Karnataka High Court
Barikara Nagappa vs Hosuramma on 5 August, 2024
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RSA NO.2539 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.2539 OF 2018 (DEC)
BETWEEN:
BARIKARA NAGAPPA
DEAD BY HIS LR'S.
1. SMT. NAGARATHNAMMA
W/O LATE BARIKARA NAGAPPA
AGE: MAJOR.
2. JAGADEESHA
S/O LATE BARIKARA NAGAPPA
AGE: MAJOR.
3. UMESHA
S/O LATE BARIKARA NAGAPPA
AGE: MAJOR.
4. KRISHNAVENI
S/O LATE BARIKARA NAGAPPA
Digitally signed by AGE: MAJOR.
ARUNKUMAR M S
Location: High
Court of Karnataka 5. RAGHAVENDRA
S/O LATE BARIKARA NAGAPPA
AGE: MAJOR.
6. SUMANGLA
D/O LATE BARIKARA NAGAPPA,
AGE: MAJOR.
APPELLANTS 1 TO 6 ARE
R/AT HUVINAHADAGALI TOWN,
BALLARI DISTRICT - 583 219.
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7. RENUKAMMA
D/O LATE BARIKARA NAGAPPA
AGE: MAJOR,
R/O BANNIKALLU VILLAGE,
HAGARIBOMMANAHALLI TALUK,
BALLARI DISTRICT - 583 214.
8. HANUMANTHAMMA
W/O LATE BARIKARA NAGAPAPA
AGE: MAJOR,
R/O HARAPANAHALLI TOWN,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT - 583 131.
...APPELLANTS
(BY SRI. SUJAN B.K. ADVOCATE FOR
SRI. J.M. ANIL KUMAR, ADVOCATE
AND:
1. HOSURAMMA
W/O LATE ADIVEPPA
AGE: MAJOR.
2. SMT. AINAHALLI MALLAVVA
W/O LATE ANJINAPPA
AGE: MAJOR.
3. AINAHALLI PAKKIRAPPA
S/O LATE ANJINAPPA
AGE: MAJOR.
4. AINAHALLI RAJA
S/O LATE ANJINAPPA
AGE: MAJOR.
5. AINAHALLI CHOWDAPPA
S/O LATE ANJINAPPA
AGE: MAJOR.
6. SHANTHAPPA
S/O BASAPURADA VIRUPAKSHAPPA
AGE: MAJOR.
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7. KAJARI MALLAMMA
W/O LATE KAJARI SHEKHARAPPA
ALL ARE RESIDING AT:
11TH WARD SUNAGARA STREET,
HARAPANAHALLI TOWN,
DAVANAGERE DISTRICT - 583 131.
...RESPONDENTS
(BY SRI. M.R. HIREMATHAD, ADVOCATE FOR R2, R3 & R5;
SRI. H.H. SHETTY, ADVOCATE FOR R6 & R7;
NOTICE TO R1 & R4 - SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 08TH JUNE,
2018 PASSED IN REGULAR APPEAL NO.25 OF 2015 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC.,
HARAPANAHALLI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 16TH JULY, 2012 PASSED
IN ORIGINAL SUIT NO.145 OF 2006 ON THE FILE OF THE
CIVIL JUDGE AND JMFC., HARAPANAHALLI.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
ORAL JUDGMENT
This Appeal is filed by the legal representatives of the
plaintiff No.1 and plaintiff No.2 assailing the judgment and
decree dated 08th June, 2018 passed in Regular Appeal No.25
of 2015 on the file of the Senior Civil Judge and JMFC.,
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Harapanahalli (for short, hereinafter referred to as 'First
Appellate Court'), dismissing the appeal and confirming the
judgment and decree dated 16th July, 2012 passed in Original
Suit No.145 of 2006 on the file of the Civil Judge and JMFC.,
Harapanahalli (for short, hereinafter referred to as 'Trial
Court'), wherein he suit filed by the plaintiffs came to be
dismissed.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and ranking
before the Trial Court.
3. It is the case of the plaintiffs that, one Pakkiravva
had gifted the suit schedule property to the plaintiff No.1 and
Bheemavva on 13th April, 1966. It is stated in the plaint that
the said Pakkiravva had gifted the suit schedule property in
favour of the plaintiff No.1 and Bheemavva along with other
properties. It is further case of the plaintiffs that, after the
death of said Pakkiravva, the plaintiff No.1 and the said
Bheemavva become the owner of the suit schedule property.
It is further stated that, during the year-2001, the said
Bheemavva died without any issue and as such, the plaintiff
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No.1 become the owner of the suit schedule property. It is
also pleaded by the plaintiffs that the defendants 6 and 7 had
encroached the portion of the suit schedule property and the
defendants have no right, title and interest over the suit
schedule property. Therefore, the plaintiffs have filed suit for
declaration with consequential relief of cancellation of Sale
Deeds dated 15th May, 1982 and 01st December, 1980.
4. After service of notice, defendants entered
appearance. Defendant No.1 has filed written statement and
defendants 2 to 5 have adopted the written statement filed by
the defendant No.1. Defendants 6 and 7 have filed separate
written statement. It is the case of the defendant No.1 that
the defendant No.1 and her son sold the portion of the suit
schedule property in favour of defendants 6 and 7 as per
registered Sale Deeds dated 01st December, 1980 and 15th
May, 1982. It is also stated in the written statement that the
defendants have constructed the residential houses in the
respective portion of the suit property and accordingly,
pleaded that the plaintiff No.1 and the said Bheemavva had
filed suit against the defendants 1 and 2 for declaration of title
in Original Suit No.284 of 1972 and thereafter, the suit was
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withdrawn as settled out of the Court between the parties.
