Bandappa S/O Anneppa Bhimsha vs Nagappa S/O Sungappa
2022 Latest Caselaw 4672 Kant

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

      DATED THIS THE 14TH DAY OF MARCH 2022

                       BEFORE

      THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

           R. S. A. NO.149 OF 2008 (MON)

BETWEEN:

1.    BANDAPPA,
      S/O SANGAPPA BHIMSHA MUDECHET,
      SINCE DEAD BY LRs

1a)   SMT. GOURAMMA,
      W/O LATE BANDAPPA BHIMSHA MUDECHET,
      AGED ABOUT 65 YEARS,
      OCC: AGRICULTURE,
      R/O SIDDESHWARA VILLAGE,
      BHALKI TALUK, BIDAR DISTRICT - 585 401.

1b)   PRABHU,
      S/O LATE BANDAPPA BHIMSHA MUDECHET,
      AGED ABOUT 45 YEARS,
      OCC: DRIVER,
      R/O SIDDESHWARA VILLAGE,
      BHALKI TALUK, BIDAR DISTRICT - 585 401.

1c)   CHINAMMA,
      D/O LATE BANDAPPA BHIMSHA MUDECHET,
      AGED ABOUT 35 YEARS,
      OCC: AGRICULTURE,
      R/O SIDDESHWARA VILLAGE,
      BHALKI TALUK, BIDAR DISTRICT - 585 401.
                            2



1d)    NAGAMMA,
       W/O CHANDRASHEKAR BIRNALLE,
       AGED ABOUT 32 YEARS,
       OCC: AGRICULTURE, R/O BIDAR
       C/O MATOSHREE HOSPITAL,
       NANDI COLONY, BIDAR DISTRICT - 585 401.

                                         ... APPELLANTS

(BY SRI. ANANDTH S JAHAGIRDAR, ADVOCATE FOR
    SRI. GANESH S KALABURGI, ADVOCATE)

AND:

1.     NAGAPPA
       S/O SANGAPPA BHIMSHA MUDECHET,
       SINCE DEAD BY LRs

1a)    BASWARAJ,
       S/O LATE NAGAPPA,
       AGED ABOUT 36 YEARS,
       OCC: AGRICULTURE,
       R/O SIDDESHWAR VILLAGE,
       BHALKI TALUK, BIDAR DISTRICT.

1b)    MALLAMMA,
       D/O LATE NAGAPPA,
       W/O SHIVARAJ,
       AGED ABOUT 40 YEARS,
       OCC: HOUSEHOLD,
       R/O HALLIKHED,
       HUMNABAD TALUK, BIDAR DISTRICT.

1c)    VIMALABAI,
       D/O LATE NAGAPPA,
       W/O BHIMANNA HALE,
       AGED ABOUT 38 YEARS,
       OCC: HOUSEHOLD,
       R/O DHANNUR, BHALKI TALUK,
       BIDAR DISTRICT.
                            3



1d)   LAXMIBAI,
      D/O LATE NAGAPPA,
      W/O REVANAPPA HALIHOUR,
      AGED ABOUT 34 YEARS,
      OCC: HOUSEHOLD,
      R/O CHATNALLI,
      BIDAR TALUK AND DISTRICT.
                                       ... RESPONDENTS

(BY SRI.SANJEEV KUMAR C PATIL, ADVOCATE FOR R1(A);
    NOTICE TO R1(B), R1(C) AND R1(D) SERVED)

     THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.27.10.2007 PASSED IN
R.A.NO.54/2007 (OLD NO.4/04) ON THE FILE OF THE
PRESIDING OFFICER, FTC, BHALKI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DT.20.12.2003 PASSED IN O.S.NO.338/97 ON THE FILE
OF THE CIVIL JUDGE (JR.DN), BHALKI.

     THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is filed challenging the judgment and

decree dated 27.10.2007, passed in R.A.No.54/2007

by the Fast Track Court, Bidar, confirming the

judgment and decree dated 20.12.2003, passed in

O.S.No.338/1997 by the Civil Judge (Jr.Dn.), Bidar.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the defendant and respondent is the

plaintiff before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiffs have filed a suit for the relief of

declaration of ownership and delivery of possession of

1 acre 22 guntas out of 3 acres 20 guntas in

Sy.No.154/A situated at Siddeshwar Village, Bhalki

Taluk. The land bearing Sy.No.154/A measuring 3

acres 20 guntas was fallen to the share of plaintiffs in

the partition between them, defendant and other

brothers. In the said partition, towards southern side

portion was allotted to the share of plaintiffs.

