Smt Eramma vs Sri Gangadharappa
2022 Latest Caselaw 4881 Kant

                           1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

            R.S.A. NO.52 OF 2018 (DEC/INJ)

BETWEEN:

1.     SMT. ERAMMA
       W/O LATE MUDDAPPA,
       AGED ABOUT 68 YEARS,

2.     SMT. VIJAYALAKSHMI
       W/O B. RANGANATH,
       D/O LATE MUDDAPPA,
       AGED ABOUT 50 YEARS,

       BOTH RESIDING AT G.B.N. ROAD,
       KODIGENAHALLI VILLAGE,
       MADHUGIRI TALUK-562101.
                                             ...APPELLANTS
(BY SMT. SREEVIDYA G.K., ADVOCATE FOR
    SRI. T.N.VISWANATHA, ADVOCATE)

AND:

1.     SRI. GANGADHARAPPA
       S/O LATE KAVALU MARIGANA THIMMAIAH,
       MAJOR,

2.     SRI. NARAYANAPPA
       S/O LATE KAVALU MARIGANA THIMMAIAH,
       MAJOR,

       BOTH RESIDING AT
       KODIGENAHALLI VILLAGE,
       MADHUGIRI TALUK-562101.
                                        ...RESPONDENTS
                              2




(BY SRI. G.S.VENKATSUBBARAO, ADVOCATE FOR RESPONDENT
NOs.1 AND 2)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 14.09.2017 PASSED IN RA.NO.137/2015, ON
THE    FILE  OF    THE   PRL.SENIOR  CIVIL  JUDGE  AND
JMFC.,MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 22.08.2015 PASSED IN
OS.NO.261/2011 ON THE FILE OF THE PRL.CIVIL JUDGE AND
JMFC., MADHUGIRI.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal is filed by the unsuccessful plaintiffs in

O.S.No.261/2011 challenging the concurrent finding of fact

recorded by both the Courts that they are not the owners

of the suit property and that they are not in possession

thereof.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court. The appellants

were plaintiffs, while the respondents were defendants

before the Trial Court.

3. The suit in O.S. No.261/2011 was filed for

declaration and perpetual injunction in respect of a vacant

site bearing No.7 situate at Kodigenahalli Madhugiri taluk.

The plaintiffs were the mother and daughter, while the

defendants were the paternal uncles of plaintiff No.2. The

plaintiffs claimed that the suit schedule property fell to the

share of the husband of plaintiff No.1 in terms of a deed of

partition dated 08.02.1987 (Ex.P-2). The plaintiffs alleged

that pursuant to such partition, the name of the husband

of plaintiff No.1 was entered in the records, and after his

death, the plaintiffs succeeded to the same. They alleged

that defendants were attempting to interfere with their

possession and thus sought for declaration of their right

and for perpetual injunction in respect of the suit property.

4. The defendants contested the suit and claimed

that the suit property was carved out of the land in Sy.

No.120/6 of Kodigenahalli village which was converted for

non-agricultural residential use. They stated that 18 sites

were formed in the said land. The parties entered into

partition on 08.02.1987, in terms of which the husband of

plaintiff No.1 derived sites No.1, 3, 4, 5 and 6, while the

defendant No.2 derived sites No.12, 13, 14, 15, 16, 17, 18

and 7, while site No.2, 8, 9, 10 and 11 fell to the share of

defendant No.1. The defendant No.2 claimed that he was

in possession of the suit property, while the husband of

plaintiff No.1 had disposed off all the sites that fell to his

share. The defendant No.2 claimed that the katha of the

suit property stood in his name and that the plaintiffs had

no right, title and interest in the suit property.

5. Based on these rival contentions, the Trial

Court framed the following issues :

1. Whether plaintiffs prove that suit schedule property was allotted to deceased Muddappa under partition deed dated 08-02-1987?

2. Whether the plaintiffs prove that they have succeeded to the suit schedule property after the death of Muddappa and they are in possession and enjoyment of the same as absolute owners?

3. Whether plaintiffs prove the alleged interference?

4. Whether defendants prove that suit schedule property was allotted to defendant No.2 in partition dated 08-02-1987?

5. Whether plaintiffs are entitled for relief sought?

6. What order or decree?

6. Plaintiffs No.1 and 2 were examined as P.Ws.1

and 2 and they marked documents as Exs.P-1 to P-11.

They examined two witnesses as P.Ws.3 and 4. The

defendant No.2 was examined as D.W.1 and he marked

documents as Exs.D-1 to D-19.

7. Based on the oral and documentary evidence,

the Trial Court held that the suit property fell to the share

of the defendant No.2 in terms of the partition deed dated

08.02.1987. The Trial Court held that the plaintiffs failed

to prove their title to the suit property under the partition

deed dated 08.02.1987. It held that a perusal of the

partition deed as well as the evidence of P.W.1 indicated

that it was the defendant No.2 who was in possession of

the suit schedule property. Hence, the Trial Court held

that the plaintiffs had failed to make out a case for

declaration of their title to the suit property. Further, since

the defendant No.2 was able to establish his possession in

the suit property, the Trial Court held that the plaintiffs

could not have filed a mere suit for declaration and

injunction and hence dismissed the suit.

8. Being aggrieved by the aforesaid judgment and

decree, the plaintiffs filed R.A. No.137/2015. The First

Appellate Court secured the records of the Trial Court.

Heard the counsel for the parties and framed points for

consideration and based on the oral and documentary

evidence, held that the plaintiffs were unable to prove their

title to the property under the partition deed dated

08.02.1987 and hence rejected the appeal.

9. Being aggrieved by the aforesaid judgment and

decree of both the Courts, the present appeal is filed.

10. The learned counsel for plaintiffs submitted

that the suit property fell to the share of the husband of

the plaintiff No.1, but inadvertently in the partition deed

dated 08.02.1987 it was shown that it belonged to

defendant No.2. He further submitted that the suit

property was a vacant plot, and therefore, the Trial Court

and the First Appellate Court fell in error in requiring the

plaintiffs to seek for recovery of possession of the suit

property.

11. In a suit for declaration of title, based on an

instrument of title, it is incumbent upon the plaintiffs to

establish the lawful flow of title. In the case on hand,

both the plaintiffs and defendant No.2 claimed title to the

suit property under the partition deed dated 08.02.1987.

A perusal of the partition deed would disclose that the suit

property fell to the share of defendant No.2 and not to the

husband of plaintiff No.1. If that be so, the plaintiff cannot

claim any title to the property. The Trial Court and the

First Appellate Court have evaluated the evidence in great

detail and have rendered a finding of fact that plaintiffs

had failed to prove their title to the suit property. There is

no merit in this appeal and hence appeal is dismissed.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm