Karnataka High Court
Goudappa S/O Gireppa Bhadragond vs Kallappa S/O Siddappa Bhadragond on 7 August, 2024
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NC: 2024:KHC-K:5771
RSA No. 7274 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 7274 OF 2012 (DEC/INJ)
BETWEEN:
GOUDAPPA S/O GIREPPA BHADRAGONDA,
AGE: 76 YEARS, OCC: AGRICULTURE,
R/O. CHIMMAIDLAI,
TQ. CHINCHOLI, DIST. GULBARGA.
...APPELLANT
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
KALLAPPA S/O SIDDAPPA BHADRAGOND
AGE: 78 YEARS, OCC: AGRICULTURE & RETIRED
EMPLOYEE, R/O. CHIMMAIDLAI, TQ. CHINCHOLI,
Digitally signed DIST. GULBARGA
by RENUKA
Location: HIGH SINCE DECEASED BY HIS LRS.
COURT OF
KARNATAKA
1A. KAMALABAI W/O LATE KALLAPPA BHADRAGOND,
AGE: 72 YEARS, OCC: HOUSEHOLD,
R/O. CHIMMAIDLAI VILLAGE,
TQ. CHINCHOLI, DIST. GULBARGA.
1B. CHANDRASHEKHAR S/O LATE KALLAPPA
BHADRAGOND,
AGE: 57 YEARS, OCC: GOVT. TEACHER,
R/O. CHIMMAIDLAI VILLAGE,
TQ. CHINCHOLI, DIST. GULBARGA.
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NC: 2024:KHC-K:5771
RSA No. 7274 of 2012
1C. RAJSHEKHAR S/O LATE KALLAPPA BHADRAGOND,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O. CHIMMAIDLAI VILLAGE,
TQ. CHINCHOLI, DIST. GULBARGA.
1D. KASTURIBAI W/O ISHIVAPUTRA GONOR,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O. YADGA VILLAGE,
TQ. SEDAM, DIST. GULBARGA.
1E. GHALAMMA @SHOBHA W/O RAMRAO SHRIGOND,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O. ANAKAL VILLAGE,
TQ. CHITTAPUR, DIST. GULBARGA.
1F. INDUBAI W/O MALLIKARJUN KUKUNDI,
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O. ALLOLLI VILLAGE,
TQ. SEDAM, DIST. GULBARGA.
1G. RAMRAO S/O LATE KALLAPPA BHADRAGOND,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. CHIMMAIDLAI VILLAGE,
TQ. CHINCHOLI, DIST. GULBARGA.
1H. JAISHREE W/O BABURAO GADGI,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O. ALDI NAWADGI VILLAGE,
TQ. BHALKI, DIST. BIDAR.
...RESPONDENTS
(BY SRI SANJEEV KUMAR C. PATIL, ADVOCATE FOR,
R1 (A) To R1(E), R1(G) And R1(H);
R1(F) IS SERVED;)
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NC: 2024:KHC-K:5771
RSA No. 7274 of 2012
THIS RSA IS FILED UNDER SECTION 100 CPC, PRAYING
TO ALLOW THE SECOND APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE
AT CHINCHOLI IN R.A.NO.09/2010 DATED 21.07.2012 AND
SET ASIDE THE JUDGMENT AND DECREE PASSED IN
O.S.NO.88/2007 DATED 16.12.2009 ON THE FILE OF
PRINCIPAL CIVIL JUDGE (JD) AT CHINCHOLI.
THIS APPEAL, COMING ON FOR FINAL HEARING, 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)
Being aggrieved by the decree for declaration and
possession which is also confirmed by the First Appellate Court,
the defendant is in this regular second appeal. This appeal was
admitted vide order dated 25.03.2013 to consider the following
substantial questions of law:
1) "In a suit for declaration, was not the trial court
required to examine the issue casting burden on the
plaintiff to establish ownership before directing the
defendant to hand over possession?
2) Is the decree merely directing defendant to deliver
possession of 1 acre 35 guntas without recording a
finding or declaring that the plaintiff is the owner of
the said land, permissible?
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3) The suit of the plaintiff merely for declaration without
seeking possession was maintainable in view of
Section 34 of the Specific Relief Act. Was not the
plaintiff barred from seeking possession in view of
Article 65 of the Limitation Act as he contends
defendant encroached and has taken possession of
the land measuring 1 acre 35 guntas?"
2. The suit property is bearing survey No.198/3 in
Chimmaidalai Village of Chincholi Taluk, measuring of 1 acre 23
guntas out of total extent of 6 acres 38 guntas. The father of
the plaintiff and father of defendant were brothers. Admittedly,
there was a partition between the father of plaintiff and father
of defendant. In the said partition 6 acres 38 guntas is allotted
to the share of the father of the plaintiff and 10 acres 7 guntas
is allotted to the share of father of the defendant. It is stated
that the plaintiff applied for the survey of the property bearing
survey No.198/3. The surveyor has conducted the survey and
submitted a report stating that the defendant is in possession
of 1 acre 23 guntas belonging to the plaintiff, said property is
the suit property.
3. The defendant has contested the suit contending
that the suit property is allotted to the share of the defendant
part. The survey report is marked at Ex.P2 and P3.
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4. The defendant disputed the correctness of the
survey and also took a stand that he was not present in the
survey took place. The evidence was lead to show that the
defendant was also present when the survey has taken place.
Both Courts have been concurrently held that the defendant
was present when survey took place. More than anything else
admittedly, 6 acres 38 guntas in survey No.198/3 is allotted to
the share of the father of the plaintiff. The RTC of the property
bearing survey No.198/3 stands in the name of the father of
the plaintiff. This fact has not disputed. In the written
statement defendant has taken the stand that 1 acre 23 guntas
which is in his possession, in survey No.198/3 is the property
fallen to his share. There is no material on record to show that
1 acre 23 guntas in survey No.198/3 has fallen to the share of
the father of the defendant. Though the defendant has also
taken a stand, that only 5 acres 16 guntas are allotted to the
share of the father of the plaintiff, the records did not support
the said stand. The mutations based on the partition are not
disputed by the defendant. During the course of the hearing
this Court has also posed a question to the learned counsel
appearing for the appellant as to what is the extent of the
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property allotted to the share of the appellant. Learned counsel
for the appellant fairly submits that 10 acres 7 guntas are
allotted to the share of the father of the appellant in survey
No.198/3.
5. This being position this Court is of the view that the
claim of the plaintiff that, he has been allotted 6 acres 38
guntas in the oral partition appears probable and the survey
report would also reveal that the defendant is in possession of
1 acre 23 guntas in survey No.198/3. In fact the suit property
is allotted to the share of the plaintiff.
6. Learned counsel for the appellant would submit that
at the time of partition the property was allotted with reference
to a bund and the property allotted to the share of the
defendant's father extended up to the bund. No materials
placed to establish the existence of the bund.
7. Under these facts and circumstances, this Court
does not find any reasons to interfere with concurrent findings
of the Trial Court as well as the First Appellate Court. No
substantial question of law would arise in this case.
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8. It is also submitted by the learned counsel for the
respondent that the respondent had already executed the
decree for possession and is already put in possession of 1 acre
23 guntas in survey No.198/3. Accordingly, all the controversies
are resolved.
9. Appeal is dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
KBM
CT:PK
