Karnataka High Court
Bhimappa S/O Hanamappa ... vs Sakrevva W/O Channappa Mudengudi on 12 June, 2023
Bench: Rajendra Badamikar
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RSA No. 100109/2023
C/W RSA NO. 101104/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 100109 OF 2023
C/W
REGULAR SECOND APPEAL NO.101104 OF 2022
BETWEEN
IN RSA 100109/2023
1. BHIMAPPA S/O HANAMAPPA MUDENAGUDI
AGE: 65 YEARS,
OCC: AGRICULTURE,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI,
DIST. BAGALKOTE.
2. YALLAPPA S/O HANAMAPPA MUDENAGUDI
AGE. 62 YEARS,
OCC. AGRICULTURE,
Digitally
R/O. DHANAKASHIRUR-587114,
YASHAVANT signed by
NARAYANKAR YASHAVANT
NARAYANKAR
TQ. BADAMI,
DIST. BAGALKOTE.
3. ANDAPPA S/O HANAMAPPA MUDENAGUDI
AGE. 60 YEARS, OCC. AGRICULTURE,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI, DIST. BAGALKOTE.
BASAPPA @ BASAVARAJ @ BASAWARAJ
S/O HANAMAPPA MUDENAGUDI,
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RSA No. 100109/2023
C/W RSA NO. 101104/2022
SINCE DECEASED BY HIS LRS.
4. SHANKREVVA
W/O BASAPPA @ BASAVRAJ MUDENAGUDI
AGE. 36 YEARS,OCC. HOMEMAKER,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI, DIST. BAGALKOTE.
5. TRIVENI D/O BASAPPA
@ BASAVARAJ MUDENAGUDI
AGE. 18 YEARS,OCC. STUDENT,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI, DIST. BAGALKOTE.
6. ULLAS S/O BASAPPA
@ BASAVARAJ MUDENAGUDI
AGE. 15 YEARS, OCC. STUDENT,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI,DIST. BAGALKOTE.
...APPELLANTS
(BY SRI. S B HEBBALLI, ADVOCATE)
AND
SAKREVVA
W/O CHANNAPPA DHANAKSHIRUR DANDIN
AGE. 62 YEARS,OCC. HOMEMAKER,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI, DIST. BAGALKOTE.
...RESPONDENT
(BY SRI. PRAKASH HOSAMANI ADVOCATE FOR C/R )
THIS RSA FILED UNDER SECTION 100 R/W XLII RULE 1
OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
11.04.2022 PASSED IN R.A.NO.6/2018 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, BADAMI, PARTLY ALLOWING THE APPEAL AND
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RSA No. 100109/2023
C/W RSA NO. 101104/2022
CONFIRMING THE JUDGMENT AND DECREE DATED 27.10.2017,
PASSED IN O.S. NO.274/2010 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
BADAMI, DISMISSING THE SUIT FILED FOR DECLARATION AND
PERMANENT INJUNCTION.
IN RSA 101104/2022
BETWEEN
1. BHIMAPPA S/O HANAMAPPA MUDENAGUDI
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI,
DIST. BAGALKOTE.
2. YALLAPPA S/O HANAMAPPA MUDENAGUDI
AGE. 62 YEARS, OCC. AGRICULTURE,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI,
DIST. BAGALKOTE.
3. ANDAPPA S/O HANAMAPPA MUDENAGUDI
AGE. 60 YEARS, OCC. AGRICULTURE,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI,
DIST. BAGALKOTE.
BASAPPA @ BASAVARAJ @ BASAWARAJ
S/O HANAMAPPA MUDENAGUDI,
SINCE DECEASED BY HIS LRS.
4. SHANKREVVA W/O BASAPPA
@ BASAVRAJ MUDENAGUDI
AGE. 36 YEARS,OCC. HOMEMAKER,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI, DIST. BAGALKOTE.
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RSA No. 100109/2023
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5. TRIVENI D/O BASAPPA
@ BASAVARAJ MUDENAGUDI
AGE. 18 YEARS,OCC. STUDENT,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI, DIST. BAGALKOTE.
6. ULLAS S/O BASAPPA
@ BASAVARAJ MUDENAGUDI
AGE. 15 YEARS, OCC. STUDENT,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI,DIST. BAGALKOTE.
...APPELLANTS
(BY SRI. S B HEBBALLI, ADVOCATE)
AND
SAKREVVA
W/O CHANNAPPA DHANAKSHIRUR DANDIN
AGE. 62 YEARS,OCC. HOMEMAKER,
R/O. DHANAKASHIRUR-587114,
TQ. BADAMI, DIST. BAGALKOTE.
RESPONDENT
(BY SRI. PRAKASH HOSAMANI, ADVOCATE FOR R1/CAVEATOR)
THIS RSA FILED UNDER SECTION 100 READ WITH XLI
RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
11.04.2022 PASSED IN R.A.NO.3/2018 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, BADAMI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 27.11.2017 PASSED IN
O.S. NO.274/2010 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BADAMI,
DISMISSING THE SUIT FILED FOR DECLARATION AND
PERMANENT INJUNCTION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
ON 29.05.2023, THIS DAY COMING ON FOR PRONOUNCEMENT,
THIS COURT DELIVERED THE FOLLOWING.
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JUDGMENT
These two appeals are filed by the appellants/
plaintiffs challenging the judgment and decree passed in
R.A. No.3/2018 and 6/2018 arising out of the judgment
and decree in O.S. No.274/2010.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Trial Court.
3. The plaintiffs have filed a suit for declaration
that they are the legal representatives of deceased
Sakrevva W/o BhimappaDandin resident of Danakshirur
Village under registered Will dated 10.01.2002 and
consequential permanent injunction against defendants
from causing any interference in peaceful enjoyment of
the suit scheduled property. The suit scheduled property in
land bearing R.S. No.103/2 measuring 5 acres situated at
Dhanakashirur Village of Badami Taluka standing in the
name of Sakrewwa W/o BhimappaDandin. It is the
contention of the plaintiff that Sakrewwa was in
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possession and enjoyment of the suit property and she is
the paternal aunt of the plaintiffs. That the Land Tribunal,
Badami, has granted occupancy rights of the suit property
in her favour and during her life time she has executed a
registered Will dated 10.01.2002 in favour of the plaintiffs.
It is asserted that after her demise, the plaintiffs have
succeeded the suit property by virtue of the Will as the
legal heirs of deceased and they are in possession of the
suit property. It is asserted that defendant having no right
title or interest over the suit property, obstructed for
entering name of the plaintiffs in revenue records before
the concerned authority and also interfering plaintiffs
possession over the suit property. Hence, the plaintiffs
filed the suit.
4. The defendant has appeared through her
counsel and filed written statement denying the allegations
and assertions made there under. She disputed that the
plaintiffs are the legal heirs of deceased Sakrewwa and
disputed the execution of the Will. It is also asserted that
the occupancy right granted by the Land Tribunal in favour
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of the Sakrewwa was challenged before the High Court
and the said Writ Petition was allowed and there was a
direction to reconsider the matter afresh. According to
defendant, the suit property was originally owned to
Gurucharya Inamdar, who died leaving behind his two
sons Balacharya and Gundacharya. It is alleged that
Balacharya was not having any issue and hence, out of the
three sons of Garudacharya, he has taken Venkatacharya
in adoption as a son and after the death of the Gurucharya
Inamdar, his two sons succeeded the suit property. It is
further asserted that even after the death of Balacharya
and Gundacharya, the legal heirs succeeded the suit
property and in view of the adoption of Vekatacharya, he
has taken 1/2 share i.e., 2 acres 20 guntas and out of
remaining 1/2 share Gopalacharya and Vensudevacharya
have taken 1/4 share each. It is also contended that
Vasudevacharya has sold his 1/4 share i.e., 1 acre 10
guntas in favour of Hanumappa Dandin under registered
sale deed dated 02.07.1954 who is the father-in-law of the
defendant. According to the defendant, her father-in-law
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became absolute owner of 1 acre 20 guntas and his name
is mutated as per ME No.850 in the revenue document.
She contended that her father-in-law Hanamappa had two
sons namely Basappa and Channappa and defendant is the
wife of Channappa, while Basappa had a wife by name
Mukudawwa and sons and daughters who have succeeded
1 acre 10 guntas. It is also contended that Basappa,
Channappa and Mudakappa died and as such defendant,
her sons and daughters and Mukudawwa have succeeded
1 acre 10 guntas in Sy. No.103/2. It is asserted that as
per request of owner Basappa Dandin cultivated 3 acres
30 guntas in R.S.No.103/2 along with 1 acre 10 guntas of
purchased property. Hence, it is contended that entire 5
acres was in possession of Basappa. It is contended that
Bhimappa S/o Marchappa Dandin the husband of deceased
Sakrewwa has filed an application for grant of occupancy
rights and even though the suit property was not tenancy
land. The said application came to be allowed and said
grant was challenged before this Court and same was set
aside and remanded back to the Land Tribunal, Badami for
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fresh enquiry. It is also contended that Basappa S/o
HanamantappaDandin has also purchased remaining 3
acres 30 guntas under registered sale deed dated
22.06.1994 and he has been in possession and enjoyment
of total extent of 5 acres. It is alleged that the Land
Tribunal, Badami, passed order dated 19.12.2001 but the
plaintiffs are not tenants of the suit land and same was set
aside in the Writ Petition. Hence, it is asserted that orders
dated 19.03.2004 and 01.03.2002 were set aside by this
Court and tenancy matter is remanded to the Land
Tribunal for fresh consideration with a direction to re-
examine the claim of the parties after providing the
opportunities. It is asserted that the matter is still pending
before the Land Tribunal, Badami, and in the meanwhile
Sakrewwa, without the knowledge of the defendant has
raised loan on the suit property by taking advantage of
entry of her name over the suit property in revenue
records, which is not binding on the defendant. It is
asserted that when the tenancy issue itself is pending
before the Land Tribunal, the Civil Court has no jurisdiction
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to entertain the suit regarding possession and hence, she
sought for dismissal of the suit.
5. On the basis of these pleadings, the Trial Court
has framed in all following 7 issues.
":ISSUES:
1. Whether the plaintiffs prove that,
they are legal heirs of deceased Smt.
Sakrewwa W/o Bhimappa Dandin R/o
Dhanakshirur, Tq: Badami through
registered Will dated:10.01.2002?
2. Whether the plaintiffs prove that, they
are in possession of suit property as
on the date of suit?
3. Whether the plaintiffs prove the
alleged obstruction by the defendant
in suit property?
4. Whether defendant proves that, the
alleged will dated 10.01.2002 is
concocted by plaintiff?
5. Whether the defendant proves that,
this suit is bad for non-joinder of
necessary parties?
6. Whether the plaintiffs are entitle the
relief as prayed for?
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7. What order or decree?"
6. Plaintiff No.2 was examined as PW.1 along with
4 witnesses and placed reliance on 20 documents. While
power of attorney holder of defendant is examined as
DW.1 along with two witnesses and Ex.D.1 to D.12 were
relied. The Trial Court after hearing the arguments and
appreciating oral and documentary evidence has answered
issue No.1 to 3 and 5 in the affirmative, while issue Nos.4
and 6 were answered in the negative and ultimately,
dismissed the suit of the plaintiff as suit is bad for non-
joinder of necessary parties.
7. Being aggrieved by this judgment and decree,
the plaintiffs have filed R.A. No.3/2018 while, defendant
has filed R.A. No.6/2018 challenging the impugned
judgment and decree. The Appellate Court clubbed these
two appeals as they are arising out of same judgment and
decree and dismissed the appeal filed by the plaintiff in
R.A. No.3/2018 while, the appeal preferred by the
defendant in R.A. No.6/2018 was allowed in part by
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reversing the finding on issue Nos.1 to 3 by answering
them in the negative.
8. Being aggrieved by these findings, the plaintiffs
are before this Court by way of these two independent
appeals.
9. Heard the arguments advanced by the learned
counsel for the appellants and learned counsel for the
respondent.
10. Learned counsel for the appellants would
contend that the plaintiff and defendants are not related
and the husband of plaintiff has filed form No.7 and
proceedings are pending. It is asserted that issue Nos.1 to
3 and 6 were answered in favour of the plaintiffs but the
suit was dismissed for not impleading necessary parties
and in the appeal the First Appellate Court has reversed
the said findings by allowing the appeal preferred by the
defendant and plaintiffs appeal came to be dismissed. He
would further contend that both the Courts below have
concurrently held that Will is proved but on technical
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ground, the suit came to be dismissed. It is asserted by
the learned counsel for the appellants that R.A. No.6/2018
filed by the defendant itself is not maintainable since there
is Bar under Section 96 of CPC and Appellate Court has
went out of the jurisdiction as issue of tenancy and
inheritance cannot be gone into by the Civil Court. Hence,
he would contend that when the defendant's appeal itself
is not maintainable, the First Appellate Court has
erroneously set aside the finding on issue Nos.1 to 3 and 6
and hence, he would seek for allowing the appeals.
