Karnataka High Court
Pujar Veeranna S/O Pujar Rudrappa vs T.G. Thirukanagouda S/O Late ... on 21 June, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 100817 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100817 OF 2015 (DEC/INJ)
BETWEEN:
1. PUJAR VEERANNA S/O PUJAR RUDRAPPA
AGE:44 YEARS, OCC:AGRL
R/O:MARABHA VILLAGE
TQ:KUDLIGI, DIST:BELLARY
2. PUJAR SHIVAKUMAR S/O PUJAR RUDRAPPA
AGE:27 YEARS, OCC:AGRL
R/O:MARABHA VILLAGE
TQ:KUDLIGI,DIST:BELLARY
...APPELLANTS
(BY SRI. H R GUNDAPPA, ADVOCATE)
AND:
1. T.G. THIRUKANAGOUDA
S/O LATE T.G.SHANTAPPA
AGE:43 YEARS, OCC:AGRL
R/O:MARABHA VILLAGE
TQ:KUDLIGI, DIST:BELLARY
2. T.G.VEERASHANKARAGOUDA
S/O LATE T.G.SHANTAPPA
AGE:40 YEARS,OCC:AGRL
R/O:MARABHA VILLAGE
TQ:KUDLIGI, DIST:BELLARY
...RESPONDENTS
(BY SRI. SABEEL AHAMED FOR SRI. A. S. PATIL, ADVOCATE)
---
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RSA No. 100817 of 2015
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGMENT & DECREE DTD:30.06.2015 PASSED IN
R.A.NO.8/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, KUDLIGI,
DISMISSING THE APPEAL, AND CONFIRMING THE JUDGMENT
AND DECREE DTD:21.12.2013 AND THE DECREE PASSED IN
O.S.NO.134/2009 ON THE FILE OF THE CIVIL JUDGE, AT
KUDLIGI, DISMISSING THE SUIT FILED FOR DECLARATION
AND PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiffs challenging the judgment
and decree dated 30.06.2015 passed in RA.No.8 of 2014 on the
file of the Senior Civil Judge and JMFC, Kudligi, dismissing the
appeal and confirming the judgment and decree dated 21.12.2013
passed in O.S.No.134 of 2009 on the file of the Civil Judge, Kudligi,
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. It is the case of the plaintiffs that the schedule
properties are purchased by grandfather of the plaintiffs-Sanna
RSA No. 100817 of 2015
Veerappa and grandfather of the defendant-Thirukanagouda,
through a registered Sale Deed dated 06.04.1929 from one
Mayappa, son of Poojar Palaiah for a valuable consideration of
Rs.300/- and thereafter, the grandfather of the plaintiffs-Sanna
Veerappa and grandfather of the defendants- Thirukanagouda
were in possession and enjoyment of the suit schedule property. It
is further stated in the plaint that as the grandfather of the plaintiffs
and defendants have purchased the suit schedule properties jointly
through a common registered Sale Deed and as such, the plaintiffs
and defendants are having equal share in the suit schedule
properties. It is further stated by the plaintiffs that there was
partition in their family during 2003 and by virtue of the said the
partition, 4 acres each was assigned to Poojar Veeranna, son of
Poojar Rudrappa and Poojar Shivakumar, son of Poojar Rudrappa.
It is further stated that the defendants without any right over the suit
schedule property, are interfering with the peaceful possession of
the suit schedule property by the plaintiffs and as such, plaintiffs
have filed OS No.134 of 2009 on the file of the trial Court seeking
the relief of declaration and permanent injunction in respect of the
suit schedule property.
RSA No. 100817 of 2015
4. After service of summons, the defendants entered
appearance and filed detailed written statement denying the
averments made in the plaint. The specific defense of the
defendants is that, one Thirukanagouda was the propositus of their
family and he had two sons by name Muppinappa and Poojari
Veerappa and both have expired. The said Muppinappa had a son
by name Thirukanagouda and he had wife by name Adivevva. The
said Thirukanagouda and Adivevva had two sons namely,
Veerappa and T.Shantappa. Veerapa died without any issue and
said T.Shantappa, married Sannaeramma and they have two
children namely, T.G.Tirigkonaagouda and
T.G.Veerashankaregouda, who are the defendants in the case. It
is the case of the defendants that the plaintiffs are not related to the
defendants and the plaintiffs themselves partitioned the suit
schedule property illegally and therefore, the defendants sought for
dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court has
formulated issues for its consideration. In order to establish their
case, plaintiffs have examined seven witnesses as PWs.1 to 7 and
got marked 12 documents as Exs.P1 to P12. On the other hand,
RSA No. 100817 of 2015
defendant No.1 examined himself as DW1 and produced 43
documents and same were marked as Exs.D1 to D43.
