R S Shekharappa vs R B Marulasiddappa
2023 Latest Caselaw 540 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 9TH DAY OF JANUARY, 2023

                            BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                R.S.A.NO.1769/2017 (DEC/INJ)

BETWEEN

1.    R S SHEKHARAPPA
      S/O LATE SIDDAPPA
      AGED ABOUT 67 YEARS

2.    R S NARAPPA
      S/O LATE SIDDAPPA
      AGED ABOUT 65YEARS

      BOTH ARE AGRICULTURISTS
      R/O JAMMENAHALLI
      SIRIGERE POST, BHARAMASAGARA HOBLI
      CHITRADURGA TALUK AND DISTRICT-577541
                                               ...APPELLANTS

(BY SRI GANGADHARAPPA A V, ADVOCATE)

AND

R B MARULASIDDAPPA
S/O LATE BASAPPA
AGED ABOUT 48 YEARS
R/O JAMMENAHALLI
SIRIGERE POST
BHARAMASAGARA HOBLI
CHITRADURGA TALUK AND DISTRICT-577541
                                           ... RESPONDENT

(BY SRI D L SURESH, ADVOCATE AND
 SRI B P SRIPAD, ADVOCATE)
                                 2



     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 05.08.2017 PASSED IN R A
NO.18/2017 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHITRADURGA AND ETC.

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

                        JUDGMENT

This matter is listed for admission. Heard the learned

counsel appearing for the parties.

2. This appeal is filed challenging the judgment and

decree dated 05.08.2017 passed in R A No.18/2017 on the file of

the 1st Additional District and Sessions Judge, Chitradurga.

3. The factual matrix of the case of the plaintiff before

the Trial Court that he is the absolute owner and in possession of

the property to the extent of 18 guntas which he has retained

after selling the portion of the property of 1 acre 2 guntas out of

1 acre 20 guntas which was allotted to him. It is also his

contention that he has been in peaceful possession and

enjoyment of the said property. The defendants in pursuance of

the suit summons, appeared and contended that the matter was

already decided in O.S.No.206/2008 and the said 18 guntas of

land has already been declared as karab land hence, the claim of

the plaintiff is barred under principles of res-judicata and the

plaintiff cannot claim the decree in respect of karab land. It is

also the contention of the defendants that the entire land of the

plaintiff was sold in favour of his brother Parameshwarappa and

he has not retained any property. The plaintiff has been

examined as PW1 before the Trial Court and also examined his

brother as PW2 who had purchased 1 acre 2 guntas of land out

of 1 acre 20 guntas and got marked the documents at Ex.P1 to

P23. The defendants though set up the defence of res-judicata

and claimed that the same is a karab land, not led any evidence

and only relied upon the documents at Ex.D1, 2 and 2(a). The

Trial Court after considering both the oral and documentary

evidence answered Issues No.1 and 2 as affirmative in coming to

the conclusion that 18 guntas of land was retained by the

plaintiff and the plaintiff is the absolute owner and he is in

possession of the said 18 guntas of land and answered Issue

No.3 as negative in coming to the conclusion that the suit in

O.S.No.206/2008 not substantially and directly involved in

respect of the suit schedule property which has been claimed by

the plaintiff and the same is different property and same is out

of 120 guntas of land allotted in favour of the plaintiff in the

partition among the mother and brothers. Hence, an appeal is

filed by the defendants before the First Appellate Court and in

the First Appellate Court also the appellants herein have urged

the ground that the Court below committed an error in coming to

the conclusion that the suit schedule property is a part and

parcel of the land allotted to the plaintiff in the previous partition

and the plaintiff became absolute owner of the said property and

also other ground is urged that the Trial Court is not justified in

holding that the plaintiff is in possession and enjoyment of

property and also the Trial Court has committed an error that

the suit is not hit by principles of res-judicata and the very

approach of the First Appellate Court is erroneous and the Trial

Court committed an error in decreeing the suit for declaration

declaring that the plaintiff is the absolute owner of the suit

schedule property and he has been in possession of the same.

