M.K.Rajashekaran vs M.K.Baskaran
2023 Latest Caselaw 10245 Kant

Karnataka High Court

M.K.Rajashekaran vs M.K.Baskaran on 12 December, 2023

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                                                   NC: 2023:KHC:45472
                                              RSA No. 2231 of 2016




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                 DATED THIS THE 12TH DAY OF DECEMBER, 2023

                                    BEFORE
             THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
             REGULAR SECOND APPEAL NO. 2231 OF 2016 (DEC/INJ)


             BETWEEN:

             1. M.K.RAJASHEKARAN
             S/O LATE KUPPASWMAY MODILEAR
             AGED ABOUT 60 YEARS
             SINCE DEAD BY LRs.

             1a. R. THILAGAVATHI
             W/O M K RAJASHEKARAN
             AGED ABOUT 67 YEARS.

             1b. K R MURUGESH
             S/O M K RAJASHEKARAN
             AGED ABOUT 45 YEARS.
Digitally
signed by    1c. K R RAMESH
CHAITHRA A   S/O M K RAJASHEKARAN
Location:    AGED ABOUT 42 YEARS.
HIGH
COURT OF     1d. K R GOWRI
KARNATAKA    D/O M K RAJASHEKARAN
             AGED ABOUT 40 YEARS.

             ALL ARE RESIDING AT No.4166
             DANDU ROAD, BANGARAPETE TOWN
             BANGARAPETE TALUK
             KOLAR DISTRICT - 563 116.
                                                      ...APPELLANTS

             (BY SRI KRISHNAMOORTHY D, ADVOCATE)
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                                           NC: 2023:KHC:45472
                                        RSA No. 2231 of 2016




AND:

    M.K.BASKARAN
    S/O LATE KUPPASWAMY MODILEAR
    AGED ABOUT 55 YEARS
    R/AT DANDU ROAD
    BANGARPETE TOWN, BANGARPETE TALUK
    KOALR DISTRICT - 563 116.
                                               ...RESPONDENT

(BY SRI UMESH B.N., ADVOCATE)

     THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 28.10.2016 PASSED IN R.A.
NO.97/2009 ON THE FILE OF THE III ADDITIONAL DISTRICT &
SESSIONS JUDGE, KOLAR, (SITTING AT KGF), DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 16.07.2009 PASSED IN OS NO.18/2005 ON THE FILE
OF THE C.J. (SR. DN.) & PRINCIPAL JMFC, KGF.

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

                         JUDGMENT

The captioned second appeal is filed by unsuccessful

plaintiff who has questioned the concurrent judgments of

the Courts below wherein plaintiff's suit seeking relief of

declaration and injunction is dismissed by both the Courts.

2. The facts leading to the case are as under:

The plaintiff is claiming ownership over the suit sites

on the basis of release deed dated 22.07.1981. The

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plaintiff contends that suit sites were allotted in a family

partition through release deed dated 22.07.1981. The

present suit is filed seeking declaration of title and

injunction alleging that defendant tried to interfere with

plaintiff's peaceful possession and enjoyment over the suit

sites in the year 2001.

3. The defendant, on receipt of summons,

tendered appearance and filed written statement. The

defendant partly admitted the averments made in the

plaint. The defendant admitted that Sy.Nos.71/1 and 71/2

has undergone conversion and residential plots are

formed. The defendant contended that plaintiff separated

from joint family in terms of release deed dated

22.07.1981 and in the said release deed, plaintiff was not

allotted any share in Sy.Nos.71/1 and 71/2. The

defendant also sought for dismissal of the suit on the

ground that suit is barred by time.

4. The plaintiff and defendant to substantiate their

respective claim have let in oral and documentary

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evidence. The copy of release deed was produced by the

plaintiff which is marked at Ex.P-27.

5. The trial Court having taken cognizance of

release deed found that plaintiff is not allotted any share

in Sy.Nos.71/1 and 71/2, wherein suit sites are part and

parcel of two said survey numbers. It is in this

background, the trial Court answered issue Nos.1 and 2 in

the negative. While answering issue No.1 in the negative,

trial Court held that plaintiff has failed to prove that suit

properties were allotted to him under registered release

deed dated 22.07.1981. Consequently, issue No.2 was

also answered in the negative.

6. Feeling aggrieved by the judgment and decree

of the trial Court, plaintiff preferred appeal in

R.A.No.97/2009. The appellate Court as a final fact

finding authority has independently assessed the entire

evidence on record. The appellate Court has also taken

cognizance of the Commissioner's report. The appellate

Court while examining Ex.P-27, found that Sy.Nos.71/1

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and 71/2 were not allotted to plaintiff under registered

release deed dated 22.07.1981 as per Ex.P-27. The

plaintiff's claimed that while instituting the suit, the

plaintiff has wrongly mentioned survey number as

Sy.Nos.71/1 and 71/2 instead of Sy.Nos.50/4, 29/1, 49/3,

27/1, 29/2 and 31/1. The plaintiff also contended that

M.K.Rajashekaran Layout is not formed in Sy.Nos.71/1

and 71/2. The appellate Court while examining the ADLR

report found that suit sites bearing Nos.42 to 46 are partly

situated in Sy.Nos.71/1 and partly situated in Sy.No.71/2

and 51/1. Referring to the recitals in the release deed

vide Ex.P-27 and the report submitted by the ADLR,

appellate Court was also not inclined to accept the claim of

the plaintiff that in terms of release deed vide Ex.P-27,

plaintiff has become owner of the present suit sites. On

these set of reasonings, appellate Court has dismissed the

appeal. These concurrent judgments are under challenge.

7. Heard learned counsel appearing for the

plaintiff and learned counsel appearing for the defendant.

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8. The dispute infact revolves around a narrow

compass. Both the parties admit that release deed is

executed by defendant in favour of plaintiff vide Ex.P-27.

The plaintiff has filed the present suit by contending that

lands allotted to him under release deed are converted for

residential purpose and these suit sites are situated in the

portion allotted to him in terms of release deed. Both the

Courts referring to the admitted documents i.e., release

deed vide Ex.P-27 have concurrently held that these suit

sites are part and parcel of Sy.Nos.71/1 and 71/2 and also

some sites are situated in Sy.No.51/1. Referring to the

contents of the release deed vide Ex.P-27, both the Courts

have concurrently held that these survey numbers are not

allotted to plaintiff. Both the Courts taking cognizance of

the ADLR report have also concurrently held that all the

suit sites are located and are found to be part and parcel

of Sy.Nos.71/1, 71/2 and 51/1. If these above three

survey numbers are not allotted to plaintiff in terms of

registered release deed vide Ex.P-27, no substantial

question of law arises for consideration.

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9. Accordingly, appeal is devoid of merits and

stands dismissed.

The pending interlocutory application, if any, does

not survive for consideration and stands disposed of.

Sd/-

JUDGE

CA CT-S