Karnataka High Court
Pundalik S/O Bhimayya Waddar Died By Lrs ... vs Mallikarjun S/O Sangayya Puranik And ... on 5 July, 2024
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RSA No. 200319 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.200319/2022(DEC/INJ)
BETWEEN:
PUNDALIK S/O BHIMAYYA WADDAR
DIED BY LR'S.
1. SARASWATI W/O LATE PUNDALIK,
AGE: 68 YEARS, OCC: HOUSEHOLD,
2. AMBUBAI (D/O LATE PUNDALIK)
W/O KANTHAPPA
AGE: 48 YEARS, OCC: NIL,
3. BHIMRAO S/O LATE PUNDALIK
AGE: 46 YEARS, OCC: AGRICULTURE,
Digitally signed
by SUMITRA 4. SMT. NAGAMMA (D/O LATE PUNDALIK)
SHERIGAR
Location: HIGH
W/O MANOJ
COURT OF AGE: 43 YEARS, OCC: HOUSEHOLD,
KARNATAKA
5. RADHABAI (D/O LATE PUNDALIK)
W/O RAJU
AGE: 38 YEARS, OCC: HOUSEHOLD,
6. PARASHURAM S/O LATE PUNDALIK
AGE: 29 YEARS, OCC: AGRICULTURE,
ALL ARE R/O. H.NO. 9-726,
SHAH BAZAR, WADDAR GALLI,
KALABURAGI-585101.
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RSA No. 200319 of 2022
7. AHAMADMIYAN S/O GULAM MUSTAFA
AGE: 60 YEARS, OCC: NIL,
R/O: H.NO. 111041/K,
34/G.F.K., GULSHANA
EUSTAFA, COMPOUND,
MISBA NAGAR, MSK MILL RING ROAD,
KALABURAGI-585101.
8. HULEPPA S/O BAILAPPA HERUR
AGE: 55 YEARS, OCC: ADVOCATE,
R/O: ASHOK NAGAR,
NEAR SAMUDAYA BHAVAN,
KALABURAGI-585101.
...APPELLANTS
(BY SRI K.M. GHATE, ADVOCATE)
AND:
1. MALLIKARJUN S/O SANGAYYA PURANIK
AGE: 43 YEARS,
OCC: AGRICULTURE,
2. SUSHILA
W/O RAVINDRA KUMAR PURANIK
AGE: 44 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD,
3. PRASHANT
S/O LATE RAVINDRA KUMAR PURANIK
AGE: 28 YEARS, OCC: STUDENT,
4. MEGHA
D/O LATE RAVINDRA KUMAR PURANIK
AGE: 26 YEARS, OCC: STUDENT,
5. SHRUTI
D/O LATE RAVINDRA KUMAR PURANIK
AGE: 24 YEARS, OCC: STUDENT,
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RSA No. 200319 of 2022
ALL ARE R/O. M.I.G. 19,
1ST PHASE, ADARSH NAGAR,
KALABURAGI-585103.
...RESPONDENTS
(BY SRI RAMCHANDRA K., ADV. FOR R1 AND R2;
NOTICE TO R3 TO R5 DEEMED SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYIGN TO CALL FOR RECORDS OF
R.A. NO.57/2018 ON THE FILE OF THE III ADDL. DISTRICT
AND SESSIONS JUDGE, KALABURAGI AND RECORDS OF O.S.
NO.117/2015 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE,
KALABURAGI AND THEREBY PLEASED TO ALLOW THE REGULAR
SECOND APPEAL AND THEREBY PLEASED SET ASIDE THE
JUDGMENT AND DECREE IN R.A. NO.57/2018 ON THE FILE FO
III ADDL. DISTRICT AND SESSIONS JUDGE, KALABURAGI
DATED 27.09.2021 AND THEREBY SET ASIDE THE JUDGMENT
AND DECREE IN O.S. NO. 117/2015 ON THE FILE OF PRL.
SENIOR CIVIL JUDGE, KALABURAGI DATED 01.03.2018 AND
THEREBY PLEASED TO DISMISS THE SUIT FILED BY THE
RESPONDENTS/PLAINTIFFS THROUGHOUT COST.
THIS APPEAL, COMING ON FOR DICTATION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Assailing the legality and correctness of the judgment and
decree of the Courts below, whereby, the suit seeking
declaration and perpetual injunction was decreed, the
defendants are before this Court.
