Maremma D/O Ambalappa Naikodi vs Mareppa S/O Ambalappa Naikodi
2022 Latest Caselaw 4765 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.7095/2008 (DEC-INJ)

BETWEEN:

MAREMMA D/O AMBALAPPA NAIKODI,
AGE: 45 YEARS, OCC AGRICULTURE,
R/O. HALSIGAR, TQ SHORAPUR,
DIST GULBARGA.
                                          ...APPELLANT
(BY SRI.GURURAJRAO KAKKERI, ADVOCATE)

AND

1.    MAREPPA S/O AMBALAPPA NAIKODI,
      AGE: 56 YEARS, OCC AGRICULTURE,

2.    BHIMAPPA S/O. AMBALAPPA NAIKODI,
      AGE: 54 YEARS, OCC AGRICULTURE,

      BOTH R/O. HALISAGAR, TQ SHAHAPUR,
      DIST GULBARGA.
                                           ... RESPONDENTS
(R1 & R2 - SERVED)

     This Regular Second Appeal is filed under Section
100 of CPC, praying to set aside the judgment and decree
dated 23.08.2008 passed in R.A.No.13/2008 by the Civil
Judge (Sr.Dn) Shahapur and may kindly restore the decree
dated 03.01.2008 passed in O.S.No.178/2006 by the Civil
Judge (Jr.Dn) Shahapur.
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      This appeal coming on for Final Hearing, this day,
the Court delivered the following:-
                      JUDGMENT

This appeal is filed challenging the judgment and

decree dated 23.08.2008 passed in R.A.No.13/2008

by the Civil Judge (Sr.Dn) Shorapur, sitting at

Shahapur.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the plaintiff and respondents are the

defendants before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiff filed a suit for declaration and injunction

in respect of land bearing Sy.No.415/2 measuring 1

acre out of total extent of 6 acres, out of which the

plaintiff has sold 5 acres of land to R.Channabasu,

advocate and also sought for injunction restraining the

defendants from interfering with the peaceful

possession and enjoyment of the suit scheduled

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

the absolute owner and possessor of land bearing

Sy.No.415/2 measuring 1 acre. Previously the said

land was measuring 6 acres out of which the plaintiff

has sold 5 acres of land in favour of one

R.Channabasu situated at Halisagar village. The

defendants are the owners and possessors of land

bearing Sy.No.415/1 to the extent of 4 acres 21

guntas towards western side of suit land and

defendants are the real brothers to the plaintiff in

relation. Defendants with bad and malafide intention

are trying to interfere over the suit scheduled

property. That the suit land is the ancestral land of

the plaintiff. The plaintiff has purchased the property

under the registered sale deed dated 15.02.1983 and

defendants are gulf half of the suit land and they are

trying to dispossess the plaintiff from the suit land by

forcibly. Hence, cause of action arose for the plaintiff

to file a suit.

3.1. Defendants filed written statement

contending that plaintiff is not the owner and

possessor of 1 acre of land with the boundaries shown

in the plaint. It is contended that one R.Channabasu,

advocate is the owner and possessor of land in

Sy.No.415/2 to the East of defendants' land. It is

contended that boundaries shown in the land by the

plaintiff is not existed one. Hence, the question of

plaintiff being in possession does not arise. In view of

the fact that the entire land Sy.No.415 is stripped into

two portion and it was totally measuring 10 acres 21

guntas exclusively owned and possessed by

defendants, which is now numbered as 415/1. It is

denied that plaintiff is the absolute owner in

possession of 1 acre. It is contended that the plaintiff

has sold the entire portion of land bearing

Sy.No.415/2 to R.Channabasu, advocate and their

remains only 10 guntas not 1 acre. Hence, there is no

cause of action to file a suit. The plaintiff has filed a

suit on false and baseless grounds. Hence, prayed to

dismiss the suit.

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

parties, framed the following issues:

1. Whether the plaintiff proves that she is the absolute owner and in possession of the suit property?

2. Whether the plaintiff proves that the defendant denied her title and interfering in the suit property?

3. Whether the plaintiff is entitled for declaration and injunction as claimed?

4. Whether the defendants prove that the suit land is not existing and plaintiff is not absolute owner?

5. Whether the defendants are absolute owners?

6. Whether there is cause of action?

7. What order or decree?

3.3. In order to prove the case, plaintiff

examined herself as PW-1 and examined one witness

as PW-2 and got marked Ex.P1 to P3. On the other

hand, defendant No.2 examined as DW-1 and

examined two witnesses as DWs.2 and 3 and got

marked Ex.D1 and D2. The Trial Court, after

recording evidence and considering the material on

record, held that the plaintiff has proved that she is

the absolute owner and in possession of the suit

property and further recorded a finding that plaintiff

has proved that defendant has denied her title and

interfering in the suit property and further recorded a

finding that plaintiff is entitled for declaration and

injunction and further held that defendants failed to

prove that the suit land is not existing and plaintiff is

not absolute owner and consequently decreed the suit

of plaintiff declaring that the plaintiff is the owner of 1

acre land restraining the defendants from interfering

with the peaceful possession and enjoyment of the

suit property.

