Karnataka High Court
Late Harijana Lesi Siddavva vs Sakkaragowda @ Tirukanagowda ... on 30 June, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 1863 of 2005
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 1863 OF 2005 (DEC/INJ-)
BETWEEN:
LATE HARIJANA LESI SIDDAVVA
D/O SANGAPPA
SINCE DECEASED BY HER LR'S
1. H. MALLAPPA S/O LATE SIDDAVVA
AGE: 40 YEARS
2. H. HALAPPA S/O LATE SIDDAVVA
SINCE DEAD BY HIS LR'S
2(A). SHARADAMMA W/O HALAPPA
AGE: 50, OCC: HOUSEHOLD
2(B) GIRIJAMMA D/O HALAPPA
AGE: 32, OCC: HOUSEHOLD
2(C) PARVATHI D/O HALAPPA
AGE: 30, OCC: HOUSEHOLD
2(D) YASHAVANT S/O HALAPPA
AGE: 28, OCC: AGRI
2(E) SHILPA D/O HALAPPA
AGE: 26, OCC: PRIVATE
2(F) MANJUNATH S/O HALAPPA
AGE: 25, OCC: AGRI
[ APPELLANTS 2(A) TO 2(F) ARE R/O:
MASUVINAKALLAHALLI VILLAGE
TQ: HOOVINAHADAGALI, DIST: BALLARI]
3. H. HANUMANTHAPPA S/O LATE SIDDAVVA
AGE: 42, OCC: AGRI
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RSA No. 1863 of 2005
4. H. SANGAPPA S/O LATE SIDDAVVA
AGE: 37, OCC: AGRI
SINCE DECEASED BY HIS LR'S
4(A) NAGARAJ S/O SANGAPPA
AGE: 28, OCC: AGRI
5. H. MARISWAMY S/O LATE SIDDAVVA
AGE: 36 , OCC: AGRI
6. HANUMAVVA W/O LATE HAVALAPPA
AGE: 38, OCC: AGRI
SINCE DECEASED BU HER LR'S
6(A) HALESHAPPA S/O HAVALAPPA
AGE: 40, OCC: AGRI
7. H.P. NEELAPPA S/O LATE HAVALAPPA
AGE: 26 , OCC: AGRI
8. MYLARAPPA S/O LATE HAVALAPPA
AGE: 28 , OCC: AGRI
[ALL APPELLANTS ARE R/O:
MASUVINAKALLAHALLI VILLAGE
TQ: HOOVINAHADAGALI, DIST: BALLARI]
...APPELLANTS
(SRI.D.M.BANDI, ADVOCATE)
AND
SAKKARAGOWDA @ TIRUKANAGOWDA
VEERANNAGOWDA S/O SAKKARAGOUDA
(SINCE RESPONDENT IS DEAD BY HIS LR'S)
R (1) (A): T.S GOURAMMA W/O VEERANNAGOUDA
AGE: 58, OCC: HOUSEHOLD
R(1)(B): T.S. SUBHASH S/O VEERANNAGOUDA
AGE: 40, OCC: AGRI
R(1)(C)): T.S. SHANKRAMMA D/O VEERANNAGOUDA
AGE: 37, OCC: HOUSEHOLD
R(1)(D): T.S. SAKRAJJA S/O VEERANNAGOUDA
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RSA No. 1863 of 2005
AGE: 35, OCC: AGRI
R(1)(E): T.S. VIJAYAMMA D/O VEERANNAGOUDA
AGE: 28, OCC: HOUSEHOLD
R(1)(F): T.S. PRAKASH S/O VEERANNAGOUDA
AGE: 32, OCC: AGRI
R(1)(G): T.S. PRAKASH S/O VEERANNAGOUDA
AGE: 32, OCC: AGRI
R(1)(H): T.S. SUJATA D/O VEERANNAGOUDA
AGE: 30, OCC: AGRI
R(1)(I): T.S. PRASHANT S/O VEERANNAGOUDA
AGE: 28, OCC: AGRI
R(1)(J): T.S. GANGAMMA D/O VEERANNAGOUDA
AGE: 40, OCC: AGRI
ALL RESPONDENTS ARE
R/O: MASUVINAKALLAHALLI VILLAGE
TQ: HOOVINAHADAGALI, DIST: BALLARI
....RESPONDENTS
(SRI. LAXMAN T MANTAGI, ADVOCATE)
THIS RSA FILED U/S. 100 R/W O XLII OF CPC AGAINST THE
JUDGEMENT & DECREE 26.8.2005 PASSED IN R.A.NO.39/95 ON THE
FILE OF THE DIST. AND SESS. JUDGE (PRESIDING OFFICER), FTC-
III, HOSPET, ALLOWING THE APPEAL AND REVERSING THE
JUDGMENT AND DECREE DT.5.1.95 PASSED IN O.S.NO.59/92 ON
THE FILE OF THE MUNSIFF AND JMFC, HADAGALLI.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY THE
COURT DELIVERED THE FOLLOWING.
