Sri.Sabanna S/O Mallappa ... vs Sri.Ayyappa S/O Mallappa ...
2022 Latest Caselaw 8007 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

       DATED THIS THE 2ND DAY OF JUNE 2022

                         BEFORE

  THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

               RSA No.200103/2017 (PAR)

BETWEEN:

Sri. Sabanna
S/o Mallappa Goudager,
Aged about 67 years,
Occ: Agriculture,
R/o Warknalli, Tq. Yadgir.
                                             ... Appellant

(By Sri. G.G. Chagashetti, Advocate)

AND:

Sri. Ayyappa
S/o Mallappa Goudager,
Aged about 57 years,
Occ: Agriculture,
R/o Warknalli, Tq. Yadgir.
                                          ... Respondent

(By Sri. Vikram Vijaykumar, Advocate)

     This Regular Second Appeal is filed under Section
100 of the Code of Civil Procedure, praying to allow the
appeal and set aside the judgment and decree dated
15.12.2016 passed by the learned Senior Civil Judge at
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Yadgir in R.A.No.34/2015, dismissing the appeal and
confirming the judgment and decree dated 02.12.2014
passed by the learned Civil Judge & JMFC at Yadgir in
O.S.No.161/2010.

      This appeal listed for admission and having been
heard and reserved on 30.05.2022, coming on for
pronouncement of judgment this day, the Court delivered
the following:

                        JUDGMENT

This appeal is filed by the plaintiff, challenging the

judgment and decree dated 15.12.2016 passed by the

Senior Civil Judge, Yadgir in R.A.No.34/2015 and the

judgment and decree dated 02.12.2014 passed by the Civil

Judge and JMFC, Yadgir in O.S.No.161/2010, whereby the

suit filed by the plaintiff came to be dismissed.

2. That, the plaintiff has filed the suit for relief of

partition and separate possession of his half share in the

suit schedule property. The plaintiff contended that he and

the defendant are the brothers being the sons of Mallappa

Goudageri and the suit land is a joint family land and the

plaintiff and the defendant are the members of joint

family. That, 2 acres 20 guntas of the suit property was

acquired and compensation has been paid, but while

effecting mutation based on acquisition, the wrong

mutation has shown that the portion of the plaintiff to the

extent of 2 acres 10 guntas was acquired and 2 acres 28

guntas is shown to be in the name of defendant by

showing that 4 guntas of land only was acquired. The

mutation entries are without any material evidence and in

fact no division has been taken place and as such, it is

prayed for granting the decree of partition.

3. The defendant has filed written statement

denying the allegations and assertions made thereunder.

Though he admitted the relationship, he denied the other

contentions and further specifically asserted that long back

the partition has taken place and the mutations were

effected independently in the names of the plaintiff and the

defendant. He would also contend that the plaintiff has

received compensation exclusively pertaining to 2 acres 20

guntas of acquired land, which was standing in his name

and hence has disputed the claim.

4. The Trial Court, after appreciating the oral as

well as the documentary evidence, dismissed the suit.

5. Being aggrieved by this judgment and decree,

the plaintiff has filed R.A.No.34/2015 on the file of Senior

Civil Judge, Yadgir and the same was also dismissed vide

judgment and decree dated 15.12.2016.

6. Being aggrieved by the concurrent findings,

the plaintiff has filed this second appeal.

7. The learned counsel for the appellant/plaintiff

would contend that the judgment and decree of the

Courts below are illegal and erroneous and the First

Appellate Court has also wrongly rejected I.A.No.II filed

under Order XLI Rule 27 of CPC. He would also contend

that there is no material evidence regarding the partition

between the two brothers and the compensation amount

was shared by the plaintiff and the defendant. However,

the learned counsel is unable to explain the question of law

involved in this case.

8. Per contra, learned counsel for the

respondent/defendant would support the judgment and

decree passed by the Courts below.

9. Having heard the arguments, it is evident that

the plaintiff has filed a suit for partition claiming half share

in the suit schedule property. The plaintiff all along asserts

that the plaintiff and defendant are the real brothers, but

the records disclose that they are the step brothers. The

Trial Court as well as the First Appellate Court elaborately

discussed the oral as well as documentary evidence. The

document marked at Ex.P1 disclose that initially the entire

land measuring 5 acres 24 guntas was standing in the

name of the plaintiff and defendant. But, subsequently,

from Ex.P2 onwards it is evident that 2 acres 32 guntas

was mutated in the name of the plaintiff as per Exs.P2 and

P3 and 2 acres 25 guntas excluding the Phot Kharab was

mutated in the name of defendant. These mutation entries

were not challenged all along. Further, admittedly, 2 acres

14 guntas of land was acquired by the State Government.

Ex.P5 disclose that the name of the defendant is mutated

to the extent of 2 acres 21 guntas and 4 guntas acquired

land was mutated in the name of Irrigation Department.

Accordingly, from Ex.P6 it is evident that the name of the

plaintiff is mutated to the extent of 22 guntas, but the

name of the Irrigation Department is mutated to the

extent of 2 acres 10 guntas in respect of acquired

property. Same also is the case as per Exs.P7 to P9.

Hence, these documents clearly establish that the

properties are being enjoyed independently by the parties

and this fact was appreciated by both the courts below.

10. The main reliance of the plaintiff is on Ex.P10,

which is an alleged affidavit said to have been filed by the

defendant before the Land Acquisition Officer. The Trial

Court as well as the First Appellate Court have rejected

Ex.P10 on the ground that the affidavit is not an evidence.

Even otherwise, it is not proved, as the defendant has

denied his signature and it is not a certified copy. No steps

were taken to prove this document.

11. Apart from that, Ex.D1 clearly establish that

the plaintiff has received the compensation amount in

respect of acquired land to the extent of 2 acres 10 guntas

and Ex.D2 is the indemnity bond executed by him.

Though plaintiff asserts that he has shared this amount

with the defendant, no material evidence is forthcoming.

Both the Courts have appreciated this oral and

documentary evidence and after appreciating the material

evidence have rightly rejected the suit of the plaintiff.

12. Though the arguments have been advanced

regarding rejection of the application-I.A.No.II under Order

XLI Rule 27 of CPC by the First Appellate Court, the First

Appellate Court has given reasons and considered that

these documents were already produced by the defendant.

Even otherwise, the First Appellate Court has rightly

observed that these documents will not assist the plaintiff

in any way. Hence, on factual aspects, no material

evidence is forth coming that the Courts below have

erroneously gave the finding. No substantial question of

law is involved so as to admit the appeal. No perversity or

illegality is found in the judgment and decree of both the

Courts below and when there is no question of law

involved, entertaining this appeal does not arise at all.

Hence, the appeal is devoid of any merits and needs to be

dismissed.

Accordingly, the appeal is dismissed.

In view of dismissal of the appeal, I.A.1/2018 for

stay does not survive for consideration and the same

stands dismissed.

Sd/-

JUDGE LG