Karnataka High Court
Sri Prabhakar vs Smt Janakamma on 2 September, 2024
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NC: 2024:KHC:35592
RSA NO.548 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.548 OF 2018(DEC)
BETWEEN:
SRI. PRABHAKAR
S/O LATE ANNI POOJARI
AGED ABOUT 46 YEARS,
OCC: COOLIE,
R/AT TOTADAMAKKI,
MALLANDUR POST,
CHIKKAMAGALURU TALUK
CHIKKAMAGALURU DISTRICT - 577 130.
...APPELLANT
(BY SRI. GURURAJ R., ADVOCATE FOR
SRI. SANTOSH R. NELKUDURI, ADVOCATE)
AND:
1. SMT. JANAKAMMA
W/O LATE RAMACHAR
AGED ABOUT 65 YEARS,
Digitally signed by
SHARMA ANAND R/AT THOTADAMAKKI,
CHAYA
Location: High Court
MALLANDUR POST,
of Karnataka CHIKKAMAGALURU - 577 130.
2. SMT. BHAGYA
W/O RAVIYACHAR
D/O LATE RAMACHAR
AGED ABOUT 44 YEARS,
R/AT THOTADAMAKKI,
MALLANDUR POST
CHIKKAMAGALURU - 577 130.
3. SMT. LALITHA
W/O SOMASHEKAR
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RSA NO.548 OF 2018
D/O LATE RAMACHAR,
AGED ABOUT 42 YEARS,
R/A KUMARAGIRI,
MALLENAHALLI POST,
CHIKKAMAGALURU - 577 131.
4. SRI. RAGHAVENDRA
S/O LATE RAMACHAR,
AGED ABOUT 41 YEARS,
OCC: AGRICULTURIST,
R/AT THOTADAMAKKI,
MALLANDUR POST,
CHIKKAMAGALURU - 577 130.
5. SRI. RAGHU
S/O LATE RAMACHARI
AGED ABOUT 39 YEARS
OCC: AGRICULTURIST,
R/A THOTADAMAKKI,
MALLANDUR POST,
CHIKKAMAGALURU - 577 130.
6. SRI. RAMESH GOWDA
S/O EREGOWDA,
AGED ABOUT 51 YEARS,
OCC:AGRICULTURIST,
R/AT THOTADAMAKKI,
MALLANDUR POST,
CHIKKAMAGALURU - 577 130.
...RESPONDENTS
(NOTICE TO R1 TO R5 IS HELD SUFFICIENT
V/O DATED 02.04.2019;
R6 - SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE
JUDGMENT AND DECREE DATED 18TH AUGUST, 2016 PASSED
IN REGULAR APPEAL NO.42 OF 2015 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, CHIKKAMAGALURU,
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NC: 2024:KHC:35592
RSA NO.548 OF 2018
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 04TH MARCH, 2015 PASSED IN ORIGINAL
SUIT NO.150 OF 2006 ON THE FILE OF THE I ADDITIONAL
CIVIL JUDGE AND JMFC, CHIKKAMAGALURU.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
ORAL JUDGMENT
This Regular Second Appeal is preferred by the defendant
No.1, challenging the judgment and decree dated 18th August,
2016 passed in Regular Appeal No.42 of 2015 on the file of the
II Additional Senior Civil Judge, Chikkamagaluru (for short,
hereinafter referred to as 'First Appellate Court'), dismissing the
appeal and confirming the judgment and decree dated 04th
March, 2015 passed in Original Suit No.150 of 2006 on the file
of the I Additional Civil Judge and JMFC., Chikkamagaluru (for
short, hereinafter referred to as 'Trial Court), wherein the suit
filed by plaintiffs came to be decreed in-part, holding that the
plaintiffs are absolute owners of Schedule 'A' property and
further, direction has been issued to the appellant/defendant
No.1 to handover the vacant possession of 'B' schedule
property to the plaintiffs within three months.
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RSA NO.548 OF 2018
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and ranking
before the Trial Court.
3. It is the case of the plaintiffs that the Schedule 'A'
property is the joint family property of late Ramachar (husband
of plaintiff No.1) and his brother Bhadrachar; and as per the
family partition held on 25th May, 1996 between the Ramachar
and his brother Bhadrachar, Schedule 'A' property was fallen to
the share of Bhadrachar. Thereafter, the said Bhadrachar sold
Schedule 'A' property in favour of one Ningegowda and inturn
Ningegowda got exchanged the land with the land of Ramachar
through registered Exchange Deed dated 12th November, 1997.
