Karnataka High Court
Shivappa S/O Fakirappa Mulage And Ors vs Mallappa S/O Shivappa Mulge on 2 February, 2024
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NC: 2024:KHC-K:1231
RSA No. 200120 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200120 OF 2017
(DEC/INJ)
BETWEEN:
1. SHIVAPPA S/O FAKIRAPPA MULAGE,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O VILLAGE KEROOR,
TQ: ALAND, DIST: KALABURAGI.
2. SANGANBASAPPA @ BASAPPA
S/O FAKIRAPPA MULAGE,
AGE: 37 YEARS,
OCC: AGRICULTURE,
R/O. VILLAGE KEROOR,
TQ: ALAND, DIST: KALABURAGI.
3. SMT. SHANTABAI W/O FAKIRAPPA MULAGE,
AGE: 69 YEARS, OCC: AGRICULTURE,
Digitally
signed by R/O. VILLAGE KEROOR,
SACHIN
Location:
TQ: ALAND, DIST: KALABURAGI.
HIGH
COURT OF
...APPELLANTS
KARNATAKA
(BY SRI. ANANTH S.JAHAGIRDAR, ADVOCATE)
AND:
MALLAPPA S/O SHIVAPPA MULGE,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O. VILLAGE KEROOR, TQ: ALAND,
DIST: KALABURAGI.
...RESPONDENT
(COURT NOTICE SERVED, UNREPRESENTED)
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RSA No. 200120 of 2017
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGEMENT AND DECREE DATED 03.01.2017 PASSED IN R.A
NO.03/2016 BY THE PRL.DISTRICT JUDGE, AT KALABURAGI,
AND CONSEQUENTLY DISMISS THE SUIT O.S.NO.15/2011 ON
THE FILE OF SENIOR CIVIL JUDGE, ALAND, DATED 30.09.2015
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, defendants assailing the judgment
and decree dated 03.01.2017 in R.A.No.3/2016 on the file
of Principal District Judge, Kalaburagi, allowing the appeal
by setting aside the judgment and decree dated
30.09.2015 in O.S.No.15/2011 on the file of Senior Civil
Judge, Aland, dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that the schedule
property is the joint family property of himself and the
father of the defendants. It is stated that the plaintiff and
the father of the defendants divided the property as per
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oral partition and pursuant to the same, the suit schedule
property transferred to the share of plaintiff and thereafter
as the defendants interfered with the peaceful possession
and enjoyment of the land belonging to the plaintiff, the
plaintiff has filed O.S.No.15/2011 before the Trial Court
seeking relief of declaration with consequential relief of
permanent injunction against the defendants.
4. After service of notice, the defendants entered
appearance and filed written statement denying the
averments made in the plaint. It is the specific case of the
defendants that the total extent of the land bearing
Sy.No.91 measuring 34 acres 20 guntas and there is no
partition between the father of the defendants and with
the plaintiff and therefore it is the case of the defendants
that the property is required to be surveyed and actual
partition has to be made in respect of the suit schedule
property and accordingly sought for dismissal of the suit.
5. The trial Court on the basis of the pleadings on
record framed the issues for its consideration.
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6. In order to establish their case, plaintiff has
examined four witnesses as PW.1 to PW.4 and marked 11
documents as Ex.P.1 to Ex.P.11. Defendants have
examined defendant No.2 and produced 21 documents
and same were marked as Ex.D1 to Ex.D21.
7. The Trial Court after considering the material on
record vide its judgment and decree dated 30.09.2015
dismissed the suit of the plaintiff. Being aggrieved by the
same, the plaintiff has preferred the appeal in
R.A.No.3/2016 before the First Appellate Court and the
appeal was resisted by the defendants. The First Appellate
Court after considering the material on record, allowed the
appeal by judgment and decree dated 03.01.2017 and set
aside the judgment and decree in O.S.No.15/2011. Feeling
aggrieved by the same the defendants have preferred the
present second appeal.
8. This Court by order dated 01.09.2021 framed
the following substantial question of law :-
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"Whether the first appellate court has solely
based its finding on the revenue records and the
alleged revenue entries and discarded the other
evidence placed by the parties before it ?"
9. I have heard the learned counsel Sri Ananth
S.Jahagirdar, appearing for the appellants and the
respondents served, remained absent..
10. Sri Ananth S.Jahagirdar, learned counsel
appearing for the appellants contended that the First
Appellate Court wrongly interfered with the judgment and
decree passed by the Trial Court solely based on the
revenue records, despite no document has been produced
to establish the partition between the plaintiff with the
father of the defendants and accordingly sought for
interference of this Court.
11. Having heard the learned counsel appearing for
the appellants and on careful examination of the finding
recorded by both the Courts below, it is not in dispute with
regard to relationship between the parties as the plaintiff
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is the paternal uncle of the defendants (sons of the
brother of plaintiff - Fakirappa). Perusal of the entire
records would indicate that it is the plea of the plaintiff
there is partition between the parties, however, no
documents have been produced by the plaintiff.
12. It is also to be noted that the finding recorded
by the First Appellate Court was based on Ex.D2 and
Ex.D3. Undisputably these documents are the RTC
extracts and indicate the name of both the plaintiff as well
as the father of the defendants. The said aspect may not
be a ground to arrive at a conclusion that there is partition
in the family of plaintiff and the father of the defendants.
Only by looking into the revenue records, the factum of
partition cannot be proved unless the partition is proved
by the plaintiff with cogent reasons.
13. In that view of the matter, the finding recorded
by the Trial Court at paragraphs 70 and 71 of judgment
and decree particularly relating to issue No.8 is just and
proper and the First Appellate Court ought not to have
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interfered with the well reasoned judgment and decree
passed by the Trial Court. It is well established principle in
law that in order to grant the relief of declaration, it is the
duty of the plaintiff to produce the cogent material to
establish that the plaintiff is the owner in possession of the
land in question. Mere production of the revenue records
may not confer title to the property. In that view of the
matter following the declaration of law made by this Court
in the case of M.Narayanaswamy (Dead By LR's) vs M
Narayanappa S/o Muniyappa1, the impugned judgment
and decree passed by the First Appellate Court is not
correct.
14. It is also well established principle of law that,
the suit for declaration cannot be claimed, seeking
partition in the property in question, as the partition is not
a transfer of property and it is mere recognizing the
existing right in the suit schedule property by the
members of the joint family. The said aspect has been
ILR 2012 KAR 4958
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over looked by the First Appellate Court. In that view of
the matter, I am of the view that the substantial question
of law framed above favours the defendants and the
impugned judgment and decree passed by the First
Appellate Court is liable to be set aside and thereby the
judgment and decree passed by the Trial Court is hereby
confirmed. In the result, I pass the following order :
i) Appeal is allowed.
ii) Judgment and decree dated 03.01.2017 in
R.A.No.3/2016 on the file of Principal District
Judge at Kalaburagi is set aside.
iii) The judgment and decree dated 30.09.2015
in O.S.No.15/2011 on the file of Senior Civil
Judge, Aland is confirmed. Suit in
O.S.No.15/2011 is dismissed.
Sd/-
JUDGE
SN