Therefore, it is the contention of the defendants 1 to 5 that
the suit is barred by limitation as well as same is hit by the
principles of res judicata. Defendants 5 and 6 have filed
written statement stating that they have purchased the suit
property from the defendants 1 to 5 and accordingly,
submitted that the suit is hit by non-joinder of necessary
parties as the said Bheemavva had children and they are not
parties to the suit. Accordingly, defendants have sought for
dismissal of the suit.
5. On the basis of pleadings on record, the Trial Court
formulated the issues for its consideration.
6. In order to prove their case, plaintiffs have examined
two witnesses as PW1 and PW2 and got marked fifteen
documents as Exhibits P1 to P15. On the other hand,
defendants examined ten witnesses as DW1 to DW10 and got
marked 54 documents as Exhibits D1 to D54.
7. The Trial Court, after considering the material on
record, by judgment and decree dated 16th July, 2012,
dismissed the suit of the plaintiffs. Being aggrieved by the
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same, the legal representatives of the plaintiff No.1 and the
plaintiff No.2 have preferred Regular Appeal No.25 of 2015 on
the file of the First Appellate Court and the said appeal was
resisted by the defendants. The First Appellate Court, after
considering the material on record, by its judgment and
decree dated 08th June, 2018, dismissed the appeal and
confirmed the judgment and decree dated 16th July, 2012
passed in Original Suit No.145 of 2006 on the file of the Trial
Court. Being aggrieved by the same, the appellants have
preferred this Regular Second Appeal.
8. Heard Sri. Sujan B.K., learned counsel on behalf of
Sri. J.M. Anil Kumar, appearing for appellants; Sri. M.R.
Hiremathad, learned counsel appearing for respondents 2, 3
and 5; and Sri. H.H. Shetty, learned counsel appearing for
respondents 6 and 7.
9. Sri. Sujan B.K., learned counsel appearing for
appellants argued that the plaintiffs are the owner in
possession of the suit schedule property in terms of the Gift
Deed dated 13th April, 1966 executed by Smt. Pakkiravva and
the said aspect has been concluded in Original Suit No.284 of
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1972. Therefore, learned counsel appearing for appellants
contended that the defendants have not challenged the Gift
Deed or the compromise petition entered into in Original Suit
No.284 of 1972. Accordingly, he sought for interference of
this Court.
10. Per contra, Sri. H.H. Shetty, learned counsel
appearing for respondents 6 and 7 sought to justify the
impugned judgment and decree passed by the Courts below
and submitted that the defendants 6 and 7 are the purchasers
of the suit property from the defendant No.1 and her son. He
further submitted that the Trial Court, considered the fact that
the Pakkiravva had children, though, it is contended by the
plaintiffs that the said Pakkiravva died leaving behind no
children and the said conduct of the plaintiffs itself disentitle
the plaintiffs from seeking relief in the suit. Accordingly,
learned counsel appearing for respondents 6 and 7 sought for
dismissal of the appeal.
11. Having heard the learned counsel appearing for the
parties and on careful examination of the finding recorded by
the Courts below, the same would indicate that the plaintiffs
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are seeking relief of declaration of title as well as to nullify the
Sale Deeds dated 15th May, 1982 and 01st December, 1980.
The case of the plaintiffs is based on the Gift Deed dated 13th
April, 1966 said to have been executed by the said Pakkiravva
in favour of the plaintiff No.1 and Bheemavva. It is
forthcoming from the finding recorded by both the Courts
below that the lis between the parties is only with regard to
boundary dispute and in this regard, the Trial Court, after
considering the material on record, had arrived at a conclusion
that the legal representatives of the Bheemavva are also
having equal right in respect of the suit schedule property and
the suit has been filed for non-joinder of the parties as the
legal representatives of deceased Bheemavva, though
necessary parties, they have not been arraigned as parties. It
is the contention of the defendants 1 to 5 before the Trial
Court that, they had acquired suit schedule property by
inheritance. On the other hand, the plaintiffs have relied upon
the Gift Deed dated 13th July, 1966 said to have been
executed by the Pakkiravva. Taking into consideration the
discussion made by the Trial Court in the suit, particularly at
paragraphs 11 and 12 and that apart, the plaintiff No.1 and
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Bheemavva had filed suit against the defendants 1 and 2 in
Original Suit No.284 of 1972 and the said suit came to be
disposed of in terms of compromise entered into between the
parties, so also, perusal of the evidence of the PW1 would
indicate that the plaintiff No.1 himself had admitted that there
is no discrepancy in respect of the suit property as well as the
property which has been given to one Hanumanthamma, I am
of the view that the finding recorded by the Trial Court,
dismissing the suit of the plaintiffs is just and proper. I have
also carefully examined the re-appreciation of material by the
First Appellate Court. Taking into consideration the factual
aspects on record that the grievance of the plaintiffs is only
with regard to the boundary and the discussion made by the
First Appellate Court in the impugned judgment and decree
particularly at paragraph 27 of the judgment, I am of the view
that, both the Courts below have rightly passed the judgment,
dismissing the suit of the plaintiffs. Therefore, I do not find
any material irregularity in the judgment and decree passed
by the Courts below, dismissing the suit of plaintiffs. As the
plaintiffs were failed to make out a case for formulating the
substantial question of law as required under Section 100 of
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the Code of Civil Procedure, this appeal deserves to be
dismissed at the stage of admission itself. Accordingly,
Regular Second Appeal is dismissed.
SD/-
(E.S. INDIRESH)
JUDGE
ARK