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RSA No. 1863 of 2005
JUDGMENT
1. This Regular Second Appeal is filed by the defendant,
challenging the judgment and decree dated 26/8/2005 in
R.A.No.39/1995 on the file of the Fast Track Court-III, Hospet,
setting aside the judgment and decree dated 5/1/1995 in
O.S.No.59/1992, dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties to the
Regular Second Appeals are referred to with their rank before the
trial Court.
3. It is the case of the plaintiff that the property bearing
Sy.No.155/E measuring 35 cents situated Musuvina Halli village
belong to their ancestors and as per the partition deed dated
18/3/1963, plaintiff got 23 cents out of 35 cents in the suit
schedule property. Thereafter, exercising ownership insofar as
the suit schedule property, the plaintiff changed the mutation
entry into his name. It is further averred in the plaint that the
defendant was interfering with the suit schedule property and as
such the plaintiff filed O.S.No.59/1992 before the trial Court
seeking relief of declaration with consequential relief of
permanent injunction.
RSA No. 1863 of 2005
4. On service of notice, defendant entered appearance
and filed detailed written statement denying the averments made
by the plaintiff. It is the defence of the defendant that the
defendant is the owner of 36 cents in Sy.no.155 E/1 of Musuvina
Halli village and thereby, disputed the ownership of the plaintiff.
The trial Court, based on the pleadings on record, formulated the
issues for its consideration. In order to prove their case, plaintiff
has examined 3 witnesses as PW.1 to PW.3 and got marked one
document as Ex.P.1. Defendant examined 3 witnesses as DW.1
to DW.3 and produced 6 documents and same were marked as
Ex.D.1 to EX.D.6. The trial Court, after considering the material
on record, by its judgment and decree dated 5/1/1995,
dismissed the suit. Feeling aggrieved by the same, the plaintiff
has preferred R.A.No.39/1995 and the same was resisted by the
defendant. The First Appellate Court, after considering the
material on record, by its judgment and decree dated 26/8/2005
allowed the appeal and as such decreed the suit of the plaintiff.
Being aggrieved by the same, the defendants have preferred this
Regular Second Appeal (since the appellant died during the
pendecy of the proceedings, the legal representatives are
proceeding the appeal).
RSA No. 1863 of 2005
5. This Court by order dated 16-3-2006, formulated
following substantial questions of law.
i) Whether the re-appreciation of evidence by the lower
Appellate Court is perverse in a suit for a declaration
of title?
ii) Whether a court can pass a decree based on a
partition without there being relevant documents to
prove the title?
6. I have heard Sri. D.M.Bandi, learned counsel
appearing for the appellants and Sri.Laxman T Mantagani,
learned counsel for the respondents.
7. Learned counsel appearing for the appellants
contended that the plaintiff failed to prove before the trial Court
that the plaintiff is the owner in possession of the suit schedule
property despite stating that the suit schedule property is the
ancestral property of the plaintiff and therefore, contended that
the First Appellate Court has erroneously reversed the finding of
the trial Court.
