Karnataka High Court
Parasappa Yamanappa Kanakeri vs Amarappa Adappa Divanand on 5 November, 2024
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NC: 2024:KHC-D:16126
RSA No. 100352 of 2014
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. 100352 OF 2014 (DEC/INJ)
BETWEEN:
PARASAPPA YAMANAPPA KANAKERI
AGE: 43 YEARS, OCC. AGRICULTURE,
R/O. KANDAGAL, TQ. HUNGUND-587118.
...APPELLANT
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND:
1. AMARAPPA ADAPPA DIVANAND
AGE: 63 YEARS, OCC. AGRICULTURE,
R/O. KANDAGAL, TQ. HUNGUND-587118.
Digitally
signed by
VISHAL
NINGAPPA
2. SMT. YANKAVVA BALAPPA KANAKERI
VISHAL
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.25
AGE: 61 YEARS, OCC. HOUSEHOLD WORK
10:38:54
+0530 R/O. KANDAGAL, TQ. HUNGUND-587118.
3. GOLAPPA BALAPPA KANAKERI
AGE: 41 YEARS, OCC. AGRICULTURE
R/O. 73 LAXMINARAYANAPPA CAMP,
KAVITAL, TQ. MANVI,
DIST. RAICHUR-584123.
4. TIPPANNA BALAPPA KANAKERI
AGE: 36 YEARS, OCC. AGRICULTURE,
R/O. 73 LAXMINARAYANAPPA CAMP,
KAVITAL, TQ. MANVI,
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NC: 2024:KHC-D:16126
RSA No. 100352 of 2014
DIST. RAICHUR-584123.
5. IRAPPA BALAPPA KANAKERI
AGE: 32 YEARS, OCC. AGRICULTURE,
R/O. 73 LAXMINARAYANAPPA CAMP,
KAVITAL, TQ. MANVI,
DIST. RAICHUR-584123.
6. SHIVAPPA BALAPPA KANAKERI
AGE: 27 YEARS, OCC. AGRICULTURE,
R/O. 73 LAXMINARAYANAPPA CAMP,
KAVITAL, TQ. MANVI,
DIST. RAICHUR-584123.
7. HANAMANT BALAPPA KANAKERI
AGE: 24 YEARS, OCC. AGRICULTURE,
R/O. 73 LAXMINARAYANAPPA CAMP,
KAVITAL, TQ. MANVI,
DIST. RAICHUR-584123.
8. NARASAPPA YAMANAPPA KANAKERI
AGE: 61 YEARS, OCC. AGRICULTURE,
R/O. 73 LAXMINARAYANAPPA CAMP,
KAVITAL, TQ. MANVI,
DIST. RAICHUR-584123.
9. YAMANAPPA RAMACHANDRA KANAKERI
OCC. AGRICULTURE,
R/O. 73 LAXMINARAYANAPPA CAMP,
KAVITAL, TQ. MANVI,
DIST. RAICHUR-584123.
10. BASAPPA RAMACHANDRA KANAKERI
AGE: 35 YEARS, OCC. AGRICULTURE,
R/O. 73 LAXMINARAYANAPPA CAMP,
KAVITAL, TQ. MANVI,
DIST. RAICHUR-584123.
11. SMT. DEVAMMA
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NC: 2024:KHC-D:16126
RSA No. 100352 of 2014
W/O. HANAMANTAPPA KANAKERI ,
AGE: 41 YEARS, OCC. HOUSEHOLD WORK
R/O. 73 LAXMINARAYANAPPA CAMP,
KAVITAL, TQ. MANVI,
DIST. RAICHUR-584123.
12. SMT. SHARANAMMA
W/O. SHANKRAPPA KANAKERI,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O. 73 LAXMINARAYANAPPA CAMP,
KAVITAL, TQ. MANVI,
DIST. RAICHUR-584123.
13. AMARAPPA YAMANAPPA KANAKERI
AGE: 63 YEARS, OCC. AGRICULTURE,
R/O. KANDAGAL, TQ. HUNGUND,
DIST. BAGALKOT.
...RESPONDENTS
(BY SRI. S. B. HEBBALLI, ADVOCATE FOR R1;
NOTICE TO R2 TO R13 ARE SERVED)
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DATED 22.04.2014 PASSED IN
R.A.NO.48/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE, HUNAGUND, DISMISSING THE APPEAL, FILED
AGAINST THE JUDGMENT AND DECREE DATED 11.09.2012
AND THE DECREE PASSED IN O.S. NO.347/2010 ON THE
FILE OF THE SENIOR CIVIL JUDGE, HUNGUND,
DISMISSING THE SUIT FILED FOR DECLARATION AND
PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 100352 of 2014
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
Assailing the legality and correctness of the
concurrent findings and facts recorded by the Courts below
plaintiff No.7 is in this regular second appeal.
2. Heard the learned counsel appearing for the
parties and perused the material on record.
3. Suit for declaration and permanent injunction in
respect of suit property bearing RS No.333/4 measuring
10 acres 8 guntas (hereinafter referred to as 'suit
property' for short).
