Karnataka High Court
Bheemangouda S/O. Kallangouda Patil vs Veeranagouda S/O. Bheemangouda Patil on 10 January, 2024
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RSA No. 6057 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.6057/2012(DEC)
BETWEEN:
BHEEMANGOUDA
S/O. KALLANGOUDA PATIL,
AGE: 47 YEARS,
OCC: BRANCH POST MASTER,
R/O: CHIKKANKOPPA,
TQ: YELBURGA,
DIST: KOPPAL - 583 236.
...APPELLANT
(BY SRI ROHIT PATIL, ADVOCATE)
AND:
SRI VEERANAGOUDA
S/O. BHEEMANGOUDA PATIL,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: CHIKKANAKOPPA,
TQ: YELBURGA,
DIST: KOPPAL - 583 236.
Digitally
signed by ...RESPONDENT
VINAYAKA (BY SRI SANGRAM S. KULKARNI, ADVOCATE FOR
BV SRI V.P.KULKARNI, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED
16.07.2012 PASSED IN R.A.NO.12/2011 ON THE FILE OF SENIOR
CIVIL JUDGE AT YELBURGA, DISMISSING THE APPEAL BY
CONFIRMING THE JUDGMENT DATED 25.03.2011 AND THE DECREE
PASSED IN O.S.NO.34/2005 ON THE FILE OF THE CIVIL JUDGE AND
JMFC, YELBURGA, DECREEING THE SUIT FILED FOR DECLARATION
AND POSSESSION.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 6057 of 2012
JUDGMENT
This appeal is filed challenging the concurrent finding of
fact recorded by both the courts that the plaintiff is entitled to
the relief of declaration of title and recovery of possession of
the suit property from the defendant.
2. For the sake of convenience and easy understanding, the
parties shall be referred to as they were arrayed before the trial
court. The appellant was the defendant while the respondent
was the plaintiff before the trial court.
3. The suit in O.S. No. 34/2005 was filed for declaration of
recovery of possession of a house property bearing no. 93/3
and appurtenant open space bearing no. 92/2 situated in
Chikenkoppa, Taluk Yelburga. The plaintiff claimed that he was
the owner in possession of the suit property. The plaintiff
claimed that he had three brothers, namely, Kallangouda,
Jayanagouda and Shivangouda. The defendant was the son of
eldest brother of the plaintiff. He claimed that he and his
brothers were divided at an oral partition. Accordingly, the suit
property fell to the share of the plaintiff and corresponding
entries were made in the patta and Pouti book was issued by
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the gram panchayat. Likewise, separate pattas were granted
to the brothers of the plaintiff. The plaintiffs claimed that
defendant was the Postmaster at a branch at Chikenkoppa
where there was no proper house and therefore he requested
the plaintiff to allow him to use the said property. The plaintiff
in deference to the relationship, permitted the defendant to use
and occupy the suit property. However, due to a dispute
between the plaintiff and defendant over an agricultural land,
the defendant refused to vacate the suit property despite being
demanded by the plaintiff to do so. The plaintiff was therefore
compelled to seek for the relief of declaration and recovery of
possession of the suit property.
4. The defendant who entered appearance claimed that the
suit property belonged to his father and that he acquired it in a
partition between him and his brothers. He contended that the
suit property did not belong to the plaintiff and that the
property which belonged to him was situated in the middle of
the property belonging to the family.
5. Based on these pleadings, the trial court framed the
following issues.
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ISSUES
1) Whether the plaintiff proves that, boundaries of the suit
property furnished in the plaint are true and correct?
2) Whether the plaintiff proves that, he is the owner and
possessor of suit property?
3) Whether the plaintiff proves that, defendant is having
permissive possession over the suit property?
4) Whether the plaintiff is entitled relief sought for?
5) What order or decree?
6. The plaintiff was examined as PW1 and he marked Exs.P.1 to
P.17. The defendant was examined as DW1 but he did not produce
any documentary evidence to establish his contention.
7. Based on the oral and documentary evidence, the trial court
held that Exs.P.1 to P.7 and P.11 to P.17 were public records issued
in the course of discharge of public duty by a public servant. It held
that a perusal of the documents produced by the plaintiff, established
that the suit property fell to his share at a partition. It also noticed
evidence of DW1 who deposed that the property bearing no.93/3 had
fallen to the share of the plaintiff. Therefore it held that the fact
admitted by the defendant need not be further proved by the plaintiff
and consequently held that the plaintiff had complied with the best
evidence rule by producing oral and documentary evidence to
establish his title to the suit property. It also held that the defendant
did not produce any documents to establish his better right, title or
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interest over the suit property and consequently decreed the suit and
directed him to hand over vacant possession of the suit property to
the plaintiff.
