Karnataka High Court
Angadi Veerabasappa S/O Siddappa vs M Veerappa on 7 March, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2024:KHC-D:5012
RSA No. 1297 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 07TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 1297 OF 2006 (INJ)
BETWEEN:
ANGADI VEERABASAPPA S/O. SIDDAPPA
SINCE DECEASED BY HIS LR'S
A. SMT. ANGADI MALLAMMA
W/O. LATE V. VEERABASAPPA
AGED ABOUT 54 YEARS,
R/O: HOSAKERI VILLAGE,
HAGARIBOMMANAHALLI TALUK,
BALLARI DISTRICT-583201
B. H.A.ROOPA D/O. LATE VEERABASAPPA
W/O: MAEHSH BASSETTI,
AGED ABOUT: 26 YEARS,
R/O: HOSAKERI VILLAGE,
HAGARIBOMMANAHALLI TALUK,
BALLARI DISTRICT-583201
Digitally ...APPELLANTS
signed by
SUJATA (BY SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
SUBHASH
PAMMAR AND:
Location:
HIGH COURT M.VEERAPPA S/O. SIDDAPPA
OF SINCE DECEASED BY HIS LR'S
KARNATAKA
1(A) M. KOTRESH S/O. LATE VEERAPPA M,
AGE: MAJOR, OCC: GOVT. EMPLOYEE,
R/O: HOSAKERI VILLAGE,
HAGARIBOMMANAHALLI,
DISTRICT: BALLARI-583201.
1(B) M. GURUBASAVARAJ S/O. LATE VEERAPPA M,
AGE: MAJOR, OCC: PVT. EMPLOYEE,
R/O: HOSAKERI VILLAGE,
-2-
NC: 2024:KHC-D:5012
RSA No. 1297 of 2006
HAGARIBOMMANAHALLI,
DISTRICT: BALLARI-583201.
1(C) M. MANJUNATH M. KOTRESH
S/O. LATE VEERAPPA M,
AGE: MAJOR, OCC: PVT. EMPLOYEE,
R/O: HOSAKERI VILLAGE,
HAGARIBOMMANAHALLI,
DISTRICT: BALLARI-583201.
1(D) M. VISHWANATH S/O. LATE VEERAPPA M,
AGE: MAJOR, OCC: PVT. EMPLOYEE,
R/O: HOSAKERI VILLAGE,
HAGARIBOMMANAHALLI,
DISTRICT: BALLARI-583201.
1(E) M.MARISWAMI S/O. LATE VEERAPPA M,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: HOSAKERI VILLAGE,
HAGARIBOMMANAHALLI,
DISTRICT: BALLARI-583201
1(F) M. KOTRAPPA S/O. LATE VEERAPPA M,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: HOSAKERI VILLAGE,
HAGARIBOMMANAHALLI,
DISTRICT : BALLARI-583201
...RESPONDENTS
(BY SRI GANGADHAR J.M., ADVOCATE FOR R1(B-F);
VIDE COURT ORDER DATED 12.01.2024, R1(A) APPEAL STANDS
ABATED.)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 19.12.2005 PASSED IN
R.A.NO.121/2001 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.),
HOSPET, AND TO CONFIRM THE JUDGMENT AND DECREE DATED
24.11.2001 PASSED IN O.S.NO.103/1999 ON THE FILE OF THE CIVIL
JUDGE (JR.DN.) & JMFC, HAGARIBOMMANAHALLI, BY ALLOWING
THIS APPEAL AND ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:5012
RSA No. 1297 of 2006
JUDGMENT
This regular second appeal is filed by the defendant
challenging the judgment and decree dated 19.12.2005,
passed in R.A.No.121/2001, by the Addl. Civil Judge
(Sr.Dn.), Hospet (first appellate Court), which reversed the
judgment and decree dated 24.11.2001, passed in
O.S.No.103/1999, by the Civil Judge (Jr.Dn.),
Hagaribommanahalli (trial Court).
2. For the purpose of convenience, the ranking of
the parties is referred to as per their status before the trial
Court.
3. The plaintiff has filed the suit for permanent
injunction stating that he is the absolute owner of the suit
schedule property and put up construction after obtaining
permission from the Gram Panchayat and on the allegation
that the defendant was interfering with his possession, the
suit is filed for permanent injunction. The suit filed by the
plaintiff is dismissed as the plaintiff has failed to prove
possession on the suit property. Being aggrieved by it, the
plaintiff has preferred Regular Appeal before the first
NC: 2024:KHC-D:5012
appellate Court and the first appellate Court has decreed the
suit and granted decree of permanent injunction. The first
appellate Court held from the evidence of PWs.1 to 4 and the
document at Ex.P.1, possession of plaintiff is proved.
Therefore, granted the decree of permanent injunction.
Being aggrieved by it, the defendant has preferred this
second appeal.
4. This Court on 04.06.2010 has framed the
following substantial questions of law.
i) Whether the first appellate Court is justified
in reversing the finding given by the trial
Court?
ii) Whether the first appellate Court is justified
in decreeing the suit even though
O.S.No.105/2002 is dismissed by the trial
Court?
