Karnataka High Court
Smt.Bhagavva vs Shri.Yallappa on 6 November, 2024
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RFA No. 100312 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.100312 OF 2016 (DEC/INJ-)
BETWEEN:
SMT. BHAGAVVA
W/O. GULAPPA KHOT,
AGE: 53 YEARS,
OCC: HOUSEHOLD,
R/O: NAGARAL-587113,
TALUKA: MUDHOL,
DIST: BAGALKOTE.
REPRESENTED BY HER HOLDER GULAPPA
...APPELLANT
(BY SRI. AKSHAY KATTI AND
SRI.ANAND ASTEKAR, ADVOCATES)
ASHPAK
KASHIMSA
MALAGALADINNI
AND:
1. SHRI. YALLAPPA
SHIVAPPA BANNIKOPPA,
AGE: 46 YEARS,
Location: OCC: AGRICULTURE,
HIGH R/O: BELAGALI-587113,
COURT OF
KARNATAKA TALUKA: MUDHOL,
DIST: BAGALKOTE.
2. VENKANAGOUDA
TAMMANAGOUDA PATIL,
AGE: 72 YEARS,
OCC: AGRICULTURE,
R/O: NAGARAL-587113,
TALUKA: MUDHOL,
DIST: BAGALKOTE.
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RFA No. 100312 of 2016
3. SHRI. SAGAREPPA @ SAKAREPPA
S/O. VENKANAGOUDA PATIL,
AGE: 34 YEARS,
OCC: AGRICULTURE,
R/O: NAGARAL-587113,
TALUKA: MUDHOL,
DIST: BAGALKOTE.
4. SHRI. LAXMANGOUDA
S/O. VENKANAGOUDA PATIL,
AGE: 30 YEARS,
OCC: AGRICULTURE,
R/O: NAGARAL-587113,
TALUKA: MUDHOL,
DIST: BAGALKOTE.
5. SMT. CHANNAVVA
W/O. ARJUN B. PATIL,
AGE: 36 YEARS,
OCC: HOUSEHOLD,
R/O: SALAPUR-591123,
TALUKA: RAMDURG,
DIST: BELAGAVI.
6. SMT. AVVAKKA
W/O. SAGAREPPA VARCHAGAL,
AGE: 32 YEARS,
OCC: HOUSEHOLD,
R/O: SALAPUR-591123,
TALUKA: RAMDURG,
DIST: BELAGAVI.
7. SHRI. SHIVANAGOUDA
TAMMANAGOUDA PATIL,
AGE: 69 YEARS,
OCC: AGRICULTURE,
R/O: NAGARAL-587312,
TALUKA: MUDHOL,
DIST: BAGALKOTE.
8. SMT.GOURAVVA
W/O. GOVINDAPPA VARCHAGAL,
AGE: 66 YEARS,
OCC: HOUSEHOLD,
R/O: NAGARAL-587312,
TALUKA: MUDHOL,
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RFA No. 100312 of 2016
DIST: BAGALKOTE.
9. SMT. LAKKAVVA
W/O. ARJUN VARCHAGAL,
AGE: 54 YEARS,
OCC: HOUSEHOLD,
R/O: NAGARAL-587312,
TALUKA: MUDHOL,
DIST: BAGALKOTE.
10. SMT. TAYAVVA
W/O. HANAMANT ZALAKI,
AGE: 52 YEARS,
OCC: HOUSEHOLD,
R/O: YALLATTI-587301,
TALUKA: JAMKHANDI,
DIST: BAGALKOTE.
11. SMT. SUVARNA
W/O. BALAPPA BANNIKOPPA,
AGE: 50 YEARS,
OCC: HOUSEHOLD,
R/O: NAGARAL-587312,
TALUKA: MUDHOL,
DIST: BAGALKOTE.
12. SHRI. RUDRAGOUDA
TAMMANAGOUDA PATIL,
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O: NAGARAL-587312,
TALUKA: MUDHOL,
DIST: BAGALKOTE.