6. The trial Court, after considering the material on
record, by its judgment and decree dated 21.12.2013 dismissed the
suit of the plaintiffs and being aggrieved by the same, the plaintiffs
preferred Regular Appeal in R.A No.8 of 2014 on the file of First
Appellate Court. The said appeal was resisted by the defendants.
The First Appellate Court after re-appreciating the facts on record,
by its judgment and decree dated 30.06.2015, dismissed the
appeal and confirmed the judgment and decree passed by the trial
Court in O.S No.134 of 2009. Being aggrieved by the dismissal of
original suit and the appeal, the plaintiffs have preferred this
Regular Second Appeal under Section 100 of CPC.
7. I have heard Sri H.R.Gundappa, learned counsel for
the appellants and Sri. Sabeel Ahamed, learned counsel appearing
for the respondents.
8. This Court by order dated 16.06.2022, admitted the
appeal and formulated the substantial question of law, which reads
as under:
RSA No. 100817 of 2015
"Whether both the Courts below were justified in
dismissing the suit declining to grant share to the
plaintiffs in terms of Sale Deed dated 06.04.1929 (Ex.P1
and Ex.P2)?"
9. Sri H.R.Gundappa, learned counsel for the
plaintiffs/appellants submits that both the Courts below have not
properly appreciated the facts on record. He further submitted that
the grandfather of the plaintiffs and defendants, Sanna Veerappa
and Thirukanagouda, respectively have purchased the suit
schedule properties together through registered Sale Deed dated
06.04.1929. The suit schedule property consisting of two survey
numbers, namely Sy.No.245 measuring 11 acres, 11 cents and
Sy.No.246A measuring 4 acres 98 cents and therefore, total extent
of the land is 16 acres, 9 cents and as the grandfather of the
plaintiffs and defendants had purchased the aforementioned
properties jointly and as such, the plaintiffs are entitled for half
share in the aforementioned suit schedule property. Therefore, he
argued that said aspect of the matter has not been properly
assessed by the trial Court nor re-appreciated by the First
Appellate Court.
RSA No. 100817 of 2015
10. Sri. H. R. Gundappa, learned counsel appearing for
the appellant, further argued that, the plaintiffs inadvertently
provided the schedule to the plaint with regard to survey No.245
measuring 11 acres 11 cents, however, left out the survey
No.246/A, measuring 4 acres 98 cents. In this regard, he invited
the attention of this Court to paragraphs 26 to 30 of the judgment
and decree in RA No.8/2014 and argued that, undisputably, the
Sale Deed dated 06.04.1929 provides that the grandfather of the
plaintiffs and grandfather of defendants, have purchased land
bearing survey No.246/A jointly and in that view of the matter, in
the event if the relief sought for in the appeal in R.A.No.8/2014 is
rejected, the same would cause injustice to the plaintiffs as the
documents itself speaks about that the grandfather of the plaintiffs
and grandfather of defendants purchased the land bearing survey
No.246/A jointly. Accordingly, he sought for interference of this
Court.
2. Per contra, Sri. Sabeel Ahmed, learned counsel
appearing for the respondent sought to justify the impugned
judgment and decree passed by the Courts below. Sri. Sabeel
Ahmed invited the attention of this Court to the schedule to the
RSA No. 100817 of 2015
plaint and argued that both the Courts below have rightly held that
the plaintiffs are entitled for 4 acres in survey No.245 measuring 11
acres 11 cents. He further contended that, no interference is called
for in this appeal, as both the Courts below on concurrent findings
arrived at a just conclusion and he further argued that, the
genealogical tree produced by plaintiffs herein is disputed by the
defendants before the trial Court. Accordingly he sought for
dismissal of the appeal.
3. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully examined the
impugned judgment and decree passed by the Courts below.
