Karnataka High Court

Shivappa S/O Yallappa Hadapad vs Ramachandrappa S/O Yallappa Hadapad on 5 June, 2024

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                                                       RSA No. 7286 of 2011




                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                            DATED THIS THE 5TH DAY OF JUNE, 2024

                                           BEFORE

                           THE HON'BLE Mrs. JUSTICE K S HEMALEKHA

                          REGULAR SECOND APPEAL NO.7286/2011(DEC,INJ)

                   BETWEEN:

                   SHIVAPPA S/O YALLAPPA HADAPAD
                   AGED ABOUT: 75 YEARS,
                   OCC: AGRICULTURE
                   R/O. ANKALAGA, TQ: AKKALAKOT,
                   DIST: SOLAPUR.
                                                               ...APPELLANT
                   (BY SRI SANJEEV KUMAR C. PATIL, ADVOCATE)

                   AND:

                   1.     SRI RAMACHANDRAPPA S/O YALLAPPA HADAPAD
                          SINCE DECEASED BY HIS LR'S.

Digitally signed
by SUMITRA         1(a) SHIVAMMA
SHERIGAR                W/O LATE RAMACHANDRAPPA HADAPAD
Location: High
Court of                AGED ABOAUT 56 YEARS,
Karnataka
                        OCC: HOUSEHOLD
                        R/O. MORARJIPET,
                        SOLAPUR.

                   1(b) SIDRAM S/O RAMACHANDRAPPA HADAPAD
                        AGED ABOAUT 33 YEARS,
                        R/O. MANDAK "M" BLOCK
                        NO.21 AMRUTH NAGAR,
                        BIJAPUR ROAD
                        SOLAPUR.
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                                     NC: 2024:KHC-K:3606
                                         RSA No. 7286 of 2011




1(c)   ASHOK S/O RAMACHANDRAPPA HADAPAD
       AGED ABOAUT 30 YEARS,
       R/O. SEVA SADAN HIGH SCHOOL,
       MURARJIPETH,
       SARASAWATI CHOUK,
       SOLAPUR.

1(d) MALLKIKARJUN
     S/O RAMACHANDRAPPA HADAPAD
     AGED ABOAUT 28 YEARS,
     R/O. KOLI SAMAJ SOCIETY NO.50 PAD PATTI
     SOLAPUR.

1(e) BASAVARAJ
     S/O RAMACHANDRAPPA HADAPAD
     AGED ABOAUT 26 YEARS,
     R/O. ASHOK NAGAR BIJAPUR ROAD,
     FRONT BUS STOP ANKALAGI ROAD,
     SOLAPUR.

                                           ...RESPONDENTS
(BY SRI AJAY KUMAR A.K., ADV., FOR R1(b) TO R1(d);
 R1(a) - APPEAL ABATED V/O DATED 15.03.2024)

     THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO CALL
FOR THE RECORDS AND ALLOW THIS APPEAL BY SETTING
ASIDE THE JUDGMENT AND DECREE PASSED BY THE
PRINCIPAL CIVIL JUDGE SR. DN. AT GULBARGA IN R.A.
NO.24/2004 DATED: 03.06.2011 CONFIRMING THE JUDGMENT
AND DECREE PASSED BY THE CIVIL JUDGE JR. DN. AT
AFZALPUR IN O.S. NO.21/2003 DATED: 09.01.2004 AND TO
DECREE THE SUIT OF THE APPELLANT IN O.S. NO.21/2003.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

The present second regular appeal is by the plaintiff in

O.S. No.21/2003 against the concurrent findings of the Courts

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below, whereby, the suit of the plaintiff for declaration and

permanent injunction was dismissed by the Courts below.

2. Parties herein are referred to as per the ranking

before the trial Court in O.S. No.21/2003.

