Karnataka High Court
Sri. Mudlagiriyappa vs Sri. Hanumaiah on 5 September, 2024
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RSA No. 2038 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.2038 OF 2017 (INJ)
BETWEEN:
SRI MUDLAGIRIYAPPA
S/O. LATE CHOWDAIAH,
AGED ABOUT 80 YEARS,
R/AT THAVAREKERE VILLAGE,
THAVAREKERE HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE NO.562130. ... APPELLANT
(BY SRI B.S. VISWANATH, ADVOCATE)
AND:
SRI HANUMAIAH
SINCE DEAD BY LR's.
1. SMT. REVAMMA,
Digitally signed W/O. LATE HANUMAIAH,
by SHYAMALA AGED ABOUT 83 YEARS,
Location: HIGH
COURT OF 2. SRI CHOWDAIAH
KARNATAKA S/O. LATE HANUMAIAH,
AGED ABOUT 68 YEARS,
3. SRI THIMANNA
S/O. LATE HANUMAIAH,
AGED ABOUT 66 YEARS,
4. SMT. LAKSHMAMMA
W/O. MURTHAPPA,
D/O. LATE HANUMAIAH,
AGED ABOUT 58 YEARS,
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RSA No. 2038 of 2017
5. SRI VENKATESHA
S/O. LATE HANUMAIAH,
AGED ABOUT 51 YEARS,
6. SRI HANUMANTHAIAH
S/O. LATE HANUMAIAH,
AGED ABOUT 47 YEARS,
7. SMT. PUTTAMMA
W/O. NAGARAJA,
AGED ABOUT 44 YEARS,
8. SRI GANGARAJU
S/O. LATE HANUMAIAH,
AGED ABOUT 43 YEARS,
ALL THE RESPONDENT'S ARE
RESIDING AT THAVAREKERE VILLAGE,
THAVAREKERE HOBLI,
BANGALORE SOUTH TALUK,
PIN NO.562130. ... RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 01.09.2017
PASSED IN R.A.NO.111/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., MAGADI, ALLOWING THE APPEAL
SETTING ASIDE AND MODIFYING THE JUDGMENT AN DECREE
DATED 31.01.2011 PASSED IN O.S.NO.372/1998 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC., MAGADI.
THIS APPEAL COMING ON FOR DISMISSAL, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
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RSA No. 2038 of 2017
ORAL JUDGMENT
Assailing the judgment and decree in
R.A.No.111/2014, the defendant is before this Court in the
regular second appeal.
2. The parties herein are referred to as per their
rank before the trial Court for the sake of convenience.
3. Suit for permanent injunction contending that
under the registered partition deed dated 26.04.1971, the
suit schedule property has fallen to his share. The suit
schedule property is mentioned as land bearing
Sy.No.166/3, measuring 0.05 guntas bounded by the
following boundaries:
East : Mudalagiriyappa's land
West : Revanna's land
North : Hulithimmaiah's land
South : Thimmarayappa's land
4. On notice, the defendant appeared and filed his
written statement contending that he is the owner in
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possession of 2 acres 29 guntas of land in Sy.No.166/3
and khata and pahani stand in his name. That the suit
schedule property is not in possession and enjoyment of
the plaintiff. According to the defendant, in the partition
dated 26.04.1971, the suit schedule property has fallen to
the share of the defendant.
5. On the basis of the pleadings, the trial Court
framed the following:
ISSUES
(i) Whether the plaintiff proves that, he is in
lawful possession and enjoyment of the suit
schedule property?
(ii) Whether the plaintiff further proves that,
defendant is interfering with the possession of the
suit schedule property?
(iii) Whether the plaintiff further proves that, he is
entitled for the relief as sought for?
6. The plaintiff examined himself as PW.1 and got
marked documents at Exs.P-1 to P-11. On the other
hand, defendant is examined as DW.1 and marked
documents at Exs.D-1 to D-8.
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7. The trial Court arrived at a conclusion that the
plaintiffs have failed to prove that they are in lawful
possession and enjoyment of the suit schedule property as
on the date of the suit and dismissed the suit.
8. Aggrieved, the plaintiff preferred appeal before
the first appellate Court. The first appellate Court on re-
appreciation and reconsidering the entire oral and
documentary evidence, reversed the judgment and decree
of the trial Court and decreed the suit in part holding that
the plaintiff is entitled for injunction in respect of 3 guntas
in Sy.No.166/3 (suit schedule property) and restrained the
defendant from interfering with the possession and
enjoyment of 3 guntas land. Against the decreetal of the
suit in part, plaintiff has not preferred any appeal. The
present appeal is by the defendant against the granting of
injunction to the extent of 3.00 guntas of land to the
plaintiff.
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9. Learned counsel for the appellant submitted
that the first appellate Court has failed to appreciate the
registered partition deed - Ex.P-2 which the plaintiff
relied, there is no boundary mentioned the 5 guntas of
land given to deceased Hanumaiah, the husband of
plaintiff No.1 and father of plaintiff No.2. Learned counsel
contended that the first appellate Court has wrongly re-
appreciated and reversed the well versed finding of the
trial Court and that there arises a substantial question of
law in the present appeal.
10. Both the parties admit the partition of the year
1971. The plaintiff's suit is based on the registered
partition deed dated 26.04.1971. Exs.P-2 and D-9 are the
registered partition deeds dated 26.04.1971. The first
appellate Court referred to the partition deed and arrived
at a conclusion that under the partition deed it discloses
that one plot measuring 1 acre 38 guntas and another plot
measuring 5 guntas in Sy.No.166/3 have been allotted to
the share of Hanumaiah, the branch of the plaintiffs and in
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the said partition deed 2 acres 22 guntas in Sy.No.166/3 is
allotted to the defendant. The first appellate Court, while
re-appreciating and reconsidering the entire oral and
documentary evidence, held that the extent of Hanumaiah
being in possession is only 3.00 guntas of land in
Sy.No.166/3 and not 5.00 guntas as contended by the
plaintiff. The contention of the appellant is that, the
plaintiff is seeking for the entire Sy.No.166/3 does not find
place in the pleadings or in the judgment and decree of
the Courts below as the suit is not for declaration, but for
permanent injunction in respect of certain portion of
Sy.No.166/3, which according to the plaintiff, the
defendant is causing interference. The first appellate
Court, being the last fact finding Court, has re-appreciated
the entire oral and documentary evidence and held that
the plaintiff has proved his possession over 3 guntas of
land in Sy.No.166/3 with the boundaries stated in the
plaint.
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11. The defendant has made out no ground for
admission in the present second appeal warranting any
interference by this Court and no substantial question of
law arises for consideration in this second appeal and this
Court pass the following:
ORDER
(i) The regular second appeal is dismissed.
(ii) The judgment and decree of the first appellate Court
stands confirmed.
Sd/-
(K.S. HEMALEKHA)
JUDGE
S*
