Karnataka High Court
Waman S/O Appanna Panchal And Ors vs Kishanrao S/O Vithalrao Died Through ... on 27 June, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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RSA No. 7207 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
REGULAR SECOND APPEAL NO. 7207 OF 2013 (DEC)
BETWEEN:
1. WAMAN S/O APPANNA PANCHAL,
AGED ABOUT 57 YEARS,
OCC: GOLDSMITH & CARPENTER,
2. KISHAN S/O APPANNA PANCHAL,
AGED ABOUT 49 YEARS,
OCC: CARPENTER,
3. MOHAN S/O APPANNA PANCHAL,
AGED ABOUT 44 YEARS,
OCC: CARPENTER,
Digitally
signed by
SHILPA R
ALL R/O. VILLAGE BHOSAGA,
TENIHALLI TQ: BASAVAKALYAN, DIST: BIDAR.
Location:
HIGH ...PETITIONERS
COURT OF
KARNATAKA
(BY SRI K. M. GHATE, ADVOCATE)
AND:
1. KISHANRAO S/O VITHALRAO
DIED THROUGH HIS LRS
A. GULYABAI
W/O LATE KISHANRAO PATIL,
AGED ABOUT 54 YEARS,
OCC. HOUSEHOLD,
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RSA No. 7207 of 2013
R/O. BHOSGA VILLAGE,
TQ: BASAVAKALYAN, DIST: BIDAR.
B. SUNITA W/O RAM SALUNKE,
AGED ABOUT 37 YEARS,
OCC: HOUSEHOLD,
R/O. VILLAGE KASARE ASHTA,
TQ: LOHARA, DIST: OSMANABAD,
MAHARASTRA.
...RESPONDENTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF THE CPC PRAYING TO
ALLOW ABOVE REGULAR SECOND APPEAL AND SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE DATED 13.03.2013
PASSED BY CIVIL JUDGE (SR.DN.) AT BASAVAKALYAN, IN
R.A.NO.12 OF 2010, CONFIRMING THE JUDGMENT AND
DECREE DATED 23.01.2010, IN O.S.NO.54/2001 PASSED BY
CIVIL JUDGE (JR.DN.) BASAVAKALYAN.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs have preferred this regular second
appeal under Section 100 of Code of Civil Procedure with a
prayer to set-aside the judgment and decree dated
23.01.2010 passed in O.S.No.54/2001 by the Court of the
Civil Judge (Jr.Dn.) and JMFC, Basavkalyan and the
judgment and decree dated 13.03.2013 passed in
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R.A.No.12/2010 by the Court of the Senior Civil Judge,
Basavakalyan.
2. Heard the learned counsel for the parties.
3. The plaintiffs had filed O.S.No.54/2001 before
the Court of the Civil Judge (Jr.Dn.) at Basavkalyan
seeking a decree of declaration of ownership over the suit
schedule property and also for consequential relief of
perpetual injunction.
4. In the plaint, it was contended by the plaintiffs
that the their father was the exclusive owner in possession
of the suit schedule property which consists of a house
bearing Grampanchayat No.23, measuring east-west 36
feet and north-south 48 feet situate at Ward No.1 of
Bhosga Village, Basavkalyan Taluk. After the death of their
father, plaintiffs had succeeded to the suit schedule
property in which a hut with zinc sheet also existed. The
defendants are unsocial element tried to interfere and
obstruct the possession and enjoyment of the suit
schedule property by the plaintiffs and it is in this
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background, they had approached the Court seeking
necessary relief against the defendant.
5. The defendant had filed written statement on
their behalf denying the plaint averments and contended
that the suit was filed only with an intention to grab the
portion of his house bearing Grampanchayat No.1-17
which is wrongly shown as the suit schedule property
bearing No.1-23. It was denied that the father of the
plaintiffs was the owner in possession of the suit schedule
property. It was contended that the defendant and his
brother were the owners in possession of the suit schedule
property and the plaintiffs had no title, right or interest
over the same. It was further contended that taking
advantage of the entry made in the revenue records in the
name of the father, the plaintiffs have filed the suit making
a false claim against the property of the defendant.
6. On the basis of the rival pleadings the Trial
Court had framed as many as eight issues and in order to
substantiate their case plaintiffs had examined three
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witnesses as PW.1 to PW.3 and got marked 11 documents
as Ex.P-1 to Ex.P-11. On behalf of the defendant, three
witnesses were examined as DW.1 to DW.3 and 11
documents marked as Ex.D-1 to Ex.D-11. The Trial Court
thereafter heard the arguments addressed on both sides
and vide impugned judgment and decree dated
23.01.2010 dismissed the suit of the plaintiffs.
7. Being aggrieved by the same, the plaintiffs had
filed R.A.No.12/2010 before the Court of the Senior Civil
Judge at Basavkalyan and the said appeal was dismissed
on 13.03.2013. Aggrieved by the concurrent findings
recorded by the Courts below the plaintiffs are before this
Court.
8. This Court had admitted this appeal on
24.09.2013 without framing any substantial question of
law. Therefore, by order dated 20.06.2024 for the reasons
stated in the said order this Court had called upon the
counsel for the appellants to point out the substantial
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questions of law that arises for consideration in this
appeal.