2. Parties herein are referred to as per their ranking
before the trial Court for the sake of convenience.
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3. Suit property is land bearing Sy.No.52/3 measuring
4 acres 9 guntas (hereinafter referred to 'suit property' for the
sake of convenience). Suit seeking relief of declaration and
permanent injunction, to declare the plaintiffs as the joint
owners and possessors of the suit property, further to declare
the sale deeds executed in favour of defendant No.2 and in
favour of defendant No.3 as null and void and to grant a
permanent injunction restraining defendants from alienating or
encumbering the suit property and for rectification of revenue
records. Defendant No.1 was the owner and possessor of the
land bearing Sy.No.52 measuring 16 acres 35 guntas.
Defendant No.1 sold 4 acres 9 guntas to Veerendra Kumar S/o.
Sangayya Puranik and Gangamma D/o. Sangayya Puranik by
executing the registered sale deed dated 12.04.1988, further
defendant No.1 sold 4 acre 9 guntas towards Southern side,
the 3rd strip of the said land from North in favour of Veerendra
Kumar S/o. Sangayya Puranik, further he sold 4 acres 9 guntas
in favour of plaintiff No.1 and his brother - Ravindra Kumar
under registered sale deed dated 13.04.1988. Pursuant to the
sale deeds executed by defendant No.1, plaintiff No.1 and after
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the death of Ravindra Kumar plaintiff Nos.2 to 5 as his legal
heirs are in enjoyment and possession of the suit property.
4. On service of notice, defendants appeared and filed
their written statement, inter alia, denying the claim made by
the plaintiffs. Defendant No.1 contended that he is the owner
and possessor of the land bearing Sy.No.53 measuring 16 acres
35 guntas and he has retained 4 acres 9 guntas. According to
defendant No.1, he has executed registered sale deed dated
12.04.1988 in favour of Sangayya, in favour of Veerendra
Kumar S/o. Sangayya Puranik and Gangamma D/o. Sangayya
Puranik and another sale deed 13.04.1988 in favour of
Ravindra Kumar and plaintiff No.1. According to defendant
No.1, he has executed three sale deeds by selling 9 acres 4
guntas and he has retained 4 acres 9 guntas. It is stated that
defendant No.1 has sold the said portion in favour of defendant
No.2 by virtue of a registered sale deed dated 20.07.2012 and
also sold 30 guntas of land bearing Sy.No.52/3 in favour of
defendant No.3 by executing registered sale deed dated
12.03.2013. It is contended by the defendants that the
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plaintiffs have no registered document or title deed in their
favour for seeking relief of declaration.
5. On the basis of the pleadings, the trial Court framed
the following issues:
"1. Whether the plaintiffs prove that they are
the joint owners and possessors of the suit
property?
2. Whether the plaintiffs prove that sale deeds
bearing document No.5816/2014-15 dated
20.07.2012 and document No.GLB.1-
04256/2015-16 dated 30.06.2015 being
null and void are not binding upon them?
3. Whether the plaintiffs prove that the
defendants are trying to alienate the suit
property?
4. Whether the defendants prove that the
defendant No.1 has legally executed the
registered sale deeds bearing document
No.145/1988-89 dated 12.04.1988 in
favour of Sangayya S/o Sharnayya Puranik,
sale deed bearing No.144/1988-89 dated
12.04.1988 in favour of Virendra Kumar
S/o Sangayya Puranik and Kumari
Gangamma D/o Sangayya Puranik and sale
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deed bearing No.159/1988-89 dated
13.04.1988 in favour of Ravindrakumar S/o
Sharnayya Puranik and Mallikarjun S/o
Sangayya Puranik?
5. Whether the defendants prove that the
defendant No.1 being the owner and
possessor has legally sold the suit property
in favour of defendant No.2 by virtue of
sale deed bearing document No.5816/14-
15 dated 20.07.2012?
6. Whether the defendant No.2 has legally
sold 30 gunats in the suit property in
favour of the defendant No.3 by executing
registered sale deed bearing document
No.4256/2014-15 dated 12.03.2015?
7. Whether the defendants prove that the suit
of the plaintiffs is hit by principles of
Respondent-Judicata?