Plaintiffs made an application to survey the land. The

Taluka Surveyor on the application of plaintiffs,

conducted a survey, southern portion was found to

the extent of 2 acres and remaining portion of Tikka

measuring to an extent of 1 acre 22 gunats was found

in the Northern portion in which one Sheshappa S/o

Baslingappa Mudchate was in possession with regard

to the part and parcel of Sy.No.197 and the said

possession is disputed land. The defendant could not

take his share and asked plaintiffs to take into

complete his share in Sy.No.154/A measuring 3 acres

20 guntas as shown in the partition. Consequently,

after survey dated 25.12.1989 parties were put in

possession of the properties has fallen to their

respective shares, but Sheshappa had sold the land to

one Shankereppa Lakote son of Siddeshwar under

registered sale deed and delivered the possession of

the land. As such, the dispute continued between the

Sheshappa and plaintiffs for years together. After the

demise of Shankereppa Lakote, his sons Mallikarjun

and Basavaraj have filed a suit in O.S.No.125/90

seeking for the relief of permanent injunction, which

came to be decreed against the plaintiff. In the said

suit, the suit portion of the land is part and parcel of

Sy.No.154 and not Sy.No.197. But intentionally, he

has not shown the correct boundaries of the suit land

and got recorded in his sale deed dated 08.03.1995.

It is also mentioned in the sale deed of Sy.No.197 that

towards the eastern side it is shown as property of

defendant to an extent of 1 acre 32 guntas but in fact

correct boundaries are towards eastern side land

Sy.No.154 measuring 2 acre 30 guntas of the share of

the defendant allotted in the partition between the

plaintiffs, defendant and other brothers.

3.2. Originally the land bearing Sy.No.197

measures 9 acres 28 guntas. Out of which defendant

had purchased to an extent of 1 acre 28 guntas, but

no location of said land was shown in the registered

sale deed, intentionally with a malafide intention to

possess the suit land as it is located towards Northern

portion of his share allotted to him in the partition in

Sy.No.154. When Tikka was given to the plaintiffs

after the partition, share of plaintiffs in land

Sy.No.154 towards Southern side was not completed

with malafide intention to usurp the suit portion. The

defendant had purchased the land to an extent of 1

acre 32 guntas in Sy.No.197 and tried to dispossess

the plaintiffs under the guise of the registered sale

deed. The defendant tried to dispossess the plaintiffs

from the suit land as it is not part and parcel of

Sy.No.197 purchased by the defendant. The

defendant forcibly cultivated the land and grown

sugarcane crop by dispossessing the plaintiffs forcibly

and plaintiffs requested the defendant to handover the

suit property and admit the ownership of plaintiffs

over the suit property. The defendant denied the title

of the plaintiffs and refused to handover the

possession of the suit schedule property. Hence, the

plaintiffs filed a suit for declaration and injunction.

3.3. The defendant appeared and filed written

statement denying the averments made in the plaint

and admitted the possession of plaintiffs over the land

in Sy.No.154/A measuring to an extent of 1 acre 28

guntas situated at Siddeshwar Village, Bhalki Taluk. It

is denied that the plaintiffs are the owner of

Sy.No.154/A measuring to an extent of 3 acre 20

guntas. It is subject to the proof of alleged partition

deed referred in the plaint. It is contended that the

suit land is part and parcel of Sy.No.154/A, the

plaintiffs ought to have shown the complete

boundaries of the entire land measuring 3 acres 20

guntas. But the plaintiffs has shown the boundaries to

an extent of 1 acre 22 guntas, the boundaries shown

by the plaintiffs in the plaint is false and baseless. It

is contended that in the partition one Shankereppa

and his sons Mallikarjuna and Basavaraj have been

allotted a share. It is contended that the land in

Sy.No.170 (Old) New Sy.No.197/3/AA measuring to

an extent of 1 acre 32 guntas, it originally owned and

possessed by one Sheshappa S/o Basalingappa

Mudchate, who sold the land in favour of Shankerappa

under registered sale deed dated 15.06.1967 for valid

consideration, and said Shankerappa became the

owner and possessor under the registered sale deed.

