Karnataka High Court
Arjun Lakkappa Kamble vs Satteppa Bhimappa Kamble on 1 February, 2024
-1-
NC: 2024:KHC-D:2252
RSA No. 100543 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100543/2016(DEC/INJ)
BETWEEN:
SRI ARJUN LAKKAPPA KAMBLE,
AGED ABOUT 46 YEARS,
OCC: AGRICULTURE,
R/O: KATRAL, TAL: ATHANI,
AND KUDACHI, DIST: BELAGAVI,
TAL: RAIBAGI.
...APPELLANT
(BY SRI RAMACHANDRA MALI, ADVOCATE)
AND:
SRI. SATTEPPA BHIMAPPA KAMBLE,
SINCE DECEASED BY HIS LR'S.
1. SRI BUNDAWWA
W/O. DEVENDRA KAMBLE @ KHATEDAR,
AGED ABOUT 58 YEARS,
Digitally
OCC: HOUSEHOLD WORK.
signed by
ROHAN
HADIMANI 2. SRI ANNAPPA DEVENDRA
T KAMBLE @ KHATEDAR,
AGED ABOUT 46 YEARS, OCC: SERVICE.
3. SRI HANUMANTH DEVENDRA
KAMBLE @ KHATEDAR,
AGED ABOUT 44 YEARS,
OCC: AGRICULTURE NO. 1 TO 3,
R/O: KHAVATAKOPPA,
TAL: ATHANI, DIST: BELAGAVI - 591 304.
4. SMT. CHANDRAWWA
W/O. VASANT DHARENNAVAR,
AGED ABOUT 41 YEARS,
OCC: HOUSEHOLD WORK,
-2-
NC: 2024:KHC-D:2252
RSA No. 100543 of 2016
R/O: TERDAL, TQ: JAMAKHANDI 587 301,
DIST: BAGALKOT.
5. SRI ANILKUMAR DEVENDRA
KAMBLE @ KHATEDAR,
AGED ABOUT 37 YEARS, OCC: NIL,
6. SMT. GANGAWWA DEVENDRA
KAMBLE @ KHATEDAR,
AGED ABOUT 35 YEARS,
OCC: HOUSEHOLD WORK NO.5 AND 6,
R/O: KHAVATAKOPPA,
TQ: ATHANI, DIST: BELAGAVI - 591 304.
SRI PARASU LAXMAN KAMBLE
SINCE DECEASED BY HIS LRS,
7. SMT. DROPADI W/O. PARASU KAMBLE,
AGED MAJOR, OCC: HOUSEHOLD WORK.
8. SMT. AVAKKA PARASU KAMBLE,
AGED ABOUT 67 YEARS,
OCC: HOUSEHOLD WORK,
9. SMT. NAGAVENI
D/O. PARASU KAMBLE,
AGED ABOUT 56 YEARS,
OCC: HOUSEHOLD WORK NO.7 AND 8,
R/O: NEAR BUS STAND MIRAJ,
DIST: SANGLI.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908,
AGAINST THE JUDGMENT & DECREE DATED 31.03.2016 PASSED IN
R.A.NO.89/2005 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE ATHANI, DIST BELAGAVI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 03.09.2005,
PASSED IN O.S.NO.250/1996 ON THE FILE OF THE CIVIL JUDGE
(JR.DN) AND JUDICIAL MAGISTRATE FIRST CLASS, ATHANI,
DECREEING THE SUIT FILED FOR DECLARATION AND INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:2252
RSA No. 100543 of 2016
JUDGMENT
Defendant No.1 in O.S.No.250/1996 on the file of the
Principal Civil Judge (Jr.Dn.) & JMFC., Athani (hereinafter
referred to as the 'trial Court' for short) has filed this
regular second appeal challenging the judgment and
decree dated 03.09.2005 passed therein as well as the
confirming judgment and decree dated 31.03.2016 passed
by the Principal Senior Civil Judge, Athani (hereinafter
referred to as the 'first appellate Court' for short) in
R.A.No.89/2005.
2. The parties shall henceforth be referred to as
they were arrayed before the trial Court.
3. The suit in O.S.No.250/1996 was filed for a
declaration that the now deceased plaintiff was the owner
of the suit land and for consequential relief of injunction to
restrain the defendants from interfering with the plaintiff's
possession over the property. The plaintiff claimed that the
suit land was earlier owned and possessed by Smt.
Kenchawwa who sold it to Bhimappa Satteppa Mahar and
NC: 2024:KHC-D:2252
Laxman Devappa Mahar on 19.07.1940. The plaintiff was
the son of the said Bhimappa Satteppa Mahar while
defendant No.1 was the son of Laxman Devappa Mahar.
