Karnataka High Court
Wahiwatdar Annappa Satyanarayan Shet vs Vasudev Santayya Shet on 8 August, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RSA No. 5373 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 08TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO.5373 OF 2010
BETWEEN:
WAHIWATDAR ANNAPPA
SATYANARAYAN SHET
AGE: ABOUT 47 YEARS,
OCC: AGRICULTURE AND GOLDSMITH,
R/O HALE HERWATTA,
TQ: KUMTA, DIST: KARWAR-581332.
...APPELLANT
(BY SRI RAVI G. SABHAHIT, ADVOCATE)
AND:
1. VASUDEV SANTAYYA SHET
SINCE DIED BY HIS LRS
Digitally signed
by 1(A) SMT. NAGAMMA VASUDEV SHET
YASHAVANT AGE: 69 YEARS, R/O HALEHERWATTA,
NARAYANKAR
TQ: KUMTA, DIST: KARWAR-581332
Location: HIGH
COURT OF SINCE DECEASED REPRESENTED
KARNATAKA BY R2(A) TO R2(D)
DHARWAD
BENCH
DHARWAD 2. UDAY VASUDEV SHET,
SINCE DIED BY HIS LRS
2(A) CHITRA KOM UDAY SHET
AGE: MAJOR,
2(B) KARTIK UDAY SHET
AGE: 19 YEARS,
2(C) GANAPATI UDAY SHET
AGE: 11 YEARS,
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RSA No. 5373 of 2010
2(D) JYOTHI UDAY SHET
AGE: 16 YEARS,
2(C) AND (D) ARE MINORS REPRESENTED
BY THEIR NATURAL GUARDIAN MOTHER 2(A)
ALL ARE R/O. HALEHERWATTA, TQ: KUMTA,
DIST: KARWAR-581332.
3. SATYANARAYANA SUBRAYA SHET
AGE: ABOUT 73 YEARS, OCC: GOLDSMITH
AND AGRICULTURE,
R/O. HALE HERWATTA,
DIST: KARWAR-581332.
4. MANJUNATH SATYANARAYAN SHET
AGE: 49 YEARS, OCC: TRADER AND
AGRICULTURE,
R/O. HALE HERWATTA,
TQ: KUMTA, DIST: KARWAR-581332.
5. GANAPATI SATYANARAYAN SHET
AGE: 44 YEARS, OCC: GOLDSMITH
AND AGRICULTURE,
R/O. HALE HERWATTA,
TQ: KUMTA, DIST: KARWAR-581332.
...RESPONDENTS
(BY SMT. RENUKA ALEMALI AND
SRI G.I.GACHCHINAMATH, ADVOCATES FOR R3 TO R5;
R2A, 2B ARE SERVED;
R2C AND R2D ARE MINORS REPRESENTED BY R2(A);
VIDE ORDER DATED 22/08/2023, R2 (A TO D) ARE TREATED AS LRS
OF DECEASED R1(A).)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CIVIL PROCEDURE CODE, 1908, PRAYING TO CALL FOR THE
RECORDS AND ON EXAMINATION OF THE SAME BE PLEASED TO SET
ASIDE THE JUDGMENT AND DECREE DATED 28.01.2010 IN
R.A.NO.136/2006 PASSED BY THE CIVIL JUDGE (SR.DN.), KUMTA,
AND THE JUDGMENT AND DECREE DATED 23.07.2001 IN
O.S.NO.107/1992 PASSED BY THE CIVIL JUDGE (JR.DN.), KUMTA
AND DECREE THE SUIT AS PRAYED FOR AND ETC.,.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5373 of 2010
ORAL JUDGMENT
Heard the arguments addressed by the learned
counsels appearing for the respective parties and perused
the material on record.
2. Plaintiff No.2 in O.S.No.107/1992, namely
Wahiwatdar Annappa Satyanarayan Shet, has preferred this
appeal challenging the judgment and decree dated
28.01.2010 passed in R.A.No.136/2006 by the Civil Judge
(Senior Division), Kumta and the judgment and decree dated
23.07.2001 passed in O.S.No.107/1992 by the Civil Judge
(Junior Division), Kumta, thereby, the suit filed for
declaration and permanent injunction is dismissed by
concurrent judgments of both the Trial Court and First
Appellate Court.
3. For the purpose of convenience and easy
reference, the status of the parties is referred to as per their
ranking in O.S.No.107/2022.