At the time of preparation of fasal-patrak in the year

1965-66 (Old) Sy.No.170/A has assigned New

Sy.No.197/3/AA measuring 1 acre 22 guntas.

3.4. It is contended that the vendor of the

defendant had filed a suit in O.S.No.125/1990 against

the plaintiffs and the suit came to be decreed in

respect of Sy.No.197/3/AA and the plaintiffs have not

preferred appeal challenging the judgment and decree

passed in O.S.No.125/1990. It is contended that the

defendant has purchased the land and his name

entered in the revenue records as a owner and

possessor. Defendant has also sought for a counter

declaring that he is the owner and possessor of the

land Sy.No.197/3/AA measuring 1 acre 33 guntas and

also sought for the relief of permanent injunction

restraining the plaintiffs from interfering in the

peaceful possession and enjoyment of the suit land.

It is contended that there is no cause of action for

filing suit and prayed to dismiss the suit and prayed to

decree the counter claim.

3.5. The Trial Court on the basis of the

pleadings framed the following issues.

1. Do the plaintiff proves that he is the owner of suit land?

2. Do the plaintiff further proves that he was in lawful possession over the suit land and he has been dispossessed by the defendant forcibly during the month of April 1997?

3. Whether the plaintiff further proves that his claim of Simultaneous relief of Delivery of possession and issue of perpetual injunction is maintainable?

4. Does the defendant prove that the decree in O.S.No.125/1990 of Munsiff Court Bhalki is binding on the plaintiff?

5. Do the plaintiff has got locus standi to file the suit?

6. Does the valuation made in the suit is correct and Court fee paid over it is sufficient?

7. Do the defendant proves that he is the owner and possessor of suit land and entitles for counter decree in the matter?

8. What order or decree?

3.6. The plaintiffs in support of his contention

examined himself as PW-1 and examined four

witnesses as PW-2 to PW-5 and got marked 14

documents as Ex.P1 to Ex.P14 and wife of defendant

got examined as DW-1 and got examined one

independent witness as DW-2 and got marked 11

documents as Ex.D-1 to Ex.D-11. The Trial Court,

after recording evidence and considering the material

on record, held that the plaintiffs have proved that

they are the owners of the suit land and further the

finding recorded that plaintiffs were in possession of

the suit schedule property and he was dispossessed

by defendant forcibly during the month of April, 1997,

and further held that the defendant has failed to prove

that the decree passed in O.S.No.125/1990 is binding

on the plaintiffs. Further held that the plaintiffs have

locustandi to file a suit and further recorded a finding

that the defendant failed to prove he is the owner and

possessor of the suit land and decreed that the

plaintiffs are the owners of the suit schedule property

and consequently, directed the defendant to handover

the possession of the suit land measuring 1 acre 22

guntas in Sy.No.154/A, which is in possession of the

wife of defendant to the plaintiffs within three months,

failing which plaintiffs can file a Execution Petition to

take possession of the property and further the

counter claim of the defendant came to be dismissed.

Being aggrieved by the judgment and decree passed

by the trial Court, decreeing the suit of the plaintiffs,

the defendant filed an appeal. The defendant has not

filed appeal challenging the dismissal of counter claim.

The said finding has attained a finality. The First

Appellate Court framed the following points for

consideration:

1. Whether the impugned judgment and decree passed by the lower Court is wrong and the lower Court has passed a wrong order without considering the merits of the case of the defendant/appellant?

2. Whether the impugned judgment and decree of the lower Court, requires the interference by this Court, at this juncture?

3. What order?

3.7. The First Appellate Court, after

re-appreciation of the evidence on record, dismissed

the appeal filed by the plaintiffs. Hence the plaintiffs

filed this instant appeal.

4. This Court vide order dated 03.06.2016,

admitted the appeal on the following substantial

question of law that arises for consideration:

"Whether the appellant-husband could have been directed to hand over possession of the land which was in the possession of his wife?"

5. Heard learned counsel for the defendant

and learned counsel for plaintiffs.

6. Learned counsel for the defendant submits

that his wife is in possession of the suit property. He

further submits that the wife of defendant is in

possession of land Sy.No.197/3/AA measuring 1 acre

32 guntas under the registered sale deed dated

08.03.1995. The defendant is not in possession of

Sy.No.154/A. He further submits that plaintiffs by

showing the boundaries of Sy.No.197, is trying to

dispossess the defendant from the suit property.

