Smt Sharadawwa W/O Basalingappa Pujar vs Nagappa S/O Shivappa Pujar
2024 Latest Caselaw 26268 Kant

Karnataka High Court

Smt Sharadawwa W/O Basalingappa Pujar vs Nagappa S/O Shivappa Pujar on 5 November, 2024

                                               -1-
                                                          NC: 2024:KHC-D:16266
                                                          RSA No. 2527 of 2005




                                IN THE HIGH COURT OF KARNATAKA,
                                        DHARWAD BENCH

                          DATED THIS THE 5TH DAY OF NOVEMBER, 2024
                                              BEFORE
                             THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                                 RSA NO. 2527 OF 2005 (DEC/INJ)

                      BETWEEN:
                      SMT. SHARADAWWA W/O. BASALINGAPPA PUJAR,
                      AGE: 71 YEARS, OCC. HOUSEHOLD WORK,
                      R/O. HAMASABHAVI, TQ. HIREKERUR,
                      DIST. HAVERI-581 110.
                                                                    ... APPELLANT
                      (BY SRI. LAXMAN T. MANTAGANI, ADVOCATE)

                      AND:
                      NAGAPPA S/O. SHIVAPPA PUJAR,
                      AGE: 40 YEARS, OCC. SERVICE,
                      R/O. HAMSHABHAVI, TQ. HIREKERUR,
                      DIST. HAVERI-581 110.
         Digitally
         signed by
         VISHAL
                                                                   ...RESPONDENT
VISHAL   NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
                      (BY SRI. H.M.DHARIGOND, ADVOCATE)
         2024.11.28
         15:50:20
         +0530


                            THIS RSA IS FILED U/S 100 CPC AGAINST THE JUDGMENT
                      AND DECREE DATED 27.09.2005 PASSED IN RA.NO. 34/2001 ON
                      THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.), RANEBENNUR,
                      ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
                      DECREE DATED 22.03.2001 PASSED IN OS.NO. 36/1992 ON THE
                      FILE OF THE CIVIL JUDGE (JR.DN.), HIREKERUR.

                           THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
                      DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER:

                      CORAM:   THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
                              -2-
                                        NC: 2024:KHC-D:16266
                                        RSA No. 2527 of 2005




                      ORAL JUDGMENT

The plaintiff is before this Court in this regular second

appeal, assailing the legality and correctness of the judgment

and decree of the First Appellate Court in RA No.34/2001,

wherein, the First Appellate Court dismissed the suit of the

plaintiff for declaration and permanent injunction.

2. Parties herein are referred to as per the rank

before the trial Court for sake of convenience.

3. Suit property is an open site measuring 10 feet X

15 feet, it is the case of the plaintiff that the portion shown

by the letters A B C D in the hand sketch map annexed to the

plaint is the suit property and the house of the defendant is

shown by letters E D J I. The case of the plaintiff is that he is

in possession and enjoyment of the suit property, the suit

property originally belonged to the ownership of one Kallappa

Poojar, after his death one veerabasappa was the owner, on

his death, Basalingappa husband of plaintiff inherited the suit

property, and after his death the plaintiff is enjoying the suit

property, that the defendant taking undue advantage of the

NC: 2024:KHC-D:16266

plaintiff being a widow, has entered his name in the revenue

records of the suit property.

4. The defendant resisted the suit by filing written

statement denying the plaint averments inter alia contending

that the suit property shown in letters B C S R in the Hand

Sketch, annexed to the written statement lies towards the

northern side of the residential house of the defendant,

inherited by the defendant from his ancestors and the

defendant has put up construction in the suit property, being

in actual possession and the plaintiff has no right over the

suit property.

5. The trial Court on adjudication, decreed the suit

of the plaintiff. The defendant challenged the judgment and

decree of the trial Court before the First Appellate Court. The

First Appellate Court while re-appreciating the entire oral and

documentary evidence reversed the judgment and decree of

the trial Court and dismissed the suit of the plaintiff.

Aggrieved, the plaintiff is before this Court.

