Karnataka High Court
Goudappagouda S/O Fakkiragouda ... vs Basavaraj S/O Govindagouda Patil on 5 April, 2024
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NC: 2024:KHC-D:6192
WP No. 112048 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO.112048 OF 2019 (GM-CPC)
BETWEEN:
1. GOUDAPPAGOUDA S/O FAKKIRAGOUDA KAGADAL
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: KHANAPUR, TQ: NARAGUND,
DIST: GADAG.
2. VITTAPPAGOUDA S/O FAKKIRAGOUDA KAGADAL
AGE: 41 YEARS,
OCC: SERVICE IN CO-OPERATIVE BANK,
MUDALAGI, TQ: GOKAK,
DIST: BELGAUM.
3. RAMANAGOUDA S/O FAKKIRAGOUDA KAGADAL
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: KHANAPUR, TQ: NARAGUND,
DIST: GADAG.
...PETITIONERS
VISHAL
NINGAPPA
PATTIHAL (BY SRI. PRAVEENKUMAR G KULKARNI, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
Date: 2024.04.10
AND:
16:52:15 +0530
1. BASAVARAJ S/O GOVINDAGOUDA PATIL
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: KHANAPUR, TQ: NARAGUND,
DIST: GADAG.
2. SMT.SHAKUNTALA W/O SHIVANAGOUDA KHAGADAL
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: HANACHINAL, TQ: SOUNDATTI,
DIST: BELAGAVI.
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NC: 2024:KHC-D:6192
WP No. 112048 of 2019
3. NINGARADDI S/O DUNDADARADDI MANGANAVAR
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: HANACHINAL, TQ: SOUNDATI, DIST:
BELAGAVI.
4. SMT.RATNAVVA W/O SUBHASHGOUDA KAGADAL
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: CHITTAWADAGI, TQ: HUNGUND, DIST:
BAGALKOT.
5. SMT.RENAVVA W/O RAMANAGOUDA KHANAPUR
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: CHITTAWADAGI, TQ: HUNGUND,
DIST: BAGALKOT.
6. SHENKARAGOUD S/O NAGANAGOUD KAGADAL
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: KHANAPUR, TQ: NARAGUND,
DIST: GADAG.
...RESPONDENTS
(BY SRI. S M KALAWAD, ADVOCATE FOR R1 AND R6,
NOTICE TO R2 TO R5 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO,
ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT, ORDER FOR QUASHING THE IMPUGNED
COMMON ORDER DATED 28.06.2019 DISMISSING I.A.NO.15,
16 AND 17 PASSED BY THE LEARNED PRINCIPLE CIVIL JUDGE
(SR.DN) AND CJM, GADAG AT ANNEXURE-E IN O.S.NO.1/2013
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN GROUP 'B', THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:6192
WP No. 112048 of 2019
ORDER
Aggrieved by the common order passed on
I.A.Nos.15 to 17 in O.S.No.1/2013 dated 28.06.2019 by
the Prl. Senior Civil Judge and CJM, Gadag, the
applicant/plaintiffs therein have preferred this writ
petition.
2. The petitioners herein have filed O.S.No.1/2013
with the following prayers:
"11) Therefore, it is humbly prayed this Hon'ble court that
A) That judgment and decree declaring that the suit
property RS no.2/2 is to be 7 A-7G instead of 6A -26Gunts, as
the sale deed dated 26/07/2012 in respect of RS no.2/3
measuring 7A-28 G is illegal, bogus,sham and ab inicio.
B) It please be issue direction to the Tasildar Naragund
to rectify in record of rights of RS no.2/2 measuring as 7A-
7Gunts.
C) As consequential relief of injunction restraining
defendant no.1 and 6 to encroach in the portion of land of
plaintiffs.
D) Cost of this suit please be awarded.
E) Any other relief deemed fit to the Hon'ble court please
be granted.
Accordingly judgment and decree please be passed in
the ends of justice."
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3. When the matter was set down for evidence,
they filed I.A.Nos.15 to 17 under Section 151 of Code of
Civil Procedure, 1908 (for short, 'CPC'), under Order XVI
Rule 1 read with Section 151 CPC, under Order XXVI Rule
9 read with Section 151 CPC, with the prayers to reopen
the matter for recording the evidence of further witness on
plaintiffs' side, summon defendant No.2 as witness and to
appoint a Taluka Surveyor as the Court Commissioner for
measuring the land in Sy.No.2/2 and 2/3 situated at
Khanapur village, Naragund Taluk and to submit his
report. The trial Court on the ground that the said
applications have been made only to protract the
proceedings and would not serve the ends of justice, has
dismissed the applications. Aggrieved by the same, the
present writ petition is filed.
4. The case of the petitioners is that, the original
Sy.No.2/1 of Khanapur village consisted of 21 acres 21
guntas and there was a family partition and they have got
rights in respect of 7 acres 7 guntas of land. However, by
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mistake RS No.2/2, which was been carved out of other
Sy.No.2/1, which is owned by them presently, measures
only 6 acres 20 guntas instead of 7 acres 7 guntas. In
fact, they are owners of 7 acres 7 guntas and on that
ground O.S.No.1/2013 has been filed. It is further
submitted that one of the defendants has alienated 7 acres
28 guntas in favour of another defendant which could not
have been done, because of which the original suit is filed.
It is also submitted that, to meet ends of justice,
petitioners have to be given permission to lead additional
evidence, that defendant No.2 must be summoned and
made to give evidence and Taluka Surveyor has to be
appointed to measure survey numbers and submit a
report.
5. The Advocate for respondents justifying the
order passed by the trial Court, prays for dismissal of the
writ petition.
6. Admittedly, the case of the petitioners is that
they are the owners of 7 acres 7 guntas of land as against
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6 acres 6 guntas of land. The burden of proving that they
are the owners of 7 acres 7 guntas as per the partition
deed and not 6 acres 26 guntas of land is on them. The
same has to be established by documentary and oral
evidence by the petitioners wherein they are required to
establish that other Sy.No.2/1 consisted of 21 acres 21
guntas of land and that there was a partition between 3
branches of the family and together they have got 7 acres
7 guntas of land. Further sub-division survey numbers is
immaterial. Division of survey numbers and revenue
entries does not confer title on the parties. In the present
facts and circumstances of the case, the petitioners are
required to prove the ownership or inheritance as alleged
by them by producing appropriate documents, for which
survey of the same by Taluka Surveyor is not required.
Further it is not the case of the petitioners that they were
not given adequate opportunity by the trail Court to lead
their evidence. The affidavits filed in support of their
applications are bald and without any reasons. The said
applications are made after the closure of evidence of the
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plaintiffs and the defendants in the original suit. Further
under the facts and circumstances of the case, the
plaintiffs cannot insist that defendant No.2 must and
should come and lead evidence and make himself available
for cross-examination.
7. For the aforementioned reasons, I am of the
opinion that the petitioners have failed to make out a case
for allowing their applications before the trial Court and
that the trial Court has rightly rejected the said
applications. For that reason, the writ petition is hereby
dismissed.
Sd/-
JUDGE
NAA
