Smt.Rukmini W/O Late ... vs Shivaraj S/O Ismailappa ...
2022 Latest Caselaw 4764 Kant

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        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

     DATED THIS THE 15TH DAY OF MARCH, 2022

                      BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

            RSA No.200356/2014 (DEC)

BETWEEN:

1.   SMT.RUKMINI,
     W/O LATE RAMALINGAPPA DHABEENAVARU,
     AGED ABOUT 63 YEARS,
     OCC: AGRICULTURE,
     R/O TALMADGI VILLAGE,
     HUMNABAD TALUK,
     BIDAR DISTRICT - 584 101.

2.   SMT. JAGAMMA,
     W/O RAJAPPA KOLI,
     AGED ABOUT 38 YEARS,
     OCC: AGRICULTURE,
     R/O HUNSGERA,
     HUMNABAD TALUK,
     BIDAR DISTRICT - 584 101.

3.   NAVANATH,
     S/O LATE RAMLINGAPPA DHABEENAVARU,
     AGED ABOUT 63 YEARS,
     OCC: AGRICULTURE,
     R/O TALMADGI VILLAGE,
     HUMNABAD TALUK,
     BIDAR DISTRICT - 584 101.

4.   SMT. SANGAMMA,
     W/O PUNDALIK KOLI,
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       AGED ABOUT 33 YEARS,
       OCC: HOUSEHOLD,
       R/O SIRSI,
       BIDAR TALUK & DISTRICT - 584 101.

5.     RAVI,
       S/O LATE RAMLINGAPPA DHABEENAVARU,
       AGED ABOUT 29 YEARS,
       OCC: AGRICULTURE,
       R/O TALMADGI VILLAGE,
       HUMNABAD TALUK,
       BIDAR DISTRICT - 584 101.

6.     STM. MANIKAMMA,
       W/O BASAPPA KOLI,
       AGED ABOUT 27 YEARS,
       OCC: HOUSEHOLD,
       R/O RUKULGI VILLAGE,
       BIDAR TALUK & DISTRICT - 584 101.
                                           ...APPELLANTS
(BY SRI. M.A. JAHAGIRDAR,ADVOCATE)

AND:

SHIVARAJ,
S/O ISMAILAPPA DHABEENAVARU,
AGED ABOUT 63 YEARS,
OCC: AGRICULTURE,
R/O TALMADGI VILLAGE,
HUMNABAD TALUK,
BIDAR DISTRICT - 584 101.
                                           ...RESPONDENT
(BY SRI. P ASHOK, ADVOCATE FOR CAVEATOR/R-1)

     THIS REGULAR SECOND APPEAL IS FILED U/S 100
OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED
02.08.2014 PASSED IN R.A. NO- 32/2013 ON THE FILE OF
SENIOR CIVIL JUDGE AT HUMNABAD. DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
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DATED- 05.10.2013 PASSED IN O.S. NO- 33/2011 ON THE
FILE OF THE PRL. CIVIL JUDGE AT HUMNABAD.

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


                        JUDGMENT

This appeal is filed challenging the judgment and

decree dated 02.08.2014 passed in R.A.No.32/2013

by the Senior Civil Judge, Humnabad, confirming the

judgment and decree dated 05.10.2013 passed in

O.S.No.33/2011 by the Principal Civil Judge at

Humnabad.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants are the defendants and respondent is the

plaintiff before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

That the plaintiff filed a suit for declaration and

permanent injunction with respect to RS.No.154/3

measuring 31 guntas situated at Talmadgi Village. It

is the case of the plaintiff that the father of the

plaintiff - Ismailappa had 3 sons namely Tukappa,

Mallappa and Shivaraj (Plaintiff). The land bearing

RS.No.154 measuring 2 acres 11 guntas, standing in

the name of Ismailappa. After his demises plaintiff

and his brothers got effected partition and in the said

partition suit land RS.No.154/3 measuring 31 guntas

was fallen to the share of plaintiff and the name of the

plaintiff was mutated in RTC and he is the absolute

owner and possessor of the suit land. Further,

defendants have RS.No.153/A and B, situated towards

south of the suit land. The defendants are trying to

destroy the bandara and trying to dispossess the

plaintiff from suit land. Thus, the cause of action arose

to the plaintiff to file suit for declaration and

injunction. Hence, this suit.

