Karnataka High Court
H S Puttaswamy Gowda vs H S Vasudeva on 24 November, 2023
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RSA No. 304 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.304 OF 2019 (PAR)
BETWEEN:
H S PUTTASWAMY GOWDA
S/O LATE SINGRI GOWDA
AGED ABOUT 70 YEARS
R/O HEBBAL KOPPALU VILLAGE
HEBBALU HOBLI
K R NAGAR TALUK
MYSURU DISTRICT-570001
...APPELLANT
(BY SRI. A MADHUSUDHANA RAO, ADVOCATE)
AND:
Digitally
signed by H S VASUDEVA
ALBHAGYA S/O LATE SINGRI GOWDA
Location: AGED ABOUT 62 YEARS
HIGH COURT R/O HEBBAL KOPPALU VILLAGE
OF HEBBALU HOBLI
KARNATAKA
K R NAGAR TALUK
MYSURU DISTRICT-570001
...RESPONDENT
THIS RSA IS FILED UNDER SEC.100 OF CPC,1908
AGAINST THE JUDGMENT AND DECREE DTD 24.08.2018
PASSED IN RA.NO.61/2017, ON THE FILE OF THE SENIOR
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RSA No. 304 of 2019
CIVIL JUDGE AND JMFC., K.R.NAGAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 02.11.2017 PASSED IN O.S NO.474/2012 ON THE FILE
OF THE PRL. CIVIL JUDGE AND JMFC., K.R.NAGARA AND
ETC.
THIS APPEAL, COMING ON FOR PART HEARD IN
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
unsuccessful defendant, who has questioned the
concurrent findings of both the Courts, wherein plaintiff's
suit for injunction simpliciter in respect of Sy. No.574/3
measuring 38 guntas is decreed and defendant herein is
restrained from interfering with the plaintiff's peaceful
possession and enjoyment over the suit land. These
concurrent judgements are challenged by the defendant.
2. For the sake of brevity, the parties are referred as
they are ranked before the Trial Court.
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3. Brief facts leading to the case are as under;
The plaintiff has instituted the present suit in
O.S.No.474/2012 alleging that 38 guntas in Sy. No.574/3
was allotted to him in the family partition and that post
partition, he has become absolute owner and is in
exclusive possession of 38 guntas in Sy. No.574/3. The
plaintiff has also contended that mutation was effected
and oral partition in the family is acted upon and lands
allotted to his share are indicated in the mutation records
in his favour. Alleging that the defendant is interfering
with his peaceful possession, the present suit is filed.
4. The defendant on receipt of summons tendered
appearance and filed written statement. Initially, the
defendant denied oral partition. Later, however, he
admitted oral partition and contended that in the family
partition, the plaintiff is not allotted the present suit land.
On the contrary, the defendant claimed that suit land
bearing Sy. No.574/3 is allotted to his share indicating the
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earlier suit filed by the plaintiff for partition is dismissed
and the defendant has sought for dismissal of the suit.
5. The plaintiff and defendant to substantiate their
respective claims have let in oral and documentary
evidence.
6. The defendant to counter the plaintiff's case has
let in rebuttal evidence and reliance is placed on Ex.D.10
and Exs.D.14 to 23, which are survey sketch and RTC
extracts. The Trial Court referring to Ex.P.2, which is the
mutation effected pursuant to the oral partition, held that
the plaintiff has succeeded in substantiating that suit land
was allotted to his share in a family partition. The Trial
Court has also taken cognizance of the stand taken by the
defendant in an earlier suit filed by him in O.S.No.2/2009.
In the said suit, the present defendant, who was plaintiff,
has disputed the mutation vide Ex.P.2, which is produced
and marked on behalf of plaintiff as Ex.D.3. While
examining rebuttal evidence let in by the defendant, the
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Trial Court was of the view that Ex.D.10 and Exs.D.14 to
23 are all prepared pending consideration of the suit and
therefore, the Trial Court held that these documents are
not relevant and cannot be looked into to adjudicate the
plaintiff's possessory rights over the suit land. The suit is
decreed by recording a categorical finding that the plaintiff
has succeeded in substantiating that he is in lawful
possession and there is an interference at the hands of the
defendant.
7. Feeling aggrieved by the judgment and decree of
the Trial Court, the defendant preferred an appeal before
the Appellate Court. The Appellate Court being a final fact
finding authority has independently re-assessed the entire
materials on record and has concurred with the findings
recorded by the Trial Court. Consequently, the appeal is
dismissed. These concurrent judgments are under
challenge.
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8. Heard learned counsel for the defendant and
perused the concurrent findings recorded by both the
Courts.