And the First Appellate Court after re-appreciation of the

evidence on record comes to the conclusion that the Trial Court

has not committed any error in decreeing the suit and also

comes to the conclusion that the principles of res-judicata is not

applicable to the facts of the case on hand. Hence, the present

appeal is filed before this Court by the defendants.

4. The learned counsel appearing for the

appellants/defendants vehemently contend that the property

originally belongs to one Narappa to the extent of 9 acres 28

guntas. The counsel also submits that out of 9 acres 28 guntas,

5 acres 7 guntas was allotted in favour of the first wife of

Narappa i.e., to the children of first wife and remaining land of 4

acres 7 guntas as per the document at Ex.P12 was allotted in

favour of the children of Narappa through the second wife-

Siddamma. The counsel would vehemently contend that 11

guntas of land was taken for formation of V.P.road, 6 guntas was

taken in respect of stream line and 1 gunta was taken with

regard to pathway hence, in total, 18 guntas was karab land and

same has been claimed by the plaintiff before the Trial Court and

both the Courts have committed an error in decreeing the suit

and failed to take note of whether principles of res-judicata

applicable to the facts of the case on hand.

5. The counsel would vehemently contend that raising

substantial question of law in the second appeal that whether

the Courts below are justified in law in holding that the judgment

and decree passed in R.A.No.7/2013 does not operate as res-

judicata inspite of the fact that both the plaintiff and the

defendants are parties to the said proceedings and also contend

that whether both the Courts are justified in law not considering

the fact that Siddappa the father of appellants was allotted 5

acres 5 guntas of land excluding 18 guntas of karab land on the

northern side of the land in Sy.No.2/2 and the father oif the

plaintiff was allotted 4 acres 5 guntas of land on the southern

side in Sy.No.2/2, in which the road, halla and footpath are

situated and these aspects has not been considered by the Trial

Court as well as First Appellate Court.

6. Per contra, the learned counsel appearing for the

respondent/plaintiff vehemently contend that there is dispute

with regard to the property to the extent of 7 acres 20 guntas

which belongs to one Narappa and also not in dispute with

regard to that the partition was taken place between the children

of first and second wives of Narappa. The counsel would

vehemently contend that though the document reveals that in

terms of Ex.P12, 4 acres 7 guntas was allotted in favour of the

plaintiff's family which was only in existence of 4 acres 5 guntas

and the same has been partitioned among the mother and

children on 17.02.2007 in terms of Ex.P13. In the said partition,

the plaintiff's mother got the share in the partition to the extent

of 1 acre, the plaintiff got the share to the extent of 1 acre 20

guntas and his brother Parameshwarappa got 1 acre 25 guntas

and in total, only they have divided 4 acres 5 guntas and not 4

acres 7 guntas though described in Ex.P12. The counsel

vehemently contend that the suit is filed for the remaining area

of 18 guntas which was retained by the plaintiff out of 1 acre 20

guntas and the claim is also in respect of remaining portion in 1

acre 20 guntas of land and not in karab land as contended by

the defendants. The counsel also vehemently contend that the

defendants though set up the defence in the original suit, they

have not entered into witness box and also not produced any

documentary evidence with regard to the fact that the claim is in

respect of karab land.

7. The counsel vehemently contend that the suit filed

by the appellants herein in O.S.No.206/2008, they claimed the

decree to the extent of 5 acres 23 guntas including karab land

and in the said suit also they clearly contend that they are the

owners to the extent of 5 acres 23 guntas including karab land

of 18 guntas and now they cannot contend that claim made by

the plaintiff is in respect of the karab land and both the Courts

came to the conclusion that 18 guntas of land which was claimed

by the plaintiff is with regard to the land which he has retained

hence, the very contention of the counsel for the appellants

cannot be accepted.