3.1. Defendants filed written statement denying

the averments made in the plaint and also denied that

the ancestors of plaintiff was owner and possessor of

RS.No.154 and also denied the partition effected

between plaintiff and his brothers, denied ownership

and possession of the plaintiff over the suit land and

also denying the alleged interference and cause of

action shown is imaginary. The defendants have also

contended that the RTC of the RS.No.154 are wrongly

appearing and said records required rectification. It is

further contended that the suit land bearing

RS.No.154 is ancestral property of Ramalingappa

Dhabbe and hence they are in possession of the suit

land. It is specifically contended that the plaintiff and

his brothers are in possession of RS.No.153 and not in

RS.No.154. Hence, the defendants have filed counter

claim declaring that defendants No.1 to 6 are the

absolute owners and possessors of RS.No.154/1 to 3,

measuring 2 acres 11 guntas and sought for perpetual

injunction restraining the plaintiff and his brothers

from causing interference to their possession over the

suit land and also sought for rectification of revenue

records. The plaintiff filed written statement to the

counter claim and denied the averments made in the

written statement and prayed to dismiss the counter

claim.

3.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the plaintiff proves description of suit property?

2. Whether the plaintiff proves that he is absolute owner and possessor of suit property?

3. Whether the plaintiff proves interference by the defendants as alleged?

4. Whether the defendants proves that they are absolute owners and possessors of land

bearing RS.No.154/1, 2 and 3, including suit property?

5. Whether the defendants proves interference by the plaintiff as alleged in Counter Claim?

6. Whether the defendants are entitle for the relief of rectification of ROR, as prayed?

7. Whether the plaintiff is entitle for the relief claimed?

8. Whether the defendants are entitle for the Counter Claim?

9. What order or decree?

3.3. Plaintiff in order to prove his case, examined

the himself as PW-1 and also examined one witness as

PW-2 and got marked the documents as Ex.P1 to P21.

On the other hand, defendant No.3 was examined as

DW-1 and also examined two witnesses as DW-2 and

DW-3 and got marked the documents as Ex.D1 to

Ex.D5. The Trial Court, after recording evidence and

considering the material on record, held that plaintiff

has proved that the description of the suit property

and also recorded a finding that plaintiff is the

absolute owner and possessor of the suit property and

also recorded a find that the plaintiff has proved that

interference of the defendants as alleged in the plaint.

Further, recorded a finding that the defendants are

failed to prove that they are the absolute owners and

possessors of the land RS.No.154/1, 2 and 3 including

the suit property and further, recorded a finding that

the defendants have failed to prove the interference

by the plaintiff as alleged in the counter claim and

held that defendants are not entitled for rectification

of revenue records and consequently decreed the suit

of the plaintiff and declared that the plaintiff is the

absolute owner and possessor of suit land bearing

RS.No.154/3 measuring 31 guntas and consequently

granted permanent injunction restraining the

defendants from interfering with the peaceful

possession and enjoyment over the suit land and

dismissed the counter claim filed by the defendants.

3.4. The defendants aggrieved by the judgment

and decree passed by the Trial Court, filed an appeal

in R.A.No.32/2013. The First Appellate Court framed

the following points for consideration:

1. Whether the appellants/defendants prove that the judgment and decree passed by the Trial Court is perverse, arbitrary and this Court interference is necessary?

2. To what order or relief?

3.5. The First Appellate Court, after re-

appreciation of the evidence on record, dismissed the

appeal filed by the defendants. Hence the defendants

filed the instant appeal.

4. Heard learned counsel for the defendants

and learned counsel for plaintiff.

     5.       Learned          counsel        for           the

appellants/defendants         submits that both the Courts

below have committed an error in not properly

appreciating Ex.D1 to Ex.D5. He further submits that

both the Courts below committed an error in accepting

Ex.P1 copy of mutation standing in the name of

plaintiff as document of title. He further submits that

if the matter is remanded, defendants can led the

evidence to establish the ownership in respect of suit

land. Hence, he prays to allow the appeal.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. It is the case of the plaintiff that plaintiff is

the owner of suit schedule property and plaintiff has

acquired the said property under partition effected

between the plaintiff and his brothers and on the

strength of the partition the name of the plaintiff's

name appeared in the revenue records as absolute

owner and possessors in respect of RS.No.154/3

measuring 31 guntas. In order to substantiate, the

case of the plaintiff, plaintiff was examined himself as

PW-1 and also examined one witness as PW-2 and

produced the copy of ROR, which is marked as Ex.P1

to Ex.P3. Ex.P3 discloses that the plaintiff is in

possession and enjoyment of the suit land as on the

date of filing of suit. Further, DW-2 and DW-3 in the

course of cross-examination admitted that plaintiff is

the owner and in possession and enjoyment of the suit

land. Further, they also admitted that regarding

boundaries stated in the plaint, plaintiff is in

possession and enjoyment of the suit land as

described in the plaint. DW-2 and DW-3 have

supported the case of the plaintiff admitting the

ownership of the plaintiff and also possession over the

suit schedule property. As per section 58 of Indian

Evidence Act, facts admitted need not be proved. In

view of admission of defendants, both the Courts had

concurrently recorded a finding of fact that plaintiff is

the absolute owner and in possession of the suit

property. Hence, in view of the above discussion, I

do not find substantial question of law in this appeal.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

GRD