11. Per contra, learned counsel for the respondent
would contend that the entire land was cultivated by the
father-in-law of the defendant and admittedly defendant is
class-II heir. It is also asserted that there is a Bar under
the Land Tribunal Act, to deal with the tenancy rights by
Civil Court and further when the tenancy issue itself is
pending, question of entertaining the suit of the plaintiffs
does not arise at all. Hence, he would seek for dismissal of
the both the appeals.
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12. Having heard the arguments and perusing the
records, it is evident that the suit scheduled property
originally owned by Hanamantacharya and others. It is
also admitted fact that the Bhimappa Dandin has filed
form No.7 claiming occupancy rights and after his death,
the occupancy rights were granted in favour of Sakrewwa.
It is also evident that the said grant was challenged before
this Court and same was set aside directing to the Land
Tribunal to reconsider the issue and dispose of the matter
by providing opportunity to both the parties. The plaintiffs
are claiming their rights under the Will said to have been
executed by deceased Sakrewwa W/o Bhimappa Dandin,
which is said to have been registered. Admittedly,
plaintiffs are not the biological legal heirs of deceased
Sakrewwa.
13. Plaintiff No.2 is examined as PW.1 and
reiterated the plaint averments. Ex.P.4 is the copy of form
No.7 submitted by Bhimappa Marchappa Dandin. Ex.P.2 is
the registered Will said to have been executed by
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deceased Sakrewwa. Ex.P.3 is the order of the Land
Tribunal. It is admitted that the order of Land Tribunal was
set aside by this Court. Further during pendency of the
matter before the Land Tribunal, Sakrewwa died and
plaintiffs approached for mutating their names and the
Tribunal has directed them to approach the Civil Court to
substantiate their rights under the Will.
14. However, at the same time it is evident that
Ex.D.1 is the certified copy of the Registered Sale Deed
dated 01.07.1954 executed in favour of Hanumappa
Dandin by Vasudevacharya and others in respect of 1 acre
10 guntas of the suit property. Further Ex.D.2 is the
certified copy of the Sale Deed dated 22.06.1994 executed
by Dheerendra S/o Hanamantacharya and Narayanacharya
along with others in respect of remaining 3 acres 30
guntas. Hence, the defendants asserted that entire land
measuring 5 acres was purchased and question of tenancy
does not arise.
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15. The plaintiffs are claiming to be testamentary
heirs of deceased Sakrewwa. They produced the registered
Will at Ex.P.2. Admittedly, Will is not a
compulsory registerable document but under Section 63 of
the Indian Succession it is compulsory attestable
document. However, it is evident that the attesting
witnesses were examined as PWs.3 and 4 but both of
them have turned hostile. Section 71 of the Indian
Evidence Act, 1872 deals with proof of the documents
when attesting witnesses are not available or denying the
execution etc., But at the same time PW.2 is the Scribe
and PW.5 is the Registrar who has registered the Will
deed. PW.2 has deposed regarding drafting of the Will and
presence of PWs.3 and 4 and further PW.5 has also
specifically stated that Testator was identified by PW.3 and
4. Hence, prima facie there appears that due compliance is
there under Section 63 and the Will is registered
document. At the same time, it is also admitted fact that
the issue of tenancy is pending before the Land Tribunal.
No doubt, Ex.D1 discloses purchase of 1/4 share by
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Hanumappa and later on remaining property being
purchased under Ex.D.2. The First Appellate Court went on
discussing these aspects and acquisition of right,
ownership etc., which is unwarranted since the tenancy
issue itself is still pending and that aspect is beyond the
jurisdiction of the Civil Court. No doubt, there is a Will
pertaining to suit scheduled property but however, the
right is claimed under tenancy.
