Karnataka High Court

Shri.Keludeppa S/O Hanumappa Jalgar vs Shri.Mallappa S/O Hanmappa Jogi on 26 June, 2024

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                                                      NC: 2024:KHC-D:8701
                                                       RSA No. 100291 of 2018




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 26TH DAY OF JUNE, 2024

                                             BEFORE

                             THE HON'BLE MR JUSTICE C.M. POONACHA

                    REGULAR SECOND APPEAL NO. 100291 OF 2018 (DEC/INJ-)

                   BETWEEN:

                   SHRI. KELUDEPPA S/O HANUMAPPA JALGAR
                   AGE: 54 YEARS, OCC: KSRTC DRIVER/AGRICULTURE
                   R/O. SARJAPUR, TQ: RON, DIST:GADAG,
                   NOW AT JALIHAL, TQ: BADAMI
                   DIST: BAGALKOT.
                                                                    ...APPELLANT
                   (BY SRI S.S.NIRANJAN, ADVOCATE FOR
                   SRI RAMAKRISHNA G. DHONGADI, ADVOCATE)

                   AND:

                   1.   SHRI. MALLAPPA S/O HANMAPPA JOGI,
                        AGE: 33 YEARS, OCC: AGRICULTURE
                        R/O SARJAPUR, TQ: RON,
                        DIST: GADAG, NOW AT JALIHAL,
                        TQ: BADAMI, DIST: BAGALKOT,
Digitally signed
by SAROJA          2.   SHRI PARASAPPA S/O HANMAPPA JOGI
HANGARAKI               AGE: 40 YEARS, OCC: AGRICULTURE,
Location: HIGH          R/O. SARJAPUR, TQ: RON,
COURT OF
KARNATAKA               DIST: GADAG, NOW AT JALIHAL,
DHARWAD                 TQ: BADAMI, DIST: BAGALKOT.
BENCH                                                             ...RESPONDENTS
DHARWAD

                         THIS RSA IS FILED U/S. 100 OF CPC, 1908, PRAYING TO SET
                   ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.2/2017 ON
                   THE FILE OF SENIOR CIVIL JUDGE AND JMFC, RON DATED
                   26.02.2018 AND SET ASIDE THE JUDGMENT AND DECREE IN
                   O.S.NO.230/2011 DATED 04.06.2014 PASSED BY THE CIVIL JUDGE
                   AND JMFC, RON AND DECREE THE SUIT OF THE PLAINTIFF
                   AWARDING HALF SHARE TO THE PLAINTIFF IN THE SUIT PROPERTY.

                        THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
                   COURT DELIVERED THE FOLLOWING:
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                                              NC: 2024:KHC-D:8701
                                                 RSA No. 100291 of 2018




                                   JUDGMENT

The present second appeal is filed by the plaintiff

under Section 100 of Code of Civil and Procedure, 19081

challenging the judgment and decree dated 26.02.2018

passed in R.A No.2/2017 by the Senior Civil Judge and

JMFC, Ron2 and the judgment and decree dated

04.06.2014 passed in O.S No.230/2011 by the learned

Principal Civil Judge and JMFC, Ron3, whereunder, the suit

for partition filed by the plaintiff has been decreed

granting 1/3rd share each to the plaintiff and defendants,

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) The relevant facts necessary for consideration of

the present appeal are that the plaintiff filed a suit

contending that he is the absolute owner of ½ share in the

property bearing survey No.45/2, situated in Sarjapur

village, Ron Taluk, which measures 5 acres 7 guntas and

Hereinafter referred to as 'CPC'

Hereinafter referred to as the 'First Appellate Court'

Hereinafter referred to as the 'Trial Court'

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hence, he is the owner to an extent of 2 acres 23½

guntas. That the defendants owned the other ½ share by

virtue of a family partition. That the plaintiff was in

possession of the eastern side and defendants are in

possession of the western side, but no boundaries have

been fixed. That when the plaintiff approached the

defendants to measure the respective portions and fix the

boundaries, since the same was not accepted by the

defendants and they started interfering with his possession

of the property, the plaintiff filed a suit for declaration and

consequential relief of injunction and also prayed for

granting of ½ share along with separate possession.