9. It is the specific case of the defendant that the
plaintiff was not allotted any share in Sy. No.574/3. The
said contention cannot be acceded to in the light of the
findings recorded in the earlier round of litigation, more
particularly, the suit filed by the defendant seeking
partition in O.S.No.2/2009. The said suit for partition filed
by the defendant was dismissed by recording a categorical
finding that there is already severance in the family. The
defendant preferred an appeal in R.A.No.666/2011. The
Appellate Court at para No.18, while accepting the plea of
oral partition set up by the plaintiff in the said suit, has
made observations at para No.18. It would be useful for
this Court to cull out the said observations, which would
have a direct bearing on the controversy involved between
the parties. Para No.18 referred in R.A.No.666/2011 reads
as under;
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"18. The plaintiff got himself examined as
P.W.1 and also examined P.Ws.2 to 4.
Subsequently, P.Ws.2 and 3 did not offer
themselves for cross-examination and at the
request of plaintiff, their evidence was
discarded. During cross-examination, P.W.1
admits that khatha has been entered in the
name of the plaintiff, with regard to 28 guntas
in Sy. No.574/1 and 9 guntas in Sy. No.576/4.
He also admits that in Sy. No.581/2 measuring
3 acres land was partitioned into 3 portions and
defendant Nos.1 to 3 are in possession of those
3 shares. He also admitted that in Sy. No.574/3,
measuring 4 acres 8 guntas divided into 3
portions and he is in occupation and cultivation
of 1 acre 13 guntas. He admits that the LRs of
defendant No.2 have sold the properties to
defendant No.9 and similarly, defendant No.11
has also purchased from L.Rs of defendant
No.2. Surprisingly, P.W.1 deposes that he is in
exclusive possession of share allotted to him
and no one has disturbed to his possession and
enjoyment of property."
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10. If findings recorded in the earlier round of
litigation are examined coupled with Ex.P.2, which is the
mutation effected based on an oral partition in the year
1980, then I am of the view that the said observation
made by the Appellate Court has attained finality and
binds on the defendant. The above culled out para No.18
clearly indicates that Sy. No.574/3 totally measures
4 acres 8 guntas. In the earlier round of litigation, the
present defendant, who was plaintiff in O.S.No.2/2009,
has admitted that Sy. No.574/3 measuring 4 acres 8
guntas is divided into three portions. He has further
admitted in unequivocal terms that he is in occupation and
cultivation of 1 acre 13 guntas and he is in possession of
the said extent. If the said Sy. No.574/3 measuring
4 acres 8 guntas is divided into three portions, then the
said admission coupled with Ex.P.2, which is the mutation
extract, clearly establishes the plaintiff's case that he is
allotted 38 guntas in Sy. No.574/3. If these significant
details are taken into consideration, what can be gathered
is that the plaintiff is not asserting or laying claim over the
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portion allotted to defendant in Sy. No.574/3. Plaintiff is
asserting that he is allotted 38 guntas in Sy. No.574/3
along with other lands in a family partition and this oral
partition is reported to the Revenue Authorities way back
in the year 1980.
11. On meticulous examination of the written
statement filed by the present defendant, this Court would
find that the defendant is disputing allotment of portion in
Sy. No.574/3. In the written statement, he has furnished
details of the portions of lands distributed in respect of the
land bearing Sy. No.574/3, which totally measures 4 acres
8 guntas. Even in the earlier round of litigation, he admits
that the land bearing Sy. No.574/3 is divided into three
parts.
12. If all these significant details are looked into, the
fact that the defendant is disputing allotment of 38 guntas
in Sy. No.574/3 amounts to an interference. The mutation
vide Ex.P.2 in the present case was accepted by the Court
in the earlier round of litigation and the same was marked
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as Ex.D.3 in O.S.No.2/2009. The Courts in the earlier
round of litigation have taken cognizance of these
documents. Both Courts referring to the evidence let in by
the plaintiff were justified in answering issue No.1 in the
Affirmative. Both Courts were justified in holding that the
plaintiff has succeeded in proving his lawful possession on
the date of filing of the suit.
13. The significance of these findings/legal tenet will
not only impact upon the litigants involved in the
antecedent litigation but extends its authoritative reach to
encompass their successors-in-interest. The solemnity
and gravity of a Court's pronouncement imbue it with a
character of irrefutable evidentiary value, rendering it
binding upon the parties and their progeny in subsequent
legal contests. The Courts, as custodians of justice, are
entrusted with the duty to safeguard the sanctity of prior
adjudications, fostering a legal landscape characterized by
coherence and consistency. This obligation serves not
merely as a legal formality but as an indispensable
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mechanism to fortify the edifice of justice, wherein the
echoes of past pronouncements resonate with
authoritative import, guiding the trajectory of legal
deliberations.
14. The fact that the defendant even in the present
suit is disputing the properties allotted to the plaintiff in a
family partition clearly establishes the highhandedness of
the defendant and interference as alleged by the plaintiff.
No substantial question of law arises for
consideration.
Accordingly, the second appeal is dismissed.
I.A.No.1/2019 does not survive for consideration and
accordingly, the same is dismissed.
Sd/-
JUDGE
NBM
