Shivanna @ Shivannaiah vs Kalamma
2023 Latest Caselaw 3678 Kant

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                                                     NC: 2023:KHC:21972
                                                        RSA No. 32 of 2014




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 26TH DAY OF JUNE, 2023

                                            BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                       REGULAR SECOND APPEAL NO. 32 OF 2014 (DEC/INJ)


                      BETWEEN:

                      1. SHIVANNA @ SHIVANNAIAH
                      S/O LAKKAIAH @ CHIKKAIAH
                      AGED ABOUT 48 YEARS
                      R/O HONNENAHALLI VILLAGE
                      RAVANDUR HOBLI
                      PERIYAPATNA TALUK
                      MYSORE DISTRICT - 570 001.

                      2. SMT.MADAMMA
                      W/O LATE THIMMAIAH
                      AGED ABOUT 51 YEARS
                      R/O CHIKKAHANASOGE VILLAGE
                      CHUNCHUNAKATTE HOBLI
                      K.R.NAGARA TALUK
                      MYSORE DISTRICT -570 001.
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI       3. SMT.LAKKAMMA
Location: HIGH
COURT OF              W/O GOPALAIAH
KARNATAKA             AGED ABOUT 49 YEARS
                      R/O HEBBALU VILLAGE
                      HEBBALU HOBLI
                      K.R.NAGAR TALUK
                      MYSORE DISTRICT - 570 001.

                      4. SMT.LAKSHMAMMA
                      W/O MADAIAH
                      AGED ABOUT 46 YEARS
                      R/O HEMMIGE VILLAGE
                      HANGODU HOBLI
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                               NC: 2023:KHC:21972
                                    RSA No. 32 of 2014




HUNSUR TALUK
MYSORE DISTRICT - 570 001.
                                       ...APPELLANTS

(BY Mrs. AZRA J DUNDGE, ADVOCATE
 SRI AVINASH R, ADVOCATE)

AND:

1. KALAMMA
W/O LATE GOPALAIAH
AGED ABOUT 66 YEARS
R/O HEMMIGE VILLAGE
HANAGODU HOBLI, HUNSUR TALUK
MYSORE DISTRICT - 570 001.

2. MADAIAH
S/O LATE GOPALAIAH
AGED ABOUT 46 YEARS
R/O HEMMIGE VILLAGE
HANAGODU HOBLI, HUNSUR TALUK
MYSORE DISTRICT - 570 001.

3. HELVI
D/O LATE GOPALAIAH
AGED ABOUT 40 YEARS
R/O HEMMIGE VILLAGE
HANAGODU HOBLI, HUNSUR TALUK
MYSORE DISTRICT- 570 001.


CHALUVAIAH @ APPAJI
SINCE DECEASED BY HIS LRS

4. VARADAIAH
S/O LATE CHALUVAIAH
R/O HONNENAHALLI VILLAGE
RAVANDUR HOBLI, PERIYAPATNA TALUK
MYSORE DISTRICT - 570 001.
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                               NC: 2023:KHC:21972
                                  RSA No. 32 of 2014




5. SANNAPPAJI
S/O LATE CHALUVAIAH
AGED 46 YEARS
R/O HEMMIGE VILLAGE
HANAGODU HOBLI, HUNSUR TALUK
MYSORE DISTRICT - 570 001.

6. APPANNA
S/O LATE CHALUVAIAH
AGED 36 YEARS
R/O HEMMIGE VILLAGE
HANAGODU HOBLI
HUSNUR TALUK
MYSORE DISTRICT - 570 001.

7. KULLAIAH
S/O LATE CHALUVAIAH
AGED 34 YEARS
R/O HEMMIGE VILLAGE
HANAGODU HOBLI
HUNSUR TALUK
MYSORE DISTRICT - 570 001.

8. DODDAHUCHA
S/O LATE CHALUVAIAH
AGED 36 YEARS
R/O HEMMIGE VILLAGE
HANAGODU HOBLI, HUNSUR TALUK
MYSORE DISTRICT - 570 001.

9. HUCHAMMA
D/O LATE CHALUVAIAH
W/O SWAMY
AGED 46 YEARS
R/O HEMMIGE VILLAGE
HANAGODU HOBLI, HUNSUR TALUK
MYSORE DISTRICT - 570 001.

