Karnataka High Court
Shivappa S/O Giriyappa Thumminakatti vs Shiddappa Adoptive Father ... on 12 February, 2024
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RSA No. 100827 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100827/2014(DEC/INJ)
BETWEEN:
SRI SHIVAPPA
S/O. GIRIYAPPA THUMMINAKATTI,
AGED ABOUT 69 YEARS,
OCC: AGRICULTURE,
R/AT: KADUR, TQ: HIREKERUR,
DIST: HAVERI - 581 110.
...APPELLANT
(BY SRI AVINASH BANAKAR, ADVOCATE)
AND:
SRI SHIDDAPPA ADOPTIVE
FATHER BASAVANNEPPA THUMMINAKATTI,
AGED ABOUT 53 YEARS,
AGRICULTURE,
R/AT: KADRU, TQ: HIREKERUR,
DIST: HAVERI - 581 110.
...RESPONDENT
Digitally
signed by (BY SRI RAJASHREE KUSUMAKAR, ADVOCATE)
VINAYAKA
BV THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT & DECREE DATED 26.08.2014 PASSED IN
R.A.NO.45/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., HIREKERUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 10.09.2007 AND THE DECREE
PASSED IN O.S. NO.24/1999 ON THE FILE OF THE CIVIL JUDGE
(JR.DN) AND JMFC., AT HIREKERUR, DECREEING THE SUIT FILED
FOR DECLARATION AND CONSEQUENTIAL RELIEF OF PERMANENT
INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100827 of 2014
JUDGMENT
The defendant in O.S.No.24/1999 has filed this
regular second appeal challenging the judgment and
decree of the trial Court and the First Appellate Court by
which the plaintiff was declared to be the owner of the suit
property and the defendant was restrained from
interfering with the possession of the plaintiff.
2. The suit property was a land bearing Panchayat
No.597 of Kadur Gram Panchayat, Hirekerur Taluk, Haveri
District. The plaintiff claimed that the suit property was
owned and possessed by Basavanneppa, his adoptive
father and that he was in possession and enjoyment of the
suit property till his life time. After his death, the plaintiff
came in possession and enjoyment of the suit property
which was assigned Panchayat No.597 where a black tiled
house existed. He claimed that the appurtenant vacant
space was used and occupied by him to tether cattle. He
contended that the defendant was in no way concerned
with the suit property but he created records in the office
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of the Panchayat by bifurcating the property as Panchayat
Nos.597A and 597B. The Panchayat Officers thereafter
assigned property bearing Nos.764 and 765 to Panchayat
Nos.597A and 597B, respectively. The plaintiff claimed
that the suit property was one composite property bearing
Panchayat No.597 and the consequent bifurcation at the
behest of the defendant was without any basis. He
therefore, sought for a declaration that he is the owner of
the suit property and sought for perpetual injunction.
3. The defendant contested the suit and claimed
that he, the plaintiff and Chandrashekarappa
Thumminakatti were entitled to equal share in the suit
schedule property and that the Moola Tippani indicated the
name of the plaintiff's adoptive father as well as the name
of the father of the defendant and name of the father of
Chandrashekarappa Thumminakatti. He therefore
contended that the defendant had an undivided 1/3rd
share in the suit property and that based on this, he
submitted a Varadi to the Panchayat to effect partition and
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accordingly, the property bearing Panchayat No.597 was
bifurcated into Panchayat Nos.597A and 597B.
4. Based on these contentions, the trial Court
framed the following issues:
"1. Whether plaintiff proves his exclusive title and
possession over suit schedule property bearing old
No.597 and new no.765 of Kadur Gram
Panchayath, measuring 126' east-west and north-
south 60' ?
2. Whether plaintiff proves that defendant got
entered his name in panchayat records in collusion
with VPC authorities?
3. Whether defendant proves the correctness of the
sketch?
4. Whether plaintiff proves that defendant attempted
to encroach upon suit property and tried to
construct house therein?
5. whether defendant proves that the property 597
was divided as A and B and subsequently it was re
numbered as 764 and 765 as per Panchayath
Rules ?
6. Whether defendant proves that cause of action is
imaginary?
7. Whether plaintiff is entitled for declaration and
consequential relief of injunction?
8. What Order or Decree?"
5. The plaintiff was examined as PW1 and he
marked EXs.P1 to P11. He also examined two other
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witnesses as PWs.2 and 3. Defendant No.1 on the other
hand was examined as DW1 and examined
Chandrashekarappa Thumminakatti as DW2 and one more
witness as DW3 and marked Exs.D1 to D9.
6. Based on the oral and documentary evidence,
the trial Court decreed the suit on the following grounds:
(i) The documents at Exs.P6 and P7 established that
Form No.9 issued in respect of the property
bearing Panchayat No.597 for the year 1967-68
stood in the name of Basvaneppa and the
subsequent entries as per Exs.P4, P5, P7 and P8
stood in the name of Basvaneppa.