4. The suit property was earlier belonging to the
father of plaintiff No.1 by name Subray Kamayya Shet and
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another. Thereafter, the portion of the suit property has
been sold to one Laxman Ganapayya Shet on 31.10.1964,
through a registered sale deed. At the time of the said sale,
the Eastern portion of the property to the extent of 4 ft. x
145 ft. was retained by the father of plaintiff No.1 for their
personal usage and only the Western side portion of the
property has been sold to said Laxman Ganapayya Shet. The
Eastern portion of the property bearing Sy.No.22/3, being
retained by the plaintiffs' predecessor has been used by
them by constructing a toilet from long time and they have
also erected a fencing in the Western side of the said
portion. Therefore, the plaintiffs have got a separate access
to the said Eastern portion of the suit property as mentioned
above. Further, it is the case of the plaintiffs that the said
retained portion has not been entered in the revenue
records. But, the said recital is found in the sale deed
executed to Laxman Ganapayya Shet. Thereafter, Laxman
Ganapayya Shet has sold the property to defendant No.1,
now the defendant No.1 is claiming that the said Eastern
portion of the property, which is retained for the purpose of
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use of plaintiffs is asserting his right in interfering with
possession of the plaintiff. Therefore, the plaintiffs have filed
suit for declaration to declare that the said Eastern side
passage to the extent of 4 ft. x 145 ft. is retained by the
plaintiffs.
5. Defendant No.1 has filed the written statement
and pleaded that he has purchased the suit property from
one Laxman Ganapayya Shet through registered sale deed
and accordingly is in possession of the entire property by
constructing residential house, cattle shed, bathroom, toilet
etc., and no portion of the suit property has been in
possession of the plaintiffs as alleged. Further denied the fact
that a strip of land was retained by grandfather of the
plaintiffs towards eastern side of the land. Further, names of
plaintiffs have not been entered in the revenue records so far
as the strip of land is concerned. Further, he has taken up
alternative plea that defendant No.1 is in continuous
possession of the suit land with knowledge of plaintiffs for
more than 12 years without interruption and obstruction.
Thus, the plaintiffs have lost right, over the suit property and
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defendant No.1 has perfected his title by adverse possession.
Therefore, with these averments, defendant No.1 prays to
dismiss the suit.
6. The trial Court has dismissed the suit of the
plaintiffs on the reason that the trial Court has considered
the sale deed Ex.D.1 and of opinion that the entire property
was sold out by grandfather of plaintiffs and has not
considered issue with regard to the passage what is alleged
towards the eastern side of the property. Therefore, on the
pretext that the entire property was sold out as per Ex.D.1,
dismissed the suit.
7. Upon appeal by the plaintiffs, the First Appellate
Court also dismissed the appeal by confirming the judgment
and decree passed by the trial Court on the reason that
through Ex.D.1 the grandfather of plaintiffs has sold out the
entire property to Laxman Ganapayya Shet and through this
sale deed Laxman Ganapayya Shet and then defendant No.1
acquired the property by virtue of registered sale deed.
Therefore without going into the aspect of whether passage
was retained in the sale deed Ex.D.1, the First Appellate
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Court has confirmed the judgment and decree passed by the
trial Court.
8. The plaintiff has preferred second appeal before
this Court and this Court on 10.04.2014 while admitting the
appeal has framed the following substantial question of law.
"Whether the trial Court as well as the First
Appellate Court have committed a serious error
in ignoring the material evidence placed on
record more particularly Ex.D.1-registered sale
deed in which there is a specific reference about
the retaining of property measuring 4 ft. width on
the Eastern portion of the property and thus
judgments and decrees have become perverse
and illegal?"
9. Notice issued to defendants No.1 and 2/
respondents No.1 and 2 and their L.Rs. are served but there
is no representation from them.
10. Learned counsel for the appellant/plaintiff
submitted that it is true that Ex.D.1 sale deed is executed by
grandfather of plaintiff in favour of Laxman Ganapayya Shet
and the said Laxman Ganapayya Shet sold the property in
favour of defendant No.1. In the sale deed Ex.D.1 there is a
recital with regard to retention of four feet width passage to
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the plaintiffs for their ingress and egress to make use of the
said passage to go to the house of the plaintiffs. But this is
not considered by both the trial Court and the First Appellate
Court and thus simply swayed away by Ex.D.1 sale deed
without considering the said recitals. Therefore submitted,
though Ex.D.1 is the sale deed by which the property is sold
out, but the original owner who is grandfather of the
plaintiffs has retained his right over four feet passage
towards eastern side for his use and occupation and this is
not at all considered by both the trial Court and the First
Appellate Court, resulting into passing of erroneous
judgment and decree. Thus, prays to allow the appeal and
decree the suit as prayed for.