10. PUTTAIAH
S/O CHALUVA @ APPAJI
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                                   NC: 2023:KHC:21972
                                        RSA No. 32 of 2014




AGED 76 YEARS
R/O HONNENAHALLI VILLAGE
RAVANDUR HOBLI, PERIYAPATNA TALUK
MYSORE DISTRICT - 570 001.
                                       ...RESPONDENTS

(BY SRI. PRAVEEN KUMAR RAIKOTE, ADVOCATE
FOR R-1 TO R-8 AND R-10
 R-9 SERVED AND UNREPRESENTED)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 10.10.2012
PASSED IN R.A. NO. 31/2011 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., HUNSUR, DISMISSING THE APPEAL
FILED AGAINST THE JUDGEMENT AND DECREE DATED
14.02.2011 PASSED IN OS. NO. 7/2006 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, PERIYAPATNA.

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

                       JUDGMENT

This appeal is filed seeking to set aside the judgment

and decree dated 10.10.2012 passed in R.A. No. 31/2011

by the Additional Senior Civil Judge and JMFC, Hunsur,

sitting at Periyapatna confirming and partly modifying the

judgment and decree dated 14.02.2011 passed by Civil

Judge (Junior Division) and JMFC, Periyapatna, in O.S.

No. 7/2006 dismissing the suit filed by the appellants -

NC: 2023:KHC:21972 RSA No. 32 of 2014

plaintiffs in respect of suit schedule A to I properties and

praying to decree the suit as prayed.

2. This appeal is filed by the plaintiffs. The parties

will be referred to their ranking as in the trial Court.

Respondents are defendant No. 3 and legal

representatives of defendant Nos. 1 and 2.

3. Plaintiffs filed a suit in O.S. No. 7/2006 seeking

the relief of declaration to declare them as the absolute

owners of suit schedule A to J properties and to restrain

the defendants from interfering in any manner with their

peaceful possession and enjoyment.

4. Case of the plaintiffs is that they became absolute

owners of suit schedule properties by virtue of a sale deed

dated 12.07.1930 executed by Doddahutchi Lakka of

Honnenahalli. Said sale deed dated 12.07.1930 has been

executed by one Doddahutchi Lakka in favour of plaintiff

No. 1 and his mother Giddi @ Giddamma. They contend

NC: 2023:KHC:21972 RSA No. 32 of 2014

that defendants had no manner of right, title and

possession over the suit schedule properties.

5. Defendants in the written statement contended

that earlier the properties stood in the name of

Doddahutchi Lakka. They denied the sale in favour of Giddi

@ Giddamma and plaintiff No. 1 by the said Doddahutchi

Lakka. They contended that name of father of plaintiff No.

1 is only Chikkaiah. Defendants denied that Giddi @

Giddamma and plaintiff No.1 became absolute owners and

they are in possession of suit schedule properties.

Defendants contended that one Doddahutchi Lakka was

the owner and he never sold the suit schedule properties

in favour of Giddi @ Giddamma and plaintiff No. 1 on

12.07.1930. They contended that Doddahutchi Lakka had

three sons by name Appannaiah, Doddaiah and Appajaiah.

During the life time of Doddahutchi Lakka there was an

oral partition amongst his three sons and they have

divided the family properties. The property which had

fallen to the share of Appajaiah was sold in favour of Giddi

NC: 2023:KHC:21972 RSA No. 32 of 2014

@ Giddamma under a nominal sale deed. Said Giddi @

Giddamma sold the schedule properties in favour of father

of defendant Nos. 1 to 3 by name Appajaiah on

10.03.1937 and from the said date Appajaiah and his

children who are defendants, are in joint possession and

enjoyment of those properties. They contend that plaintiffs

cannot claim absolute right, title and possession on those

properties. They contended that the plaintiffs have got ¼

share over those properties and defendants are entitled for

¾ share in the suit schedule properties. On the basis of

the above pleadings, the trial Court framed the following

issues:

1. Whether the plaintiffs prove that they are the absolute owners in lawful possession and enjoyment of the suit schedule properties?

2. whether the plaintiffs proves that the alleged interferences of the defendants over the suit schedule properties?

3. whether the plaintiffs are entitled to the reliefs as sought for in the plaint?

NC: 2023:KHC:21972 RSA No. 32 of 2014

4. whether the court fee paid on the plaint is proper?

5. whether the suit of the plaintiffs is barred by law of limitation?

6. whether this court has no pecuniary jurisdiction to try the suit?

7. what order or decree?

