Karnataka High Court
Sangappa S/O Ramappa Benakatti vs Bhagawwa And Ors on 5 August, 2024
-1-
NC: 2024:KHC-K:5674
RSA No. 200054 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.200054 OF 2021
(DEC/INJ)
BETWEEN:
SANGAPPA
S/O RAMAPPA BENAKATTI,
AGE: 57 YEARS,
OCC: AGIRUCULTURE,
R/O NAGARAL,
TQ. AND DIST. VIJAYAPURA-586113.
...APPELLANT
(BY SRI B. K. HIREMATH, ADVOCATE)
AND:
Digitally signed
by RENUKA 1. BHAGAWWA W/O GOVIND
Location: HIGH @ GOVINDAPPA BENAKATTI
COURT OF AGE: 61 YEARS, OCC: HOUSHEOLD,
KARNATAKA R/O NAGARAL,
TQ. AND DIST. VIJAYAPURA-586113.
2. SHOBHA W/O PANDAPPA BHUSARADDI,
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O SONNA, TQ. BEELAGI,
DIST. BAGALKOT-587116.
3. IRAPPA S/O GOVIND
@ GOVINDAPPA BENAKATTI
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O NAGARAL,
-2-
NC: 2024:KHC-K:5674
RSA No. 200054 of 2021
TQ. AND DIST. VIJAYAPURA-586113.
4. SIDDAPPA S/O GOVIND
@ GOVINDAPPA BENAKATTI
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O NAGARAL,
TQ. AND DIST. VIJAYAPURA-586113.
...RESPONDENTS
(R1 TO R4 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 23.10.2020 PASSED IN
R.A.NO.78/2019 BY THE I ADDITIONAL DISTRICT JUDGE AT
VIJAYAPUR BY DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE PASSED BY I ADDITIONAL
SENIOR CIVIL JUDGE AND ADDITIONAL CJM AT VIJAYAPUR IN
O.S.NO.64/2014 DATED 11.3.2019 AND SET ASIDE THE
JUDGMENT AND DECREE BOTH OF THE COURTS BELOW AND
REMAND THE MATTER BACK TO TRIAL COURT DIRECTING THE
TRIAL COURT TO FRAME ISSUE IN REGARD TO LIMITATION
POINT AND ADVERSE POSSESSION BY THE DEFENDANT AND
ALSO BY WAY OF PERMISSIVE POSSESSION OF THE PLAINTIFF
IN THE SUIT LAND.
THIS APPEAL, COMING ON FOR DISMISSAL, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
Heard learned counsel for the appellant.
NC: 2024:KHC-K:5674
2. The defendant in O.S.No.64/2014, on the file of
the I Additional Senior Civil Judge, Vijayapur is assailing
the decree for possession which is confirmed by the I
Additional District Judge, Vijayapur in R.A.No.78/2019.
3. The admitted factual position is that one
Ramappa had six sons. He effected partition in the family.
In the said partition, the property bearing Sy.No.59/2
measuring 4 acres in Nagaral village is allotted to his one
of the sons Mallappa. Sy.No.59/1 is retained by the
Ramappa in the said partition. The original plaintiff
Govindappa and the defendant Sangappa were allotted
some other properties in the partition which took place
during the lifetime of their father, Ramappa.
4. In the year 1991, Mallappa to whom
Sy.No.59/2 was allotted in the family partition, sold the
property in favour of original plaintiff Govindappa for
consideration of Rs.12,000/-. Pursuant to the said sale
deed, the name of the plaintiff Govindappa is entered in
the property records vide M.E.No.1836.
NC: 2024:KHC-K:5674
5. The plaintiff's father Ramappa executed a Will
on 22.11.1991 bequeathing Sy.No.59/1 jointly in favour of
the plaintiff Govindappa and defendant Sangappa. The
plaintiff claims that the defendant Sangappa in the guise
of entering the plaintiff's name and his name in the
property record, in terms of a Will dated 22.11.1991,
executed by his father got the signature of the plaintiff on
a paper taking undue advantage of illiteracy of the
plaintiff. The plaintiff further contends that later he came
to know that the defendant in the guise of taking plaintiff's
consent to enter the name of the plaintiff and defendant,
in respect of Sy.No.59/1 based on the Will of his father
also got his name entered in the property record of
Sy.No.59/2 which in fact was purchased by the plaintiff
under registered sale deed in the year 1991. Thus, the suit
is filed for the relief of declaration and injunction claiming
ownership over survey No.59/2. Alternatively, the plaintiff
also sought for possession.
NC: 2024:KHC-K:5674
6. The defendant resisted the suit. The defendant
took a stand that the property was purchased by the
plaintiff with the aid of money contributed by the
defendant. The defendant also took a stand that there
was a tractor in his name and he sold the tractor to raise
the funds to purchase the property bearing survey
No.59/2 in the name of the plaintiff in the year 1991.