Therefore, the Plaintiffs have stated that, late Ramachar
(husband of Plaintiff No.1) became owner of Schedule 'A'
property as per registered exchange deed stated above. It is
also the case of the plaintiffs that, late Ramachar had permitted
the defendant No.1 to reside in the house built in Schedule 'A'
Property. Further, it is stated in the plaint that, late Ramchar
died on 24th October, 2003 and thereafter, the defendant No.1,
despite request made by the plaintiffs, refused to vacate the
said house and also encroached 3 guntas of land, which is
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RSA NO.548 OF 2018
described as Schedule 'B' property and as such, plaintiffs have
filed Original Suit No.150 of 2006, seeking relief of declaration
and permanent injunction with consequential relief of vacant
possession of Schedule 'B' and 'C' property.
4. On service of notice, defendants entered appearance.
Defendant No.1 has filed written statement and the defendant
No.2 has adopted the written statement filed by the defendant
No.1. The defendant No.1 in his written statement contended
that, his father Annapoojari was in possession of 5 guntas of
land for more than 65 years and he had taken electricity and
telephone connection showing that the schedule property
belongs to him. Accordingly, he sought for dismissal of the
suit.
5. Based on the pleadings on record, the Trial Court
framed issues and additional issue for its consideration.
6. In order to prove their case, plaintiff No.4 examined
himself as PW1 and got marked 12 documents as Exhibits P1 to
P12. On the other hand, defendants examined two witnesses as
DW1 and DW2 and got marked 13 documents as Exhibits D1 to
D13.
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RSA NO.548 OF 2018
7. The Trial Court, after considering the material on
record, by judgment and decree dated 04th March, 2015,
decreed the suit in-part, declaring that the plaintiffs are the
absolute owners of Schedule 'A' property and as such, directed
the defendant No.1 to vacate the Schedule 'B' property. Being
aggrieved by the same, the defendants have filed Regular
Appeal No.42 of 2015 before the First Appellate Court and
same was resisted by the plaintiffs. The First Appellate Court,
after re-appreciating the material on record, dismissed the
appeal on the ground that the appeal preferred by the
defendants is at belated stage and barred by time. Being
aggrieved by the same, the defendant No.1 has preferred this
Regular Second Appeal.
8. I have heard Sri. Gururaj R., learned counsel on behalf
of Sri. Santosh R. Nelkuduri, appearing for the appellant.
9. Sri. Gururaj R., learned counsel appearing for the
appellant/defendant No.1 contended that, both the Courts
below have failed to consider the fact that the defendants were
in possession of the schedule property, though the said aspect
has been proved by producing the Demand Register extract
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RSA NO.548 OF 2018
issued by Byaravalli Grama Panchayath, accordingly, he sought
for interference of this Court.
10. In the light of the submission made by learned
counsel appearing for the appellant/defendant No.1 and on
careful examination of finding record by both the Courts below,
the same would indicate that the plaintiffs have produced
Exhibit P1-Partition Deed dated 25th May, 1996 and Exhibit P2-
Exchange Deed dated 12th November, 1997 executed between
Ningegowda and Ramachar. The said documents makes it clear
that, late Ramachar, husband of the plaintiff No.1 got right over
the schedule property. That apart, the Trial Court has
appointed the Tahsildar, Chikkamagaluru Taluk as Court
Commissioner and the Court Commissioner in the report clearly
mentioned that the area marked as ABCD in the sketch 'A'
Schedule property is 15 guntas in Survey No.359/P. In that
view of the matter, the finding recorded by Trial Court is just
and proper and same cannot be interfered with in this appeal.
The appellant/defendant No.1 has failed to show sufficient
cause for delay in filing the appeal before the First Appellate
Court and therefore, the First Appellate Court considered the
Point No.1 in detail and arrived at a conclusion that the reasons
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RSA NO.548 OF 2018
stated by the defendant No.1 are not sufficient to condone the
delay in filing the appeal. In that view of the matter, I do not
find any material illegality or perversity in the judgment and
decree passed by the Courts below. As the appellant was failed
to make out a case for framing of substantial question of law as
required under Section 100 of the Code of Civil Procedure, this
appeal deserves to be dismissed at the stage of admission
itself. Accordingly, Regular Second Appeal is dismissed.
SD/-
(E.S.INDIRESH)
JUDGE
ARK
