Karnataka High Court
Sri. B. Chandrashekharappa vs Chandrashekharappa on 5 August, 2024
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RSA No. 1299 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.1299 OF 2023 (DEC)
BETWEEN:
1. SRI B. CHANDRASHEKHARAPPA
S/O G S BASAPPA,
AGED ABOUT 69 YEARS,
CLERK IN YENTRAPURA
POST OFFICE (RETIRED)
R/O NO 345/A, BEHIND MKTLK HIGH SCHOOL,
HARLAPUR EXTENSION
HARIHAR, DAVANGERE DIST - 577601
2. SMT. HEMAVATHI
W/O NIJALINGAPPA
AGED ABOUT 56 YEARS,
Digitally signed
by DEVIKA M R/O NO.345/A,
Location: HIGH BEHIND MKTLK HIGH SCHOOL,
COURT OF HARLAPUR EXTENSION
KARNATAKA
HARIHAR, DAVANGERE DIST - 577601
3. RAVIKUMAR
S/O MAHALINGAPPA
AGED ABOUT 43 YEARS,
R/O NO.345/A,
BEHIND MKTLK HIGH SCHOOL,
HARLAPUR EXTENSION
HARIHAR, DAVANGERE DIST - 577601
...APPELLANTS
(BY SRI SANTOSH R NELKUDURI, ADVOCATE)
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RSA No. 1299 of 2023
AND:
1. CHANDRASHEKHARAPPA
S/O LATE HAONNAPPA HADAGALI,
AGED ABOUT 73 YEARS, BUSINESS,
R/O BEHIND M.K.T SCHOOL,
NEW HARLAPUR, HARIHAR - 577601
2. SRI VIJAYKUMAR
S/O LATE HONNAPPA HADAGALI
AGED ABOUT 62 YEARS, BUSINESS,
R/O BEHIND M.K.T SCHOOL,
NEW HARLAPUR, HARIHAR - 577601
3. SRI PALAKSHAPPA
S/O LATE HAONNAPPA HADAGALI,
AGED ABOUT 48 YEARS, KIRANI MERCHANT,
R/O BEHIND M.K.T SCHOOL,
NEW HARLAPUR, HARIHAR - 577601
4. SRI ASHOKA
S/O LATE YELLAPPA HADAGALI,
AGED ABOUT 52 YEARS,
R/O BEHIND M.K.T SCHOOL,
NEW HARLAPUR, HARIHAR - 577601
5. SRI NAGARAJ
S/O LATE YELLAPPA HADAGALI,
AGED ABOUT 73 YEARS,
R/O BEHIND M.K.T SCHOOL,
NEW HARLAPUR, HARIHAR - 577601
6. SMT. UMA
W/O Y ASHOK
AGED ABOUT 48 YEARS, HOUSE WIFE,
R/O BEHIND M.K.T SCHOOL,
NEW HARLAPUR, HARIHAR - 577601
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RSA No. 1299 of 2023
7. SRI H M SIDDAVEERAPPA
S/O LATE MAHALINGAPPA HADAGALI,
AGED ABOUT 63 YEARS,
R/O 3RD CROSS,
NEW HARLAPUR, HARIHAR - 577601
8. SRI CHANDRA SHEKHARAPPA
S/O LATE MAHALINGAPPA HADAGALI,
AGED ABOUT 62 YEARS,
R/O 3RD CROSS,
NEW HARLAPUR, HARIHAR - 577601
B K HALAPPA
S/O KARE HANUMANTHAPPA,
SINCE DEAD BY LRS
9. SMT. SUSHEELAMMA
W/O LATE B K HALAPPA,
AGED ABOUT 52 YEARS,
R/O GUTHUR, HARIHARA - 577601
10. SRI VIJAYA KUMARA
S/O LATE B K HALAPPA,
AGED ABOUT 37 YEARS,
R/O GUTHUR, HARIHARA - 577601
11. KRISHNA
S/O LATE B K HALAPPA,
AGED ABOUT 30 YEARS,
R/O GUTHUR, HARIHARA - 577601
12. SMT. MANJULA
W/O HALAPPA B K
AGED ABOUT 48 YEARS,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA - 577601
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RSA No. 1299 of 2023
13. SRI GANGANARASI CHANDRAPPA HONNAVVARA
S/O HANUMANTHAPA
AGED ABOUT 58 YEARS,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA - 577601
14. SRI BASIKARA KOTRAPPA
S/O MALLAPPA
AGED ABOUT 73 YEARS,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA 577601
15. SRI B N RAMESH
S/O NINGAPPA
AGED ABOUT 48 YEARS,
R/O BANGAL BADAVANE,
NEW HARLAPUR, HARIHARA - 577601
16. SMT. SAROJAMMA
W/O SHIVAPPA,
AGED ABOUT 38 YEARS,
R/O HARLAPUR,
GUTHUR POST, HARIHARA - 577601
