Dodda Kariyappa vs Ranganatha
2023 Latest Caselaw 369 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH DAY OF JANUARY, 2023

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

     REGULAR SECOND APPEAL NO.747 OF 2014 (DEC/INJ)

BETWEEN:

DODDA KARIYAPPA
SINCE DECEASED BY LR:
MUNIRAJU
S/O LATE DODDA KARIYAPPA
AGED ABOUT 55 YEARS
R/O: ANGARAHALLI
BIDADI HOBLI
RAMNAGAR TALUK AND DISTRICT - 562117

                                        ... APPELLANT

(BY SRI.D.S.HOSMATH, ADVOCATE)

AND

1.     RANGANATHA
       S/O CHIKKA KARIYAPPA
       AGED ABOUT 60 YEARS

2.     C.NAGARAJU
       S/O CHIKKA KARIYAPPA
       AGED ABOUT 54 YEARS

3.     C.NARAYANASWAMY
       S/O LATE CHIKKA KARIYAPPA
       AGED ABOUT 47 YEARS
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     ALL ARE RESIDENTS OF
     ANGARAHALLI VILLAGE
     HEGGADEGERE DAKHALE
     BIDADI HOBLI
     RAMNAGAR TALUK AND DISTRICT - 562 117

                                         .....RESPONDENTS

(BY SRI.RAGHUPATHI M.J, ADVOCATE FOR
SRI.T.NARAYANASWAMY, ADVOCATE FOR R.1 TO R.3)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 11.04.2014 PASSED IN R.A.NO.33/2011
ON THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS
JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
03.03.2010 PASSED IN O.S.NO.560/2006 ON THE FILE OF
ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA AND
ETC.

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


                       JUDGMENT

The captioned second appeal is filed by the

unsuccessful plaintiff, who has questioned the concurrent

findings of the Courts below, wherein the plaintiff's suit

seeking relief of declaration and injunction is dismissed by

both Courts.

2. For the sake of brevity, the parties are referred as

they are ranked before the Trial Court.

3. The plaintiff has filed the present suit seeking relief

of declaration and injunction. The plaintiff is asserting title

on the basis of the alleged oral partition in the family. The

plaintiff claimed that in an oral partition, his brother -

Chikkakariyappa was allotted 1 acre of land and remaining

1 acre 20 guntas of land was retained by the plaintiff. The

plaintiff has further alleged that his brother -

Chikkakariyappa has sold 1 acre of land in favour of one

Thimmaiah and therefore, plaintiff contended that he is the

absolute owner of the suit land measuring 1 acre 20 guntas.

The present suit is filed seeking relief of declaration of title

based on oral partition.

tendered appearance and filed written statement and stoutly

denied the entire averments made in the plaint. The

defendants on the contrary contended that there is no direct

blood relationship between the plaintiff and the defendants.

Defendants, however, pleaded that they are the cousin

brothers and the suit land was, in fact, purchased by

defendants father - Chikkakariyappa from one

Rajashekaraiah under registered sale deed dated

05.08.1957. Therefore, defendants contended that the

plaintiff has no semblance of right and title over the suit

property and hence, sought for dismissal of the suit.

5. The plaintiff and defendants to substantiate their

respective claims have led in oral and documentary

evidence. The Trial Court having assessed the oral and

documentary evidence taking cognizance of the rebuttal

evidence led in by the defendants held that suit land was in

fact purchased by the defendants' father. Referring to

Ex.D.2, which is a registered sale deed, the Trial Court held

that there is absolutely no evidence indicating that the

defendants' father purchased the property on behalf of the

family. Referring to the revenue documents, the Trial Court

held that property extract was found to be standing

exclusively in the name of the defendants' father. Trial Court

has also taken note of categorical admissions elicited in the

cross-examination of the plaintiff, who has admitted that the

defendant is in possession of the suit land. On these set of

reasonings, the Trial Court proceeded to dismiss the suit.

6. The Appellate Court having independently assessed

the oral and documentary evidence was not inclined to

entertain the belated appeal. Having found that there is an

inordinate delay of 400 days, the Appellate Court proceeded

to reject the application and consequently, the appeal was

dismissed.

7. Heard learned counsel appearing for the plaintiff

and learned counsel appearing for the defendants.

8. The entire claim of the plaintiff is based on an

alleged oral partition. On meticulous examination of the

judgments rendered by the Trial Court, this Court would find

that plaintiff has not produced any iota of evidence

indicating that suit land purchased by the defendants' father

was treated as joint family property and in an oral partition,

1 acre 20 guntas was allotted to the plaintiff. In absence of

evidence to substantiate his claim, the Trial Court was

justified in relying on the rebuttal evidence, more

particularly, the title document vide Ex.D.2. On examination

of the materials on record, this Court would find that there

are no pleadings indicating the existence of nucleus between

the plaintiff and the defendants family and further, the plea

of oral partition is not supported and substantiated by

evidence. If there is no evidence indicating that suit land

was an ancestral property and the same was the subject

matter of the oral partition, the plaintiff is not entitled to

seek relief of declaration of title. The present suit is also hit

by Section 34 of the Specific Relief Act. There is a

categorical finding by the Trial Court that the plaintiff is not

in possession and the said fact is clearly elicited in the

cross-examination of the plaintiff. The Full Bench of the

Hon'ble Apex Court in the case of RAM SARAN AND

ANOTHER VS. SMT.GANGA DEVI1 has held that if plaintiff

is found not to be in possession, he cannot maintain a suit

(1973)2 SCC 60

for declaration and injunction. Even on that count also, the

suit itself was not maintainable.

No substantial question of law arises for consideration

in this appeal.

Accordingly, the appeal is dismissed.

In view of dismissal of the appeal, interlocutory

applications, if any, do not survive for consideration and

accordingly, they are dismissed.

Sd/-

JUDGE

NBM