Karnataka High Court
Shri Melagirigouda S/O Naganagouda vs Shri Ninganagouda S/O Naganagouda on 12 August, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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RFA No. 100308 of 2022
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF AUGUST 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 100308 OF 2022 (DEC/PAR-)
BETWEEN:
SHRI MELAGIRIGOUDA
S/O. NAGANAGOUDA CHIKKANAGOUDAR,
AGE: 90 YEARS, OCC: AGRICULTURE,
R/O. HANSHI, TQ: NAVALAGUNDA,
DIST: DHARWAD-582208.
...APPELLANT
(BY SRI. LAXMAN T. MANTAGANI, ADVOCATE)
AND:
1. SHRI NINGANAGOUDA
S/O. NAGANAGOUDA CHIKKANAGOUDAR,
(SINCE DECEASED BY LR'S)
YASHAVANT 1(A) SRI. MALLANAGOUDA
NARAYANKAR
S/O. NINGANAGOUDA CHIKKANAGOUDAR,
Digitally signed by
AGE: 47 YEARS, OCC: AGRICULTURE,
YASHAVANT
NARAYANKAR R/O. KUNDGOL, DIST: DHARWAD-581212.
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
DHARWAD
1(B) SUVARNA W/O. BASANAGOUDA PATIL,
AGE: 43 YEARS, OCC: HOUSEWIFE,
R/O. RAVI NAGAR, GOKUL ROAD,
HUBBALLI-580030, TQ: HUBBALLI,
DIST: DHARWAD.
1(C) RAVI NINGANAGOUDA CHIKKANAGOUDAR,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O. HIREBUDIHAL, TQ: KUNDGOL,
DIST: DHARWAD-581212.
....RESPONDENTS
(NOTICE TO R1(A), (B), (C) SERVED AND UNREPRESENTED)
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RFA No. 100308 of 2022
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THIS RFA IS FILED UNDER SECTION 96 OF CPC PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE COURT OF
THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
KUNDGOL, IN O.S.NO.46/2018 DATED 18.02.2022 AND ALLOW THE
REGULAR FIRST APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.07.2025 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present appeal is filed under Section 96 of the
Code of Civil Procedure, 19081 by the plaintiff challenging
the judgment and decree dated 18.02.2022 passed in O.S.
No.46/2018 by the Senior Civil Judge and JMFC at
Kundgol2 whereunder the suit for declaration filed by the
plaintiff has been dismissed by the Trial Court.
Hereinafter referred to as 'CPC'
Hereinafter referred to as 'the Trial Court'
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2. The parties are referred to as per their rank
before the Trial Court for the sake of convenience.
3. It is the case of the plaintiff that the parties i.e.,
the plaintiff and defendant are the sons of one
Naganagouda, who died leaving behind the plaintiff and
the defendant and three daughters as his legal
representatives. That the sisters of the parties have died
long back. That the plaintiff and defendant constitute a
joint family and they have purchased an agricultural land
bearing Survey No.104/4 (item No.1 of 'A' schedule) from
one Naganagouda Venkanagouda in the year 1964 from
the income of the joint family. That since the defendant
who was the elder brother of the family was managing the
joint family, he purchased the property in his name and
that the Khata was mutated in his name vide
M.E.No.1313. However, the property was a joint family
property.
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4. It is the further case of the plaintiff that he got
appointed as CRPF constable and went to service. That
during his service, he used to come and visit his village
and pay some amounts from his salary to the defendant to
purchase the property. That the defendant was cultivating
the agricultural land and from the income of the joint
family property, the plaintiff and defendant have jointly
purchased another agricultural land bearing Sy.No.102/2
of Hirebudihal village (item No.2 of 'A' schedule') in the
year 1972 from one H.B.Kadappanagouda and got
mutated their names under MR No.1512. That the plaintiff
and defendant further purchased a house property out of
the income of the joint family in the name of the
defendant. That when the plaintiff was serving in the
border area, he fell ill and took voluntary retirement and
started residing in his sister's house at Hanasi village of
Navalagund Taluk, as he married the daughter of his
sister. That he used to visit Hirebudihal village to see his
relatives, land and house properties. That, the defendant
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was cultivating the suit lands by residing in the suit house
property and used to give some food grains grown in the
land, but one year prior to filing of the suit, the defendant
did not give any food grains and when asked, he said that
as there was a drought, as a result of which he could not
grow grain and will give the same in the following year.