17. SMT. KAVITHA
SWO HANUMANTHAPA
AGED ABOUT 36 YEARS,
HOUSEWIFE,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA - 577601
18. SMT. LAXMAMMA
W/O C S SIDDPPA
AGED ABOUT 36 YEARS,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA - 577601
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RSA No. 1299 of 2023
19. SMT. MYTHRAMMA
W/O VEERABHADRAPPA
AGED ABOUT 63 YEARS,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA - 577601
SRI DYAMAPA
SINCE DEAD BY LRS
20. SMT. SAVITHRAMMA
W/O LATE DYAMMAPPA
AGED ABOUT 49 YEARS,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA - 577601
21. CHI. PRAVEEN
S/O LATE DYAMMAPPA
AGED ABOUT 25 YEARS,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA - 577601
22. KUM. PAVITHRA
D/O LATE DYAMMAPPA
AGED ABOUT 24 YEARS,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA - 577601
23. KUM. ANJALI
D/O LATE DYAMMAPPA
AGED ABOUT 21 YEARS,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA - 577601
24. CHI. PRAJWAL
S/O DYAMMAPPA
AGED ABOUT 18 YEARS,
R/O OLD HARLAPUR,
GUTHUR POST, HARIHARA 577601
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RSA No. 1299 of 2023
25. PANCHAYATH DEVELOPMENT OFFICER
HARLAPUR VILLAGE, PANCHAYATH,
HARLAPUR, HARIHAR - 577601
26. TALUK EXECUTIVE OFFICER
TALUK PANCHAYATH
HARIHAR - 577601
27. CHIEF SECRETARY
ZILLA PANCHAYATH
DAVANGERE - 577001
28. STATE OF KARNATAKA
REPRESENTED BY CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA,
BANGALORE - 560001
29. COMMISSIONER
CITY MUNICIPAL COUNSEL,
HARIHAR - 577601
30. SMT. MANJULA
D/O JAYAPPA
AGED ABOUT 55 YEARS,
R/O HARLAPUR VILLAGE,
HARIHARA TALUK - 577601
31. SMT. RENUKAMMA
W/O RAVIKUMAR
AGED ABOUT 55 YEARS,
OLD HARLAPUR VILLAGE,
HARIHARA TALUK - 577601
32. SMT. LAKSHMAVVVA
W/O LATE CHANDRAPPA
AGED ABOUT 51 YEARS,
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RSA No. 1299 of 2023
R/O OLD HARLAPUR VILLAGE,
HARIHARA TALUK - 577601
33. SMT. CHANDRAMMA
W/O RAJASHEKHARAPPA,
AGED ABOUT 61 YEARS,
R/O OLD HARLAPUR VILLAGE,
HARIHARA TALUK - 577601
34. SRI RAJU
S/O KUMBAR MANJUNATH
AGED ABOUT 45 YEARS,
R/O VASANA VILLAGE,
HARIHARA TALUK - 577601
35. SMT. NETHRAVATHI
W/O GOPALSHETTY SIRIGERE
AGED ABOUT 42 YEARS,
R/O KADARANAYAKANAHALLI VILLAGE,
HARIHARA TALUK - 577601
36. SMT. RADHIKA M
W/O MANJUNATH
AGED ABOUT 31 YEARS,
R/O HARLAPUR VILLAGE,
HARIHARA TALUK 577601
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGEMENT AND DECREE DATED
20.04.2023 PASSED IN R.A NO.15/2021 ON THE FILE OF
SENIOR CIVIL JUDGE AND JMFC, HARIHAR AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE E.S.INDIRESH
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RSA No. 1299 of 2023
ORAL JUDGMENT
This appeal is preferred by the plaintiffs challenging
the judgment and decree dated 20.04.2023 passed in
R.A.No.15/2021 on the file of the Senior Civil Judge and
JMFC, Harihara confirming the judgment and decree dated
01.02.2021 passed in O.S.No.212/2014 on the file of the
II Additional Civil Judge, (Jr. Dn.), Harihara dismissing the
suit of the plaintiffs.