8. Having heard the learned counsel appearing for the

respective parties and also on perusal of the material available

on record admittedly, no dispute with regard to the fact that the

property to the extent of 9 acres 28 guntas was belonged to one

Narappa and it is also not in dispute that the property was

divided among first and second wife's children of Narappa in the

year 1950 in terms of Ex.P12. It is also not in dispute between

the parties that 5 acres 7 guntas was allotted in favour of the

appellants' branch and also 4 acres 7 guntas was allotted in

terms of Ex.P12 in favour of present plaintiff's father-Basappa

and on account of death of the said Basappa, the family

members i.e., mother and two children have partitioned the

property to the extent of 4 acres 5 guntas of land. Though the

document at Ex.P12 describes that to the extent is 4 acres 7

guntas, out of that 1 acre 20 guntas was allotted in favour of

plaintiff and 1 acre was allotted in favour of the mother and 1

acre 25 guntas was allotted in favour of his brother-

Parameshwarappa. Out of 1 acre 20 guntas of land, the plaintiff

sold only 1 acre 2 guntas of land and retained 18 guntas of land.

9. The claim made by the appellants before the Trial

Court, the First Appellate Court and this Court that the said land

of 18 guntas is karab land. It is not in dispute that the

appellants herein also filed a suit earlier wherein the plaintiff in

the present suit has claimed the counter claim and the Trial

Court granted the counter claim in favour of the plaintiff but the

same was reversed by the First Appellate Court in R.A.No.7/2013

in coming to the conclusion that both the plaintiff and the

defendants in the suit in O.S.No.206/2008 cannot claim any

right in respect of karab land and the same is vest with the State

and the said order has been attained its finality.

10. Now the claim made by the plaintiff before the Trial

Court that out of 1 acre 20 guntas of land which was allotted to

him, he had sold only 1 acre 2 guntas and retained 18 guntas of

land and to that extent, he has filed the suit for the relief of

declaration and possession of the property. The Trial Court after

considered the oral and documentary evidence available on

record in O.S.No.88/2015 framed an issue based on the

pleadings whether the plaintiff prove that the suit schedule

property is a part and parcel of the land allotted to him in the

previous partition and hence, he is absolute owner of the said

property and also framed an issue with regard to the defence

taken by the defendants that the matter has already been

decided in O.S.No.206/2008 and that is already been declared as

karab land and hence, the claim of the plaintiff is barred under

the principles of res-judicata. The Trial Court considering the

material on record comes to the conclusion that the finding of

the Trial Court in O.S.No.206/2008 and R.A.No.7/2013 not come

in the way of seeking the relief of declaration as the decree

sought is in respect of the land to the extent of 1 acre 20

guntas, he has retained 18 guntas of land and he has only sold 1

acre 2 guntas of land in favour of his brother who has been

examined as PW2 in O.S.No.88/2015. No doubt, in the original

suit in O.S.No.206/2008 and an appeal in R.A.No.7/2013, these

are the parties in the said suit also but it has to be noted that in

terms of Ex.P19-Decree passed in earlier R.A., Court comes to

the conclusion that they cannot claim any right in respect of 18

guntas of karab land.