8. Being aggrieved by the same, defendant filed R.A. No.
12/2011. The first appellate court secured the records of the
trial court, heard the learned counsel for the parties and framed
the following points for consideration.
(1) Whether the judgment and decree passed by lower
court calls for interference?
(2) What order?
9. The first appellate court after considering the oral and
documentary evidence held that the plaintiff had produced
documents to establish that pursuant to an oral partition,
revenue entries were brought about in respect of suit property
which indicated that he was owner of the suit property. It also
perused the written statement of the defendant where he
admitted that the property no. 93 was divided amongst the
plaintiff and his brother. It noticed evidence of DW1 where he
admitted that property bearing no. 93/3 fell to the share of the
plaintiff. The first appellate court therefore held that the
documents produced by the plaintiff clearly established his title
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to the suit property and since the defendant was admittedly in
possession of the suit property without any title but was in
permissive possession, held that the plaintiff was entitled to
recover possession of the property. Consequently, dismissed
the appeal in terms of the judgment and decree dated
16.07.2012. Being aggrieved by the said judgment and
decree, the defendant no.1 has filed this appeal.
10. Learned counsel for the defendant submitted that though
property no. 93 was owned by the family and which was later
divided into four pieces, the middle portion of the property fell
to the share of the plaintiff which was mentioned in the suit.
He submitted that there was discrepancy regarding the
boundaries mentioned in the schedule to the suit. Hence,
plaintiff was not entitled to claim title and recover possession.
11. Learned counsel for the plaintiff on the other hand
contended that if property bearing no. 93 was owned by the
joint family which was divided into four portions, it was
incumbent upon the defendant to prove which portion of the
land fell to his father and which portion of the property which
fell to the share of the plaintiff by producing oral and
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documentary evidence. He submitted that defendant admitted
that property no. 93 fell to the share of the plaintiff at the
partition. Therefore, in the absence of any material to establish
that the boundaries mentioned in the suit schedule did not
correspond to the property no. 93/3, there is no reason to
disturb or unsettle the judgment and decree passed by the trial
court and the first appellate court.
12. I have considered the submissions made by the learned
counsel for the plaintiff and the learned counsel for the
defendant. I have also perused the records of the trial court as
well as its judgment and decree. I have also perused the
judgment of the first appellate court.
13. A perusal of the records disclose that the plaintiff had
claimed title of the property no. 93/3 and the appurtenant open
space in no. 92/2. The plaintiff claimed that this property fell
to his share at a partition between him and his brothers. He
also claimed that corresponding entries were made in the
panchyath records in respect of property no. 93/3 and open
space no. 92/2. In support of his claim he marked Ex.P.1
which was the patta and Pouti Book in respect of property no.
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93/3 and 92/2 respectively. The name of the plaintiff was
entered in Ex.P.1 as the owner and occupant of both the
properties. Exs.P.2 to P.4 which were the tax paid receipts
indicate that it was the plaintiff who had paid tax in respect of
the property no. 93/3 and Ex.P.5 to P.7 were tax paid receipts
in respect of property no. 92/2. House property extracts which
were marked Ex.P.11, P.15 to 17 concerning the land bearing
no. 92/2 indicated that the plaintiff was the owner of the
property. In view of the admission by the defendant that
property no. 93 was owned by the family which was later
divided into four shares and 93/3 fell to the share of the
plaintiff, it was incumbent upon the defendant to establish that
the property claimed in the suit was not allotted to the share of
the plaintiff at the partition and that some other property was
allotted to him. Except the oral evidence adduced by the
defendant, no documentary evidence was produced before the
trial court to establish that the property bearing no. 93/3 with
the boundaries mentioned in the suit was not allotted to the
plaintiff at the partition. No attempt was made by the
defendant to establish that he had any title to the property
no.93/3 and 92/2.
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14. In that view of the matter, the trial court and the first
appellate court were justified in decreeing the suit of the
plaintiff for declaration of title and for recovery of possession.
Consequently, no substantial question of law arises for
consideration in this appeal. Accordingly, the appeal is
dismissed. However, time of three months is granted to the
defendant to vacate and deliver vacant possession of the suit
property to the plaintiff.
In view of disposal of the appeal, pending IAs, if any, also
stand disposed off.
SD/-
JUDGE
BVV
CT-ASC
