Shekarappa vs Puppanna
2022 Latest Caselaw 3930 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 8TH DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE R. NATARAJ

     REGULAR SECOND APPEAL NO.1495 OF 2013 (DEC)

BETWEEN:

1.     SHEKARAPPA
       S/O. LATE MALLAPPA
       AGED ABOUT 75 YEARS

2.     BASAVARAJAPPA
       S/O. LATE MALLAPPA
       AGED ABOUT 60 YEARS

3.     NANJUDAPPA
       S/O. LATE MALLAPPA
       AGED ABOUT 55 YEARS

4.     ONKARAPPA
       S/O. LATE MALLAPPA
       AGED ABOUT 54 YEARS
       ALL ARE R/O SOKKE VILLAGE
       AJJAMPUR HOBLI,
       TARIKERE-TQ.
       CHIKKAMAGULUR-DIST.            ....APPELLANTS

(BY SRI. KANTHARAJAPPA M.G. ADV)

AND :-

1.     PUPPANNA
       S/O. S.N. MALLAPPA
       AGEDA BOUT 49 YEARS
                             2




2.   M. VISHVESHWARAIAH
     S/O. S.N. MALLAPPA
     AGED ABOUT 49 YEARS

3.   RAJAPPA
     S/O. S.N. MALLAPPA
     AGED ABOUT 49 YEARS

4.   SMT. HEMAKKA
     W/O. SRIKANTHAIAH
     AGEDA BOUT 65 YEARS
     R/O. KALKERE VILLAGE
     HIRENALLUR HOBLI,
     KADUR TQ.

5.   SMT. GANGAMMA
     W/O. SHIVARUDRAPPA
     AGEDA BOUT 57 YEARS
     R/O. MAKANAHALLI VILLAGE
     AMRUTHAPUR HOBLI,
     TARIKERE TQ.

6.   SMT. SHARADAMMA
     W/O. ESWARAPPA
     AGED ABOUT 53 YEARS
     R/O. GARUGADHAHALLI VILLAGE
     AJJAMPUR HOBLI,
     TARIKERE TQ.

      THE R-1 TO R-3 ARE R/O. SOKKE VILLAGE
      AJJAMPUR HOBLI, TARIKERE -TQ-577 547
      CHIKKAMAGULUR-DIST.
                                        ....RESPONDENTS
(BY SRI. M. RUDRAIAH ADV.)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 19.04.2013 PASSED IN R.A.NO.37/2007 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND PRL. JMFC., TARIKERE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 03.09.2007 PASSED IN O.S.NO.160/2003
ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND ADDL. JMFC.
TARIKERE.
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     THIS REGULAR SECOND APPEAL COMING ON                   FOR
ADMISSION, THIS DAY, THE COURT DELIVERED                    THE
FOLLOWING:

                        JUDGMENT

This is an appeal filed by the defendants challenging

the concurrent finding of fact recorded by the Civil Judge

(Jr.DN) and Addl. JMFC, Tarikere in O.S.No. 160/2003

which was confirmed by the Senior Civil Judge and Prl.

JMFC, Tarikere in R.A.37/2007.

2. The appellants herein were the defendants while

the respondents herein were the legal representatives of

the deceased plaintiff.

3. The plaintiff sought declaration of his title and

recovery of possession of 12 guntas of land in Sy.No.23/2

of Sokke village, Ajjampura Hobli, Tarikere Taluk,

Chikmagalur District. The plaintiff claimed that the land

bearing Sy.No.23 of Sokke village was earlier owned and

possessed by Puttappa, who was the propositus of a joint

family comprised of Naganna and Nanjanna. After the

death of Puttappa both Naganna and Nanjanna divided the

land bearing Sy.No.23 in terms of an un-registered

partition dated 24.04.1919. The land in Sy No.23 was

re-surveyed and sub-divided into Sy No.23/1 to 23/4.

The land in Sy No.23/1 was allotted to the share of

Nanjappa, while Sy No.23/2 was allotted to the share of

Naganna. The plaintiffs are the legal heirs of Naganna and

defendants are the grand sons of Nanjappa. It was alleged

that the land in Sy No.23/1 lay on the western and

southern side of Sy No.23/2. The plaintiff alleged that the

defendants had encroached 12 guntas of land in Sy

No.23/2 which came to his knowledge after the ADLR

conducted a survey and hence, suit was filed for

declaration of title and consequently, recovery of

possession.