3.4. The defendants aggrieved by the judgment

and decree passed by the Trial Court, filed an appeal

in R.A.No.13/2008. The First Appellate Court framed

the following points for consideration:

1. Whether appointment of Court Commissioner is necessary?

2. Whether judgment and decree under appeal is capricious and not tenable under law and facts?

3. Whether judgment and decree under appeal requires to be an interference?

4. What order?

3.5. The First Appellate Court, after re-

appreciation of the evidence on record, allowed the

appeal by setting aside the judgment and decree

passed by the trial Court and consequently dismissed

the suit of the plaintiff. Aggrieved by the judgment

and decree passed by the Appellate Court, filed this

appeal.

4. This Court vide order dated 04.12.2008,

admitted the appeal on the following substantial

questions of law;

a) Whether the Lower Appellate Court is right in holding that the appellant has not proved her title & possession over the suit property although Ex.P3 registered sale deed dated 16.02.1983 was marked in evidence?

b) Whether the Lower Appellate Court was justified in dismissing the suit of the appellant/plaintiff?

5. Heard learned counsel for the plaintiff.

6. Learned counsel for the plaintiff submits that

plaintiff is the absolute owner of the suit land under

registered sale deed dated 15.02.1983. The plaintiff

has purchased the land in Sy.No.415/2 to an extent of

6 acres, out of 6 acres the plaintiff has sold 5 acres of

land in favour of R.Channabasu, advocate and

remaining 1 acre, the plaintiff is in possession and

enjoyment of the suit scheduled property. He further

submits that the Appellate Court has committed an

error in passing the impugned judgment. Hence, on

these grounds he prays to allow the appeal.

7. Though notice was issued to respondents, in

spite of service of notice none appears for the

respondents.

8. Perused the records and considered the

submissions made by learned counsel for plaintiff.

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

the absolute owner and in possession of suit land

under the registered sale deed dated 15.02.1983.

Further, it is the case of plaintiff that, out of 6 acres,

the plaintiff has sold 5 acres of land in favour of one

R.Channabasu, advocate under the registered sale

deed, the remaining 1 acre of land is concerned i.e. in

possession of plaintiff. In order to prove the case of

plaintiff, plaintiff examined as PW.1, wherein

reiterated the plaint averments in the examination in

chief and also examined R.Channabasu, as PW.2, who

has purchased portion of land from the plaintiff under

the registered sale deed, wherein PW.2 has deposed

that plaintiff is the owner of suit land and he is in

possession of suit scheduled property and further

name of plaintiff is appearing in the RTC extract. The

plaintiff has produced copy of registered sale deed

which is marked as Ex.P3. Ex.P3, discloses that

plaintiff has purchased the suit land in Sy.No.415/2 to

an extent of 6 acres. The defendants have not denied

about the purchase of land by the plaintiff under the

registered sale deed and also execution of registered

sale deed in favour of R.Channabasu, advocate.

Plaintiff has proved that he is the absolute owner and

in possession of land to the extent of 1 acre in

Sy.No.415/2. The trial Court was justified in

answering issue No.1 in affirmative.

10. Plaintiff has produced copy of record of

rights marked as Ex.P2. Ex.P2 discloses that plaintiff is

in possession of suit land. The defendants have not

challenged the mutation order passed in favour of

plaintiff and entered in the ROR indicating the name of

plaintiff. As per Section 133 of Karnataka Land

Revenue Act, there is initial presumption in favour of

the person in whose name the entry is made being in

possession is rebuttable. The defendants have not

produced any convincing evidence to rebut the legal

position. The appellate Court has ignored the

presumptive value available under Section 133 of

Karnataka Land Revenue Act.

11. In view of the above discussion, the

substantial question No.1 is answered in affirmative

holding that the plaintiff has proved that he is the

absolute owner and in possession of the suit

scheduled property. The First Appellate Court without

considering Ex.P1 and P3, produced by the plaintiff

has passed the impugned judgment and decree. The

judgment and decree passed by the Appellate Court is

contrary to the records produced by the plaintiff. In

view of the above discussions, the substantial

question No.2 is answered in favour of plaintiff.

12. In view of the above discussions, the

appeal is allowed. The judgment and decree passed

by the Appellate Court is set aside and the judgment

and decree passed by the trial Court is restored.

Sd/-

JUDGE msr