5. The trial Court has disbelieved the case of the
plaintiff and that Exs.P.2 and P.3 sale deeds are unregistered
documents, but the plaintiff is claiming that he is absolute
owner of the suit property by virtue of sale deed. Further, in
the said sale deed the sale consideration amount is not
NC: 2024:KHC-D:5012
mentioned. Further, by holding that the plaintiff has not
proved his possession over the land, hence dismissed the
suit.
6. The first appellate Court has decreed the suit of
the plaintiff on the reason that DWs.1 to 4 have admitted the
possession of plaintiff over the suit property and the
documents sale deed and tax paid receipt proved possession
of the plaintiff over the property.
7. The plaintiff has filed O.S.No.103/1999 (instant
suit herein) for permanent injunction. The trial Court has
dismissed the suit on 24.11.2001. The plaintiff preferred
R.A.No.121/2001 before the first appellate Court on
19.12.2001. After preferring R.A.No.121/2001, the plaintiff
once again filed suit in O.S.No.105/2002 for declaration and
permanent injunction in respect of the very same suit
property as involved in the present case. Earlier the plaintiff
has filed suit for permanent injunction. Subsequently after
dismissal of the earlier suit, the plaintiff has preferred appeal
before the first appellate Court and during the pendency of
R.A.No.121/2001, once again the plaintiff has filed the suit in
NC: 2024:KHC-D:5012
O.S.No.105/2002 on 22.11.2002. Therefore the plaintiff has
prosecuted the remedy before two different forums, one in
R.A.No.121/2001 before the first appellate Court and
another in O.S.No.105/2002.
8. The suit property involved in both the cases is
one and the same. The subsequent suit filed in
O.S.No.105/2002 is dismissed by the trial Court holding that
the plaintiff has failed to prove his title and ownership over
the suit property and consequently dismissed the suit filed
for declaration and permanent injunction. The plaintiff
though preferred appeal before the first appellate Court in
R.A.No.121/2001, during the pendency of this appeal, once
again filed comprehensive suit for declaration and permanent
injunction in O.S.No.105/2002 which is dismissed.
9. Though the plaintiff has relied on Exs.P.2 and P.3
sale deeds, which are unregistered documents, the plaintiff
has failed to prove his contention that he is the absolute
owner by virtue of the said sale deeds. By virtue of
unregistered sale deeds title cannot be conveyed and that is
observed by the trial Court. When, it is the case of the
NC: 2024:KHC-D:5012
plaintiff that filing the suit for the first time claiming his
ownership, over the suit property and for permanent
injunction, it is burden on the plaintiff to prove his ownership
over the property. But the plaintiff has produced
unregistered sale deeds which cannot prove that the plaintiff
is the owner of the suit property. The subsequent suit filed
by the plaintiff in O.S.No.105/2002 was dismissed which
proves that the plaintiff has failed to prove his title and
ownership over the suit property.
10. The plaintiff by suppressing the fact that he has
preferred appeal in R.A.No.121/2001 filed once again a
comprehensive suit. Therefore this suppression entails the
plaintiff that the plaintiff has not approached the Court with
clean hands. The very conduct of the plaintiff shows that he
has taken a chance in this case when comprehensive suit is
filed in O.S.No.105/2002 and it is submitted that against the
judgment and decree passed in O.S.No.105/2002, no appeal
has been preferred, therefore, the judgment and decree
passed in O.S.No.105/2002 attained finality. Then there
NC: 2024:KHC-D:5012
were two judgments and decrees i.e., one in
R.A.No.121/2001 and another in O.S.No.105/2002.
11. O.S.No.105/2002 filed for declaration and
permanent injunction is dismissed, which proves that plaintiff
has failed to prove title and ownership over the suit
property. In earlier suit also, in O.S.No.103/1999 the relief
claimed is only for permanent injunction. This conduct of the
plaintiff proves that the plaintiff has taken a chance in the
case. The suit property in both the cases are one and the
same. Even though DWs.1 to 4 might have admitted the
plaintiff is in possession, the very fact is that his suit filed for
declaration is dismissed proving the plaintiff is not the owner
of the property, therefore, answering substantial question of
law No.2 in the negative. Accordingly, substantial question of
law No.1 is also held negative. Therefore, the judgment and
decree passed by the first appellate Court is liable to be set
aside. Accordingly, the instant appeal is liable to be allowed.
Hence, I proceed to pass the following:
NC: 2024:KHC-D:5012
ORDER
Appeal is allowed.
The judgment and decree dated 19.12.2005, passed in
R.A.No.121/2001, by the Addl. Civil Judge (Sr.Dn.), Hospet,
is set aside. The judgment and decree passed dated
24.11.2001, passed in O.S.No.103/1999, by the Civil Judge
(Jr.Dn.), Hagaribommanahalli, is confirmed.
No order as to costs.
Sd/-
JUDGE
MRK-para 1 to 10.
KGK-para 11 to end.
CT:ANB