8. Whether the defendants prove that the suit
of the plaintiffs is barred by law of
limitation?
9. Whether the plaintiffs are entitled for the
reliefs as prayed for?"
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6. In order to substantiate their claim, plaintiff No.1
examined himself as PW1 and marked documents at Exs.P1 to
P29. On the other hand, defendant No.2 examined himself as
DW1 and got marked documents at Exs.D1 to D14.
7. On the basis of the pleadings, oral and
documentary evidence, the trial Court arrived at a conclusion
that:
i) the plaintiffs have proved that they are the joint
owners and possessors of the suit property;
ii) the plaintiffs have proved that the sale deeds dated
20.07.2012 and 30.06.2015 are null and void and not binding
upon them;
by the judgment and decree the trial Court decreed the
suit holding that the plaintiffs are the absolute joint owners and
possessors of the suit property and the sale deeds executed by
defendant No.1 in favour of defendant No.2 dated 20.07.2012
and 30.06.2015 in favour of defendant No.3 is null and void
and not binding on the plaintiffs and restrained by way of
permanent injunction from interfering in the plaintiffs' peaceful
possession and also granted a permanent injunction restraining
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defendants from alienating and encumbering the suit property
in any manner.
8. Aggrieved, the defendants preferred appeal before
the first Appellate Court. The first Appellate Court, while re-
appreciating the entire oral and documentary evidence
independently, concurred with the judgment and decree of the
trial Court.
9. Aggrieved, the defendants are before this Court in
the regular second appeal.
10. Heard Sri K.M. Ghate, learned counsel for the
appellants and Sri Ramchandra K., learned counsel appearing
for respondent Nos.1 and 2 and perused the material on record
including the original records.
11. Learned counsel for the appellants submits that the
Courts below have committed grave error in recording findings
to the effect that the plaintiffs have proved their title over the
property by oral and documentary evidence without considering
that the plaintiffs have sought for declaration and ownership on
the basis of the registered sale deed dated 12.04.1988 to the
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extent of 4 acres 9 guntas. Learned counsel submits that each
sale deed covered an area of 4 acres 9 guntas and without
producing sale deed in respect of the suit land, which is the 4th
strip, the Courts below were not justified in awarding ownership
in favour of the plaintiffs.
12. Per contra, learned counsel appearing for the
respondents justified the judgment and decree of the Courts
below and submits that no substantial questions of law arise for
consideration in the regular second appeal warranting any
interference by this Court.
13. At the cost of repetition, it is necessary to state
here that the plaintiffs' claim title based on the registered sale
deeds executed by defendant No.1 dated 12.04.1988, one in
favour of Sangayya, and another in favour of Veerendra Kumar
S/o. Sangayya Puranik and Gamgamma D/o. Sangayya Puranik
and another sale deed dated 13.04.1988 in favour of Ravindra
Kumar and plaintiff No.1 in respect of the suit property. Exs.P1
and P2 are the registered sale deeds, Exs.P3 is the copy of the
judgment in O.S. No.383/2000 filed by Sangayya-the father of
plaintiff No.1 against defendant Nos.1 and 2 and one
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Shivasharanappa S/o. Revansiddappa Khemji. The declaration
sought by the plaintiffs against defendant Nos.1 to 3 in the said
suit is to declare himself that he is the absolute owner in lawful
possession of the agricultural land in Sy.No.52 measuring 4
acres 9 guntas described in Para No.2 of the said plaint. The
property mentioned in the said suit is Sy.No.52 measuring 4
acres 9 guntas being southern side situated at Shaik Roja. On
contest, the suit came to be decreed holding that the plaintiffs
proved the execution of the sale deed by defendant No.1,
namely, Pundalik on 12.04.1988 and he is absolute owner of
the suit land. Aggrieved, defendant No.1 - Pundalik therein
had preferred regular first appeal before this Court. This Court
framed the following point for consideration:
"Whether the property which plaintiffs have
purchased under Ex.P12 is situate on the southern
side of the property owned by the first defendant or
not?