That believing the same, the plaintiff kept quiet and in the
following year when he demanded the food grains, the
defendant replied saying that if the lands are in his name,
he may cultivate the land. That upon verification, the
plaintiff learnt that the land in Survey No. 102/2 stood in
the name of the defendant and the defendant created a
bogus relinquishment deed dated 24.06.1987 as if the
plaintiff has given up his share in favour of the defendant.
It is contended that the plaintiff has not executed any
relinquishment deed and the signature on the said deed is
not that of the plaintiff. It is averred that the plaintiff has a
half share in the suit properties. That when the plaintiff
asked defendant No.1 to rescind the varadi to effect his
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name, the defendant refused to do the same and as such,
the suit was filed.
5. The defendant entered appearance in the suit
and filed the written statement denying the case of the
plaintiff. However, the relationship between the parties
was admitted. It was further averred that the parties as
well as another brother-Bhadregouda were still minors and
they settled and were brought up in the house of their
elder sister at Hanchatageri village of Hubli Taluk during
which period the brother of the parties i.e. Bhadregouda
died, when he was minor. That after attaining the
majority, the plaintiff went and settled in the house of
another sister at Hanasi village of Navalagund Taluk and
that the plaintiff worked as employee for one year and
returned to Hanasi village.
6. It is the specific case of the defendant that he
purchased item No.1 of suit 'A' schedule on 25.04.1964
from his own income as well as from the income of his
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wife and it is their self-acquired property. That the sale
deed in respect of the said property was executed in his
name and that he and the members of his family are in
possession and enjoyment of the said property. That on
22.05.1975, the defendant purchased item No.2 of 'A'
schedule property from his income and the income of his
wife. That at the time of execution of the sale deed, as the
plaintiff intended to purchase a land in Hansasi village and
as there was no document of revenue land standing in his
name, he requested the defendant to enter his name in
the sale deed. The plaintiff assured before the elders of
the village that after purchase of land in Hanasi village, he
would voluntarily remove his name from the revenue
records. Hence, although the item No.2 of the suit
property was self-acquired property of the defendant, the
name of the plaintiff was entered in the sale deed. Under
the said circumstance, subsequently the plaintiff got
purchased the land bearing Survey No.281/1 of Hanasi
village under registered sale deed in the name of his wife
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Taravva. That after purchase of the said land, as agreed
before the elders and on their advise the plaintiff executed
an relinquishment deed on 24.06.1987 in favour of
defendant in the presence of elders of the village and also
gave a Varadi, which was entered vide No.2065 and an
order was effected on 07.08.1978 and since then the
defendant, his wife and children are in possession and
enjoyment of the property.
7. It is further averred that the suit house
property bearing No.84 situated at Hirebudihal village is
also the self-acquired property of the defendant purchased
from his own income. That the suit is barred by limitation.
It is further averred that the suit is bad for non-joinder of
parties and non-inclusion of land bearing Survey No.289/1
and Plot No.408 and 409 in Survey No.322/1+2 situated
at Hanasi village of Navalagund Taluk purchased in the
name of the wife of the plaintiff. That the defendant is
suffering from old-age ailments and taking advantage of
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the same, the plaintiff has filed this suit. Hence, the
defendant sought for dismissal of the suit.
8. Consequent to the pleadings of the parties, the
Trial Court framed following issues:
1. Whether the plaintiff proves that alleged
relinquishment deed dated 24.06.1987
executed in respect of Sy.No.102/2 of
Hirebudihal is null and void?
2. Whether the plaintiff proves that suit
property is joint family properties and
purchased in the name of defendant out of
income of the joint family?
3. Whether the plaintiff is entitle ½ share in
the suit properties?
