Shivaraj And Anr vs Smt. Anasuya And Anr
2022 Latest Caselaw 9772 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 28TH DAY OF JUNE 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

               RSA. No.200427/2019 (DEC)

BETWEEN:

1.     Shivaraj S/o Siddanna Patil,
       Age: 37 years, Occ: Legal Representative
       R/o BTG Hospital, Vidya nagar,
       Badepur, Sedam Road,
       Kalaburagi.

2.     Basawaraj S/o Siddanna Patil,
       Age: 37 years, occ: Area Manager,
       R/o Door No.203,
       Pyravel Health Suma Nilaya,
       12th Main, 9th Cross, Saraswatipuram,
       Mysore.
                                                ...Appellants
(By Sri G.S.Biradar & V.G.Biradar, Advocates)

AND:

1.     Smt. Anasuya W/o Siddanna Patil,
       Age: 62 years, Occ: Household,
       R/o Kalaburagi, at present.
       R/o Opp. BTG Hospital, Vidya Nagar,
       Badepur Colony, Sedam Road,
       Kalaburagi-585401.
                               2




2.   Smt. Kanyakumari
     W/o Vishwanath Biradar,
     Age: 28 years, Occ: Household,
     R/o Extn. Area, Vasavi Nagar,
     Raichur-584101.
                                             ... Respondents

      This Regular Second Appeal is filed under Section
100 of CPC, praying to allow this appeal by setting aside
the judgment and decree dated 20.09.2019 passed in
R.A.No.69/2016 passed by the learned I Addl. Dist. &
Sessions Judge, Kalaburagi, confirming the judgment and
decree dated 02.03.2015 passed in O.S.No.70/2011 by the
learned III Addl. Senior Civil Judge, Kalaburagi and to
dismiss the suit of the plaintiff.

      This appeal coming on for Admission this day, the
Court delivered the following:

                          JUDGMENT

This regular second appeal is filed by the

unsuccessful defendants under Section 100 of CPC,

challenging the judgment and decree dated

02.03.2015 passed in O.S.No.70/2011, on the file of

the III Addl. Senior Civil Judge, Kalaburagi, and

confirmed in R.A.No.69/2016, whereby both the

Courts below have decreed the suit filed by the

plaintiff declaring that she is exclusive owner of the

suit schedule property and further directed the

defendants to hand over the vacant possession of the

suit schedule property. However, the trial Court has

rejected the claim for damages of plaintiff.

2. Being aggrieved by this judgment and

decree, the appellants/defendants filed appeal in

R.A.No.69/2016 on the file of the I Addl. District and

Sessions Judge, Kalaburagi, while the

plaintiff/respondents filed cross objection in respect of

the claim for damages. The Appellate Court has

dismissed the appeal filed by the present appellants

by confirming the judgment and decree of the trial

Court. However, the counter objections were allowed

by awarding damages to the plaintiff. Being

aggrieved by this judgment and decree, this second

appeal is filed.

3. For the sake of convenience, the parties

herein are referred with the original ranks occupied by

them before the Tribunal.

4. The brief facts leading to the case are that

the plaintiff is mother of defendant Nos.1 and 2. She

filed a suit for declaration of her title over the suit

schedule property. It is contended that Vidyanagar

Housing Co-operative Society, Gulbarga, has allotted

plot in favour of plaintiff for Rs.3,000/- and after

obtaining permission and after availing loan, she had

constructed a house out of her own savings, financial

help from her parents and sale of other gold

ornaments and it is her exclusive property. She has

also claimed that she had cleared the loan of the

Housing board and the Housing board has also

executed redemption deed in her favour. It is

contended that defendant Nos.1 and 2 have started to

trouble her at the instance of their wives and

defendant No.1 filed a suit for partition against the

present plaintiff and he has not included the present

suit schedule property and defendant Nos.1 and 2

have forcibly evicted her from the suit property.

Hence, she has filed a suit for declaration of title and

possession as well as for damages.

5. The defendant Nos.1 and 2 have appeared

and filed their written statements admitting the

relationship but denied that the suit schedule property

was exclusive property of the plaintiff. The

defendants contended that she had no source of

income and the said plot was purchased by their

father in the name of plaintiff for name sake and the

loan was obtained in the name of plaintiff but infact

the loan was paid by their father and he paid major

portion of the loan to the Karnataka Housing Board. It

is further contended that the father of defendant

Nos.1 and 2 and husband of plaintiff has got

constructed the house and he has repaid the major

portion of the loan and denied the other allegations.

They have also denied the aforesaid eviction and

prayed for that the suit schedule property is under

enjoyment of all the family members and sought for

dismissal of the suit.

6. On the basis of these pleadings, the trial

Court has framed as many as 11 issues as under;

(i) Whether the plaintiff proves that she has purchased plot No.72 measuring 40' x 60' from Vidyanagar Housing Co-operative Society, Gulbarga for a sum of Rs.3,000/-

             under     a     registered        deed        dated
             26.07.1982?