8. Per contra, learned counsel appearing for the
respondents sought to justify the impugned judgment and
decree passed by the First Appellate Court and argued that the
suit schedule property is the property of father of the plaintiff
RSA No. 1863 of 2005
and the same was devolved upon them by way of partition and
accordingly, sought for dismissal of the appeal.
9. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully considered the
finding recorded by both the Courts below, wherein the trial
Court, after considering the material on record, had come to a
conclusion that, though the plaintiff has relied upon the partition
deed - Ex.P.1 to trace his title to the property in question,
however, no parental documents have been produced by the
plaintiff to prove the issues in this suit. In this regard, I have
carefully considered the evidence on record and the partition
deed dated 18.03.1963, which provides for allotment of 23 cents
to the plaintiff and 12 cents to the brother of the plaintiff out of
total extent of 35 cents. However, perusal of the finding recorded
by the trial Court at paragraph No.9 of the Judgment, would
make it clear that, burden on the plaintiff based on Ex.P.1 was
not proved with cogent material and therefore, the trial Court is
justified in dismissing the suit of the plaintiff.
10. On the contrary, the First Appellate Court, solely
based on the possession of the plaintiff in the suit schedule
property, has reversed the finding of the trial Court. However, the
RSA No. 1863 of 2005
First Appellate Court failed to re-appreciate the evidence on record
in terms of Order 41 Rule 31 of CPC. On careful examination of
the reasons assigned by the First Appellate Court on point Nos.1
to 3, it reveals that, the First Appellate Court did not venture into
the fact as to how the father of the plaintiff got the suit schedule
property and the same has to be accepted as the joint family
property of the plaintiff and in this regard, as the suit is filed
seeking declaration and consequential relief of injunction, the
burden is on the plaintiff to prove that, he got title over the suit
schedule property. In this regard, it is relevant to quote the
Judgment of this Court in the case of Sri.Arlappa V/s.
Sri.Jagannath and others reported in ILR 2007 Kar. 339,
wherein this Court has held that, in a suit for declaratory relief,
burden is on the plaintiff to prove to trace its title to the original
document. In the present case, in the absence of such original
document to prove that the schedule property is the joint family of
the plaintiff, I do not find any acceptable ground as urged by the
learned counsel appearing for the appellants and accordingly, the
substantial questions of law framed above favours the defendants-
appellants herein. At this juncture, it is also relevant to cite the
Judgment of the Privy Council in the case of Girijabai Vs.
Sadashiv Dondiraoji and others, reported in AIR 1916 Privy
RSA No. 1863 of 2005
Council, wherein, it is held that the partition does not give title or
create a title. It is also relevant to follow the Judgment of this
Court in the case of Sri. Araleppa Vs. Sri. Jagannath and
others, reported in ILR 2007 KAR 339. This Court in the said
judgment, at paragraph No.22, held as follows:
"22. In the light of the admitted facts in this case
that the plaintiffs did not have any antecedent title
in the suit schedule property, they did not acquire
any title under the partition deed for the first time.
Their suit, is based on the partition deed. They are
seeking declaration that they have become owners
of the suit schedule property by virtue of this
partition deed. If partition is not a transfer, if
partition conveys nothing, the plaintiffs get
nothing for the first time under this deed of
partition. Therefore, they are not entitled to the
relief of declaration sought for."
Following the law declared by this Court referred to
above and applying the principle to the case on hand, as the
plaintiff has not proved before the trial Court with regard to the
fact as to how the schedule property was acquired by his
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RSA No. 1863 of 2005
ancestors or his father and same is disputed, the plaintiff is not
entitled for declaratory relief.
11. In the result, I pass the following:
ORDER
(i) Appeal is allowed.
(ii) Judgment and Decree dated 26.08.2005
in R.A.No.39/1995 on the file of the Fast
Track Court III, Hospet, is set aside,
confirming the Judgment and Decree
dated 05.01.1995 in O.S.No.59/1992 on
the file of the Munsiff and JMFC Court, at
Hadagali.
(iii) Suit is dismissed.
Sd/-
JUDGE
VB