...RESPONDENTS
(BY SRI. PAVAN B. DODDATTI, ADVOCATE FOR C/R1;
R-2 TO R-7 AND R-9 TO R-12 SERVED; R-8 ABATED)
THIS RFA FILED UNDER SEC.96(1) R/W OR 41 RULE 1 OF CPC
1908., PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE DATED
06.09.2016 PASSED BY THE SENIOR CIVIL JUDGE & JMFC., MUDHOL
IN O.S NO.07/2012 AND TO ALLOW THE APPEAL WITH COSTS
THROUGHOUT BY DISMISSING THE SUIT IN O.S.NO.7/2012 ON THE
FILE OF SENIOR CIVIL JUDGE & JMFC., MUDHOL, IN THE INTEREST
OF JUSTICE AND EQUITY.
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RFA No. 100312 of 2016
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is by defendant No.9, who suffered a
decree of declaration of title and injunction. There are two
suit properties namely Sy.No.128/1 measuring 5-Acre
16-Guntas out of 11-Acre 16-Guntas on the eastern side
and Sy.No.125/1 measuring 1-Acre 24-Guntas out of
13-Acres on the western side.
2. The plaintiff claimed declaration of title based
on registered sale deed dated 29.08.2008 executed by
defendant No.1. The basis for the plaintiff's claim is that
there was a suit in O.S.No.282/2001. The said suit was
compromised on 07.03.2002 and in the said compromise,
aforementioned properties are allotted to the share of
defendant No.1-Venkanagouda Patil.
3. The plaintiff has filed a suit on the premise that
there is interference by Venkanagouda Patil-her vendor
and his family members and they have colluded to defeat
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the claim of the plaintiff. Thus, relief of declaration and
injunction is sought.
4. Defendant No.9 filed written statement, which
was later adopted by rest of the defendants.
5. The trial Court has decreed the suit on the
premise that defendant No.9 did not seek relief of
cancellation of sale deed in the name of plaintiff and the
trial Court also held that plaintiff is in possession of the
property and consequently, suit is decreed.
6. Aggrieved by the aforementioned judgment and
decree, defendant No.9 is in appeal.
7. Learned counsel appearing for appellant-
defendant No.9 would submit that trial Court has
committed an error in granting the relief of declaration of
title. It is his submission that, decree in O.S.No.282/2001
is not binding on the present appellant-defendant No.9,
who is the sister of Venkanagouda Patil-vendor of the
plaintiff. He would further submit that challenging the
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decree in O.S.No.282/2001, suit is filed in
O.S.No.111/2006. Though the said suit is dismissed, in an
appeal filed against the aforementioned judgment and
decree in R.A.No.57/2008 and the said appeal was
compromised granting 1/6th share to the present
appellant. Thereafter, though the plaintiff in the present
suit challenged the said compromise and compromise was
set-aside, appeal was heard on merits and same was
allowed declaring 1/6th share to the present appellant-
defendant No.9. Thus, he would contend that in view of
declaration of title of plaintiff to the extent of 1/6th share,
defendant No.1-Venkanagouda Patil, who sold the
property to the plaintiff would obliviously get only 1/6th
share and not beyond that. Thus, he would contend that
decree granting declaration of title in respect of suit
property is untenable and would urge that suit ought to
have been dismissed.
8. Learned counsel for the plaintiff would contend
that decree in R.A.No.57/2008 has not yet attained finality
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and same is subject matter of RSA No.100623/2014 and
stay is also granted staying the operation of decree in
R.A.No.57/2008. It is also her contention that plaintiff is
the bona-fide purchaser of the suit property, as she
purchased the property after compromise decree passed in
O.S.No.282/2001 and plaintiff is already put in possession
of the property. The name of the plaintiff is also entered in
the property records pursuant to the sale deed. The trial
Court is justified in granting declaration of title and
injunction.
9. This Court has considered the contentions
raised at the bar and perused the records. The following
points arise for consideration.
(i) Whether the trial Court is justified in
granting a declaration of title in respect of
the suit property based on registered sale
deed in the name of plaintiff executed by
defendant No.1, who acquired share in the
property pursuant to a compromise decree
in O.S.No.282/2001?
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(ii) Whether appellant is justified in contending
that in view of decree passed in
R.A.No.57/2008, plaintiff will not have title
over the entire property purchased under
the sale deed dated 29.08.2008 and plaintiff
is only entitled to lesser share of the
vendor-Venkanagouda Patil?