(ii) That the properties of the family of the plaintiff's
predecessors and the predecessors of the
defendant were divided long back which was
admitted by DW2 and therefore, there was no
evidence to indicate that the suit property was held
jointly.
(iii) The documents produced by the defendants were
for the years 1965-66 to 1998-99, which indicated
that the properties were divided based on the
Varadi submitted by the defendants. Therefore,
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this bifurcation of property bearing Panchayat
No.597 into Panchayat Nos.597A and 597B was
without any basis.
(iv) That the defendant was not in the possession of
the suit property which was evident from his cross-
examination though he claimed to the contrary in
the written statement that he had constructed a
house in the portion that fell to his share.
(v) That the document which was marked at Ex.D8
could not be believed as there was no evidence to
show that it was in respect of the suit property.
7. The trial Court hence declared that the plaintiff
was the owner of the suit property and granted perpetual
injunction.
8. Being aggrieved by the said judgment and
decree, the defendant filed R.A.No.45/2011. The First
Appellate Court secured the records of the trial Court,
heard the parties and framed the following points for its
consideration:
"1. Whether the lower court has justified in Affirming
the issue Nos.1,2 and 4 holding that, the plaintiff
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has established his exclusive title and possession
over the suit property bearing old VPC No. 597,
New VPC No. 765, measuring 126 ft East-West and
60 ft North-South situated at Kadur Village and the
defendant has got entered his name in the
panchayath records in collusion with the VPC
authorities and thereby attempted to encroach into
the open-space and tried to construct the house
holding that, the defendant has failed to establish
that, the correctness of the sketch and property
was divided as A and B and subsequently re-
numbered as 764 and 765 as per panchayath rules
and the cause of action shown is imaginary one?
2. Whether the judgment and decree of the lower
court is arbitrary, base-less, capricious, devoid of
merits, erroneous, frivolous and perverse without
being on the sound principles of law and warrants
for the interference by the instant court?
3. To what order or decree?"
9. The First Appellate Court noticed that DW2 who
was the cousin of the defendant, who admit that there was
no relationship by blood between the adoptive father of
the plaintiff and their father. The First Appellate Court held
that DW2 admitted that the properties were divided 60
years back and the panchayat records from the year 1966-
67 indicated the name of Basvaneppa. Therefore it held
that there was no evidence to establish that this property
was held jointly by the plaintiff and the defendant.
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Consequently, it dismissed the appeal and confirmed the
judgment and decree of the trial Court.
10. Being aggrieved by the said judgment and
decree, the defendant has filed this regular second appeal.
11. Learned counsel for the defendant vehemently
contended that the trial Court and the First Appellate Court
did not peruse Ex.D1 which was the RTC in respect of
Sy.Nos.1 plot No. 3 which corresponded to the suit
property for the years 1997-98 and 1998-99 which
indicated the name of the father of the defendant and the
father of DW2 in column No.9. He also submitted that
Ex.D2 was the property assigned with Panchayat No.764
and the name of the defendant was entered in the records
of the panchayat. Ex.D3 is the licence issued by the
Panchayat for construction of the house and Ex.D5 is the
licence fee paid to the panchayat while Ex.D.4 was the
house tax. Exs.D6, 7 and 8 were the photographs of a
very old shed constructed by the defendant in the suit
property used for tethering cattle. He therefore submits
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that the trial court and the First Appellate Court committed
error in ignoring the evidence on record and rolling out a
perverse finding that the plaintiff is the absolute owner of
the suit property. He also referred to Ex.D9 and contended
that the name of the propositus of the family namely
Hallappa was entered in the records based on a Varadi
submitted on 08.07.1928 and that the said Hallappa being
the grandfather of the defendant, there was something to
indicate that this property was held jointly by the sons of
Hallappa namely the adoptive father of the plaintiff as well
as the father of the defendant. He therefore submits that
there are clear evidence which indicates that the property
was jointly held by the plaintiff and the defendant and
hence, the trial Court committed error in decreeing the
suit in favour of the plaintiff.
12. Learned counsel for the plaintiff on the other
hand contended that the plaintiff was not related to the
defendant in any manner whatsoever though they were
related by kinship. She submitted that the suit property
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stood in the name of the adoptive father of the plaintiff
from the year 1966-67 and no steps were taken by
defendants or their predecessors during the life time of the
adoptive father of the plaintiff, claiming their share in the
suit property. It is long after the death of the adoptive
father of the plaintiff that the defendant had raised a claim
in respect of the suit property. She contends that the
defendant taking advantage of his proximity with the
President of the Panchayat had got the property bifurcated
into Panchayat Nos.597A and 597B and thereafter,
obtained the licences to seem as if the defendant was
permitted to put up the construction. She submitted that
the defendant though claimed in his written statement that
he has constructed a house after demolishing the old
structure, however, he resiled from their claim in his
cross-examination and claimed that he did not construct
any house in the suit property. She therefore submitted
that there is no evidence to indicate that the defendant
had ever exercised any right over the suit property. She
further contends that DW2 had admitted that the
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properties of the family were divided between the children
of Hallappa several years back and therefore, in the
absence of anything to show that this property was held
jointly by the adoptive father of the plaintiff as well as the
grandfather of the defendant, the trial Court and the First
Appellate Court had rightly decreed the suit.