14. This Court further extracted the description of the
property as indicated in Ex.P12, which reads as under:
"Vendor as a owner of land Sy.No.52 has
sold a southern portion of 4 (four) acres 09 guntas
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with R.A. of 2-70 of village Shaik Roza, Gulbarga
with the following boundaries:
East : Land of Revansiddappa Khemji
West : Land of Jeelanipasha Shaik
Roza Saheb
North : Remaining portion of Vendor and Sold
to Ravindrakumar S/o. Sangayya
Puranik
South : Land of Shankreppa Dhanger &
Sharanappa Dengi
In page No.2 of the sale deed while referring
to an agreement of sale it is stated as under:
'the Vendor due to his family necessity
has entered into an agreement of sale to sell
his above mentioned land to the extent of 04
acres 09 guntas with `2-70, out of Syl.No.52
towards southern side of village Shaik roza,
Tq: Bulbarga for consideration amount of
`48,000/- which is the present market
value'."
15. This Court at Para No.15 in its judgment has held
as under:
"15. The learned counsel for the appellant submits
that admittedly the 1st defendant is the owner of 16
acres 15 guntas of land. He has executed only
three sale deeds covered 04 acres 09 guntas each
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and therefore he is still continued to be owner of 04
acres 09 guntas, in respect of which no sale deed is
executed, that right of his cannot be denied. The
counsel for the plaintiff submits that by agreement
of sale is for purchase of entire extent of land. It
was divided in four bits. Four agreements of sale
came into existence, possession was delivered
under agreements itself. Three sale deeds are
executed, but still possession of four bits continues
with the plaintiff. The subject matter of the suit is
land measuring 04 acres 09 guntas. In the course
of pleadings, the plaintiff has set out composite
transaction. It is only to support his case, but as
the subject matter of the suit is confined to the suit
schedule property alone, we decline to record any
finding on the aforesaid rival contentions, keeping
open to the parties to agitate their rights, if any, in
proper forum."
16. This Court held that the subject matter of the suit
land measuring 4 acres 9 guntas and according to the first
defendant therein who is defendant No.1 herein, contended
that he has executed only three sale deeds covering 4 acres 9
guntas each and therefore, he still continued to be as owner of
4 acres 9 guntas and in respect of which no sale deed is
executed, and that his right cannot be denied and contention of
the plaintiffs is that the property is divided in four bits. This
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Court dismissed the appeal preferred by defendant No.1 and
held that plaintiffs have sought out composite transaction as
the subject matter of the suit is confined to the suit schedule
alone. This Court declined to declare any findings on the rival
contentions and kept open to the parties to agitate their rights.
It is thereafter defendant No.1 filed O.S. No.49/2006 seeking
for declaration and consequential relief of injunction in respect
of the land in Sy. No.52 to the extent of 4 acres 9 guntas
bounded as East - Shivasharanappa Revenasiddappa Khemji,
West - Jeelani Pasha of Shaik Roza, North - land of son of
defendant Shankreppa Dhangar and South - Sharanappa
Dengi.
17. The declaration was also sought to the effect shown
in the sale deed as null and void and not binding on the
plaintiffs, decree obtained by the defendant in
O.S.No.383/2000 as non-est. The suit on contest came to be
dismissed. In this background, it is relevant to state that the
defendants have failed to establish about the extent of 4 acres
9 guntas of land in his possession after executing the sale
deeds in favour of the father of plaintiff No.1 and one Ravindra
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Kumar - father of plaintiff Nos.2 to 5. The present suit is for
declaration of Sy.No.52/3 measuring 4 acres 9 guntas which is
the subject matter of the suit in O.S.No.49/2006. The
judgment and decree in O.S.No.49/2006 has attained finality,
the order of dismissal against defendant No.1 has been stood
un-assailed. The sale deeds which are executed in favour of
the plaintiff is in the year 1988 and having lost in the suit filed
by defendant No.1, again defendant No.1 cannot raise the very
contention and object the execution of the sale deed by
defendant No.1 in favour of plaintiff No.1 and grand father of
plaintiff Nos.2 to 5. The Trial Court, by considering the oral
and documentary evidence, has arrived at a conclusion that the
plaintiffs have proved that they are entitled for relief of
declaration and permanent injunction.