3. Plaintiff-Shivappa, defendant No.1 -

Ramchandrappa and one Shettappa are brothers born to one

Yallappa Hadapad. The case of the plaintiff-Shivappa is that

the suit property bearing Survey No.89/1 measuring 34 acres 5

guntas was purchased by plaintiff - Shivappa, Ramchandrappa

and Shettappa, out of their joint family income, in the name of

defendant No.1 - Ramchandrappa, as he was their elder

brother. The case of the plaintiff - Shivappa that in the year

1967 there was a oral partition between Shivappa,

Ramchandrappa and Shettappa and as per the partition,

Shettappa has got 9 acre, Shivappa has got 9 acre and

Ramchandrappa has got 16 acres towards the south side of the

suit land and Shettappa and Shivappa has got shares in the

property at Ankalga Village. It is further stated that

subsequently there was an agreement between Shettappa and

Shivappa regarding exchange of their share as per the

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agreement and as per the agreement Shettappa relinquished

his share in Survey No.89/1 in favour of Shivappa as well as

Shivappa has relinquished his share in the property of Ankalga

Village in favour of Shettappa, since then Shivappa is in

possession and enjoyment to the extent of 18 acres of the suit

property and Ramchandrappa is in possession and enjoyment

of the extent of 16 acres in the suit property. It is further

stated that as per the partition and the agreement between

Shettappa and Shivappa, the plaintiff-Shivappa is cultivating 18

acres 5 guntas personally and thereafter he has leased out the

said land to one Satyappa Navi and his brothers and as per the

lease Satyappa and his brothers are cultivating the suit land on

behalf of the plaintiff. It is the contention of the plaintiff-

Shivappa that defendant No.1 Ramchandrappa and his family

members have no right, title or interest over the suit property

to the extent of eastern 18 acres 5 guntas in the suit schedule

property bearing Survey No.89/1 and since, Ramchandrappa

and his family members tried to interfere with the Shivappa's

peaceful possession and enjoyment, they have sought relief of

declaration to declare him as owner and possessor of the suit

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property to the extent of 18 acres 5 guntas towards the Eastern

side.

4. Pursuant to the suit summons, defendant Nos.1 to

5 appeared and filed their written statement, inter alia

contending that the suit land is the self acquired property of

Ramchandrappa, and plaintiff - Shivappa and his brother

Shettappa have no right, title or interest in the suit property.

It is the case of the defendant - Ramchandrappa that he had

left the village Ankgalaga and had come to Solapur to earn his

livelihood and he was working as Peon in the School, out of the

income derived from his service he has purchased the suit land

and he is in possession and enjoyment of the suit land. It is

the case of defendant No.1 - Ramchandrappa that the

properties situated at Ankalga Village alone was the joint family

property of the plaintiff-Shivappa and defendant No.1

Ramchandrappa and their brother - Shettappa. The claim of

the plaintiff - Shivappa that suit property has been purchased

out of the joint family one is denied specifically by defendant

No.1 - Ramchandrappa.

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5. It is pertinent to note that defendant No.1 -

Ramchandrappa filed suit against Shettappa and others in O.S.

No.20/2003 for perpetual injunction inter alia contending that

Ramchandrappa has purchased the suit land in Survey No.89/1

measuring 34 acres 5 guntas (O.S. No.20/2003) and it is the

self acquired property of said Ramchandrappa. The

defendants, who are Shettappa and others in the said suit

denied the ownership and possession of the entire suit land. It

is contended in the said suit that the two brother Shettappa

and Shivappa have jointly acquired the suit property and there

was a partition between Ramchandrappa and his two brothers

Shettappa and Shivappa and as per the partition, share in the

Eastern portion of the suit land to the extent of 18 acre was

allotted to Shettappa and Shivappa was given the portion of the

suit land allotted to Ramchandrappa. Further, the written

statement of defendants in O.S. No.20/2003 is similar to the

pleadings of the plaintiff-Shivappa in O.S. No.21/2023.