11. The suit property is a strip of property about 04
feet width east-west and 145 feet length north-south in
Sy.No.22/3 of Old Heravatta village of Kumta taluk. It is the
case of the plaintiffs that though the grandfather of plaintiffs
has sold the property in favour of Laxman Ganapayya Shet,
but the grandfather of plaintiffs has retained the said four
feet width passage towards eastern side for the use of
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himself and this is clearly mentioned in the sale deed. The
trial Court has observed in the judgment that it is not clear
in the sale deed whether grandfather of plaintiffs had
retained any title or interest over the same though the sale
deed Ex.D.1 is stated to have been executed by grandfather
of plaintiffs. But upon perusal of Ex.D.1 sale deed, there is a
clear recital that towards eastern side four feet passage is
retained as the vendee Laxman Ganapayya Shet shall not
obstruct the way to him and the plaintiffs.
12. The subject matter is only a strip of land of 04
feet width and 145 feet in length. It is not disputed that the
grandfather of the plaintiffs has sold the land in Sy.No.22/B
to one Laxman Ganapayya Shet and Laxman Ganapayya
Shet in turn has sold the property in favour of defendant
No.1. Therefore, what Laxman Ganapayya Shet has acquired
the property, the same extent shall be sold out to defendant
No.1 and if the said Laxman Ganapayya Shet has sold the
additional extent of land, this is not binding on the plaintiffs.
What defendant No.1 would get title in the land bearing
Sy.No.22/B is except the said portion of four feet width of
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passage towards eastern side. Upon perusal of Ex.D.1,
though the land bearing Sy.No.22/B stated above was sold
to Laxman Ganapayya Shet, there is recital about retaining
four feet width passage towards the eastern side and
defendant No.1 shall not disturb the plaintiffs to make use of
the said passage. The said recital is very clear in the sale
deed but the trial Court and the First Appellate Court have
held that the said recital is not clear, but upon perusing the
said Ex.D.1 sale deed, it is clearly mentioned about retaining
four feet width passage by the grandfather of plaintiffs.
Therefore, Laxman Ganapayya Shet and defendant No.1
have become owner of property bearing Sy.No.22/B
excluding the said four feet passage retained by the
grandfather of the plaintiffs. In this regard both the trial
Court and the First Appellate Court have not appreciated the
evidence correctly.
13. Therefore the very intention of the grandfather of
the plaintiffs can be gathered in Ex.D.1 sale deed that four
feet width passage was retained for making use of land of
plaintiffs and after his demise the same is devolved upon his
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heirs. In this regard the approach made by both the trial
Court and the First Appellate Court is found to be perverse
as it is contrary to the evidence on record. Laxman
Ganapayya Shet and defendant No.1 do not acquire better
title than what is his vendor did have. What the grandfather
of the plaintiffs has sold out the property, to that extent the
said Laxman Ganapayya Shet has acquired title and to that
extent only defendant No.1 has become owner excluding four
feet width passage, which is the subject matter of the suit.
14. In this regard both the trial Court and the First
Appellate Court have failed to appreciate the evidence on
record correctly and passed erroneous judgments. Therefore,
while answering issue No.1 in the affirmative it is held that in
Ex.D.1 registered sale deed there is specific reference about
retaining of property measuring four feet width on the
eastern side portion of the property and thus, the plaintiffs
are entitled for the relief of declaration to the extent of four
feet width passage which is the subject matter in the suit.
Therefore, the question of law is answered that both the trial
Court and the First Appellate Court are not justified. Hence
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the judgment and decree passed by both the trial Court and
the First Appellate Court are liable to be set aside and thus
the plaintiffs are entitled to decree in respect of the suit
property which is four feet width passage towards eastern
side of Sy.No.22/B. Therefore the appeal is liable to be
allowed and the judgment and decree passed by both the
trial Court and the First Appellate Court are liable to be set
aside by answering the substantial question of law in the
affirmative. Hence, I proceed to pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 28.01.2010
passed in R.A.No.136/2006 by the Civil Judge (Senior
Division), Kumta and the judgment and decree dated
23.07.2001 passed in O.S.No.107/1992 by the Civil Judge
(Junior Division), Kumta, are hereby set aside.
iii) The suit of the plaintiffs in O.S.No.107/1992 is
decreed as prayed for.
iv) Draw decree accordingly.
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v) No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
SRA-Para 1 to 4
MRK-Para 5 to end.
CT: GSM
