Karnataka High Court
Ambubai W/O Somalu And Anr vs Gonu S/O Pomu And Anr on 7 February, 2024
-1-
NC: 2024:KHC-K:1366
RSA No. 200037 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200037 OF 2021
(DEC/INJ)
BETWEEN:
1. AMBUBAI W/O SOMALU,
AGE: 92 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
2. RAMESH RATHOD
S/O SOMALU,
AGE: 45 YEARS,
OCC: AGRICULTURE AND
WORKING AS CASUAL EMPLOYEE
IN HIGH COURT AT KALABURAGI BENCH,
NOW STAYING AT JAI HANUMA TANDA,
NAGANAHALLI ROAD, KALABURAGI-585 102.
Digitally signed
by ...APPELLANTS
LUCYGRACE
Location: HIGH
COURT OF
KARNATAKA
(BY SRI. R.S. SIDHAPURKAR, ADVOCATE)
AND:
1. GONU S/O POMU,
AGED ABOUT 62 YEARS,
OCC: AGRICULTURE,
2. RAMESH S/O GONU,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE,
-2-
NC: 2024:KHC-K:1366
RSA No. 200037 of 2021
BOTH R/O MOAK TANDA
SRINIVAS SARADAGI VILLAGE,
TQ. AND DIST. KALABURAGI-585 102.
...RESPONDENTS
(BY SRI. PRASHANT WAJANTRI AND
SRI. MAHANTESH PATIL, ADVOCATES)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 16.01.2020 PASSED IN R.A.
No.59/2017 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AT
KALABURAGI, CONFIRMING THE JUDGMENT AND DECREE
DATED 20.07.2017 PASSED IN O.S. NO.634/2013 ON THE FILE
OF THE II ADDL. CIVIL JUDGE AT KALABURAGI.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the plaintiffs/appellants,
challenging the judgment and decree dated 16.01.2020 in
R.A. No.59/2017 on the file of Principal Senior Civil Judge,
Kalaburagi (for short 'First Appellate Court'), confirming
the judgment and decree dated 20.07.2017 in O.S.
No.634/2013 on the file of II Addl. Civil Judge at
Kalaburagi (for short 'Trial Court'), dismissing the suit of
the plaintiffs.
NC: 2024:KHC-K:1366
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 plaintiffs that, land bearing
Sy.No.589 measuring 9 acres 12 guntas was divided
between the brothers of his father by oral partition and in
the said partition, 2 acres 13 guntas was allotted to the
father of plaintiff No.2 (Somalu Rathod). Thereafter, name
of the father of plaintiff No.2 was entered in the record of
rights and he died during 1987. It is the case of the
plaintiffs that, they are in possession of the land in
question and the defendants, without any right over the
property in question, made a claim with regard to the suit
schedule property and as such, the plaintiffs have filed
O.S. No.634/2013 before the Trial Court, seeking relief of
declaration and consequential relief of injunction against
the defendants.
4. On service of notice, the defendants entered
appearance and filed detailed written statement, denying
NC: 2024:KHC-K:1366
the averments made in the plaint. It is the specific case of
the defendants that, there is no actual partition in the
family and further a portion of land to an extent of 6 acres
38 guntas was sold by Somla S/o Chandu as per
registered sale deed dated 09.02.1961 in favour of the
elder brother of defendant No.1 (Roopla S/o Pemu) and
accordingly, sought for dismissal of the suit.
5. Based on the pleadings on record, the Trial
Court framed the issues for its consideration.
6. In order to substantiate their case, plaintiffs
have examined themselves as PW.1 and PW.2 respectively
and got marked four documents as Exs.P1 to P4.
Defendant No.1 was examined as DW.1 and got marked
ten documents as Exs.D1 to D10.
7. The Trial Court, after considering the material
on record, by its judgment and decree dated 20.07.2017,
dismissed the suit of the plaintiffs. Feeling aggrieved by
the same, the plaintiffs have filed R.A. No.59/2017 before
NC: 2024:KHC-K:1366
the First Appellate Court and the appeal was resisted by
the defendants.
8. The First Appellate Court, after re-appreciating
the material on record, by its judgment and decree dated
16.01.2020, dismissed the appeal and as such, confirmed
the judgment and decree passed by the Trial Court.
Feeling aggrieved by the same, the plaintiffs have filed this
Regular Second Appeal.
9. This Court, by order dated 18.08.2023,
formulated the following substantial questions of law for
consideration:
"1. Whether the courts below were justified in
dismissing the suit of the plaintiffs for
declaration when the brother of defendant
No.1 namely, Roopla S/o Pemu had
purchased 06 acres 35 guntas of land only in
Sy.No.589 under registered sale deed dated
09.02.1961?
2. Whether the courts below were justified in
coming to the conclusion that the plaintiffs
are not entitled for the relief sought for only
on the basis of their consent to enter the
name of the defendant No.1 in the revenue
records in respect of suit schedule property?"
NC: 2024:KHC-K:1366
10. I have heard Sri R.S. Sidhapurkar, learned
counsel appearing for the appellants and Sri Prashant
Wajantri and Sri Mahantesh Patil, learned counsel
appearing for the respondents.
11. Sri R.S. Sidhapurkar, learned counsel appearing
for the appellants contended that, both the Courts below
have not considered the actual lis to be resolved between
the parties and without considering the material on record,
both the Courts below were misdirected to look into the
sale deed dated 09.02.1961. Therefore, it is contended by
the learned counsel appearing for the appellants that, both
the courts below based on the mutation entries, dismissed
the suit, despite the division of properties between the
father of plaintiff No.2 and the defendant was proved
before the Trial Court and accordingly, sought for
interference of this Court.
12. Per contra, Sri Prashant Wajantri and
Sri Mahantesh Patil, learned counsel appearing for the
NC: 2024:KHC-K:1366
respondents sought to justify the impugned judgment and
decree of the Courts below.
13. Having heard the learned counsel appearing for
the parties, it is not in dispute that, the plaintiffs have filed
suit, seeking relief of declaration. The land bearing
Sy.No.589 of Srinivas Saradagi village was totally
measuring 9 acres 12 guntas and it is the case of the
plaintiffs that, the aforementioned property was divided
between the brothers as per oral partition and in the said
oral partition, an extent of 2 acres 13 guntas was allotted
to the share of father of plaintiff No.2 (Somalu). After the
death of Somalu, the plaintiffs succeed to the estate to an
extent of 2 acres 13 guntas. The defendants denied the
oral partition between the father of plaintiff No.2 and the
defendants. Perusal of the evidence of PW.1 and PW.2 do
not corroborate the division of properties between the
brothers. In that view of the matter, I am of the view
that, the plaintiffs ought not to have filed suit for
declaration seeking/confirming their right over the
NC: 2024:KHC-K:1366
property, which is undoubtedly the joint family property of
grandfather of plaintiff No.2.
14. At this juncture, it is relevant to cite the
judgment of this Court in the case of Aralappa vs
Sri Jagannath and Others reported in ILR 2007 KAR
339, wherein it is declared that, suit for declaration based
on partition deed cannot be granted, as the partition is not
a transfer and by partition, nobody acquires title to any
property. Partition deed only recognises an existing right.
In the instant case, in the absence of the partition deed
produced by the plaintiffs and that apart, the plaintiffs
having failed to prove the partition being acted upon as
alleged in the plaint, both the Courts below were justified
in dismissing the suit of the plaintiffs. Therefore, the
substantial questions of law favours the defendants.
In the result, the appeal fails and is accordingly
dismissed.
Sd/-
JUDGE
LG