4) The defendants entered appearance in the suit

and contested the case of the plaintiff. It is contended by

the defendants that the property belongs to the propositus

Hanamappa, who had three children i.e., defendants No.1

and 2 (Parasappa and Mallappa) and Bylappa. That, since

Hanamappa had developed bad habits, the elders of the

village, to protect his family property, got executed a Gift

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deed in the name of his children i.e., defendants No.1 and

2, and since Bylappa was a minor, the name of Dyamavva

was shown as the minor guardian. That by taking

advantage of her name appearing in the Gift deed, her

name was also entered in the RTC extracts to the suit

property along with the names of the children of

Hanamappa. However, it is contended that since there was

a condition of non-alienation, the Gift deed was a void

document and the defendants are the absolute owners of

the suit property. Hence, the defendants filed a

counterclaim seeking to declare that they are the absolute

owners of the suit property with consequential relief of

injunction against the plaintiff.

5) To the counterclaim filed by the defendants, the

plaintiff filed a rejoinder stating that the only daughter of

Dyamavva is the mother of the plaintiff and hence, he has

½ share in the suit property. That the counterclaim of the

defendants is barred by limitation.

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6) Consequent to the pleadings of the parties, the

Trial Court framed the following issues and additional

issues:

ISSUES i. "Whether the plaintiff proves that he is the absolute owner of suit schedule property?

ii. Whether the plaintiff further proves that he is in lawful possession and enjoyment of the suit schedule property?

iii. Whether the plaintiff further proves that defendants are illegally interfering in his peaceful possession and enjoyment over the suit schedule property?

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

v. Whether the defendants prove that they are the absolute owners of the counterclaim

acre 7 guntas?

vi. Whether the defendants prove that they are in lawful possession and enjoyment of the suit schedule property?

vii. Whether the defendants further prove that the plaintiff is interfering in their peaceful

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possession and enjoyment over the counterclaim property?

viii. Who is entitled for what relief?

ix. What order or decree?

ADDITIONAL ISSUE i. Whether the plaintiff proves that the counterclaim of the defendants is barred by law of limitation?"

7) The plaintiff examined himself as PW.1. Ex.P1 to

Ex.P9 have been marked in evidence. The defendant No.1

examined himself as DW.1. Ex.D1 to Ex.D3 have been

marked in evidence.

8) The Trial Court by its judgment and decree dated

04.06.2014, decreed the suit and granted 1/3rd share to

the plaintiff and 2/3rd share to the defendants jointly.

9) Being aggrieved, the plaintiff preferred R.A

No.2/2017. The defendants entered appearance before the

First Appellate Court and contested the said proceedings.

The First Appellate Court framed the following points for

consideration:

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i. "Whether the Trial Court has committed an error by ignoring the principles of natural justice, and by not properly appreciating the evidence placed on record in a judicious manner, came to the wrong conclusion in connection with the case of the appellant?

ii. Whether the impugned judgment and decree calls for the interference by this Court?

iii. What order or decree?"

10) The First Appellate Court by its judgment and

decree dated 26.02.2018, dismissed the appeal and

confirmed the judgment and decree passed by the Trial

Court. Being aggrieved, the present second appeal is

filed.

11) Learned counsel for the appellant contends that

the plaintiff is in actual possession of 2 acres 23 ½ guntas

out of 5 acres 9 guntas of the suit property and hence,

entitled for ½ share in the suit property. He further

contended that both the Courts have concurrently erred in

awarding 1/3rd share to the plaintiff. Hence, he seeks for

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allowing of the appeal and granting of the reliefs sought

for.

12) The submissions of the learned counsel for the

appellant have been considered and material on record

has been perused.

13) It is forthcoming that both the Courts have

recorded a concurrent finding that vide Gift deed (Ex.P9),

the suit property has been gifted by Hanamappa in favour

of Smt.Dyamavva and his children Mallappa and

Parasappa. That both the Courts have concurrently noticed

the Mutation Registration No.6/2007-08 and 2009-2010

(Ex.P6 and Ex.P7) and that the total extent of the suit

property stands in the joint names of the plaintiff and the

defendants.

14) In Ex.P6, mode of acquisition of the property has

been mentioned as pavati and in Ex.P7, mode of

acquisition of property has been mentioned as ancestral.

The death certificate of Hanamappa Parasappa Jogi

(Ex.P3) reveals that he died on 02.10.1976 and the death

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certificate of Dyamavva Bailappa Jogi (Ex.P4) reveals that

she died on 27.04.1990. The records produced by the

defendants also demonstrate that the revenue records in

respect to the suit property stood in the name of

Hanamappa Parasappa Jogi. It has been held that, since

the Gift deed (Ex.P9) has been executed more than 30

years prior to the suit and there is no material to

discard/disbelieve the same and also having regard to the

fact that the revenue records stand jointly in the name of