4. Whether the defendant proves that
Sy.No.102/2 measuring 5 acres 00 guntas
of property is self acquired property?
5. Whether the defendant proves that suit is
bad for non-joinder of suit properties?
6. Whether the defendant proves that suit is
barred by limitation?
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7. What order or decree?
9. The plaintiff examined himself as PW1 and
Exs.P1 to P19 were marked in evidence. The son of the
defendant, who was the GPA holder of the defendant, was
examined as DW1 and two witnesses were examined as
DW2 and DW3. Exs.D1 and D2 were marked in evidence.
10.The Trial Court by its judgment and decree
dated 18.02.2022 answered issue No.1 and 2 in the
negative, Issue No.4 in the affirmative, issue No.5 in the
negative, issue No.6 in the negative and issue No.3 in the
negative and accordingly dismissed the suit. Being
aggrieved by the same, the plaintiff has preferred the
present appeal.
11.The learned counsel, Sri. Laxman T Mantagani,
appearing or the appellant/plaintiff has vehemently
contended that the Trial Court has erred in not noticing
that the agreement of sale (Ex.P4) in respect of item No.2
of 'A' schedule as well as the other documents clearly
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demonstrate that the item No.2 of the suit 'A' schedule
property was purchased in the name of the plaintiff and
defendant, despite which, the suit has been dismissed.
That the Trial Court erred in considering the consent letter
(Ex.P16) and the relinquishment deed (Ex.P18) while
holding that the plaintiff has no right in the suit item No.2
property. That he defendant has not produced any
documents to demonstrate that the suit schedule
properties were purchased in his name in his individual
capacity. That the relinquishment deed (Ex.P18) is an
unregistered document, which is not admissible in the eye
of law and not binding on the plaintiff. Hence, he seeks for
allowing the above appeal and for granting the relief
sought for.
12. The respondent/defendant died during the
pendency of the above appeal and his legal
representatives having been brought on record are served
with notice and unrepresented.
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13. The submissions of the learned counsel for the
appellant-plaintiff have been considered, and the materials
on record including the records of the Trial Court have
been perused.
14. The question that arises for consideration in this
appeal is:
"Whether the Trial Court erred in
dismissing the suit of the plaintiff?"
15. At the outset, it is pertinent to note that the
Trial Court framed issue No.6 with regard to limitation.
While considering issue No.6, it noticed that the plaintiff
having sought for the relief of declaration and partition,
Article 59 of the Limitation Act has to be applied and the
period of limitation is three years from the date when the
facts entitling the plaintiff first become known to him. It is
further observed that though the plaintiff contended that
he came to know about the change of the documents
recently, no evidence was produced to substantiate his
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version. Further, the admission of PW1 in his evidence that
the defendant got the Khata changed on the basis of the
sale deed and he was enjoying the properties by paying
taxes was noticed and hence, the Trial Court recorded a
finding that the plaintiff had knowledge of the same for
more than three years. Hence, the Trial Court recorded a
finding that the suit is not within the period of limitation
and answered issue No.6 in the affirmative.
16. It is pertinent to state here that admittedly,
item No.2 of the suit 'A' schedule property stood in the
joint names of the plaintiff and defendant. Item No.1 of
the suit 'A' schedule property and the 'B' schedule
property stood solely in the name of the defendant. Even
with regard to item No.2 of suit 'A' schedule property, as
observed by the Trial Court, the plaintiff has executed the
relinquishment deed (Ex.P18) as well as affixed his
signature on the consent letter (Ex.P16/Ex.P8) wherein he
agreed for the revenue records of the said suit property to
be changed in the name of the defendant.
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17. It is pertinent to note that Ex.P14 was dated
05.06.1967 and the relinquishment deed (Ex.P18) was
dated 26.04.1987. It is clear that pursuant to execution of
Ex.P18 and Ex.P16, the revenue records have been
changed in favour of the defendant in the year 1987 itself.
Ex.P18 pertains only to the item No.2 of the suit 'A'
schedule property.