7. The Trial Court has concluded that the alleged
sale of tractor is not established by the defendant and
consequently, the alleged contribution by the defendant to
purchase the property in the name of the plaintiff is also
not established. The Trial Court also concluded that the
alleged partition between the plaintiff and defendant in
respect of Sy.No.59/2 is not established. It is also held by
the Trial Court that there cannot be a partition as the
plaintiff and defendant had separated during the lifetime of
their father.
8. Aggrieved by the decree granting possession
and declaration in favour of the plaintiff, the defendant
NC: 2024:KHC-K:5674
filed an appeal. The First Appellate Court on
re-appreciation of the evidence, has concluded that the
defendant/appellant is unable to establish joint ownership
over the property purchased in the name of the plaintiff in
terms of the registered sale deed in the year 1991. The
First Appellate Court has also concluded that there is no
partition between the plaintiff and the defendant in respect
of Sy.No.59/2 as claimed by the defendant. The first
Appellate Court consequently dismissed the appeal.
9. Aggrieved by the aforementioned concurrent
findings, the defendant is in appeal.
10. Heard the learned counsel appearing for the
appellant.
11. Learned counsel for the appellant would
vehemently urge before this Court that the appellant is in
possession of the property bearing Sy.No.59/2 pursuant to
partition. The suit property is located towards northern
portion of the property which is allotted to his share in the
partition. Both the Courts have held that the
NC: 2024:KHC-K:5674
defendant/appellant is in possession of the suit property.
Having held that the defendant is in possession of the suit
property the Courts below could not have held that there
is no partition between the plaintiff and the defendant in
respect of the suit property as the defendant could not
have come in possession of the suit property but for
partition.
12. This Court has considered the contentions
urged at the bar.
13. As can be noticed from the judgments and
decrees passed by the First Appellate Court as well as the
Trial Court, both the Courts have held that there was a
partition in the family of the plaintiff and the defendant
and his brothers during the lifetime of their father
Ramappa. Thus, all the children got separated. It is
admitted position that in the year 1991, the sale deed is
executed in the name of the plaintiff in respect of suit
property bearing Sy.No.59/2 measuring 4 acres. Though
the defendant has raised a contention that he has
NC: 2024:KHC-K:5674
contributed to purchase the property in the name of the
plaintiff in the year 1991, the said contention is not
established. There is no evidence to disbelieve the
inference coming from the registered sale deed in the
name of the plaintiff. The Courts below have held that the
defendant is unable to adduce any evidence to overcome
the implications of Sections 91 and 92 of the Indian
Evidence Act and it is also noticed by both the Courts that
mutation in the name of the defendant recording his name
to the extent of half share in Sy.No.59/2 is not supported
by any legally acceptable transaction. Once there was a
partition between the brothers, after the partition, when
one of the brothers namely, the plaintiff purchased the
property, the said property would be the self-acquired
property of the plaintiff/Govindappa. In case the defendant
is to claim a share in the property, he must establish his
right under the lawful acquisition/transfer of the property
in his name in the manner known to law. No acceptable
evidence is produced regarding acquisition/transfer of the
property in the name of the defendant to the extent of half
NC: 2024:KHC-K:5674
share in Sy.No.59/2. So far as the claim of joint purchase
is concerned, both the Courts have concurrently held that
there is no acceptable evidence to conclude that the
defendant has also contributed to purchase the property in
the name of the plaintiff. Even before this Court no
evidence is pointed out to hold that the defendant has
contributed to purchase the suit property.
14. This being the position, this Court does not find
any substantial question of law. Accordingly, the appeal is
dismissed.
15. However, it is noticed that the Trial Court has
granted a decree for possession in respect of 2 acres of
land in favour of the defendant. Three months time is
granted to the defendant to handover the possession of 2
acres of land to the plaintiff. In case the defendant does
not handover the possession of 2 acres of land, the
defendant shall be liable to pay mesne profits from the
date of the suit till the date of possession being handed
over to the plaintiff.
- 10 -
NC: 2024:KHC-K:5674
16. The Trial Court shall hold an enquiry to
ascertain mesne profits in case of default on the part of
the defendant to handover 2 acres of land.
17. Acting under Section 132(3) of Karnataka Land
Revenue Act, this Court directs the jurisdictional Deputy
Commissioner to take necessary steps to enter the name
of the plaintiff in respect of property bearing survey
No.59/2 of Nagaral village, Vijayapur Taluk by deleting the
name of the defendant.
18. In view of disposal of the appeal, interim
applications, if any, do not survive for consideration.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
RSP
