Karnataka High Court
Halagatti Shivappa @ Shivanand vs Ningappa S/O Basappa Megundi on 25 July, 2024
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RSA No. 5422 of 2009
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5422 OF 2009
BETWEEN:
HALAGATTI SHIVAPPA @ SHIVANAND
S/O HANAMAPPA @ HANUMANTAPPA
AGE: 55 YEARS, OCC: AGRI & SERVICE,
R/O BYAHATTI, TQ. HUBLI,
DIST. DHARWAD-581124.
...APPELLANT
(BY SRI S.S.PATIL AND H.N.GULARADDI, ADVOCATES)
AND:
1. NINGAPPA S/O BASAPPA MEGUNDI,
AGE: 60 YEARS, OCC: AGRICULTURE
R/O BYAHATTI, TQ. HUBLI,
DIST. DHARWAD-581124.
2. DYAMANNA S/O YALLAPPA HALAGATTI
AGE: 54 YEARS, OCC: AGRICULTURE,
Digitally signed R/O BYAHATTI, TQ. HUBLI,
by SAROJA
HANGARAKI DIST. DHARWAD-581124.
Location: HIGH ...RESPONDENTS
COURT OF (BY SRI. AVINASH BANAKAR FOR R1.,ADVOCATE)
KARNATAKA
DHARWAD THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
BENCH
DHARWAD JUDGEMENT & DECREE DTD: 15/04/2009 PASSED IN
R.A.NO.30/2007 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE
(SD) HUBLI, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGEMENT AND DECREE DTD: 10/01/2007 PASSED IN
O.S.NO:483/2003 ON THE FILE OF THE I ADDITIONAL CIVIL
JUDGE(JD), HUBLI, DECREEING THE SUIT FILED FOR PERMANENT
INJUNCTION.
THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5422 of 2009
JUDGMENT
The present second appeal is filed by defendant No.1
under Section 100 of Code of Civil Procedure, 19081
challenging the judgment and decree dated 15.4.2009 passed
in RA.No.30/2007 by the I Additional Civil Judge (Sr.Dn), Hubli2
and the judgment and decree dated 10.1.2007 passed in OS
No.483/2003 by the I Additional Civil Judge (Jr.Dn), Hubli3,
whereunder the suit for injunction filed by the respondent
No.1/plaintiff has been decreed by the Trial Court, which has
been affirmed by the First Appellate Court.
2. The parties will be referred to as per their ranking
before the Trial Court, for the sake of convenience.
3. It is the case of the plaintiff that originally 8 acres
of land in R.S No.859/1 of Byahatti village, Hubli taluk,
belonged to defendant No.2 and out of the said land, the
plaintiff has purchased 4 acres of land in the year 2001. That
subsequent to the said purchase, he is in actual possession and
enjoyment of the suit property, without any interference
whatsoever. That the defendants having no manner of right
whatsoever tried to interfere and obstruct the plaintiff's
Hereinafter referred to as 'CPC'
Hereinafter referred to as the 'first appellate Court'
Hereinafter referred to as the 'Trial Court'
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possession of the property purchased by him. Hence, the
plaintiff has filed the suit for injunction.
4. The defendants entered appearance through their
counsel and defendant No.1 filed his written statement. The
defendant No.1 denied the plaint averments, and contended
that the defendants No.1 and 2 are the co-owners and joint
owners of the property, and are in actual possession of the suit
property. That the defendants filed O.S No.161/1984 for
partition and as per the judgment and decree passed in the
said suit, as well as R.A No.27/1992, and FDP No.6/2003, the
defendants are in actual possession of the suit property. That
the plaintiff has no locus standi whatsoever to purchase the suit
property during the pendency of the said litigation. It is
contended that the alleged sale transaction between the
plaintiff and defendant No.2 is not legal and valid, and the
same is not binding on the defendant No.1. That when the
defendants are in actual possession and the plaintiff is not in
possession, the question of interference would not arise. Hence,
the defendant No.1 sought for dismissal of the suit.
