Karnataka High Court
Mallikarjuna S/O. Lingappa Kampli vs Smt.Maritangyamma W/O. Earappa Kampli on 29 October, 2024
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RSA No. 100311 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100311 OF 2018 (INJ)
BETWEEN:
MALLIKARJUNA S/O. LINGAPPA KAMPLI,
AGE: 38 YEARS,
OCC: AGRICULTURE,
RESIDIENT AT HANWAL VILLAGE,
TALUK: GANGAVATHI,
DISTRICT: KOPPAL.
... APPELLANT
(BY SRI. K.S.PATIL, ADVOCATE)
AND:
SMT. MARITANGYAMMA W/O. EARAPPA KAMPLI,
AGE: 68YEARS,
Digitally signed by
THROUGH HER POA
VISHAL NINGAPPA
PATTIHAL SRI. MALLAPPA S/O. EARAPPA KAMPLI,
Location: HIGH
COURT OF
KARNATAKA
AGE: 48 YEARS, OCC. AGRICULTURE,
DHARWAD BENCH
RESIDENT OF HANWAL,
TQ. GANGAVATHI.
... RESPONDENT
(BY SRI. K.ANANDKUMAR ADVOCATE FOR C/R1)
THIS RSA IS FILED U/S.100 OF CPC., PRAYING TO CALL
FOR RECORDS IN RA.NO.37/2017 AND OS.NO.48/2015 AND BE
PLEASED TO SET ASIDE THE JUDGMENT AND DECREE DATED
01.03.2018 IN RA.NO.37/2017 PASSED BY THE SENIOR CIVIL
JUDGE, GANGAVATHI AND THEREBY RESTORING THE
JUDGMENT AND DECREE DATED 18.04.2017 IN
OS.NO.48/2015 PASSED BY PRL CIVIL JUDGE AND JMFC,
GANGAVATHI IN THE ENDS OF JUSTICE.
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RSA No. 100311 of 2018
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
ORAL JUDGMENT
Assailing the illegality and correctness of the
judgment and decree in RA.No.37/2017 dated 01.03.2018
on the file of the Senior Civil Judge, Gangavathi
(hereinafter referred to as the 'First Appellate Court' for
short) reversing the judgment and decree in O.S.
No.48/2015 dated 18.04.2017 on the file of the Prl. Civil
Judge and JMFC., Gangavathi (hereinafter referred to as
the 'trial Court' for short) the defendant is before this
Court in the regular second appeal.
2. Parties herein are referred to as per their rank
before the trial Court of the sake of convenience.
3. Suit for permanent injunction in respect of
Sy.No.22/B measuring 9 acres situated at Hanwal Village
in Gangavathi Taluk. The case of the plaintiff is that the
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husband of the plaintiff by name Kampli Earappa S/o.
Lingappa was the owner of the suit property and after his
death, the plaintiff and her three sons have succeeded to
the suit property and her name has been mutated in the
revenue records. It is the case of the plaintiff that the
defendant and his men trespassed upon the suit land and
caused interference in their peaceful possession, and
hence, the present suit.
4. On notice, the defendant appeared and filed his
written statement inter alia contending that the plaintiff is
not the absolute owner in actual physical possession of the
suit land, in fact the husband of the plaintiff and
defendant's father are real brothers, the sons of one
Lingappa S/o. Earappa and during the lifetime of the
propositus Lingappa, the suit land was purchased by him
in the name of his elder son Kampli Earappa out of the
joint family funds and after the death of Lingappa, his two
sons Kampli Earappa and Kampli Lingappa have succeeded
to the suit land and after death of Lingappa, it is
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contended that both the brothers got the properties
divided among themselves on 07.04.1976 and accordingly,
the father of defendant became the owner in possession of
½ portion of the suit land i.e. 4 acres 20 guntas of the
land in Sy.No.22/B and plaintiff's husband became the
absolute owner in possession of the remaining land
measuring 4 acres 20 guntas, accordingly, the plaintiff and
her family members have executed a 'Vachana Patra'
dated 25.08.2004 in favour of the defendant and his
family members, admitting that the suit schedule property
is the joint family property, however, as per terms of the
'Vachana Patra', the plaintiff has not executed the partition
deed in her favour that the plaintiff has no right
whatsoever over the suit land.