18. The first appellate Court, being the last fact finding
Court, has re-appreciated the entire oral and documentary
evidence. Exs.P-1 and D3 are the sale deeds dated 13.04.1988
executed by Pundalik - defendant No.1 in favour of Ravindra
Kumar husband and father of plaintiff Nos.2 to 5 and
Mallikarjun S/o Sangayya Puranik (plaintiff No.1) in respect of
Sy.No.52 measuring 4 acres 9 guntas situated at Shaik Roza,
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Kalaburagi City. Ex.P-2 is the sale deed dated 20.07.2012
executed by Pundalik - defendant No.1 in favour of defendant
No.2, in respect of land Sy.No.52/3 measuring 4 acres 9
guntas. As stated supra, Ex.P-3 is the judgment passed in
O.S.No.383/2000 and Ex.P-4 is the judgment passed in RFA
No.354/2006. Exs.P-5 and P-6 are the judgment and decree in
O.S.No.49/2006 filed by defendant No.1 against Sangayya-
father of the plaintiff No.1 in respect of Sy.No.52 measuring 4
acres 9 guntas which came to be dismissed after contest. The
revenue records after the sale by defendant No.1 stands in the
name of Veerendra Kumar, Gangamma, children of Sangayya,
Sangayya S/o Sharanayya, Ravindra Kumar S/o Sangayya and
Mallikarjun. Exs.P-18 and P-19 are the similar revenue records
indicating the names of the purchasers. Ex.P-23 is the sale
deed executed by defendant No.2 in favour of defendant No.3
and Exs.D-1 and D-2 are the sale deeds executed by defendant
No.1 in favour of the plaintiffs. The first appellate Court taking
note of Exs.P-1, Ex.D-3 and Ex.D-2 the sale deeds and the
boundaries therein and comparing the boundaries of all the sale
deeds and the schedule of the suit property along with the
chart which is enumerated hereunder:
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EAST
Land of Revanasiddappa Khemji
Ex.D.1 Ex.P.1 & Ex.D.3 Ex.D.1
Sale deed dated 12-04- Sale deed dated 13- Sale deed dated
1988 by Pundalik 04-1988 by Pundalik 12-04-1988 by
Bheemayya Waddar Bheemayya Waddar Pundalik
Land of Sharanabasappa Appa
Land of Shankereppa Dhanger &
(defendant No.1) in (defendant Bheemayya
favour of No.1)infavour of Waddar
Shanranappa Dengi
(defendant No.1)
1. Veerendra Kumar son 1. Ravindra Kumar son infavour of
NORTH
of Sangayya of Sangayya (plaintiff Sangayya son of
SOUTH
No.1) Sharanayya.
2.Gangamma daughter
of Sangayya. 2. Mallikarjun son of Sy.No.52(04-
Sangayya (husband acres 09 guntas)
Sy.No.52(04-acres 08 and father of plaintiff This property
guntas). Nos.2 to 5 was subject
respectively) matter in O.S.
Sy.No.52(04-acres 09 and O.S.
guntas). Suit property No.49/2006.
WEST
Land of Jeelani Pasha
Schedule of suit property
The land bearing Sy.No.52/3, measuring 04-acres 09 -guntas,
with R.A. of Rs. 2.71 paise, situated at Shaikh Raoza, Tq. And
Dist. Kalaburagi, with the following boundaries.
East Sy.No.179 of Tajsultanpur.
West Sy.No.53 of Shaikh Roza
North Sy. No.52/2 belonging to Veerendra Kumar son of
Sangayya Puranik
South Sy. No.52/4 belonging to Snagayya son of Sharnayya
Puranik
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and arrived at a conclusion that the sale deed Ex.P-1 dated
13.04.1988 so far as east and west concerned was common
boundaries in all the sale deeds, only dispute herein is south
and north. Giving a critical analysis of the entire oral and
documentary evidence, the first appellate Court arrived at a
conclusion that the plaintiffs are the absolute owners in
possession of the suit properties. The manner in which the
Courts below have assessed the entire oral and documentary
evidence, this Court is of the considered view that the same
does not warrant any interference under Section 100 CPC and
no substantial question of law arises for consideration in the
present appeal. Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed with cost of Rs.10,000/- (Rupees
Ten Thousand Only) to be payable by
defendant No.1 to the Legal Services Authority,
High Court of Karnataka, Kalaburagi Bench,
Kalaburagi, within two weeks.
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(ii) The judgment and decree of the Courts below
stands confirmed.
Sd/-
JUDGE
SBS,SWK
CT-VD