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 they claim to
be the joint owners of open space bearing katha No.304/1,
335 and 336 totally measuring 13,060 square yards
situated at Old Harlapura, Gutur post, Harihara and the
same has been described as suit schedule property. It is
further stated in the plaint that one Mylaralingappa was
the owner of the suit schedule property and he had sold
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88,810 square yards in favour of 16 purchasers on
24.08.1896 and those 16 persons have jointly purchased
88,810 square yards and first purchaser of the land -
Gouli Rudrappa and his son Halappa have executed the
registered release deed dated 16.09.1927 in favour of one
Basappa S/o Gouli Siddappa and the said Basappa is the
father of plaintiff Nos.1 and 2. It is stated by the plaintiffs
that the said Basappa died on 16.01.1966 and thereafter,
the plaintiffs have succeeded to the estate of the deceased
Basappa. As such, it is the case of the plaintiffs that
defendant Nos.1 to 18 have unlawfully interfered with the
suit schedule property making unauthorized construction
in the suit schedule property. Accordingly, the plaintiffs
have filed a suit in O.S.No.212/2014 seeking the relief of
declaration with consequential relief of mandatory
injunction for removing of constructed portion.
4. After service of notice, the defendants entered
appearance and filed detailed written statement
contending that the construction has been made in the
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year 2009, however, the suit has been filed belatedly that
is in the year 2014. Accordingly, raised the contention
relating to the fact that the suit is barred by time. It is
also contended by the defendants that this Court already
disposed of the appeal filed in R.S.A.No.187/2003 vide
order dated 11.07.2008 whereby the plaintiffs have sought
for declaratory relief and same has reached its finality.
Accordingly, it is concluded that the suit filed by the
plaintiffs does not survive for consideration.
5. The Trial Court after considering the pleadings
of the parties and material available on record, formulated
the Issues for its consideration. Issue No.5 is relating to
the limitation. The Trial Court after considering the
material available on record dismissed the suit filed by the
plaintiffs by judgment and decree dated 01.02.2021 and
the same was questioned before the First Appellate Court
in R.A.No.15/2021 by the plaintiffs. After service of
notice, respondents/defendants resisted the appeal. The
First Appellate Court after considering the material
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available on record by its judgment and decree dated
20.04.2023 dismissed the appeal. Being aggrieved by the
same, the plaintiffs are before this Court filing the second
appeal.
6. The learned counsel Sri Santosh Nelkuduri
appearing for the appellants submits that both the Courts
below have failed to consider the fact that the plaintiffs
have sought for relief of mandatory injunction to remove
the constructed portion in the suit schedule property. The
counsel further submits that though the plaintiffs have not
sought for the relief of possession however, same could be
considered insofar as the relief of mandatory injunction is
concerned. Accordingly, he submits that the finding
recorded by both the Courts below requires interference.
7. Having heard the learned counsel appearing for
the appellants, it is not in dispute that the plaintiffs are
seeking the relief of declaration inter alia sought for the
relief of mandatory injunction in respect of the suit
schedule property. It is not in dispute that PW1 himself
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deposed before the Trial Court that the construction has
been made during 2009. In that view of the matter, the
finding recorded by the Trial Court with regard to Issue
No.5 is just and proper as the plaintiffs have not sought
for relief of possession as the plaintiffs have erroneously
sought for relief of mandatory injunction. In that view of
the matter, as the suit is filed belatedly and the finding
recorded by the Trial Court that suit is barred by time is
just and proper. Therefore, I do not find any material
illegality committed by the Trial Court while dismissing the
suit while answering Issue No.5. I have also noticed the
finding recorded by the First Appellate Court where, the
First Appellate Court after re-appreciation of material
available on record arrived at a conclusion that the
plaintiffs have filed the suit seeking declaratory relief
however, relief of possession has not been sought for in
the suit. That view of the matter, both the Courts below
have rightly dismissed the suit of the plaintiffs. Thus, I do
not find any perversity in the judgment and decree passed
by the Courts below. Accordingly, this appeal is dismissed
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at the stage of admission as the appellants have not made
out a case for framing of substantial questions of law as
required under Section 100 of CPC.
8. In the result, I pass the following:
ORDER
The Regular Second Appeal is dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SN
