R Basappa S/O Late R Doddbasappa vs T R Shadaksharappa S/O Rudrappa
2022 Latest Caselaw 9783 Kant

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                                      RSA No. 100091 of 2015


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

           DATED THIS THE 28TH DAY OF JUNE, 2022

                           BEFORE
           THE HON'BLE MR JUSTICE E.S.INDIRESH
 REGULAR SECOND APPEAL NO. 100091 OF 2015 (DEC/INJ-)
BETWEEN:

1.    R BASAPPA S/O LATE R DODDBASAPPA
      AGED ABOUT 65 YEARS,
      (NOT CLAIMING SENIOR CITIZEN BENEFIT)
      HINDUS, AGRICULTURIST,
      R/O. TOOLAHALLI VILLAGE
      IN KUDLIGI TALUK, DIST: BALLARI,
      PIN-583135

2.    R THIPPESWAMY S/O LATE R DODDBASAPPA
      AGED ABOUT 60 YEARS,
      HINDUS, AGRICULTURIST,
      R/O. TOOLAHALLI VILLAGE IN KUDLIGI TALUK,
      DIST: BALLARI, PIN- 583135
                                              ...APPELLANTS

(BY SRI. DEEPAK C. MAGANUR, ADVOCATE)

AND:

T. R. SHADAKSHARAPPA
S/O RUDRAPPA
AGED ABOUT 59 YEARS, AGRICULTURIST,
R/O. TOOLAHALLI VILLAGE IN KUDLIGI TALUK,
DIST: BALLARI, PIN-583135
                                              ...RESPONDENT

(BY SRI. HANUMANTHREDDY SAHUKAR, ADVOCATE)
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                                                RSA No. 100091 of 2015


      THIS RSA IS FILED U/S 100 OF CPC AGANST THE
JUDGMENT AND DECREE DATED 16.09.2014 PASSED IN
R.A.NO.15/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, KUDLIGI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
20.01.2012 AND THE DECREE PASSED IN OS NO.85/2005 ON
THE FILE OF THE CIVIL JUDGE AT KUDLIGI, PARTLY
DECREEING THE SUIT FILED FOR DECLARATION AND
INJUNCTION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY.
THE COURT DELIVERED THE FOLLOWING.

                                JUDGMENT

This Regular Second Appeal is filed by the plaintiffs

challenging the judgment and decree dated 16.09.2014 passed in

R.A.No.15/2012 on the file of the Senior Civil Judge and JMFC

Kudligi (hereinafter referred to as 'the First Appellate Court', for

brevity), confirming the judgment and decree dated 20.01.2012

passed in O.S.No.85/2005 on the file of the Civil Judge and JMFC,

Kudligi, decreeing the suit of the plaintiff in part.

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 plaintiffs claims to

be the owner in possession of schedule properties, having

RSA No. 100091 of 2015

purchased the same through registered sale deed dated

27.04.1973 from Smt. Basavva and Smt. Mugavva and thereafter

revenue entries have been changed into their favour. However, the

defendant without any right, title or interest in respect of the suit

schedule property is interfering with the possession of plaintiffs and

as such, the plaintiffs have filed O.S.No.85/2005 on the file of the

trial Court seeking the relief of declaration and permanent

injunction.

4. On service of notice defendant entered appearance

and filed detailed written statement denying the averments made in

the suit. It is the defence of the defendant that, the defendant had

purchased the suit item No.1 bearing survey No.965/B measuring

1.26 cents situated at Ujjini village through the registered sale deed

dated 02.04.1971 from Mugamma (Mugavva) W/o. Puneda

Basappa for valuable consideration and the mother-in-law of

Mugamma (Mugavva) - Basavva has also attested the said sale

deed and as such, defendant is the absolute owner of suit item

No.1 in the suit schedule property and accordingly, sought for

dismissal of the suit.