6. Plaintiff No. 2 has been examined as P.W.1 and

got marked Ex.P.1 to Ex.P.16 and defendant No. 3 has

been examined as D.W.1 and got marked Ex.D.1 to

Ex.D.23. The trial Court after hearing arguments of both

sides and appreciating evidence on record has answered

issue Nos.1 and 2 in the negative insofar as A to I

schedule properties and in the affirmative in regard to J

schedule property; answered issue No. 3 partly in the

affirmative; issue No. 4 to 6 in the negative and partly

decreed the suit in respect of suit schedule J property.

Aggrieved by the said judgment and decree of the trial

Court plaintiff Nos. 2 and legal representatives of plaintiff

No.1 filed an appeal in R.A. No. 31/2011 before the Senior

NC: 2023:KHC:21972 RSA No. 32 of 2014

Civil Judge and JMFC, Hunsur (first appellate Court). The

first appellate Court after hearing arguments on both sides

formulated the following points for consideration.

1. Whether the application of the appellants filed under Sec.5 of the Limitation act deserves to be allowed?

2. Whether the plaintiffs prove that they are the absolute owners in lawful possession of all the schedule properties on the basis of sale deed dated 12.07.1930?

3. Whether the interference in the impugned judgment is called for?

4. What order?

7. The first appellate Court answered point No. 1 in

the affirmative and point Nos. 2 to 3 partly in the

affirmative and dismissed the appeal. Aggrieved by the

said judgments and decrees passed by the trial Court and

the first appellate Court, plaintiff No. 2 and legal

representatives of plaintiff No.1 have filed this appeal.

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NC: 2023:KHC:21972 RSA No. 32 of 2014

8. Heard learned counsel for appellants - plaintiffs for

admission and also learned counsel respondent Nos. 1 t0 8

and 10.

9. Plaintiff No.2 is the son of plaintiff No. 1. Plaintiff

No.1 and his mother Giddi @ Giddamma jointly purchased

the properties under sale deed (Ex.P.1) dated 12.07.1930

from one Doddahutchi Lakka. On the death of said Giddi @

Giddamma plaintiff No. 1 claiming that he is the son of

Giddi @ Giddamma filed suit along with his son plaintiff

No. 2 for declaration of title over schedule A to J

properties. Plaintiffs have not pleaded any sale by the said

Giddi @ Giddamma of her share in the suit schedule

properties in favour of her husband Appaji. Ex.D.2 is the

sale deed dated 10.03.1937 executed by Giddi @

Giddamma in favour of Appaji. Said Appaji is the husband

of Giddi @ Giddamma. Under sale deed she sold her share

in the properties purchased except the house property

which is described in schedule J. The trial Court and the

first appellate Court held that the said Appaji had two

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NC: 2023:KHC:21972 RSA No. 32 of 2014

wives by name Giddi @ Giddamma (first wife) and

Kallamma (second wife). Plaintiff No. 1 is the son of first

wife - Giddi @ Giddamma and defendant Nos.1 to 3 are

sons of second wife - Kallamma. It is not in dispute that

plaintiff No.1 and his mother Giddi @ Giddamma alienated

her share in the properties purchased under sale deed -

Ex.P.1. Plaintiff No.1 is having his ½ share in the

properties purchased under sale deed - Ex.P.1. Apart from

that, after death of Appaji - father of plaintiff No.1 and

defendant Nos.1 to 3 all of them will be inheriting his

properties which he had purchased from Giddi @

Giddamma under sale deed - Ex.D.2. As plaintiffs claim

declaration of their title to the extent of entire properties

in schedule A to J, the trial Court and the first appellate

Court have rightly declined to grant decree as ½ share of

mother has been sold in favour of Appaji. The trial Court

and the first appellate Court have rightly decreed the suit

in respect of Schedule I property which is not the subject

matter in sale deed - Ex.D.2. The children of first wife and

second wife of Appaji are having share in the properties

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NC: 2023:KHC:21972 RSA No. 32 of 2014

purchased by him under sale deed - Ex.D.2. Apart from

that, plaintiff No.1 being one of the joint purchasers of the

properties under sale deed - Ex.P.1 is entitled to ½ share

in those properties purchased under sale deed - Ex.P.1.

10. Considering all these aspects, no substantive

question of law arises for consideration in this appeal.

Accordingly, appeal is dismissed.

11. Learned counsel for plaintiffs - appellants prays

for granting liberty to the plaintiffs to file appropriate suit

claiming their share in the suit schedule A to I properties.

12. Plaintiffs are at liberty to institute a suit claiming

their share in the suit schedule A to I properties.

Sd/-

JUDGE

LRS