18. The plaintiff has filed suit for declaration that he
is not bound by the relinquishment deed (Ex.P18) as also
sought for half share in the property. The limitation to file
a suit for declaration is regulated by Article 58 of the
Limitation Act, whereunder it is stated that the limitation is
three years from when the cause of action first falls due.
In the facts and circumstances of the present case, it is
pertinent to note that pursuant to execution of Ex.P18 and
Ex.P16 by the plaintiff, the defendant in the year 1987
itself has got the revenue records changed in his name.
There is absolutely no averment in the plaint explaining
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the inordinate delay of more than 30 years in filing the
suit.
19. The Hon'ble Supreme Court in the case of
Nikhila Divyang Mehta and Another Vs. Hitesh P.
Sanghvi and Others3, has held as follows:
28. The other contention that the plaintiff
acquired knowledge of the Will and Codicil in the
first week of November, 2014, but that was not a
complete knowledge as probably he could read the
same subsequently. In dealing with the submission,
the appellate Court distinguished between "having
knowledge" and "full knowledge" to hold that the
suit is not barred by limitation as the limitation
would reckon from the date of full knowledge. It is a
complete fallacy to make nay distinction between
"knowledge" and "full knowledge". First of all, the
limitation has to run from the date when the cause
of action first accrued and not any subsequent date
for the cause of action. According to the plaintiff
himself, the cause of action for the suit had arisen
much earlier. Secondly, the plaintiff has not pleaded
any date on which he acquired complete knowledge
Civil Appeal No.5180 of 2025, Arising out of S.L.P. (C) No.13456 of 2024,
D.D. dated 15.04.2025.
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and that such argument is only an afterthought and
appears to be a simple creation of the first appellate
Court."
(emphasis supplied)
20. In the present case, consequent to execution of
relinquishment deed (Ex.P18) and the signature of the
plaintiff on the consent letter (Ex.P16), the revenue
records has been changed in favour of the defendant in
the year 1987 itself. As already noticed above, there is no
averment in the plaint, explaining the inordinate delay of
more than 30 years in filing the suit.
21. Although it is the vehement contention of the
learned counsel for the appellant-plaintiff that the plaintiff
was employed and was residing away from the suit
property and he was living in another village, as has been
rightly noticed by the Trial Court, the plaintiff has not
produced any document regarding his employment, as
also not stated the date on which he returned to his
village. It is noticed that PW1 has admitted in the cross-
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examination that he has been discharged from his
services. It is further forthcoming from the records that
the plaintiff has returned from his employment prior to
purchase of suit item No.2 of 'A' schedule property. The
Trial Court has further noticed that the PW1 admitted in
his cross-examination that the defendant used to borrow
and repay agricultural loan on the property and that PW1
also admitted that the defendant is the absolute owner in
possession and enjoyment of suit 'A' schedule property.
22. Upon re-appreciation of the material on record,
it is clear that the plaintiff has miserably failed in
demonstrating that he was entitled to file a suit after an
inordinate delay of more than 30 years consequent to the
revenue records in respect of item No.2 of the suit 'A'
schedule property having been changed in the name of the
defendant pursuant to the plaintiff having executed Ex.P18
and Ex.P16. The plaintiff has not even averred or adduced
any evidence with regard adequate reason for inordinate
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delay of more than 30 years in filing the suit after
execution of Ex.P16 and Ex.P18.
23. The Trial Court having recorded the finding that
the suit of the plaintiff is barred by time, the appellant-
plaintiff has failed in demonstrating that the said finding of
the Trial Court is in any manner erroneous and is liable to
be interfered with by this Court in the present appeal. In
view of the above discussion, the question framed for
consideration is answered in the 'negative'. Hence, the
following:
ORDER
i) The appeal is dismissed;
ii) The judgment and decree dated
18.02.2022 in O.S. No.46/2018 passed
by the Senior Civil Judge and JMFC at
Kundgol is affirmed;
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iii) In view of disposal of the appeal,
pending interlocutory applications, if
any, do not survive for consideration
and are disposed of accordingly.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
YAN
CT-MCK
