Karnataka High Court
Siddalingareddy vs Sharnamma on 11 November, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RSA No. 200104 of 2021
C/W RSA No. 200107 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200104 OF 2021
(DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 200107 OF 2021
(DEC/INJ)
IN RSA.NO.200104/2021:
BETWEEN:
SIDDALINGAREDDY S/O SHIVAPADAPPA,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O H.NO. 88, DONDAMBALI VILLAGE,
Digitally signed TQ. DEODURGA, DIST. RAICHUR.
by SHIVALEELA
DATTATRAYA
UDAGI ...APPELLANT
Location: HIGH (BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
COURT OF
KARNATAKA
AND:
SHARNAMMA W/O AMATHEPPA,
AGED ABOUT 75 YEARS, OCC: HOUSEHOLD,
R/O. DONDAMBALI VILLAGE,
TQ. DEODURGA, DIST. RAICHUR-584111.
...RESPONDENT
(BY SRI BIRADAR VIRANAGOUDA, ADVOCATE)
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RSA No. 200104 of 2021
C/W RSA No. 200107 of 2021
THIS RSA IS FILED UNDER SECTION 100 OF THE
CPC, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 05.09.2019 PASSED BY THE 1ST
ADDITIONAL DISTRICT JUDGE RAICHUR AT RAICHUR, IN
RA NO.66/2018, AND THE JUDGMENT AND DECREE
DATED 27.9.2018, PASSED BY THE SENIOR CIVIL JUDGE
AND JMFC DEODURGA, IN OS.NO.214/2016, BY
ALLOWING THIS APPEAL AND DISMISS THE SUIT OF THE
PLAINTIFF.
IN RSA.NO. 200107/2021:
BETWEEN:
SIDDALINGAREDDY S/O SHIVAPADAPPA,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O H.NO.88, DONDAMBALI VILLAGE,
TQ. DEODURGA, DIST. RAICHUR.
...APPELLANT
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
SHARNAMMA W/O AMATHEPPA,
AGED ABOUT 75 YEARS, OCC: HOUSEHOLD,
R/O. DONDAMABALI VILLAGE, TQ. DEODURGA,
DIST. RAICHUR-584111.
...RESPONDENT
(BY SRI D.P. AMBEKAR, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF THE
CPC, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 05.09.2019 PASSED BY THE 1ST
ADDITIONAL DISTRICT JUDGE RAICHUR AT RAICHUR, IN
RA.NO.66/2018, AND THE JUDGMENT AND DECREE
DATED 27.09.2018, PASSED BY THE SENIOR CIVIL JUDGE
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RSA No. 200104 of 2021
C/W RSA No. 200107 of 2021
AND JMFC DEODURGA, IN OS.NO.214/2016, BY
ALLOWING THIS APPEAL AND ALLOW THE COUNTER
CLAIM OF THE DEFENDANT.
THESE APPEALS, COMING ON FOR ADMISSION,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
The appeal in RSA No.200104/2021 is filed by the
defendant aggrieved by the judgment and decree dated
27.09.2018 passed in OS No.214/2016 on the file on
Senior Civil Judge and JMFC, Devadurga (hereinafter
referred to as 'the Trial Court' for short) which decreed the
suit of the plaintiff declaring her to be the absolute owner
of the suit schedule property and granting consequential
relief of permanent injunction against the defendant,
which the judgment and decree is confirmed by the
judgment and order dated 05.09.2019 passed in RA
No.66/2018 on the file of First Additional District and
Sessions Judge, Raichur.
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2. RSA No.200170/2021 is by the very same
defendant, aggrieved by the judgment and decree dated
27.09.2018 passed in OS No.214/2016 on the file of the
Civil Judge and JMFC (hereinafter referred to as 'the Trial
Court' for short) by which the Trial Court while decreeing
the suit of the plaintiff, had not passed any order on the
counter claim of the defendant and against the judgment
and decree dated 05.09.2019 passed in RA No.66/2018 by
which the First Appellate Court had dismiss the counter
claim of the defendant with costs.
3. Brief facts of the case is that;
The subject matter of the suit is property in survey
No.62 measuring 8 acres 26 guntas of dry land, situated
at Hunur Village, Devadurga Taluk, Raichur District. The
case of the plaintiff is that her husband had purchased the
suit property in terms of a registered deed of sale dated
17.04.1976 and passed away intestate, leaving behind the
plaintiff as his legal heir. That upon the demise of her
husband she had made an application for mutation of her
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name in the revenue records, which was objected to by
the defendant before the revenue authority. Since there
was denial and obstruction by the defendant, plaintiff
constrained to file the suit for relief of declaration and
injunction.
