Irappa S/O Mallappa Hakkaraki vs Rudrappa Calling Himself As ...
2022 Latest Caselaw 7850 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

              DATED THIS THE 01ST DAY OF JUNE, 2022

                             BEFORE

              THE HON'BLE MR. JUSTICE E.S. INDIRESH

           REGULAR SECOND APPEAL NO.100953 OF 2015

BETWEEN:

IRAPPA
S/O MALLAPPA HAKKARAKI
AGE 68 YEARS
OCC: AGRICULTURE
R/O HADLI
TALUK: NARAGUND
DISTRICT: GADAG 582 101
                                                      ...APPELLANT

(BY SRI SUMANGALA A CHAKALABBI, ADVOCATE)

AND:

  1. RUDRAPPA CALLING HIMSELF
     AS ADOPTED SON OF
     KARIYAPPA HAKKARAKI
     AGE 73 YEARS
     OCC: AGRICULTURE

  2. KARIYAPPA
     S/O RUDRAPPA HAKKARAKI
     AGE 40 YEARS
     OCC: AGRICULTURE

  3. IRAPPA
     S/O RUDRAPPA HAKKARAKI
     AGE 33 YEARS
     OCC: AGRICULTURE

  4. SHIVANAND
     S/O RUDRAPPA HAKKARAKI
     AGE 22 YEARS
                                   2




      OCC: AGRICULTURE

      ALL ARE RESIDENTS OF HADLI
      TALUK: NARAGUND
      DISTRICT; GADAG 582 101
                                                        ...RESPONDENTS
(BY SRI B.V. SOMAPUR, ADVOCATE)

      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
READ WITH ORDER XLI RULE 1 OF THE CPC AGAINST THE JUDGMENT
AND DECREE DATED 28.07.2015 PASSED IN RA NO.58 OF 2013 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
21.10.2013 PASSED IN ORIGINAL SUIT NO.31 OF 2008 ON THE FILE OF
THE CIVIL JUDGE AND JMFC, NARAGUND, DISMISSING THE SUIT FILED
FOR DECLARATION AND PERMANENT INJUNCTION.

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

                         JUDGMENT

This regular second appeal is filed by the plaintiff

challenging the judgment and decree dated 28th July, 2015 in RA

No.58 of 2013 on the file of the Additional Senior Civil Judge,

Gadag, confirming the judgment and decree dated 21st October,

2013 in Original Suit No.31 of 2008 on the file of Civil Judge,

Naragund, dismissing the suit.

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

are referred to with their rank and status before the trial Court.

3. The relevant facts for adjudication of this appeal are

that, one Irappa was propositus of the family of the plaintiff and

defendants. The said Irappa had two sons and one daughter,

viz. Kariyappa, Mallappa and Giriyavva. Kariyappa died issueless

and Mallappa died leaving behind the plaintiff. Defendant No.1

is the son of Giriyavva and defendants 2 to 4 are the children of

defendant No.1. The genealogical tree reads as under:

Irapappa (propositus) (died)

Kariyappa Giriyavva Mallappa (died) (died issueless)

Rudrappa Irappa (plaintiff)

Shivanand Kariyappa Irappa (def.4) (def.2) (def.3)

4. It is the case of the plaintiff that there was a partition

between Kariyappa and the father of the plaintiff on 14th May

1969 and as per the said partition, mutation entries got effected

and thereby the said Kariyappa and the father of the plaintiff-

Mallappa were enjoying the property independently. After the

death of his father-Mallappa, plaintiff succeed to the estate of his

father and in the meanwhile, the defendants have interfered with

the suit schedule property and being aggrieved by the same, the

plaintiff has filed Original Suit No.31 of 2008 on the file of the

trial Court, seeking relief of declaration and permanent

injunction.