11. It is also important to note that in the plaint filed by

the defendants/appellants herein claimed the decree to the

extent of 5 acres 23 guntas including the karab land and only an

allotment was made in the original partition deed as per Ex.P12

to the extent of 5 acres 7 guntas but the claim was made to the

extent of 5 acres 23 guntas hence, the Court comes to the

conclusion that they cannot claim the decree in respect of karab

land of 18 guntas. It is also important to note that at the time

of partitioning the property, they excluded the extent of 14

guntas out of 9 acres 28 guntas and also the documents reveals

that 5 acres 7 guntas was allotted in favour of the plaintiff in

O.S.No.88/2015 and they have excluded 2 guntas of land and

they have partitioned to the extent of 4 acres 5 guntas. It is not

in dispute that out of 1 acre 20 guntas of land allotted in favour

of the plaintiff, he sold the property to the extent of 1 acre 2

guntas in the northern boundary and he has retained the

remaining property and though it is not mentioned remaining 18

guntas of land he has retained, but the sale deed discloses that

to the northern boundary he has retained the property out of 1

acre 20 guntas. All these factors taken note of by the Trial Court

and the Trial Court also in paragraphs 10 to 12 have

distinguished the material available on record and also the

documents at Ex.P12, P13, D1 and D2 and they failed to get the

decree in the original suit as well as in the appeal and when the

First Appellate Court comes to the conclusion that they cannot

claim to the extent of 18 guntas of karab land and when they

claimed to the extent of 18 guntas as owners in the earlier suit

and when they failed to get the decree and in the present suit

also their defence that the claim of the plaintiff is in respect of

karab land and no answer with regard to the excluding the land

to the extent of 14 guntas in the earlier partition at Ex.P12 and

also the plaintiff in O.S.No.88/20105 contend that out of 4 acres

7 guntas in terms of Ex.P12, partitioned to the extent of 4 acres

5 guntas only. When such being the case and when the material

on record discloses that the Trial Court as well as First Appellate

Court formulated the points with regard to the question involved

between the parties, the Trial Court raised the proper issues and

answered Issue Nos.1 and 2 considering both the oral and

documentary evidence in coming to the conclusion that the

plaintiff is the owner to the extent of 18 guntas of land which he

has retained and also he has been in possession to that extent of

land and comes to the conclusion that the decree passed in

O.S.No.206/2008 will not attract the principles of res-judicata

and property which has been described is distinct and not sought

any relief to the extent of 5 acres 7 guntas which was allotted in

favour of the appellants herein and their claim to the extent of

18 guntas of karab land in the earlier suit was also declined by

the Trial Court and the First Appellate Court also in the appeal

memo on re-appreciation of both the oral and documentary

evidence formulated the point with regard to whether the Trial

Court has committed an error in granting the decree in coming

to the conclusion that the plaintiff has retained to the extent of

18 guntas of land and whether the Trial Court has committed an

error in coming to the conclusion that the plaintiff has been in

possession and enjoyment of the suit schedule property and

whether the Trial Court has committed an error holding that suit

is not hit by principles of res-judicata.

12. Having perused the material on record, the First

Appellate Court also while answering Points No.1 to 4 which has

been formulated in the appeal, in detail discussed the material

on record in paragraphs 15 to 18 and also taken note of he

evidence of PW1 and 2 in paragraph 17 and 18 and discussed

the evidence of PW2 and having considered the material on

record and also considering the evidence led by the defendants

before the Trial Court discussed in paragraph 19 and comes to

the conclusion that the claim made by the plaintiff is in respect

of land allotted in his favour in the family partition and not in

respect of the claim made by the defendants in O.S.No.206/2008

and in R.A.No.7/2013. Hence, comes to the conclusion that it

does not attract principles of res-judicata as contended by the

defendants.

13. It is also important to note that though the defence

was taken before the Trial Court by the defendants/appellants

herein that it is the karab land, in order to prove the said fact,

not adduced any evidence before the Trial Court and only relied

upon the documents at Ex.D1 and D2 and nothing is placed on

record before the Trial Court to comes to a conclusion that the

same is a karab land. Having taken note of the material on

record it appears that the First Appellate Court has rightly comes

to the conclusion that 1 acre 20 guntas of land out of 4 acres 5

guntas of land which was fallen to the share of the family of the

plaintiff, property was sold to the extent of 1 acre 2 guntas and

he has retained 18 guntas of land and hence, granted the relief

of declaration declaring that the plaintiff is the owner and in

possession to the extent of 18 guntas of land. Hence, I do not

find any error committed by both the Courts and though the

counsel for the appellants contend with regard to the non-

application of res-judicata is erroneous approach and the said

contention cannot be accepted when both the Courts have given

anxious consideration to the material on record and not

committed any error. Hence, I do not find any ground to frame

any substantive question of law to comes to a conclusion that

finding of the Trial Court is perverse as against the records

available on record and also did not find any ground to frame

any substantive question of law with regard to the applicability

of principles of res-judicata when both the Courts applied their

mind and given the reasons for non-application of res-judicata.

Hence, no merit in the second appeal to frame substantive

question of law invoking Section 100 of CPC.

14. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

In view of dismissal of the main appeal, I.A.s if any, do not

survive for consideration and the same stand disposed of.

Sd/-

JUDGE

SN