4. The suit was contested by defendant No.4 who

filed written statement which was adopted by defendants

No.1 to 3. The defendants have admitted the relationship

with the plaintiffs and also admitted the partition deed

dated 24.04.1919. They claim that after the death of

Nanjappa, they were in possession of half portion of the

property bearing Sy No.23. They alleged that the suit

property claimed by the defendants was a portion of land

bearing Sy No.23/4 and that their father mortgaged the

said property to Patel Mallappa and also contended that

property bearing Sy No.23/4 was their ancestral property.

They disputed the extent of land available in Sy No.23/2 as

claimed by the plaintiffs.

5. Based on the rival contentions, the Trial Court

framed the following issues:-

1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?

2. Whether the plaintiffs prove that suit schedule property is part and parcel of Sy No.23/2 of Sokke Village?

3. Whether the plaintiffs prove that the defendants encroached the western portion of 12 guntas of land in Sy No.23/2?.

4. Whether the plaintiffs are entitled for the reliefs sought four?

5. What decree or order?

Additional Issue :

Whether the suit is barred by law of limitation?

6. During the pendency of the suit, the plaintiff

died and his legal representatives were brought on record.

Legal representative No.2 was examined as PW-1 and he

marked documents as Ex.P1 to Ex.P12 and examined a

witness as PW-2. On the other hand defendant No.4 was

examined as DW-1 and he marked documents as Ex.D1 to

Ex.D17 and examined a witness as DW-2. The Trial Court

appointed a Court Commissioner to inspect the spot. He

was examined before the Court as CW-1 and he marked

documents as Ex.C1 to Ex.C5.

7. Based on the oral and documentary evidence,

the Trial Court held that the antecedent title of the

predecessor of plaintiff and defendants in respect of land

bearing Sy No.23 was admitted. It also held that the

parties had admitted the partition between the father of

plaintiff and grandfather of defendants. The Trial Court

noticed that property bearing Sy No.23 was re-surveyed

and sub-divided as Sy No.23/1, Sy No.23/2, Sy No.23/3

and Sy No.23/4. While Sy No.23/2 measured 1 acre 30

guntas including 1 gunta Kharab, Sy No.23/1 measured 1

acre 15 guntas and Sy No.23/4 measured 15 guntas. It is

also noticed from the evidence on record that suit property

lay on the northern side of property bearing Sy No.23/4.

The Trial Court took the assistance of the Commissioner

who visited the spot and prepared a sketch indicating that

the defendants have encroached an area of 12 guntas in

Sy No.23/2. The Trial Court also noticed from RTC

extracts which were marked as Ex.P1 to Ex.P10, Ex.D2,

Ex.D3 and Ex.D13 to 16 that Sy No.23/1 measured 1 acre

15 guntas, while Sy No.23/2 measured 1 acre 13 guntas,

Sy No.23/3 measured 3 acres and Sy No.23/4 measured

25 guntas.

8. The Trial Court held from the evidence on

record that the defendants were in possession of lands

bearing Sy No.23/1 and Sy No.23/4 and the claim of the

defendants that suit property was part and parcel of the

land bearing Sy No.23/4 was negated from the evidence of

DW-1 who deposed that Sy No.23/2 lay on the southern

side of Sy No.23/4. The Trial Court held that defendants

had encroached into the suit property and hence, directed

the defendants to quit and deliver vacant possession of

encroached area to the legal representatives of the

plaintiff.

9. Being aggrieved by the aforesaid judgment and

decree the defendants filed R.A.No.37/2007. The First

Appellate Court secured the trial Court records and heard

the learned counsel for the parties and framed the points

for consideration and after taking into consideration the

oral and documentary evidence adduced by the parties,

held that the defendants had encroached 12 guntas of land

in Sy No.23/2 and thus dismissed the appeal.

10. Being aggrieved by the concurrent findings of

facts of the Trial Court as well as the First Appellate Court,

the defendant have preferred this Regular Second Appeal.

11. Learned counsel for the defendants submitted

that the property claimed by the plaintiff lay in the

property bearing Sy No.23/4 which belonged to them and

therefore, the plaintiff was not entitled for any reliefs.

However, learned counsel did not dispute that property

bearing Sy No.23/2 was allotted to the father of plaintiff, in

which the defendants did not have any right, title or

interest. If the defendants had no manner of right, title or

interest in Sy No.23/2, they could not complain against the

decree in the suit filed by the plaintiff. Even otherwise,

the Trial Court as well as the First Appellate Court have

elaborately considered the oral and documentary evidence

in a proper perspective and concurrently held that

defendants had unauthorizedly encroached into the suit

property.

This Court does not feel it appropriate to disturb the

concurrent finding of fact recorded by both the Courts. As

no substantial question of law arises for consideration,

this appeal is dismissed.

Sd/-

JUDGE

hd/-