NC: 2024:KHC-D:16266

6. This Court while admitting the appeal on

06.06.2008 framed the following substantial questions of

law:

"1. Whether the lower Appellate Court was justified in reversing the finding of the trial court without there being any rebuttal evidence placed by the defendant?

2. Whether the lower appellate court committed error in not appreciating the oral and documentary evidence placed by the plaintiff in respect of is actual possession of the suit land?"

7. Learned counsel for the appellant and learned

counsel for the respondents have been heard on the

substantial questions of law framed by this Court.

8. The family genealogical tree as under:

SOTTEERAPPA (PROPOSITUS) (DECEASED)

SHIVAPPA KALLAPPA RUDRAPPA HALAPPA (DECEASED) (DECEASED) (DECEASED) (DECEASED)

HOLIYAPPA ADOPTED SON (DECEASED) BASALINAPPA VEERAPPA HOLIYAPPA SHIVAPPA (DECEASED) (DECEASED) (DECEASED) (DECEASED) = NEELAWWA MAHARUDRAPPA WIFE SMT. SHARADAWWA MAHADEVAPPA SHEKAPPA MAHADEVAKKA (PLAINITFF) (WIFE) NAGAPPA HALAPPA RUDRAPPA BASAPPA SUBHASAPPA (DEFENDANT)

HEMAPPA VIVEK RAJAPPA IRAPPA JAYAMMA IRAMMA

NC: 2024:KHC-D:16266

9. Plaintiff-Sharadavva is the wife of Basalingappa,

Basalingappa is the adopted son of Kallappa. One

Sotterappa, the original propositus, had four sons namely

Shivappa, Kallappa, Rudrappa and Halappa. The plaintiff

contended that the suit property belonged to the grandfather

of her husband namely Sotterappa and Kallappa, the father

of Basalingappa, who enjoyed the suit property and after

their death the plaintiff is enjoying the suit property. The

defendants denied that the suit property belonged to

Kallappa.

10. Plaintiff examined herself as PW1 and in her cross-

examination she admitted that to the Eastern side of the suit

property, the defendants' property is situated. The suit is for

declaration and permanent injunction, the plaintiff has to

establish that 10 ft x 30 ft open space is part and parcel of

the suit property. The sketch produced along with the plaint

is culled out as under:

NC: 2024:KHC-D:16266

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11. The property of the plaintiff is situated after the

"GHKL" which is dividing the property of the plaintiff and

NC: 2024:KHC-D:16266

defendants, the suit property claimed by the plaintiff is

shown as "ABCD" which according to the plaintiff is adjoining

the suit property, the suit property marked at "ABCD" is after

the property of the defendants, the hand sketch produced by

the plaintiff itself does indicate that the open site(suit

Property) forms part of plaintiff's property, Ex.P18 is another

document produced by the plaintiff herself, which is the

assessment register for the year 1978-79, wherein it

indicates 10 ft x 30 ft open space is shown as part and parcel

of VPC No.169/1 mutated in the name of the defendants.

12. The burden is on the plaintiff to show the suit

property fell to Kallappa the father of her husband, in a

partition among the brothers, in absence of any clinching

evidence on the other hand perusal of the Handsketch

annexed to the plaint and Ex.P18, the suit property allotted

to the plaintiff's branch is highly improbable. The plaintiff has

not produced any evidence oral or documentary to show that

the suit property is adjoining the property of plaintiff and in a

partition it fell to the share of Kallappa. The First Appellate

NC: 2024:KHC-D:16266

Court arrived at a conclusion that the suit property having

merged with the house property of the plaintiff is highly

improbable looking into the topographical situation of the suit

property, on the other hand the documents reveal that the

suit property forms part and parcel of VPC No.169/1. The

First Appellate Court being the last fact finding court has

rightly appreciated the entire oral and documentary evidence

and dismissed the suit of the plaintiff. The First Appellate

Court did not fall in error in reversing the judgment and

decree of the trial Court. The substantial question of law

framed by this Court is answered accordingly and this Court

pass the following:

ORDER

(i) The Regular Second Appeal is hereby dismissed.

(ii) The judgment and decree of the First Appellate Court stands confirmed.

Sd/-

______________________ (JUSTICE K.S. HEMALEKHA) AT & VNP / CT:PA