The plaintiff claimed that his father as well as Laxman
Devappa Mahar were entitled to ½ portion of the said
property. He claimed that after the death of his father and
mother, he and his brothers were in possession and
enjoyment of the suit property. This being the fact,
defendant No.2 taking advantage of the plaintiff being
away from the village, got effected a mutation wherein he
claimed that he was the nearest relative of Bhimappa
Satteppa Mahar who died on 10.02.1942. Consequently,
mutation proceedings was initiated and certified in the
name of defendant No.2 who thereafter sold it to
defendant No.1 on 05.04.1984. The plaintiff therefore
contended that the sale brought about by defendant No.2
in favour of defendant No.1 was invalid and did not bind
the right, title and interest of the plaintiff. He therefore
sought for the aforesaid reliefs.
NC: 2024:KHC-D:2252
4. Defendant No.1 contested the suit and claimed
that the plaintiff has no right or title over the ½ portion of
the suit property. He contended that he is not concerned
with the sale deed executed by Smt. Kenchawwa in favour
of Bhimappa and Laxman and that the plaintiff was not in
possession of the ½ portion of the suit property at any
time. He denied that the defendants No.2 had colluded
with the Panchayat Authorities to get his name entered in
the mutation register. He however admitted that
defendant No.2 sold the suit property in his favour on
05.04.1984. He contended that several revenue
proceedings were filed challenging the mutation entry and
the same were dismissed. Therefore, he contended that
the plaintiff is not entitled to any reliefs in the suit and
prayed that the suit may be dismissed.
5. Based on these rival contentions, the trial Court
set down the case on trial. During the pendency of the
suit, the plaintiff died and his legal representatives were
brought on record. PW1 was the Power of Attorney of the
NC: 2024:KHC-D:2252
plaintiff who did not turn up for cross-examination while,
another Power of Attorney of the deceased plaintiff and his
legal representatives was examined as PW2 and he
marked Exs.P1 to P9. Defendant No.1 was examined as
DW1 and three other witnesses were examined as DWs 2
to 4 and they marked Exs.D1 to D23.
6. Based on the oral and documentary evidence
the trial Court held that it was an undisputed fact that the
suit property was purchased by both Bhimappa and
Laxman from Smt. Kenchawwa on 19.07.1940. It held that
defendant No.2 was not the nearest relative of deceased
Bhimappa but he was the son of Laxman and therefore, he
could not have got his name entered in the mutation entry
record as the nearest relative of Bhimappa. Consequently,
it held that the plaintiff had proved his title to the suit
property and also that he was entitled to ½ share of the
suit property. Consequently, it decreed the suit to the
extent of ½ portion of the suit schedule property and
restrained defendant No.1 from interfering with the joint
NC: 2024:KHC-D:2252
possession of the plaintiffs. Being aggrieved by the said
judgment and decree, defendant No.1 filed
R.A.No.89/2005.
7. The first appellate Court found that since
Bhimappa and Laxman had purchased the suit property,
they were entitled to an equal share in the suit schedule
property. It held that the plaintiff was the son of Bhimappa
and therefore he was entitled to ½ share in the suit
property and consequently, it held that the judgment and
decree of the trial Court was just and proper in view of the
Section 45 of the Transfer of Property Act, 1882.
Consequently, it dismissed the appeal and confirmed the
judgment and decree passed by the trial Court. Being
aggrieved by the concurrent finding of fact by both the
Courts, defendant No.1 has filed this appeal.
8. Learned counsel for defendant No.1 submitted
that the legal heirs of the plaintiff except producing Ex.P8,
did not produce any document to show that they were the
legal heirs of the deceased plaintiff. He further contended
NC: 2024:KHC-D:2252
that the plaintiffs got their names entered in respect of the
land bearing Sy.No.169/18+19 dated 23.06.1973 as per
Ex.P-7 but they did not make any similar attempt to get
their names entered in the mutation records relating to
the suit property. He therefore contends that the plaintiff
had given up his title in respect of the suit property.
Therefore, he contended that the suit in the year 1996
was highly belated in as much as the father of the plaintiff
died somewhere in the year 1952.
9. I have considered the submissions made by the
learned counsel for defendant No.1. I have also perused
the records furnished to me by the learned counsel for
defendant No.1.
10. The fact that the suit property was purchased
by the predecessor of the deceased plaintiff and
predecessor of defendant No.2 is not in dispute. There is
no evidence that there was any agreement between them,
that they had contributed consideration unequally to
purchase the suit property. Therefore in the absence of
NC: 2024:KHC-D:2252
any such contract, both Bhimappa and Laxman were
entitled to ½ share in the suit property. Defendant No.1
did not deny the fact that the plaintiff was the son of
Bhimappa. Consequently, the plaintiff was entitled to an
undivided ½ share in the suit schedule property along with
defendant No.1 who is the present purchaser of ½ share of
defendant No.2. Therefore, the trial Court and the first
appellate Court have rightly appreciated the evidence and
have held that the plaintiff had proved his title to the
extent of ½ share in the suit schedule property along with
defendant No.1 and rightly restrained defendant No.1 from
interfering with the possession of the plaintiff over the suit
schedule property. There is no error apparent on the face
of the record warranting interference in this second
appeal. As no substantial question of law arises for
consideration in this appeal, the same is dismissed.
SD/-
JUDGE
RH
CT-ASC