Hence, he submits both the Courts have committed an

error in passing the impugned judgment and decree.

Hence, on these grounds, he prays to allow the

appeal.

7. Per contra, learned counsel for the plaintiffs

submits that, it is not in dispute that the plaintiffs are

the owners in possession of Sy.No.154 measuring 3

acres 20 guntas. He further submits that defendant

after purchasing the land in Sy.No.197 has

dispossessed the plaintiff from the suit property to an

extent of 1 acre 22 guntas. He further submits that

defendant has made an encroachment and

dispossessed the plaintiffs from the suit property. He

further submits that defendant has no right, title or

interest in respect of Sy.No.154/A to an extent of 1

acre 22 guntas. He further submits that the trial Court

has appointed the Court Commissioner and Court

Commissioner has submitted a report, wherein the

Court Commissioner has observed that the defendant

is in possession of excess land. He further submits

that after considering the material on record, both the

Courts below were justified in passing the impugned

judgment and decree. Hence, on these grounds he

prays to dismiss the appeal.

8. Perused the records and considered the

submissions made by learned counsel for the parties.

9. It is the case of the plaintiffs that suit

schedule property is the ancestral property and

partition was effected between plaintiffs, defendant

and other brothers. In the said partition, Sy.No.154/A

was fallen to the share of plaintiffs to an extent of

3 acres 20 guntas and accordingly the name of

plaintiffs were entered in the revenue records as

owners and possessors in respect of Sy.No.154/A.

It is the case of the plaintiffs that defendant

purchased the land in Sy.No.197 measuring 1 acre 32

guntas under the registered sale deed dated

08.03.1995. Under the guise of registered sale deed,

the defendant dispossessed the plaintiffs from the suit

property. In order to substantiate the claim of the

plaintiffs, plaintiff No.1 examined himself as PW.1 and

examined four witnesses as PWs.2 to 5. PW.1 has

reiterated the averments made in the plaint in his

examination-in-chief. PW.1, in the course of cross-

examination has admitted that he has made an

encroachment of land in Sy.No.197 and criminal case

was registered. PW.1 has undertaken before the

police that he will not interfere with the land in

Sy.No.197 and thereafter he admitted that Mallikarjun

and Basawaraj have filed a suit in O.S.No.125/1990

against him and the said suit came to be decreed.

He also admits that the defendant had purchased the

land in Sy.No.197 from Mallikarjun and Basawaraj. It

was suggested to PW.1 that defendant is cultivating

and enjoying the land in Sy.No.197. Nothing has

been elicited in the course of cross-examination of

PW.1 in respect of suit property. P.W.2 was examined

in order to prove that partition was effected between

the plaintiffs, defendant and other brothers and he

was present at the time of measurement. At the time

of survey he was holding a chain. After the survey,

the panchanama was drawn and witnesses have

signed on panchanama. It is found that Shankereppa

was in possession of suit land. In the course of cross-

examination, he has admitted that Sy.No.154 is a

single hotch pot. He had admitted that in the

partition, he got land in Sy.No.197. He also admits

that there is dispute between Mallikarjun,

Shankereppa and plaintiffs in respect of Sy.No.197

and further admitted that P.W.1-Plaintiff No.1 has

given an undertaking before the police that he will not

interfere in land Sy.No.197. He has voluntarily

deposed that defendant has raised sugarcane in the

land in Sy.No.154. Since from 4-5 years the

defendant is in possession of suit land prior to the

transfer of land by the vendors of defendant. Nothing

has been elicited from the mouth of PW.2. PW.3 was

examined in order to prove the contents of

panchanama i.e. Ex.P4. He deposed that about 10-12

years back, Sy.No.154 of Siddeshwar village was

measured in his presence and the suit land is part and

parcel of Sy.No.154. The surveyor had prepared the

panchanama and he has signed in the panchanama

and the same is marked as Ex.P14(b). PW.4 was

examined as he is also one of the panchas for Ex.P14.