4. The defendant along with the written -
statement had also made a counter claim seeking
declaration that he and his family members were entitled
to the share in the suit schedule property to the extent of
4 acres 13 guntas and also to an extent of 07 guntas of
another property in survey No.5/1 and 5/2 of Dondambali
Village. It is the contention of the defendant that his father
Shivapadappa and the husband of the plaintiff Amatheppa
had jointly purchased the suit schedule property as well as
another land in survey No.5/1 and 5/2 under the
registered deeds of sale. That the husband of the plaintiff
and the father of the defendant had entered into an
unregistered deed of partition dated 20.09.1996 in terms
of which 4 acres 13 guntas of land forming part of the suit
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schedule property and another extent of 07 guntas of land
in survey No.5/1 and 5/2 was allotted to the share of
father of the defendant. That the father of the defendant
Shivapadappa passed away about 15 years back, leaving
behind his wife Anusuyamma and three sons namely
Basavarajappa, Nagareddy and Sidlingareddy the
defendant. The Defendant and his family members are
joint owners and possessors of the suit schedule property
held by their father, as such the counter claim.
5. Based on the pleading the Trial Court framed
the following issues:
1. Whether the plaintiff proves that, in the year 2006
as per registered partition deed documents no.
2366 dt, 23-11-2006 as such the Suit schedule
property falling to the share of plaintiff and she is
the owner and possessor of the Suit schedule
property?
2. Whether the plaintiff proves that defendant is
interfering his peaceful possession over the Suit
schedule property?
3. Whether the defendant proves that he is entitled
counter claim as prayed in the written statement?
4. Whether the defendant proves that suit of the
plaintiff is barred by law limitation?
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5. Whether the plaintiff entitled declaration relief
injucation as prayed for?
6. Whether the plaintiff entitled permanent injunction
as prayed?
7. Whether the plaintiff entitled relief as prayed for?
8. What order or what decree?
6. The plaintiff examined herself as PW1 and
exhibited 13 documents marked as per Ex.P1 to P13.
Defendant examined himself as DW1 and examined 4
other witnesses as DW2 to DW5 and exhibited 13
documents marked as per Ex.D1 to D13.
7. The Trial Court on appreciation of the evidence,
answered issues No.1, 2 and 5, 6 and 7 in the affirmative
and issues No.3 and 4 in the negative and gave specific
finding that the counter claim of the defendant was barred
by time, though no specific order in the operative portion
was made and consequently, decreed the suit of the
plaintiff as sought for.
8. Aggrieved by the same the defendant filed an
appeal in RA No.66/2018 challenging the decree as well as
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declining of his relief in the counter claim. Considering the
grounds urged in the memorandum of appeal the First
Appellate Court frame the following points for his
consideration:
1. Whether the defendant prove that his father and
husband of plaintiff jointly purchased the suit land?
2. Whether the execution of Ex.D-1 by the husband of
plaintiff is proved? If so, Ex.D-1 conveyed or
transferred or assigned any sort of right, title or
interest in favour of the father of defendant?
3. Whether the counter-claim of defendant is barred
by limitation?
4. Whether the impugned judgment of trial court is
required to be set-aside on the ground that there is
no order on counter-claim in the operative portion
of the judgment?
5. Whether the impugned judgment and decree of the
trial court calls for interference by this court?
6. What order?
9. On re-appreciation of the evidence the First
Appellate Court answered points No.1, 2, 4 and 5 in the
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negative and point No.3 in the affirmative. Consequently,
dismiss the appeal as well as the counter claim made by
the defendant. Aggrieved with the same, the defendant is
before this Court in the aforesaid two appeals.
10. Learned counsel for the appellant reiterating the
grounds urged in the memorandum appeal submitted that,
admittedly father of defendant Shivapadappa had affixed
his signature as a witness to the deed of sale dated
17.04.1976, produced at Ex.P1 along with one
Honnappagouda, who was examined as DW3. He further
submits that the said purchase was made upon the joint
contribution made by the husband of the plaintiff and the
father of the defendant to avoid the consequences of law
relating to ceiling limits and only as a convenience
between the father of defendant and the husband of the
plaintiff. That in furtherance to said understanding a
partition was entered into on 20.09.1996 as per Ex.D1.
Thus he submits that the Trial Court and the First
Appellate Court have not appreciated these facts,
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circumstance and the evidence of the matter. He further
submits that the Trial Court and the First Appellate Court
have disbelieved the case of the defendant and have
erroneously relied upon the contention of the plaintiff of
the suit schedule property having been left out from
Ex.P7, a partition dated 23.11.2006 as it was the self
acquired property of the husband of plaintiff, when in fact,
the said property was excluded not because it was the self
acquired property of husband of the plaintiff, but there
was a partition entered into between the husband of the
plaintiff and the father of the defendant as per Ex.D1.