5. On service of notice, defendants entered appearance

and filed detailed written statement. It is the case of defendants

that the said Kariyappa had taken the defendant No.1 in

adoption on 14th May, 1964, following the customs with regard

to giving and taking ceremony. It is further stated in the written

statement that after the adoption, late Kariyappa gave a

varadi/report to the Village Accountant to replace his name from

the revenue records by incorporating the name of the defendant

No.1-adopted son and therefore, it is the contention of the

defendant that the contentions raised by the plaintiff that the

property stands in the name of Kariyappa shall be devolved in

favour of the plaintiff is incorrect, and accordingly, sought for

dismissal of the suit. On the basis of the pleadings on record,

trial Court framed issues for its consideration. In order to

establish their case, plaintiffs have examined five witnesses as

PW1 to PW5 and produced twelve documents marked as Exhibits

P1 to P12. Defendant had examined five witnesses as DW1 to

DW5 and produced 29 documents and same were marked as

Exhibits R1 to R29. Based on the material on record, the trial

Court by its judgment and decree dated 21st October, 2013,

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

filed Regular Appeal No.58 of 2013 on the file of the First

Appellate Court and same was resisted by the defendants. The

First Appellate Court, by its judgment and decree dated 28th

July, 2015, dismissed the appeal and as such, confirmed the

judgment and decree dated 21st October, 2013 in Original Suit

No.31 of 2008 on the file of the trial Court. Feeling aggrieved by

the same, the plaintiff has presented this Second Appeal.

6. I have heard Smt. Sumangala A. Chakalabbi, learned

counsel for the appellant and Sri B.V. Somapur, learned counsel

appearing for the respondent.

7. Smt. Sumangala A Chalakkabi, learned counsel

appearing for the appellant contended that both the courts below

have not properly appreciated the partition deed dated 14th May,

1969 (Exhibit P12) and as such accepted Exhibit D29-

unregistered partition deed, and the said aspect of the matter

requires to be reconsidered in this appeal. She further

contended that the adoption deed said to have been executed on

14th May, 1964 has not been properly proved by defendant No.1

and therefore, she contended that the judgment and decree

passed by both the courts below requires to be set aside.

8. Per contra, Shri B.V. Somapur, learned counsel

appearing for the respondent sought to justify the impugned

judgment and decree passed by the courts below.

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

counsel appearing for the parties, I have carefully considered the

finding recorded by both the courts below. It is not in dispute

that the genealogical tree referred to above is unchallenged and

therefore, relationship between the parties is admitted. Perusal

of the grounds urged in the memorandum of appeal would

indicate that the plaintiff has not proved the oral partition said to

have been executed on 14th May, 1969. The defendants deny

the execution of the said document and therefore, it is the duty

of the plaintiff to prove the issue No.1. Perusal of the finding

recorded by the trial Court on issues 1 to 3 reveals that the

plaintiff is the son of Mallappa, brother of Kariyappa. It is the

case of the plaintiff that Kariyappa died issueless. Though the

plaintiff has contended that there was partition between

Kariyappa and Mallappa (father of the plaintiff) during 1969,

however the said document of partition (Exhibit P12) was not

proved by examining the independent witness to prove the

factum of partition between Kariyappa and Mallappa. If at all

such partition has taken as contended by the plaintiff, there was

no impediment for the parties to change the revenue documents

immediately after execution of the said partition. That apart,

defendants have produced Exhibit D4 which reveals that the

father of the plaintiff and the defendant No.1 have jointly

addressed representation to the Village Accountant of Hadali

village stating about the partition of the properties and the said

document was proved by examining independent witnesses. In

that view of the matter, the finding recorded by the trial Court

on issues 1 to 3 is just and proper.

10. Nextly, the plaintiff has denied the adoption of the

defendant No.1 by said Kariyappa. In this regard, the defendant

has produced relevant documents to prove that on 14th May,

1964, adoption ceremony was conducted and pursuant to the

same, the said Kariyappa had adopted the defendant No.1.

Immediately after the adoption, Kariyappa gave representation

to the Village Accountant to mutate the name of defendant No.1

in respect of the properties belonging to him and the said aspect

of the matter was properly appreciated by the trial Court while

answering the issue No.4. The defendants have examined the

witnesses who had participated in the adoption ceremony held

on 14th May, 1964 (Exhibits DW2 to DW5). Taking into

consideration the appreciation of evidence by the trial Court on

merits, I am of the view that the arguments advanced by the

learned counsel appearing for the appellant cannot be accepted

and accordingly, justify the impugned judgment and decree

passed by the trial Court.

11. I have also carefully examined the re-appreciation of

evidence by the First Appellate Court wherein taking into

consideration the evidence adduced by the parties, particularly

with regard to the evidence of DWs.2 to 5 and Exhibit D4

wherein the land bearing survey No.263/2 was divided into two

portions, viz. in the name of the father of the plaintiff and

defendant No.1, the First Appellate Court, rightly confirmed the

judgment and decree passed by the trial Court and therefore, I

am of the view that there is no perversity or illegality in the

judgment and decree passed by the courts below and therefore,

the appellant has not made out a case for framing of substantial

question of law as required under Section 100 of Code of Civil

Procedure. In the result, appeal is dismissed at admission stage

itself.

Sd/-

JUDGE

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