5. Consequent to the pleadings of the parties, the Trial
Court framed the following issues:
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i. "Whether the plaintiff proves that, he is in
possession of the suit property?
ii. Whether the plaintiff proves that, the obstruction of
the defendants?
iii. Whether the defendants entitle for permanent
injunction?
iv. What order or decree?
AMENDED ISSUE No.3
Whether the plaintiff is entitled to the relief of
permanent injunction?"
6. The plaintiff examined himself as PW.1. Two
witnesses have been examined as PW.2 and PW.3. Ex.P1 to
Ex.P8 has been marked in evidence. The defendant No.1 has
been examined as DW.1. Ex.D1 to Ex.D4 has been marked in
evidence.
7. The Trial Court by its judgment and decree dated
10.1.2007, decreed the suit and passed the following order:
"The suit filed by the plaintiff is hereby decreed.
The defendants are hereby directed by way
decree of permanent injunction not to interfere and
obstruct with plaintiff's peaceful possession over the
suit schedule property.
No order as to costs.
Draw decree accordingly."
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8. Being aggrieved, the defendant No.1 preferred R.A
No.30/2007. The plaintiff entered appearance before the First
Appellate Court and contested the same.
9. The First Appellate Court framed the following
points for consideration:
i. "Whether the lower court is justified in holding that
the plaintiff has established his lawful possession
and enjoyment over the suit schedule property and
alleged interference by the defendants and
proceeded to decree the suit by answering issues 1
to 3 in the affirmative?
ii. Whether the findings given by the lower court on
all the issues are perverse, capricious,
unreasonable and so passed without appreciation
of oral and documentary evidence in its true
perspective which warrants any interference by this
appellate court?
iii. What order?"
10. The First Appellate Court by its judgment and
decree dated 15.4.2000, dismissed the appeal with cost and
confirmed judgment and decree passed by the Trial Court.
Being aggrieved, the present second appeal is filed.
11. This Court vide order dated 17.2.2014, admitted
the above appeal and framed the following substantial question
of law:
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"Whether the trial Court and the first appellate
Court have committed a serious error in ignoring the
material evidence on record more particularly when
the Sale Deed came into existence prior to the
allotment of shares u/S 54 of CPC as evident from
Ex.D.4?"
12. Learned counsels for the appellant
Sri.H.N.Gularaddi and Sri.H.N.Gularaddi vehemently contends
that the suit for injunction ought not to have been entertained
and injunction ought not to have been granted by both the
Courts in view of the fact that the defendant No.2, who is
vendor of the plaintiff and the defendant No.1 are admittedly
co-owners of the suit property. Hence, the defendant No.2
could not have sold his portion and put the plaintiff in separate
possession. That the plaintiff would be entitled to seek for
allotment of the share that was allotted to defendant No.2 in
the suit for partition filed between the defendants by
participating in the final decree proceedings. He further
contends that the plaintiff having purchased the property from
defendant No.2 during the pendency of F.D.P. No.6/2003, the
contention that he was in actual possession of suit property,
ought not to have been accepted by both the Courts. Hence, he
seeks for allowing of the above appeal and setting aside of the
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judgment and decree passed by the Trial Court and the First
Appellate Court.
13. Per contra, the learned counsel for respondent
No.1/plaintiff Sri.Avinash Banakar justifies the judgment and
decree passed by the Trial Court, which has been affirmed by
the First Appellate Court and submits that both the Courts
having concurrently held that the plaintiff is in actual
possession of the suit property, the injunction granted by the
Trial Court which has been affirmed by the First Appellate Court
is just and proper. That this Court ought not to interfere with
the concurrent findings recorded by both the Courts. Hence, he
seeks for dismissal of the above appeal.
14. The submissions of both the learned counsels have
been considered and material on record has been perused.
15. Before noticing the contentions put forth by both
the learned counsels, it is relevant to notice the findings
recorded by the Trial Court and the First Appellate Court.