  (ii)       Whether the plaintiff further proves that

by obtaining valid permission from the

concerned authorities, she constructed the house by availing loan and she repaid the entire loan amount and started residing in the said house along with her family members?

(iii) Whether the plaintiff proves that the defendants No.1 and 2 forcibly dispossessed her from the said house denying her title to the suit property?

(iv) Whether the plaintiff proves that alleged cause of action which arose in the last week of March 2011 when the defendants denied to hand over the possession of suit house to her?

(v) Whether the defendants No.1 and 2 prove that major portion of the loan amount is paid by Siddanna Patil, but reduction deed was nominally executed in the name of plaintiff?

(vi) Whether the defendants No.1 and 2 prove that the suit is barred by limitation?

(vii) Whether the defendants No.1 and 2 are entitled for the compensatory cost as prayed by them?

(viii) Whether the defendants No.1 and 2 prove that the Court fee paid by the plaintiff is incorrect and insufficient?

(ix) Whether the plaintiff is entitled for the relief of damages @ Rs.10,000/- per month from the date of suit till delivery of possession from the defendants?

(x) Whether the plaintiff is entitled for the relief of declaration and possession as prayed by her?

(xi) What order or decree?

7. The issue Nos.1 to 4 were answered in

favour of plaintiff while issue Nos.5 to 9 were

answered in the negative and issue No.10 was partly

answered in the affirmative and decreed the suit

partly, while the claim for damages was rejected.

8. Against this judgment and decree,

defendant Nos.1 and 2 filed appeal in R.A.No.69/2016

on the file of the I Addl. District & Sessions Judge,

Kalaburagi, and plaintiff has also filed cross objection

challenging the judgment and decree in so far it

relates to rejection of claim of damages.

9. The First Appellate Court has confirmed the

judgment and decree regarding title and entitlement

of the plaintiff by dismissing the appeal filed by the

appellants herein. However, it has further allowed the

cross objection filed by the plaintiff and granted relief

of damages also. This judgment and decree came to

be challenged in this appeal.

10. Heard both sides and perused the records.

11. Having heard the arguments and perusing

the records, it is to be noted here that virtually there

are two decrees passed by the First Appellate Court,

one is dismissing the appeal filed by the present

appellants and other is regarding allowing the counter

claim made by the plaintiff regarding damages.

However, a single appeal has been filed by the

appellants/defendant Nos.1 and 2. The appellants

ought to have challenged the judgment and decree as

well as the counter claim by filing two independent

appeals but they did not do so.

12. Apart from that, it is not the claim of the

defendant Nos.1 and 2 that the suit schedule property

was acquired with the aid of the joint family nucleus.

All along, it is specifically contended that the suit plot

was purchased by their father in the name of plaintiff,

as he was public servant. Further, it is their contention

that their father has paid the major portion of the loan

also. However documents clearly disclose that suit plot

was allotted in the name of plaintiff and redemption

deed was also executed in the name of plaintiff. Apart

from that, the loan was also sanctioned in the name of

plaintiff itself. Whether the defendant Nos.1 and 2 or

their father had contributed for purchasing this

property or construction of house is irrelevant factor,

in view of the fact that the property is a sthridan

property under Section 14 of the Hindu Succession

Act. As per the said provision any property acquired

by Hindu female is her absolute property. Admittedly,

it is not the case of defendants/appellants herein that

ancestral joint family nucleus is utilized for purchasing

the suit schedule property. If at all the property was

purchased by the father of defendants i.e. husband of

plaintiff, even then it becomes her sthridhan property

only. The defendants have not placed any piece of

documents to show that they have contributed

anything towards purchase of this property or

construction of the house.

13. Interestingly, it is also to be noted here

that the defendants are sons of plaintiff. The very case

of the plaintiff is that she was dispossessed from her

own house. She being the mother of defendants and

owner of the suit schedule property, it is painful to

note here that she was not given protection by her

own sons. Under Section 14 of Hindu Succession Act,

the plaintiff is the exclusive owner of the suit schedule

property. The finding of counter claim regarding

damages disclose that she was dispossessed and this

fact is not specifically disputed.

14. Under these circumstances and considering

the facts and circumstances of the case in hand, the

defendant Nos.1 and 2/appellants herein have failed

to make out any substantial question of law. The

plaintiff being the owner of the suit schedule property

is entitled for the possession of the suit schedule

property and she is also entitled for declaration as well

as damages. Both the Courts below have appreciated

the oral and documentary evidence in detail and the

judgment and decree passed by the Courts below do

not suffer from any infirmity or illegality so as to call

for any interference. Under these circumstances, no

case is made out for admission and issuance of notice

and no substantial question of law is involved. Under

these circumstances, the appeal is devoid of any

merits and needs to be rejected.

15. Accordingly, I proceed to pass the

following;

ORDER The appeal is dismissed.

However, the appellants/defendant Nos.1 and 2

are granted further two months time from today to

vacate and hand over the vacant possession of the

suit schedule property to plaintiff/respondent No.1

herein.

Sd/-

JUDGE

msr