P.W.5 the surveyor was examined and who conducted

the survey work. He deposed that on 28.08.1989, the

plaintiffs, defendant and Basthirathappa themselves

had filed an application for survey and at the request

of plaintiffs and defendant, he conducted a survey in

respect of Sy.No.154/A and 154/B. He has stated that

red portion measuring 1 acre 20 guntas shown in

survey map is part and parcel of Sy.No.154 and

sketch map is already marked as Ex.P3. The land in

Sy.No.197 is situated on the western side of land

bearing Sy.No.154. At the time of measurement, 1

acre 20 guntas was in possession of one Shankereppa

and he was asked to vacate the same i.e. encroached

portion and fix the boundary marks of Sy.No.154 and

asked Nagappa to take possession of encroached

portion of land. Thereafter, the defendant filed an

application requesting for measurement of fixing the

boundaries shown in respect of Sy.No.154-A. PW.5,

has measured and prepared a map in respect of

Sy.No.197. PW.5 has admitted that encroached

portion shown in red colour in Ex.P3 was in possession

of Shankereppa. The DW.1 is the Power of Attorney

holder of the defendant has reiterated the averments

made in the written statement in examination-in-

chief, but in the course of cross-examination, she has

admitted that during the partition between the

plaintiffs and defendant, land measuring 2 acres 30

guntas was fallen to the share of plaintiffs. She has

admitted that they have purchased the land in

Sy.No.197. DW.2 has deposed that defendant has

purchased the land in Sy.No.197 measuring 1 acre 32

guntas from Mallikarjun and Basawaraj and defendant

is in possession of his purchased land. There is no

dispute about the ownership of plaintiffs over

Sy.No.154, as DW.1 has clearly admitted in the course

of examination that Sy.No.154/A measuring 2 acres

30 guntas was fallen to the share of plaintiffs.

10. It is not in dispute that plaintiffs have

acquired the suit land in a partition which was effected

between plaintiffs, defendant and other brothers.

DW.1 has clearly admitted in the course of cross-

examination that suit land was fallen to the share of

plaintiffs. DW.1 also admitted that plaintiffs are the

owner of suit land. Now, it is a case of the plaintiffs

that the question is with regard to possession. It is

the case of the plaintiffs that the defendant has

purchased the land in Sy.No.197 under the registered

sale deed dated 08.03.1995. After purchasing the

land Sy.No.197, the defendant has dispossessed the

plaintiffs from the suit property to an extent of 1 acre

20 guntas. In order to establish that the defendant

has not made any encroachment in the suit property.

The defendant himself filed an application IA.No.13 for

appointment of ADLR as Court Commissioner. The

trial Court allowed the application vide order dated

17.11.2003. The ADLR was appointed by the Court

Commissioner and he has visited the spot and

submitted a report. As per the report of Court

Commissioner, it indicates that defendant is in excess

of land measuring 1 acre 20 guntas and cultivating the

same through his wife. Further the Court

Commissioner has reported that defendant is not in

possession of Sy.No.197.

11. Learned counsel for the defendant

submitted before the trial Court that defendant has

purchased 1 acre 20 guntas in Sy.No.197 but he is not

in possession of the same. The defendant has filed a

written statement. In the written statement, the

defendant has not pleaded that he is not in possession

of the suit land and his wife is in possession of the suit

land. Further, the wife of the defendant is examined

as D.W-1 as a Power of Attorney holder of the

defendant. D.W-1 has not stated in her evidence that

she is in possession of suit property. Further it is not

the case of the defendant that his wife is in possession

of the suit property. The ADLR was appointed as Court

Commissioner and he was examined as P.W-5. He has

stated that defendant is cultivating the land through

his wife. D.W-1 in her examination-in-chief, she has

deposed that the defendant has purchased the land in

Sy.No.197 and he is in possession of suit scheduled

property. She has not stated in her evidence that she

is in possession of the suit property in her individual

capacity and further sought for a counter claim for a

declaration that the defendant is the owner and

possessor and cultivator of the land Sy.No.197/3/AA

measuring 1 acre 33 guntas. According to the

evidence of P.W.5, defendant is cultivating the land

through his wife, wife is not in possession of suit

schedule property in her individual capacity. She is in

possession of suit property as a representative of

defendant. The trial Court on considering the material

on record was justified in decreeing the suit of

plaintiffs. The Appellate Court on re-appreciation of

the materials on record, was justified in confirming

the judgment and decree passed by the trial Court.

12. In view of the above discussions, the

substantial question of law is answered against the

defendant holding that defendant is cultivating the

suit scheduled property through his wife, wife is not in

possession of the suit scheduled property in her

individual capacity.

In view of the above discussions, the appeal is

dismissed.

SD/-

JUDGE GRD/MSR