11. He further submits if, the contention of the
plaintiff that the said property was left out since it was self
acquired property is to be accepted, Ex.P7 also otherwise
included some of the self acquired property of the
husband of the plaintiff. He submitted that these facts and
circumstances would justify the claim of the defendant of
his father being the joint owner of suit schedule property
and another non suited property. He submitted non-
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consideration of this material evidence has resulted in
perversity of the judgments passed by the Trial Court and
the First Appellate Court giving raise to substantial
question of law for consideration.
12. Per contra learned counsel appearing for the
plaintiff justifying the judgment and decree passed by the
Trial Court and confirmed by the First Appellate Court
submits that the very plea set up by the defendant of
there being a partition between the husband of the
plaintiff and father of the defendant as per Ex.D1 is
untenable as the said document had come up for the first
time, when the plaintiff had made an application for
mutation of her name for the revenue authorities. He
submits that, if at all such a document had been entered
into as per Ex.D1 on 20.09.1996, there is no reason or
whisper in the written-statement as to why no action in
this regard was taken by the father of the defendant
during his lifetime who stated to have passed away 15
years prior to the date of suit.
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13. He further submits in any event the said
document is inadmissible as it, seeks to confer the title in
respect to the immovable property in favor of a person
who is stranger to the family, not having any pre existing
right. Therefore, he submits that the Trial Court and the
First Appellate Court were justified in decreeing the suit of
the plaintiff and dismissing the counter claim and seeks for
dismissal of the appeal.
14. Heard and perused the records.
15. As taken note of the Trial Court and the First
Appellate Court and even as evident from the pleading of
the parties, the husband of the plaintiff Amethappa
purchasing the suit schedule property in terms of the deed
of sale dated 17.04.1976 as per Ex.P1 is not in dispute. It
is also not in dispute that the father of the defendant was
one of the witnesses to the said deed of sale.
16. The husband of the plaintiff during his lifetime
had entered into deed of partition as per Ex.P7 dated
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23.11.2006, in terms of which certain family properties
had been partitioned. However, the suit schedule property
was not subject matter of the said deed of partition. The
contention of the plaintiff is that since the said property
was the self acquired property it of the plaintiff, she
became owner by virtue of inheritance upon the demise of
her husband. Contention of the defendant, on the other
hand, is that since the said property was jointly purchased
by the husband of the plaintiff and the father of the
defendant for the reasons of avoiding the rigor of law on
ceiling limits, the said property was kept out with an
understanding of same to be divided between the father of
the defendant and the husband of the plaintiff. It is in
furtherance to this plea defendant relies upon Ex.D1,
dated 20.09.1996, which is an unregistered document.
The whole issue therefore revolves around the said
document.
17. The Trial Court and the First Appellate Court
have apart from appreciating the factual aspect of the
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matter, have also adverted to the legal position. In that
the Trial Court and the First Appellate Court have found
that a document of this nature between two strangers not
being members of a family could not create any right, title
and interest in the immovable property, subject matters of
the said document, without same having been executed
and registered in a manner known to law.
18. There is no contra material produced by the
defendant in justification of his counter claim either with
regard to any other document having been entered into or
any evidence with regard to the possession having been
given. On the other-hand, it is categorically admitted that
the possession of the property remained with the husband
of the plaintiff. As rightly contended by the learned
counsel for the respondent, nothing on record to indicate
that Ex.D1 had been acted upon during the life time either
of the husband of the plaintiff or of the father of the
defendant. Suit schedule property is purchased under sale
deed Ex.P1 as 17.04.1976. The document of Ex.D1 is
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purportedly of the year 1996. Interestingly, defendant
does not even give the precise date of death of his father
except stating that he passed away 15 years ago. No
explanation for non production of the Ex.D1 anywhere
until objecting for mutation of name of the plaintiff in the
revenue records in the year 2011-2012 in RRT
No.13/2011-12. Plaintiff filed suit on 25.8.2016. Counter
claim is made on 23.01.2017, based on the unregistered
document, source of pronouncement of said document is
also unknown to the defendant.
19. In view of the aforesaid factual aspect of
matter, which have been rightly taken note of by the Trial
Court and the First Appellate Court, this Court do not see
any irregularity or illegality in both the Courts coming to
the conclusion that defendant not having established any
right in furtherance to his counter claim and plaintiff
having established her right over the property through
inheritance, conferring her the reliefs as sought for.
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20. In view of the above, no substantial question of
law would arise for consideration. Accordingly, both the
appeals are dismissed.
Sd/-
(M.G.S.KAMAL)
JUDGE
KBM
CT:PK