4. The propositus Balappa has four sons by name
Sakrappa, Yamanappa, Hanamappa and Basappa. The
plaintiffs are the children of Yamanappa. The two brothers
of Sakrappa namely Hanamappa and Basappa expired
leaving behind their sons namely Amarappa and
Kariyappa. It is the case of the plaintiffs that the suit
property fell to their share in the partition held on
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05.11.2001 and accordingly, the name of the plaintiffs
have been entered in the revenue records.
5. The deceased Balappa was the absolute owner
of the suit property and after his death, his four sons
became the joint owners. It is the case of the defendant
that OS No.22/1968 ended in compromise and under the
compromise decree, the suit property fell to the share of
deceased Sakrappa S/o. Ballappa Kanakeri and he was the
absolute owner of the suit property. Pursuant to which, he
executed a registered sale deed in favour of the defendant
on 20.05.1976 for sale consideration and the defendant is
in possession of the suit property.
6. On the basis of the pleading, the trial Court
framed the following issues:
(1) Whether the plaintiffs prove that, they are the
absolute owners of the suit property?
(2) Whether the defendant proves that, he
become the owner of the property as per the
registered sale deed dated:20.05.1976?
(3) Whether the plaintiffs prove that, they are in
lawful possession of the suit property?
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(4) Whether the plaintiffs prove that, the
defendant is illegally interfering with their
peaceful possession and enjoyment?
(5) Whether the plaintiffs are entitled for
permanent injunction as prayed for?
(6) What order or decree?
Additional Issues:
1) Whether the defendant proves that, the suit
of plaintiff is barred by limitation?
2) Whether defendant proves that, the Court Fee
paid and valuation made by the plaintiff is
insufficient and not proper?
7. In order to substantiate their claim, plaintiffs
examined plaintiff No.7 as PW.1 and 3 witnesses as PW.2
to 4 and marked documents at Ex.P.1 to Ex.P.7. On the
other hand, the defendant examined himself as DW.1 and
other 2 witnesses as DW.2 and DW.3 and marked
documents at Ex.D.1 to Ex.D.5.
8. The trial Court based on the pleadings, oral and
documentary evidence arrived at a conclusion that;
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i) The plaintiffs have failed to prove that they are
the absolute owners of the suit property in light of
the partition effected between the family members.
ii) That the defendant has proved that he is the
absolute owner of the suit property under the
registered sale deed dated 20.05.1976.
9. By the judgment and decree, the trial Court
dismissed the suit of the plaintiffs. Aggrieved, the plaintiffs
preferred appeal before the First Appellate Court. The First
Appellate Court while re-appreciating and
re-considering the entire oral and documentary evidence
has affirmed the judgment and decree of the trial Court.
10. Aggrieved the plaintiff No.7 is before this Court
in the regular second appeal. Suit seeking declaration that
plaintiffs are the absolute owner of suit property in light of
the partition effected among the family members of the
plaintiffs and contended that they are in possession and
enjoyment of the suit property from 1976 to 2010. The
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undisputed fact is that OS No.22/1968 was filed by the
father of the plaintiffs and his brother, compromise was
entered under which, the suit property fell to the share of
their uncle i.e., Sakrappa. The dispute in the present suit
is in respect of the property which fell to the share of
Sakreppa, pursuant to the compromise decree, Sakrappa
sold the suit land in favour of the defendant by executing
a registered sale deed dated 20.05.1976 for sale
consideration.
11. The plaintiffs contend that they are in
possession and enjoyment of the suit property from 1976
to 2010, material on record indicate that defendant had
filed from No.7 seeking occupancy rights in respect of the
suit property, under Ex.P.4 the land Tribunal, rejected
form No.7 filed defendant on the ground that the
possession and enjoyment of the suit property by the
defendant is based on the agreement of sale. Sakrappa
the absolute owner of the suit property under the
compromise, executed a registered sale deed on
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20.05.1976 in favor of the defendant, the said facts clearly
indicate the defendant is in possession of the suit
property. The plaintiffs continued to be owners in
possession of the suit property based on partition effected
among themselves under Ex.P.3 - the mutation entry,
mere entry in the record of rights in favor of the plaintiffs
for a certain period would not indicate that he is the owner
in possession of the suit property. The plaintiffs right to
claim declaration is a partition interse between
themselves, without there being any legal right over the
suit property, suit property which has already lost the
character of the joint family way back in the year 1976
under compromise between plaintiffs father and his
brothers, suit property having fallen to the share of
sakrappa, who in turn sold the suit property to defendant
under registered sale deed as absolute owner. The trial
Court and the First Appellate Court considered the entire
oral and documentary evidence and rightly arrived at a
conclusion that the plaintiffs have failed to establish his
title over the suit property and his possession as well.
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12. The manner in which the Courts below have
assessed the entire oral and documentary evidence, this
Court is of the considered view that the same does not
warrant any interference under Section 100 CPC, no
substantial question of law arises for consideration in the
present second appeal. Accordingly, this Court pass the
following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
PJ/ Ct-PA