6. The trial Court, on the basis of the pleadings,

framed the following issues:

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"ISSUES IN O.S. NO.169/1974(O.S.NO.20/2003)

1. Does the plaintiff prove that he is in lawful possession of suit land to the extent of 34 Acres 5 Guntas?

2. Does defendants prove that they are the tenants of eastern portion of suit land to the extent of 18 Acres?

3. Does defendants prove that the suit is bad for non-joinder of necessary parties ?

4. Whether the plaintiff is entitled for the relief as prayed for?

5. What Decree or Order?

ISSUES IN O.S. NO.152/1975(O.S.NO.21/2003)

1. Does plaintiff proves that Sy. No.89/1 measuring 34 Acres 8 Guntas is a joint family property of himself, defendant and Shettappa?

2. Does plaintiff proves that in the year 1967 there was an oral partition between himself, defendant and Shettappa and the suit land

Acre 5 Guntas was allotted to his share and since then he is in possession of its as owner?

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3. Does defendant prove that Sy. No.89/1 measuring 34 Acres 8 Guntas is his self acquired property?

4. Whether the suit is properly valued for the purpose of Court fee and jurisdiction and Court fee paid is sufficient?

5. Whether the suit is bad for non-joinder of necessary parties?

6. Whether the plaintiff is entitled for the reliefs sought-for?

7. What Decree or Order?"

7. Ramchandrappa, who is a plaintiff in O.S.

No.20/2003 examined himself as PW1 and one witness as PW2

and got marked as Exs.P1 to P5. The defendants in O.S.

No.20/2003 have not led any evidence on their behalf. The

plaintiff - Shivappa in O.S. No.21/2003 examined himself as

PW1 and three witnesses as PWs.2 to 4 and got marked

documents at Exs.P1 to P15. On the other hand, defendant -

Ramchandrappa examined himself as DW1 and two witnesses

as DW.2 and 3 and marked documents as Exs.D1 to D4.

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8. The trial Court, on the basis of pleadings and oral

and documentary evidence held that:

i. Shivappa failed to prove that Survey No.89/1

measuring 34 acres 5 guntas of land is the joint family

property of himself, defendant No.1 and Shettappa.

ii. That the plaintiffs failed to prove that there

was an oral partition between himself, defendant No.1

and Shettappa and the suit land towards the west side of

Survey No.89 to the extent of 18 acres 5 guntas is

allotted to his share and since then he is in possession as

owner.

iii. That the defendant proved that Survey

No.89/1 measuring 34 acres 5 guntas of land is his self

acquired property and by the judgment and decree the

trial Court dismissed O.S. No.21/2003.

9. The trial Court arrived at a conclusion in O.S.

No.20/2003 filed by Ramchandrappa that the Ramachandrappa

has proved that he is in lawful possession of the suit land to the

extent of 34 acres and 5 guntas (2) that the defendant failed to

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prove that they are the tenants of Eastern portion of the suit

land to the extent of 18 acres.

10. By the judgment and decree, the trial Court decreed

the suit of Ramchandrappa restraining the defendants from

interfering with the peaceful possession and enjoyment of the

suit property bearing Survey No.89/1 measuring 34 acres 5

guntas.

11. Aggrieved, the plaintiff in O.S. No.21/2003 -

Shivappa preferred RA No.24/2004 assailing the judgment and

decree passed by the trial Court in O.S. Nos. 20/2003 and

21/2003.

12. The first appellate Court, by re-appreciating the

entire oral and documentary evidence, dismissed the appeal

filed by Shivappa. Aggrieved by the same, the plaintiff -

Shivappa in O.S.No.21/2003 is before this Court.

13. Heard Sri Sanjeevkumar C. Patil, learned counsel

appearing for the appellant and Sri Ajaykumar A.K., learned

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counsel appearing for the respondents and perused the

judgment and decree of the courts below.