16. The Trial Court, while answering the issues framed
for consideration, has recorded the following findings:
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i. Admittedly, it is a bare suit for injunction and
the point that should be determined is
pertaining to possession and not regarding title;
ii. The plaintiff has produced the certified copy of
the record of rights pertaining to suit schedule
property as per Ex.P1 to Ex.P3 which discloses
that the plaintiff's name is forthcoming to an
extent of 4 acres of land out of 18 acres in R.S
No.859/1;
iii. The revenue records give rise to a presumption
that the person whose name is entered is in
actual possession of the suit property, unless
and until the revenue documents are rebutted;
Admittedly, the entries are of the year 2002-03
and till today the same stands unchallenged;
iv. Ex.P4 is the sale deed as per which the plaintiff
has become the absolute owner of the suit
property and subsequent to this, there is a
mutation entry wherein the sale transaction
between the plaintiff and defendant No.2 has
been entered. Further, there is a mention that
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the defendant No.2 was the absolute owner
prior to the sale transaction vide Gift deed. The
Gift transaction has been entered into Ex.P6,
which is the mutation entry in the year 2002;
v. The suit is not at all a comprehensive suit. The
rights of the parties over the suit property is
being considered or determined, to the limited
extent of relief sought in the plaint.
vi. The plaintiff has rightly established his
possession over the suit property by appropriate
document. If at all the defendants are aggrieved
by the transaction which according to them is
not binding upon them, it is not a proper forum,
to adjudicate the same. The defendants have
got every opportunity to challenge the same by
seeking necessary declaration and relief as
against Sale Deed, as per which, the plaintiff is
claiming ownership of the suit property;
vii. The defendants, who have produced Ex.D1 to
Ex.D4, have failed to establish that they are in
actual possession of the suit property.
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17. The Fist Appellate Court, while considering the
points framed for consideration, has recorded the following
findings:
i. The defendant had produced Ex.D1 memo
submitted by the Court Commissioner in F.D.P.
No.6/2003, wherein, the present appellant was
plaintiff, and vendor of the plaintiff was
defendant, and defendants No.1 and 2 are
brothers and they are having several properties.
Ex.D2 is a Commissioner report which reads as
along with the other property in block No.859,
14 acres as per preliminary decree, the present
appellant Shivappa was having 1/3rd share in
the said block No.859, as also it was reported
portions and northern share was given to the
present appellant. Ex.D3 is the panchanama
drawn on this spot on 17.4.2002, and Ex.D4 is
the certified copy of final decree;
ii. No doubt, the Court Commissioner has divided
the entire extent in block No.859/1 of 14 acres
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into 3 divisions and according to the
Commissioner report, 1/3rd of the portion was
allotted to the share of the present appellant on
the said date. If, it is proved before the Court
that in the said block No.859/1B, 4 acres of land
was already in the possession of the plaintiff,
the question of handing over of possession to
the present appellant does not arise at all for
the simple reason that the plaintiff was not a
party in F.D.P. No.6/2003. No notice was served
on him. He was not a party to the mahajar;
iii. It is worth to appreciate that the original Sale
Deed executed by defendant No.2, dated
30.05.2001, is produced by the plaintiff that 4
acres of land covering the boundary shown in
the Sale Deed was sold in favour of present
plaintiff for valuable consideration of
₹2,17,000/-;
iv. During the pendency of the appeal and R.A
No.27/92, the defendant No.2 had sold 4 acres
of land in favour of plaintiff through a registered
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Sale Deed(Ex.P4) and that application filed by
the appellant to raise the ground that the suit is
not maintainable, on the ground of lis pendence,
has been rightly been dismissed by the lower
Court, on the ground that it is not a declaratory
suit of title and only for limited purpose of
possessory remedy;
v. PW.1 has made it clear that on the date of
purchase of the said 4 acres from the vendor,
he was the owner of the land, and his name was
found in the R.T.C;
vi. Ex.P2 shows that as per the Court decree in the
year September 2003, 4 acres of land in block
No.359/1A was issued in the name of defendant
No.1. Ex.P3 is the R.T.C. showing the name of
the plaintiff in respect of 859/1B 4 acres of land.
Ex.P7 is R.T.C. pertaining to suit property for
the year 2003 shows the name of plaintiff.