9. Learned counsel for the appellants having
reiterated the grounds urged in the appeal memorandum
submits that the documents at annexures Ex.P-1 to Ex.P-4
would clearly demonstrate that the father of the plaintiffs
was the owner of the suit schedule property. He submits
that the oral and documentary evidence clearly
demonstrate that plaintiffs' father and after him, the
plaintiffs were in possession of the suit schedule property
and therefore, the Trial Court ought to have declared the
title of the plaintiffs based on the possession of the suit
schedule property by the plaintiffs and also Ex.P-1 to Ex.P-
4. He submits that the substantial questions of law that
arise for consideration in this appeal are :
1) Whether the Courts below were justified in
ignoring Ex.P-1 to Ex.P-4 which
demonstrates that the plaintiffs' father was
the owner of the suit schedule property ?
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2) Whether the Courts below were justified in
dismissing the suit though the plaintiffs had
established their title over the property by
virtue of continuous possession over the
same?
10. In support of his arguments, he has placed
reliance on the judgment of the Coordinate Bench of this
Court in the case of Smt.Jayamma Venkatram and
another vs. Smt.Ashraf Jahan Begum and another1.
11. It is the specific case of the plaintiffs that the
father of the plaintiffs was the lawful owner in possession
of the suit schedule property bearing Grampanchayat
No.1-23. According to the plaintiffs, the suit schedule
property consists of an ancestral house of the plaintiffs
wherein a hut with zinc sheet existed which was being
used by the plaintiffs to tie and feed fodder to their cattle.
Plaintiff No.1 examined himself as PW.1 and two other
witnesses were examined on behalf of plaintiffs as PW.2
and PW.3. Documents produced by the plaintiffs in support
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of their case are the revenue records of the suit property
and also certain tax paid receipts. No title document of the
suit schedule property was produced by the plaintiffs.
12. The defendants on the other hand have
contended that the suit schedule property belongs to them
and the same bears panchayat house No.1-17 and the
boundaries of the suit schedule property tallies with the
property bearing panchayat House No.1-17. The tax paid
receipts produced by the plaintiffs at Ex.P-5, Ex.P-6,
Ex.P-9 and Ex.P-10 are relating to the house No.1-35 and
not to the suit schedule property bearing No.1-23. Ex.P-1
is the assessment register of the property bearing House
No.2-23. The boundary of the said property is not
mentioned in the said document. Ex.P-11 is for mutation
proposal and perusal of the same would go to show that it
was neither sanctioned nor rejected by the competent
authority. The defendant also produced Ex.D-1 which is a
map issued by the competent authority and perusal of the
same would go to show that the boundary of the suit
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schedule property, if compared with the map Ex.D-1 would
go to show that the suit schedule property bears house
No.1-17 and not house No.1-23. In the cross-examination
of PW.1, it is admitted that there is a lane towards the
southern side and thereafter the house of the defendant
bearing No.1-16 exists adjacent to House bearing No.1-17,
House No.1-16, House No.1-18 and House No.1-19 are
found in the map Ex.D.1. From a reading of the cross-
examination of PW.1 along with Ex.D-1, it is evident that
the boundaries shown in the suit schedule property relates
to house bearing No.1-17 and not to house bearing No.1-
23.
13. Though the plaintiffs have categorically stated
that there is a cattle shed existing in the suit property, but
during the course of cross-examination PW.1 has admitted
that no such cattle shed exists in the suit schedule
property. PW.-1 has also admitted the boundaries of the
written statement schedule properties which relates to
property bearing House No.1-17.
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14. The Trial Court as well as the Appellate Court
have held that the description of the suit schedule
property has been wrongly given by the plaintiffs and they
have failed to prove that they are the absolute owners in
possession of the suit schedule property.
15. Having regard to the oral evidence placed on
record by the defendants which is in line with the
contention of the defendants in their written statement
and also the map Ex.D-1 issued by the competent
authority, I am of the opinion that the Courts below were
justified in not placing reliance on Ex.P-1 to Ex.P-4
documents produced by the plaintiffs in support of their
prayer made in the plaint. The plaintiffs have also failed to
prove that they and their father were in continuous
possession of the suit schedule property. On the other
hand, the defendants have proved that the suit schedule
property is in their possession and the contention raised
by the defendants in their written statement has been
proved by the evidence of DW.1 which is corroborated by
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the evidence of DW.2 and DW.3. Since the plaintiffs have
failed to prove that they are in possession of the suit
schedule property, the Courts below have rightly
dismissed their suit for declaration of their title based on a
stray entry made in the revenue records which stands in
the name of their father. Therefore, I am of the view that
no substantial question of law arises for consideration in
this appeal as sought to be contended by the learned
counsel for the appellants.
16. It is trite that unless any substantial question of
law arises for consideration in a regular second appeal the
same cannot be entertained and in exercise of powers
under Section 100 of Code of Civil Procedure the
concurrent findings of fact recorded by the Courts below
cannot be interfered with. Since the plaintiffs have failed
to prove their possession over the suit schedule property
the judgment in the case of Smt.Jayamma Venkataram
(supra) on which the reliance was placed by the learned
Advocate in support of his arguments cannot be made
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applicable to the present case. Under the circumstances, I
do not find any merit in this regular second appeal,
accordingly, the same is dismissed.
Sd/-
JUDGE
sn