5. The trial Court based on the pleadings, framed
the following issues for consideration:
"1. Does the plaintiff proves her lawful possession
over the suit land Sy.No.22/B measuring 9 acres
on the date of filing the suit?
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2. Does the plaintiff proves the illegal interference of
defendant in her lawful possession of the entire
land?
3. Does the plaintiff entitles the relief sought for?
4. What order or decree?"
6. In order to prove the case of the plaintiff, the
plaintiff examined Power of Attorney, her son as PW1 and
marked documents at Exs.P1 to P31. On the other hand,
defendant adduced evidence of two witnesses as DWs 1
and 2 and marked documents at Exs.D1 to D4.
7. The trial Court based on the pleadings, oral and
documentary evidence arrived at a conclusion that the
plaintiff has failed to prove the lawful possession of the
suit land in Sy.No.22/B measuring 9 acres as on date of
the suit by considering the Vachana Patra-Ex.D1 dated
25.08.2004 and by the judgment and decree dismissed
the suit of the plaintiff.
8. In the appeal preferred by the plaintiff before
the First Appellate Court, the First Appellate Court
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reversed the judgment and decree of the trial Court and
held that the plaintiff is entitled for permanent injunction
and restrained the defendant from disturbing the peaceful
possession and enjoyment of the suit property.
9. Aggrieved, the defendant is before this Court in
this regular second appeal.
10. Heard the learned counsel appearing for the
parties and perused the material on record.
11. It is not in dispute that the husband of the
plaintiff and defendant are brothers, born to one Lingappa
Kampli. It is also not in dispute that the suit property has
been purchased by the husband of plaintiff namely Kampli
Earappa. The case made out by the defendant is that the
suit property was purchased in the name of Kampli
Earappa, the husband of the plaintiff by Kampli Earappa's
father Lingappa out of the joint family funds. It is further
contented that under Ex.D1-'Vachana Patra' dated
25.08.2004, the plaintiff and defendant have entered into
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an agreement and the plaintiff is signatory to the said
document, wherein, the 4 acres 20 guntas of land on the
Western side of the survey number, the defendant has
been given the property.
12. Ex.D1 is the document which is placed reliance
by the defendant to contend that the plaintiff has
promised ½ share in the suit schedule property to the
defendant. Ex.D1 remained as only an agreement between
the plaintiff and the defendant stating that the plaintiff has
agreed to give ½ share to the defendant. Ex.D1 does not
indicate the transfer of possession being delivered to the
defendant. If the contention of the defendant is that an
agreement is executed by the plaintiff under Ex.D1 and
the plaintiff has not come forward to execute the
agreement, what prevented the defendant from seeking
for execution of the agreement in the competent Court of
law. In the said circumstances, the plaintiff has
established her possession over the suit property in light
of the sale deed in favour of her husband, which aspect
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was totally overlooked by the trail Court. The First
Appellate Court being the last fact finding Court has rightly
re-appreciated the entire oral and documentary evidence
and record and arrived at a conclusion that the plaintiff is
entitled for injunction and restrained the defendant from
interfering in the peaceful possession and enjoyment of
the suit property, holding that Ex.D1 'Vachana Patra' does
not show any transfer of possession of 4 acres 20 guntas
of land from the plaintiff to defendant.
13. The manner in which the First Appellate Court
has considered 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 and no
substantial question of law arises for consideration in the
present appeal, accordingly, this Court pass the following:
ORDER
i) The Regular Second Appeal is hereby
dismissed.
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ii) The judgment and decree of the First
Appellate Court stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
RH
CT:PA
