaintiff appears to be in joint
possession on the basis of the admission made by DW.2.
But, what is impact of that admission given DW.2 is not
considered. It is to be noted here that the plaintiff has
approached the Court asserting that, he is an exclusive
owner over the suit property at the first instance. He has
also pleaded partition and relinquishment deed. But, none
of these aspects have been proved by the plaintiff and that
also has been observed by the First Appellate Court. But,
only on the ground that DW.2 has admitted the joint
possession of the plaintiff, the First Appellate Court
proceeded to grant him 1/2 share. What is the interest of
the plaintiff over the suit schedule properties was not at all
considered. There is no dispute of the fact that, occupancy
rights were exclusively granted in the name of defendant
No.1. No doubt, the occupancy rights if granted in the
name of a member of joint family, they are required to be
treated for the benefit of entire joint family. But, to
substantiate this aspect, the plaintiff is required to prove
the existence of joint family first. But, his own contention
is 'partition and cultivation separately' and if that is taken
into consideration, then there is no joint family concept.
21. The other contention raised by the plaintiff is,
'Joint cultivation' with defendant No.1. But, absolutely no
piece of evidence is produced by the plaintiff to prove that
at any point of time, he has jointly cultivated the suit land.
If he jointly cultivated, then question of concept of joint
family cannot be made applicable and he could have filed
independent application seeking occupancy rights
pertaining to the suit schedule property. But, that was not
done. The First Appellate Court only on stray admission
given by the DW.2, presumed the fact that the plaintiff is in
joint possession without considering the fact that the
occupancy rights were granted exclusively in favour of
defendant No.1. Under these circumstances, the First
Appellate Court has completely mis-read the evidence on
record and it is carried away by the stray admission given
by DW.2, which has resulted in mis-carriage of justice.
22. The observations made by the First Appellate
Court in this regard are erroneous and First Appellate
Court was not justified in reversing the finding of the trial
Court contrary to the evidence available on record.
23. Looking to these facts and circumstances, the
substantial questions of law is answered in the negative, as
the First Appellate Court was not justified in reversing the
findings of trial Court contrary to pleadings and evidence
on record. As a result, the appeal needs to be allowed.
Hence, I proceed to pass following order:-
ORDER
The appeal is allowed. Judgment and decree
dated 15.04.2008 passed by the Civil Judge
(Sr.Dn.) at Basavakalyan, in RA No.29/2001 is set
aside. The judgment and decree dated 10.09.2001
passed by the Principal Civil Judge (Jr.Dn.),
Humnabad, in O.S. 141/1983 is restored.
Under the circumstances, there is no order as
to costs.
Sd/-
JUDGE
KGR*