16. Since there is a tenancy dispute and tenancy
rights pertaining to Sakrewwa are not yet finalised, hence
question of she executing a Will does not arise. Even
otherwise in view of the decision in the case of Timmakka
Kom Venkanna Naik vs. Land Tribunal reported in ILR
1987 Karnataka 3337. the tenancy rights are not
transferable. It is also further held that the Bar cannot be
negativated by creating a Will also. Hence, tenancy rights
are only inheritable and they cannot be Willed away by a
Will. As such Sakrewwa being not an exclusive owner and
only claiming tenancy rights, question of she transferring
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the right under the Will does not arise at all. Though the
Appellate Court has gone to the extent of the possession
and title etc., which was unwarranted, ultimately the lower
Appellate Court came to a conclusion that though the Will
is proved, it does not have any sanctity in the eyes of law
since it is only on paper as it does not have any sanctity to
transfer the rights under the suit property, which is
alleged to be a tenancy land. Hence, reversing the finding
of issue Nos.1 to 3 by the Appellate Court cannot be
interfered with.
17. Admittedly, the suit of the plaintiffs came to be
dismissed though issues pertaining to bequeath were held
in favour of the plaintiff and the appeal preferred by the
plaintiff in R.A.No.3/2018 is dismissed. But the Appellate
Court allowed the R.A.No.6/2018 in part by reversing the
finding on issue Nos.1 to 3 by answering them in negative.
Even, if these issues are answered in the affirmative, it
would not enure to the benefit of the plaintiffs for the
reasons stated supra.
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18. Learned counsel for the appellant has
contended that the appeal preferred by the defendant in
R.A.No.6/2018 itself was not maintainable, as it is hit by
Section 96 of CPC. For better understanding Section 96 of
CPC is reproduced herewith which reads as under:
"96. Appeal from original decree-(1) Save
where otherwise expressly provided in the
body of this Code or by any other law for
the time being in force, an appeal shall lie
from every decree passed by any Court
exercising original jurisdiction to the Court
authorized to hear appeals from the
decisions of such Court.
(2) An appeal may lie from an original
decree passed ex parte.
(3) No appeal shall lie from a decree passed
by the Court with the consent of parties.
[(4) No appeal shall lie, except on a
question of law, from a decree in any suit of
the nature cognizable by Courts of Small
Causes, when the amount or value of the
subject-matter of the original suit does not
exceed [ten thousand rupees]"
19. He would contend that only appeal from original
decrees is maintainable. In this context, he placed
reliance on a decision reported in the case of Jaibun
Nisha Bibi (dead) and after her Talemun Nisha and
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Others vs. Sk. Amzad Ali 9dead) and after him
Hasratun Bibi and Others reported in 2007 (Supp-1)
OLR-885 and invited the attention of this Court to para
No.5. But the facts and circumstances of the said case are
entirely different. No doubt, in the said decision, the Court
has held that the appeal challenging mere finding is not
maintainable, but, however, it again went on to admit the
appeal and it heard the appeal on merits. Interestingly,
no doubt the decree is in favour of defendant but the
findings on certain issues were against the defendant.
Though Section 96 deals with appeal from original decree,
it does not Bar any appeal by a successful party
challenging certain findings against the successful party.
20. Even otherwise, when the appeal was filed by
the defendant, no such issue was raised by the plaintiffs
before the First Appellate Court and argued the mater on
merits. Having unsuccessful before the lower Appellate
Court, now this additional ground is made out in the
Second Appeal, which is not permissible as the parties
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have submitted to the jurisdiction of the lower Appellate
Court, which has disposed of the appeal. Even otherwise
by reversing the finding in favour of the plaintiffs
regarding execution of the Will, it would not help them in
anyway as Will is restricted only for the purpose of suit
property, which according to the plaintiffs, is a tenanted
property and the matter is pending with the Land Tribunal.
Under such circumstances, the arguments advanced by
the learned counsel for the appellant in this regard holds
no water.
21. In view of these facts and circumstances both
the Courts below are justified in dismissing the appeal and
no substantial question of law is involved in these matters
so as to admit the appeals. As such appeals being devoid
of any merits needs to be dismissed and accordingly, I
proceed to pass the following:
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ORDER
Both the appeals filed by the appellants stand
dismissed.
Under these circumstances, there is no order as to
costs.
Sd/-
JUDGE
SSP