13. I have considered the submissions made by the
learned counsel for the defendant and the plaintiff. I have
also perused the records of the trial Court as well as the
judgment and decree of the trial Court and the First
Appellate Court.
14. It is evident from the records produced by the
plaintiff before the trial Court that at an undisputed point
of time, the name of the adoptive father of the plaintiff
was entered in the Panchayat records for the year 1966-
67. This position continued till the year 1995-66 and for
the first time, the name of the defendant was entered in
the panchayat records as per Ex.D2. There is no mention
as to how the defendant was laying a claim to the suit
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property though in his cross-examination he specifically
contended as follows:
"ªÁ¢ £À£Àß PÀPÌÀ . §¸ÀªÀuÚÉ¥àÀ¤UÉ zÀvÄÀ Û ºÉÆÃVzÁÝ£É. §¸ÀªÀuÚÉÃ¥Àà ºÁUÀÆ
PÁqÀ¥Àà ¸ÀºÉÆÃzÀgÀgÀÄ. £À£ßÀ vÀAzÉ ºÁUÀÆ ªÁ¢ zÀvÄÀ Û vÀAzÉ §¸ÀªÀuÚÉ¥àÀ SÁ¸À
CtÚvÀªÀÄäA¢gÀÄ C¯Áè. zÁªÁ ¸ÉÆwÛ£À C¼ÀvÉ £À£ÀUÉ UÉÆvÀÄÛ, zÁªÁ ¸ÉÆvÀÄÛ ¥ÀÆ-
¥À:126 Cr, ºÁUÀÆ G-zÀ: 65 Cr EzÉ. zÁªÁ¸ÉÆvÀÄÛ §¸ÀªÀuÚÉ¥àÀ PÁqÀ¥àÀ
MAzÀÄ»¸Éì, ºÀ£ÀªÀÄAvÀ¥àÀ ¤AUÀ¥àÀ MAzÀÄ»¸Éì, ºÁUÀÆ VjAiÀÄ¥Àà ¸ÀtÚ ¤AUÀ¥àÀ
MAzÀÄ »¸Éì F ¥ÀæPÁgÀ 3 »¸ÉìÃUÀ¼ÄÀ ¸ÁªÀÄÆ»PÀªÁV C£ÀĨsÀ«¸ÀÄwÛzÁÝgÉ. ªÉÄïÉ
ºÉýzÀ 3 d£À »¸ÉìÃzÁgÀgÄÀ MAzÉà vÀAzÉ ªÀÄPÀ̼À¯Áè C£ÀÄߪÀÅzÀÄ ¤d. ªÉÄïÉ
ºÉýzÀ 3 »¸ÉìÃzÁgÀjUÉ AiÀiÁªÀ »¸ÉìAiÀÄ°è ¸ÁªÀÄÆ»PÀ »¸ÉìAiÀiÁ¬ÄvÀÄ ºÉüÀ®Ä
DUÀĪÀÅ¢¯Áè. D jÃw »¸Éìà CtÚvÀªÄÀ äA¢gÀ ¸ÁªÀÄÆ»PÀ »¸ÉìÃ
ªÀiÁrPÉÆArzÁÝgÉ."
15. The aforesaid evidence indicates that the
adoptive father of the plaintiff and the grandfather of the
defendant were brothers. The evidence of DW2 indicates
that their properties were divided long back. Since the
panchayat records disclose the name of the adoptive
father of the plaintiff from the year 1966 and 1967
onwards in respect of the suit property, it is rather difficult
to accept that at this point of time that the defendant
continued to have any share over the suit schedule
property or that it was held in common by the adoptive
father of the plaintiff and the defendant.
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16. The oral evidence on record discloses that the
panchayat records were altered by the defendant taking
advantage of his closeness with the President of Kerur
Panchayat namely Mr.Prabhu Nadiger. Therefore, in the
absence of any proof to show that the defendant had any
joint interest in the suit property, the trial Court as well as
the First Appellate Court were justified in decreeing the
suit. There is no error committed by the trial Court and the
First Appellate Court warranting interference by this Court.
As no substantial question of law arises for consideration
in this appeal, the appeal lacks merits and is dismissed.
SD/-
JUDGE
RH
CT-ASC