4. It is not in dispute that the grandfather of the plaintiffs -
Sannaveerappa and grandfather of the defendants -
Tirukanagouda, have purchased two properties jointly namely, land
measuring 11 acres 11 cents in survey No.245 of Moraba Village,
Kudligi taluk and land measuring 4 acres 98 cents in survey
No.246/A of Moraba Village, Kudligi Taluk. It is also not in dispute
that, the parties to the lis have produced the relevant sale deeds as
Exs.P1 and P2, so also, Exs.D1 and D2. In this connection, I have
carefully examined the documents produced i.e., Exs.P1 and P2
RSA No. 100817 of 2015
and Exs.D1 and D2. The genealogical Tree produced by the
appellant herein would indicate that Sannaveerappa was the
original propositus, died leaving behind two children - Pujar
Rudrappa and Pujar Shantappa. Plaintiffs are the children of Pujar
Rudrappa and Pujar Shantappa died leaving behind his wife
Tandavva. She is also no more. Though I find force in the
submission made by learned counsel appearing for the
respondents, that the plaintiffs have not stated about the land
bearing survey No.246/A in the schedule to the plaint, however, the
documents produced by both the parties as Exs.P1 and P2 and so
also Exs.D1 and D2 cannot be doubted. In this regard, I have
carefully examined the reasons assigned by the First Appellate
Court rejecting I.A.Nos.1 and 2 filed by the plaintiffs under Order VI
Rule 17 read with Section 151 of the Code of Civil Procedure and
under Order 26 Rule 9 read with Section 151 of the Code of Civil
Procedure, wherein the First Appellate Court taken into account the
fact that the proposed amendment would change the nature of the
suit, declined to accept the said application. Perusal of the affidavit
accompanying the application filed under Order VI Rule 17 of Code
of Civil Procedure would indicate that, the plaintiff requires to add
one more schedule to the plaint, namely survey No.246/A
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RSA No. 100817 of 2015
measuring 4 acres 98 cents. Even if the finding recorded by the
First Appellate Court is accepted, however, the dispute between
the parties cannot be resolved since the grandfather of the plaintiffs
and grandfather of the defendants have purchased the properties
jointly even in respect of survey No.246/A. Therefore, I am of the
view that the First Appellate Court ought to have allowed the
application filed by the appellant herein to resolve the dispute on
merits as the suit is one filed for declaration with consequential
relief of injunction. In that view of the matter, I am of the view that
the appellants herein have made out a case for interference in the
concurrent findings recorded by both the Courts below under
Section 100 of Code of Civil Procedure, as both the Courts below
have failed to appreciate Exs.P1 and P2 as well as Exs.D1 and D2
in the right perspective as common purchasers of the land are the
grandfathers of the plaintiffs and defendants. Therefore, it is a fit
case to remand the matter to the trial Court to adjudicate the matter
afresh after affording opportunity of hearing to both sides. It is
made clear that the parties are at liberty to urge all the contentions.
In that view of the matter, the substantial question of law framed by
this Court favours the plaintiffs. Both the Courts below have not
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RSA No. 100817 of 2015
properly appreciated the Sale Deed dated 06.04.1929 (Exs.P1 and
P2 and Exs.D1 and D2) in the right perspective.
5. Therefore, having taken note of the discussion made
above, the appellants have raised an appropriate question relating
to the appreciation of documents referred to above by exercising
the power under Order 42 Rule 23A of Code of Civil Procedure.
The matter requires to be re-examined by the trial Court. In the
result, I pass the following:
ORDER
i. The appeal is allowed.
ii. Judgment and decree dated 30.06.2015 passed
in R.A.No.8/2004 on the file of the Senior Civil
Judge and JMFC, Kudligi is set aside.
iii. Judgment and decree dated 21.12.2013 passed
in O.S.No.134/2009 on the file of the Civil Judge
and JMFC, Kudligi is set aside and the matter is
remanded to the trial Court for fresh consideration
in terms of the observation made above.
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RSA No. 100817 of 2015
iv. Trial Court is requested to dispose of the suit at
the earliest within an outer limit of one year from
the date of receipt of the copy of this judgment
after affording reasonable opportunity to both
sides.
v. All contentions of the parties are kept open.
vi. It is also made clear that the trial Court is at liberty to
dispose of the suit without being influenced by the
observation made above.
vii. As the learned counsel appearing for the parties are
represented in this appeal, the parties are directed to
appear before the trial Court on 01.08.2022 without
waiting for further notice in the matter.
Sd/-
JUDGE
SB/gab
