Karnataka High Court
Tippanna vs Santosh And Ors on 1 December, 2023
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NC: 2023:KHC-K:8940
RSA No. 200222 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.200222 OF 2019
(PAR/SEP.POSS & INJ)
BETWEEN:
TIPPANNA S/O LATE NAGAPPA
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE SONKERA,
TQ. HUMNABAD,
DIST. BIDAR-585330.
...APPELLANT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
AND:
1. SANTOSH
S/O LATE SRIMANTH KADGONDA,
AGE: 33 YEARS, OCC: AGRICULTURE,
Digitally signed
by SHILPA R R/O: SONKERA, TQ. HUMNABAD,
TENIHALLI DIST. BIDAR-585330.
Location: HIGH
COURT OF
KARNATAKA 2. VITHAL S/O NAGAPPA
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: SONKERA, TQ. HUMNABAD,
DIST.BIDAR-585330.
3. NARASAPPA
S/O LATE NAGAPPA KADAGONDA
AGE: 56 YEARS,
OCC: AGRICULTURE,
R/O: SONKERA, TQ. HUMNABAD,
DIST. BIDAR-585330.
4. GNYANABAI
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NC: 2023:KHC-K:8940
RSA No. 200222 of 2019
W/O LATE VISHWANATH
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: SONKERA, TQ. HUMNABAD,
DIST. BIDAR-585330.
5. RENUKA D/O LATE VISHWANATH
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: SONKERA, TQ. HUMNABAD,
DIST. BIDAR-585330.
6. SARIKA D/O LATE VISHWANATH
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O: SONKERA, TQ. HUMNABAD,
DIST. BIDAR-585330.
7. REKHA D/O LATE VISHWANATH
AGE: 15 YEARS, MINOR
UNDER THE GUARDIANSHIP OF
SMT. RENUKA W/O VISHWANATH
R/O SONKERA, TQ. HUMNABAD,
DIST. BIDAR-585330.
8. SAPNA D/O LATE VISHWANATH
AGE: 11 YEARS, MINOR
UNDER THE GUARDIANSHIP OF
SMT. RENUKA W/O VISHWANATH
R/O SONKERA, TQ. HUMNABAD,
DIST. BIDAR-585330.
9. LAXUMAN S/O LATE NAGAPPA KADAGONDA
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: SONKERA, TQ. HUMNABAD,
DIST. BIDAR-585330.
10. SMT. NAGAMMA W/O LAXUMAN
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O SONKERA, TQ. HUMNABAD,
DIST. BIDAR-585330.
...RESPONDENTS
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RSA No. 200222 of 2019
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO CALL
FOR THE RECORDS AND SET-ASIDE THE JUDGMENT AND
DECREE DATED 31.08.2015 PASSED BY THE LEARNED PRL.
CIVIL JUDGE AT HUMNABAD IN O.S.NO.47/2011 AND THE
JUDGMENT AND DECREE DATED 30.03.2019 PASSED BY TE
LEARNED SENIOR CIVIL JUDGE & JMFC AT HUMNABAD IN R.A.
NO.3/2016 AND DISMISS THE SUIT OF THE
PLAINTIFF/RESPONDENT NO.1, BY ALLOWING THE APPEAL
WITH COST THROUGHOUT, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant No.2 in O.S.No.47/2011 on the file of the
learned Principal Civil Judge at Humnabad (hereinafter referred
to as 'Trial Court' for brevity) is impugning the judgment and
decree dated 31.08.2015 decreeing the suit of the plaintiff for
partition and separate possession of his 1/6th share in the suit
properties, which was confirmed in R.A.No.3/2016 on the file of
the learned Senior Civil Judge and JMFC at Humnabad
(hereinafter referred to as 'First Appellate Court' for brevity)
vide judgment and decree dated 30.03.2019.
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2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed the
suit against defendant Nos.1 to 4 seeking partition and
separate possession of his 1/6th share over the land bearing
Survey No.73, measuring 3.32 acres and Survey No.79/A
measuring 1.32 acres, situated at Sonkera village, Humnabad
taluka (hereinafter referred to as 'suit properties' for brevity).
4. It is contended by the plaintiff that the suit
properties are his ancestral properties. His father died about 8
or 9 years back leaving behind the plaintiff as his legal
representative. His grandfather Nagappa had six sons by
name, Srimanth i.e., father of the plaintiff and defendant Nos.1
to 5 - Vithal, Tippanna, Narsappa, Vishwanath and Laxuman.
After the death of Nagappa and his son Srimanth, the plaintiff
has succeeded his 1/6th share in the suit properties.
Accordingly, prayed for decreeing the suit.
5. Defendant No.2 alone filed the written statement
denying the contentions taken by the plaintiff. However, he
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admitted his relationship with other defendants and his fatjer
Nagappa.
6. It is contended by defendant No.2 that the suit
properties are the ancestral properties and initially which were
standing in the name of his father Nagappa, who died in the
year 1995. The mother of the defendants Mahadevi also died
during January, 2011. It is denied that during the lifetime of
Nagappa, he along with his sons including the father of the
plaintiff were in joint possession and enjoyment of the suit
properties. It is contended that the father of the plaintiff had
gone to Maharastra and never participated in cultivation of the
same. The plaintiff came to the village only after the death of
his grandfather Nagappa. He is not having any right, title or
interest over the suit properties.