10. Certain facts of the case are admitted. There
was a decree in O.S.No.282/2001, which is a compromise
decree, to which present appellant is not a party.
Admittedly, present appellant is the sister of defendant
No.1, who sold the property to the plaintiff. The present
appellant has filed a suit for partition in O.S.No.111/2006,
which was initially dismissed. Later, on contest, the appeal
bearing R.A.No.57/2008 is allowed declaring 1/6th share to
the plaintiff in O.S.No.111/2006, who is the appellant in
this case. Again it is forthcoming that RSA No.100623/
2014 is pending consideration and operation of the
judgment and decree in R.A.No.57/2008 is stayed.
Consequent to the stay of operation of the decree, Decree
Holder, who is the present appellant, cannot seek a final
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decree as Regular Second Appeal is pending and operation
of the decree is stayed. However, that does not wipe out
the finding relating to the joint ownership of appellant to
the extent of 1/6th share in the suit schedule properties.
11. This being the position, trial Court could not
have ignored the decree in R.A.No.57/2008. The trial
Court proceeded on the footing that present appellant has
not questioned the sale deed in the name of plaintiff, who
is respondent No.1 in this case.
12. It is relevant to note that appellant is not a
signatory to the sale transaction between plaintiff and
defendant No.1. This being the position, appellant need
not question the sale deed and need not seek cancellation
of the sale deed.
13. However, it is required to be noticed that right
of the present appellant is a subject matter of
R.S.A.No.100623/2014. In case, the present appellant,
who is one of the respondents in the said second appeal,
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fails to establish her right over the property, then present
plaintiff-respondent No.1 is entitled to decree granted by
the trial Court. Since, as of now, there is a finding of First
Appellate Court that present appellant is also having 1/6th
undivided share, plaintiff-respondent No.1 is not entitled
to the relief of declaration. Trial Court committed an error
in granting relief of declaration in favour of present
plaintiff-respondent No.1.
14. Since it is fairly submitted that plaintiff is in
possession of the property purchased under the sale deed,
decree for permanent injunction is sustained only subject
to the result of the pending Regular Second Appeal.
15. It is further made clear that the observations
made in this appeal are only confined to the disposal of
the present appeal and the parties shall not rely on the
observations made in this case to substantiate their claim
in the pending Regular Second Appeal.
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16. The observations made in the order shall be
binding on the parties to the extent that the judgment and
decree under appeal and the modification made in this
order shall be subject to the outcome of pending RSA
No.100623/2014.
17. It is also made clear that in case plaintiff-
respondent No.1 fails to establish in the pending RSA that
present appellant has no right over the property, and if it
is found that present appellant is also having 1/6th share
then plaintiff-respondent No.1 is entitled to file final
decree proceeding or participate in final decree proceeding
if initiated by the appellant and in such event is entitled to
seek vendor-Venkanagaouda's 1/6th share in the suit
properties.
18. Hence, the following:
ORDER
(i) The Appeal is allowed-in-part.
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(ii) Judgment and decree passed by the trial
Court are set-aside in part.
(iii) Declaration granted by the trial Court is
set-aside for the time being and it is
made subject to result of
R.S.A.No.100623/2014.
(iv) The decree for injunction is granted in
favour of the plaintiff in respect of the
suit property restraining defendant
No.1/appellant from interfering the
plaintiff in the peaceful enjoyment of the
suit property till the disposal of the
R.S.A.No.100623/2014.
(v) In case present plaintiff-respondent No.1
succeeds in R.S.A.No.100623/2014,
decree passed in O.S.No.7/2012 dated
06.09.2016 shall revive.
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(iv) In case the plaintiff-respondent No.1
fails in R.S.A.No.100623/2014, then the
plaintiff-respondent No.1 is entitled get
to impleaded in the final decree
proceedings and to seek allotment of
1/6th share of defendant No.1. In such
an event, the final decree proceeding
Court shall pass appropriate orders by
weighing equities in favour and against
of all the parties to the proceeding.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
AM/-
CT:ANB