14. The plaintiff in O.S.No.21/2003 contended that the

suit property Sy.No.89/1 measuring 34 acres 8 guntas of Teloni

village was purchased in the name of Ramchandrappa out of

the joint family funds and in an oral partition between

Shivappa, Ramchandrappa and Shettappa, the property was

divided and subsequently, the brother Shettappa has

relinquished his share in favour of Shivappa and the plaintiff-

Shivappa is cultivating as owner in possession to the extent of

18 acres 5 guntas of the suit property. In order to substantiate

that the joint family had sufficient means to purchase the

property in the name of Ramchandrappa, no material are

forthcoming other than mere assertion on the part of the

plaintiff - Shivappa. On the other hand, the defendant -

Ramchandrappa categorically stated having self income and

having purchased the property in his name.

15. The other round of contention of plaintiff - Shivappa

is that in a family partition between himself and two brothers,

plaintiff - Shivappa is allotted 18 acres 5 guntas in the suit

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property. The Trial Court, on appreciation of the entire oral and

documentary evidence, has rightly arrived at a conclusion that

the plaintiff in O.S.No.21/2003 has failed to prove that there

was a relinquishment transaction between Shivappa and

Shettappa and as well as the partition between plaintiff and

defendants and has rightly dismissed the suit.

16. The material on record would indicate that the

O.S.21/2003 of the plaintiff - Shivappa/appellant herein was

dismissed and the suit of the plaintiff - Ramchandrappa in

O.S.No.20/2003 was decreed. Aggrieved by the two decrees in

O.S.No.20/2003 and O.S.No.21/2003, Shivappa preferred a

single appeal before the first appellate Court. The first

appellate Court held that the single appeal was maintainable as

the plaintiff - Shivappa was not a party in O.S.No.20/2003.

The law is well established that against two judgments and

decrees, though a common judgment is delivered, single appeal

is not maintainable. The appellate Court has fell in error in

holding that a single appeal was maintainable against two

judgment and decree i.e. in O.S.No.20/2003 and

O.S.No.21/2003. It is also relevant to state that in the present

regular second appeal the appellant has challenged the

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judgment and decree passed in R.A., however seeking to set

aside the decree in O.S.No.21/2003. What remains before this

Court is that the plaintiff - Shivappa has preferred appeal only

against the dismissal of his suit. The judgment and decree

passed in O.S.No.20/2003 filed by the plaintiff -

Ramchandrappa has attained finality.

17. This Court in the case of Mallanna alias Appaiah vs.

Smt. Muninanjamma alias Nanjamma1 has held at para-5 as

under:

"5. On the first substantial question of law about the justification of the lower Appellate Court entertaining single appeal, it has to be held that it was not justified in doing so. The reason is, admittedly two suits were filed by the parties against each other. For the sake of convenience the trial Court bas passed a common judgment. The trial of the suits was separate and the judgment and decree in the two suits are different. The first appellate Court has reversed the result in both the suits in a single appeal. That was not permissible in law. Even though the judgment is common, for all practical purposes it shall be treated as two judgments and decrees. Hence the lower Appellate Court was not justified in passing the judgment and decree under appeal in a single appeal filed before it. As there was no challenge to

AIR 2001 KARNATAKA 2005

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the judgment and decree in O.S. No. 542 of 1989 before the first appellate Court, there should not have been any interference with the same by the Lower Appellate Court. The Lower Appellate Court has exceeded its jurisdiction by exercising power in a field where it was not called for."

18. The co-ordinate bench of this Court in identical

circumstances, in the case of Bhimanna S/o Chandrappa

Maruthi vs. Basanna since dead by LRs in RSA No.3214/2007

connected with RSA No.3215/2007 dated 02.09.2022 has

categorically stated that a single appeal is not maintainable

against two different judgments placing reliance on Mallanna's

case stated supra.

19. The first appellate Court, on merits has re-

appreciated and reconsidered the entire oral and documentary

evidence and has rightly arrived at a conclusion that the

appellant - Shivappa plaintiff in OS.No.21/2003 has failed to

establish his right, title and interest over the suit property. The