RSA No. 100091 of 2015

5. The trial Court after considering the pleadings on

record formulated issues for its consideration. The plaintiffs have

examined two witnesses as PWs.1 and 2 and got marked 19

documents as Exs.P1 to P19. On the other hand, two witnesses

were examined by the defendant as DWs.1 and 2 and 21

documents were produced and marked as Exs.D1 to D21. A

Commissioner was appointed before the trial Court and the

Commissioner was examined himself as CW1 and got marked 4

documents as Exs.C1 to C4.

6. The trial Court after considering the material on

record, by its judgment and decree dated 20.01.2012, decreed the

suit in part holding that the plaintiffs are the absolute owners in

possession of item No.2 of the suit schedule property, however,

dismissed the suit in respect of items No.1 of the suit schedule

property. Feeling aggrieved by the same, plaintiffs have preferred

R.A.No.15/2012 on the file of the First Appellate Court and the

appeal was countered by the defendant. The First Appellate Court

after re-appreciating the material on record by its judgment and

decree dated 15.09.2014, dismissed the appeal and being

RSA No. 100091 of 2015

aggrieved by the same, the plaintiffs have preferred this regular

second appeal.

7. I have heard Sri.Deepak C. Maganur, learned counsel

appearing for the appellants and Sri.Hanumanthreddy Sahukar,

learned counsel appearing for the respondents.

8. Sri.Deepak C. Maganur, learned counsel appearing for

the appellants argued that, both the Courts below have not properly

considered the fact that, the appellants have purchased item No.1

of the suit schedule property by registered sale deed dated

27.04.1973 from Basavva and Mugavva and the revenue records

discloses the change of entry and therefore, he contended that the

impugned judgment and decree passed by the Courts below

requires interference in this appeal.

9. per contra, Sri. Hanumanthreddy Sahukar, learned

counsel appearing for the respondent sought to justify the

impugned judgment and decree passed by the Courts below and

further argued that, item No.1 of the suit schedule property was

purchased by the defendant from Mugavva on 02.04.1971 by

registered sale deed and the revenue records have been mutated

RSA No. 100091 of 2015

in the name of the defendant and therefore he contended that, both

the Courts below have rightly dismissed the suit in respect of item

No.1 and therefore, no interference is called for in this appeal.

10. Having heard the learned counsel appearing for the

parties, I have carefully examined the finding recorded by the trial

Court. It is forthcoming from the records that, the defendant has

purchased item No.1 by way of registered sale deed dated

02.04.1971 from Mugavva. Mugavva is the daughter-in-law of

Basavva and both Basavva and Mugavva have jointly sold item

No.1 along with other properties by way of registered sale deed

dated 27.04.1973 in favour of the plaintiffs. In this regard, on

careful consideration of the finding recorded by the trial Court, it is

seen that there is no dispute between the parties with regard to

item No.2 of the suit schedule properties. The core question to be

answered in this appeal is with regard to item No.1 and perusal of

the revenue records from the year 1994-1995 onwards shows the

name of the defendant. That apart, if the mutation has been

changed in the name of the defendant by the revenue authorities,

the plaintiffs ought to have challenged the same before the

jurisdictional revenue authorities seeking clarification or removing

RSA No. 100091 of 2015

the name of the defendant from the revenue records. Therefore, I

am of the view that the trial Court, after consideration of the

material on record particularly Exs.D6 to D17 - record of rights

and mutation extracts as per Ex.D18, rightly held that the plaintiffs

have not proved their ownership in respect of item No.1 of the suit

schedule property. I have also examined the re-appreciation of the

evidence by the First Appellate Court and the First Appellate Court

having taken note of the fact that the common vendor for both the

plaintiffs and defendant is Mugavva and defendant has purchased

the property on 02.04.1971 much before the purchase made by the

plaintiffs on 27.04.1973, rightly confirmed the judgment and decree

of the trial Court in respect of item No.1 of suit schedule property.

11. Therefore, I do not find any acceptable ground to

interference with the well reasoned judgment and decree passed

by both the Courts below. The appellants have failed to satisfy this

Court to frame the substantial question of law as required under

Section 100 of Code of Civil Procedure. Therefore, the appeal fails

and accordingly dismissed at the stage of admission.

Sd/-

JUDGE gab