Ex.P8 is the sketch obtained by survey
department in the year 2003, which clearly
shows that the southern portion from out of 8
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acres, 4 acres which is mentioned in Ex.P2
R.T.C. of 2003 as per decree was standing in
the name of the plaintiff;
vii. It appears that out of 14 acres in the said block
No.859, present appellant Shivappa was entitled
to 1/3rd share. Therefore, he claims that he is
entitled to an other 26 and half guntas, and he
started interfering with the possession of the
plaintiff can very well be gathered from the
circumstances.
viii. Both the witnesses, Ex.P2 and Ex.P3, have
spoken that they are the agriculturists and
resident of Byahatti village and they are
cultivating the lands situated adjacent to R.S
No.859/1B. Therefore, facts are within the
knowledge of the independent witnesses, who
have unequivocally stated that since 2001
onwards from the date of purchase of 4 acres of
land of the suit property, the plaintiff is in lawful
possession and enjoyment, and is cultivating
the said land. That defendant No.1 is not at all
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in possession of any portion of the suit
property;
ix. The plaintiff has clearly given extent and
boundaries of 4 acres of land in his possession
and by virtue of Ex.P4, registered Sale Deed,
purchased it for consideration and his name is
appearing in the records;
x. Here what is spoken by PW.1 and PW.2 in their
examination-in-chief that from date of purchase
of 4 acres of land suit property the plaintiff, in
collusion with defendant No.2 started interfering
previous to filing of the suit, and they have
unequivocally stated that defendant No.1 is
trying to encroach 26 guntas of land in R.S
No.859/1B extent of 4 acres in possession of
the plaintiff. What indicates that these
independent witnesses who are in know of the
matter that R.S No.859/1A, 4 acres as per
R.T.C. (Ex.P2), since from the date of year 2003
as per Court decree is standing in the name of
plaintiff. Only southern portion of 4 acre suit
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property 859/1B as per R.T.C. standing in the
name of the plaintiff. That means, as per the
recitals of registered Sale Deed (Ex.P4), the
plaintiff has purchased in the southern portion 4
acres covering the boundary shown in the suit
schedule and he was inducted in possession by
his erstwhile owner.
xi. His vendor might be a co-owner with the
present appellant and there might be a pending
suit. But the point for consideration that the
plaintiff was inductive in possession by virtue of
the registered Sale Deed;
xii. The recitals of the registered Sale Deed
regarding handing over of possession, which has
been acted upon. The entries in R.T.C. and
mutation also show that in column 12(3), 4
acres of land in actual possession of the
plaintiff. Therefore, the plaintiff is in lawful
possession and enjoyment of the suit property
since 30.05.2001 from the date of registered
sale deed stands established.
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18. It is forthcoming from the aforementioned that, both
the Courts, noticing that the Sale Deed dated 30.05.2001
(Ex.P4) was executed in favour of the plaintiff and noticing the
revenue records, wherein, the name of the plaintiff has been
entered into, consequent to the said Sale Deed (Ex.P4), has
recorded a finding that the plaintiff has demonstrated that he is
in actual possession of the suit property and hence, granted
injunction.
19. It is relevant to note that the undisputed fact situation
is that the defendant Nos.1 and 2 were co-owners of the suit
property, and a suit in O.S No.161/84 was pending between
the said parties for partition of the suit property. That during
pendency of R.A No.27/92, the defendant No.2, executed the
registered Sale Deed dated 30.05.2001 (Ex.P4) in favour of the
plaintiff. It is further relevant to note that the final decree
proceedings in F.D.P No.6/2003 was initiated pursuant to the
preliminary decree passed in O.S No.161/84 and in the said
final decree proceedings, the Commissioner report (Ex.D2) has
been filed on 19.04.2002, pursuant to which, the final decree in
F.D.P. No.6/2003 (Ex.D4) has been drawn. It is clear that the
Sale Deed in favour of the plaintiff was executed by defendant
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No.2, who is a co-owner of the suit property, before the final
decree has been drawn.