7. It is contended that the father of the plaintiff has
sold his share in the suit properties in favour of defendant No.2
after accepting the consideration. Therefore, it is contended
that the plaintiff is not entitled for any relief.
8. On the basis of these pleadings, following issues
were framed:
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1) Whether the plaintiff proves that the suit properties
are the ancestral properties of his father and
defendants?
2) Whether the plaintiff proves that he along with
defendants are joint owners and possessors of suit
properties?
3) Whether the plaintiff is entitled for partition and
separate possession of 1/6th share in properties?
4) Whether the plaintiff is entitled for the relief of
perpetual injunction as prayed for r?
5) Whether the defendant no.2 proves that there was a
oral partition during UGADI 1991 between the
father of the plaintiff and defendants no.1 to 5?
6) Whether the defendants no.2 prove that the father
of the plaintiff has given-up his share in the suit
properties infavour of defendants no.1 to 5?
7) Whether the defendant no.2 proves that the father
of the plaintiff has sold his share in R.S.No.79
measuring 12-Guntas and R.S. no. 73 measuring
26-Guntas for valuable consideration of Rs. 10,000-
00 in favour of defendant no.2?
8) Whether the defendant no.2 proves that the father
and mother of plaintiff have executed un-registered
sale deed dated 06.04.1992 with respect to their
share in suit properties, in favour of defendant
no.2?
9) Whether the defendant no.2 proves that he has
perfected his title to the portion of suit properties by
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way of adverse possession as alleged in Para No.18
of the Written statement?
10) Whether the defendant no.2 proves that he has
ousted the father of the plaintiff from possession of
suit properties and hence, suit is barred by
limitation as per Article 110 of Limitation Act?
11) Whether the defendant No.2 proves that the Court
Fee paid by the plaintiff U/Sec. 35(2) of Karnataka
Court Fees and Suit Valuation Act is improper and
incorrect?
12) What order or decree [arties are entitled to?
9. The plaintiff examined himself as PW.1 and got
marked Exs.P1 to P5 in support of his contentions. Defendant
No.2 got examined himself as DW.1 and also got examined
DWs.2 and 3 in support of his defence. They got marked
Exs.D1 to D6. The Trial Court after taking into consideration all
these materials on record came to the conclusion that the
plaintiff is successful in proving his contention and is entitled
for his 1/6th share in the suit properties. Accordingly, the suit
was decreed.
10. Being aggrieved by the same, defendant No.2 has
preferred R.A.No.3/2016. The First Appellate Court on re-
appreciation of the materials on record dismissed the appeal
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and confirmed the impugned judgment and decree passed by
the Trial Court. Being aggrieved by the same, defendant No.2
is before this Court.
11. Heard learned counsel for the appellant/defendant
No.2 on admission before issuance of notice to respondents.
12. Learned counsel for the appellant contended that
the relationship between the parties is admitted. The
contention of the plaintiff that the suit properties are the joint
family properties is denied, however, it is admitted that the suit
properties are the ancestral properties and a specific contention
was taken that Srimanth - the father of the plaintiff has left the
village long back and he never in possession of the suit
properties. During his lifetime, he executed unregistered sale
deed in favour of defendant No.2 and thereby he had given up
his right over the suit properties. The said sale deed was
produced before the Trial Court, but, the same was not
permitted to be marked. Therefore, the matter is to be
remanded back to the Trial Court after setting aside the
impugned judgment and decree passed by the Trial Court as
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well as the First Appellate Court. Accordingly, he prays for
allowing the appeal.
13. Perused the materials on record. It is the
contention of the plaintiff before the Trial Court that the suit
properties are the joint family properties owned by Nagappa,
who was the grandfather of the plaintiff and defendant No.2.
The relationship between the parties as stated above are
admitted. In the written statement filed by defendant No.2,
even though it is denied that the suit properties are the joint
family properties, it is specifically admitted that the properties
are the ancestral properties. The only contention taken by
defendant No.2 is that Srimanth had executed an unregistered
sale deed giving up his right over the suit properties. When the
sale deed said to have been executed by Srimanth is an
unregistered document, it is hit by Section 49 of the
Registration Act. The said document was not marked by the
Trial Court. Now the grievance of defendant No.2 is that the
said document should have been marked and therefore, the
matter is to be remanded back to the Trial Court. I do not find
any force in the submission made by learned counsel in that
regard. The Trial Court and the First Appellate Court on
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appreciation of the materials on record confirmed the
concurrent opinion on facts of the case. When the relationship
between the parties is admitted and when the contention of
defendant No.2 that the father of the plaintiff had given up his
share in favour of defendant No.2 under the unregistered sale
deed cannot be accepted, the plaintiff will be entitled for 1/6th
share in the suit properties.
14. I have gone through the impugned judgment and
decree passed by the Trial Court and the First Appellate Court.
Both the Courts have considered the materials on record in a
proper perspective. I do not find any reason to interfere with
the same. More over, no substantial question of law would
arise for consideration in this appeal. Hence, I am of the
opinion that the appeal is liable to be dismissed. Accordingly, I
proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The impugned judgment and decree dated
31.08.2015 passed in O.S.No.47/2011 on the file of
the learned Principal Civil Judge at Humnabad and
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the judgment and decree dated 30.03.2019 passed
in R.A.No.3/2016 on the file of the learned Senior
Civil Judge and JMFC at Humnabad, are hereby
confirmed.
Sd/-
JUDGE
SRT
CT-VD