20. In this context, it is relevant to note the following
judgments:
i) The Hon'ble Supreme Court in the case of
Siddeshwara Mukharjee Vs. Bhubneshwar Prasad
Narain Singh4 has held as follows:
11. The High Court has held that this claim of the
plaintiff must fail. All that he purchased at the execution
sale was the undivided interest of the coparceners in the
joint property. He did not acquire title to any defined
share in the property and was not entitled to joint
possession from the date of his purchase. He could work
out his rights only by a suit for partition and his right to
possession would date from the period when a specific
allotment was made in his favour. In our opinion, this is
the right view to take and Mr. Daphatary, who appeared
in support of the appeals, could not satisfy us that in law
client was entitled to joint possession on and from the
date of purchase.
(emphasis supplied)
ii) The Hon'ble Supreme Court in the case of
Manikayala Rao, Vs. M. Narasimhaswami and
others5 held has follows:
15. As earlier stated the High Court held that
Art. 144 applied. The application of this article
AIR 1953 SC 487
AIR 1966 SC 470
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seems to us to present great difficulties to some of
which we like to refer, That article deals with a suit
for possession of immovable property or any interest
therein not otherwise specially provided for and
prescribes a period of twelve years commencing from
the date when the possession of the defendant
becomes adverse to the plaintiff. This article
obviously contemplates a suit for possession of
property where the defendant might be in adverse
possession of it as against the plaintiff. Now it is well
settled that the purchaser of a coparcener's
undivided interest in joint family property is not
entitled to possession of what he has purchased. His
only right is to sue for partition of the property and
ask for allotment to him of that which on partition
might be found to fall to the share of the coparcener
whose share he had purchased.
(emphasis supplied)
iii) In the case of Ramdas V. Sitabai & Ors6 has
relying on its earlier judgment rendered in the case of
Manikayala Rao Vs. M. Narasimhaswami and others
has held as follows:
5. Without there being any physical formal
partition of an undivided landed property, a co-
sharer cannot put a vendee in possession although
such a co-sharer may have a right to transfer his
undivided share."
(emphasis supplied)
AIR 2009 SC 2735
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iv) A Division Bench of Patna High Court in the case of
Sheonandan Prasad Sao, Vs. Ugrah Sao and others7
held as follows:
15. There is thus a preponderance of Judicial
opinion in favour of the view that alienation of an
undivided share in a joint property whether by private
treaty or under execution sale does not operate to
cause severance in status and does not destroy the
right of survivorship between the alienating member
and the remaining members.
(emphasis supplied)
21. Having regard to the settled position of law as
aforementioned, it is not open to a co-owner to alienate any
specific portion of the joint property owned by him along with a
co-owner. It is also relevant to note that, in the event, a co-
owner alienates his share of a joint property, the remedy open
to a purchaser is to file a suit for partition.
22. In the present case, the plaintiff has instead, filed a
suit for injunction. It is further pertinent to note that the
plaintiff has not participated in the final decree proceedings in
F.D.P No.6/2003, wherein, he ought to have sought for
allotment of the property purchased by him to the share of his
vendor/defendant No.2, which he has failed to do.
AIR 1960 Patna 66
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23. The Trial Court and the First Appellate Court has
undertaken a detailed appreciation of the factual matrix which
it ought not to have undertaken.
24. Having regard to the aforementioned, it is clear that
the judgment and decree passed by the Trial Court, which is
affirmed by the First Appellate Court, is contrary to the
aforementioned settled proposition of law. Hence, the
substantial question of law is required to be answered in the
affirmative.
25. However, it is relevant to note that it shall be open to
the plaintiff to challenge the final decree passed in F.D.P
No.6/2003, and if such a challenge is made, the same shall be
considered without considering any objection as to limitation.
26. Hence, the following:
ORDER
i. The above appeal is allowed subject to the
observations made at para No.25 herein
above;
ii. The judgment and decree dated 10.1.2007
passed in OS No.483/2003 by the I
Additional Civil Judge (Jr.Dn), Hubli, as
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affirmed by the judgment dated 15.4.2009
passed in RA.No.30/2007 by the I Additional
Civil Judge (Sr.Dn), Hubli, are set aside.
Sd/-
JUDGE
PMP
List No.: 1 Sl No.: 58/CT:GSM
