Karnataka High Court
Suresh S/O Narayan Deshpande vs Annappa S/O Adiveppa Handigund on 5 February, 2025
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RSA No. 100603 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100603 OF 2018
(DEC/INJ-)
BETWEEN:
SURESH S/O. NARAYAN DESHPANDE,
AGE: 82 YEARS, OCC: AGRICULTURE,
R/O: DHAVALESHWAR VILLAGE,
TQ: MUDHOL, DIST: BAGALKOTE.
(NOTE: APPELLANT IS REPRESENTED BY
THE GPA HOLDER NAMELY
NARAYAN S/O. SURESH DESHPANDE)
...APPELLANT
(BY SMT. DEEPA P. DODDATTI, AND
SRI. PAVAN B. DODDATTI, ADVOCATES)
VN AND:
BADIGER
ANNAPPA S/O. ADIVEPPA HANDIGUND,
Digitally signed
AGE 48 YEARS, OCC: AGRICULTURE,
by V N BADIGER
Location: High R/O: DHAWALESHWAR VILLAGE,
Court of
Karnataka,
Dharwad Bench
TQ: MUDHOL, DIST: BAGALKOT.
Date: 2025.02.10
16:47:18 +0530 ...RESPONDENT
(BY SRI GIRISH A. YADAWAD, ADVOCATE)
THIS RSA IS FILED U/SEC.100 OF CPC, IS PRAYING TO
SET-ASIDE THE JUDGMENT AND DECREE PASSED BY THE
COURT OF I ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOT TO SIT AT JAMAKHANDI AT JAMAKHANDI DATED
03/07/2018 PASSED IN R.A.NO. 91/2013 IN REVERSING THE
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RSA No. 100603 of 2018
JUDGMENT AND DECREE PASSED BY THE COURT OF SENIOR
CIVIL JUDGE MUDHOL DATED 28.08.2013 IN O.S. NO.
03/2011, BY ALLOWING THIS APPEAL AND SUIT OF THE
PLAINTIFF MAY KINDLY BE DISMISSED, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)
This appeal is preferred by defendant, challenging the
judgment and decree dated 03.07.2018 in RA No.91/2013 on
the file of I Additional District and Sessions Judge, Bagalkote -
sitting at Jamakhandi (for short, hereinafter referred to as 'First
Appellate Court'), allowing the appeal and setting aside the
judgment and decree dated 28.08.2013 in OS No.3/2011 on
the file of Senior Civil Judge and JMFC, Mudhol (for short,
hereinafter referred to as 'Trial Court'), decreeing the suit in
part.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. It is the case of the plaintiff that, the plaintiff is the
owner in possession of the suit schedule property having
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purchased the same as per registered sale deed dated
25.07.2003 from Hanamant Gopal Deshpande for consideration
of Rs.2,15,000/-. It is stated that the revenue records have
been mutated accordingly. It is also stated in the plaint that,
the defendant without considering the title of the plaintiff has
interfered with the suit schedule property based on the
judgment and decree in OS No.171/1996 which came to be
dismissed and therefore, sought for relief of declaration with
regard to the suit schedule property.
4. On service of notice, the defendant entered
appearance and filed detailed written statement stating that
suit in OS No.171/1996 was filed seeking partition against the
vendor of the plaintiff, which came to be dismissed and same
was reversed in RA No.69/1998 and thereafter, same was
confirmed in RSA No.1188/2004 and accordingly sought for
dismissal of the suit.
5. The Trial Court based on pleadings formulated the
issues for its consideration.
6. In order to establish their case, two witnesses were
examined by the plaintiff as PW1 and PW2 and 14 documents
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were marked as Ex.P1 to P14. Defendant has examined one
witness as DW1 and got marked a document as Ex.D1.
7. The Trial Court after considering the material on
record decreed the suit holding that the plaintiff is entitled for
½ share in suit claim bearing Sy.No.216/3 of Dhawaleshwar
village, and dismissed the suit with regard to nullify the
registered sale deed dated 25.07.2003. Feeling aggrieved by
the same, the plaintiff has preferred RA No.91/2013, and the
said appeal was resisted by the defendant. The First Appellate
Court after re-appreciating the material on record by its
judgment and decree dated 03.07.2018 allowed the appeal.
Consequently, held that the plaintiff is absolute owner in
possession of the suit schedule property in entirety. Feeling
aggrieved by the same, the defendant has preferred this
Regular Second Appeal.
8. This Court vide order dated 14.09.2020 formulated
the following substantial question of law.
"1) Whether the First Appellate Court was
justified in reversing the findings of the Trial Court
overlooking the fact that partition which had
reached finality operated as res-judicata and
purchaser of a divided share was not entitled to
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seek reopening of partition by way of a suit for
declaration and injunction?
2) Whether the First Appellate Court was
justified in reversing the findings of the Trial Court
without considering the fact that Tahasildar, Mudhol
in RTS-SR.No.14/1996-97 has held that suit land is
still joint family property and it has not been
partitioned in the year 1961 as per certification of
M.E. No.666 and that subsequent partition in M.E.
No.6043 has been cancelled on 24.10.1997?
3) Whether the First Appellate Court was
justified in reversing the findings of the Trial Court
without considering the fact that sale transaction is
hit by Section 52 of Transfer of Property Act,
1882?"
9. I have heard Smt. Deepa P. Doddatti, learned
counsel appearing for the appellant and Sri. Girish A Yadawad,
learned counsel appearing for the respondent.
10. Learned counsel appearing for the appellant
contended that, the appellant herein has filed OS No.171/1996
against the vendor of the plaintiff seeking relief of partition and
separate possession and the said suit came to be dismissed and
the appellant herein has filed RA No.69/1998 before the First
Appellate Court wherein, the said appeal came to be allowed
and declared that the plaintiff is entitled for ½ share in the suit
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schedule property. The said judgment and decree in RA
No.69/1998 is confirmed in RSA No.1188/2004 and also by the
Hon'ble Supreme Court in SLP No.33698/2013 disposed off on
01.11.2013 and accordingly, sought for interference of this
Court.
11. Per contra, learned counsel appearing for the
respondent sought to justify the impugned judgment and
decree passed by the First Appellate Court and contended that
the defendant has claimed ½ share with respect of the suit
schedule property and not claimed share in all the family
properties and accordingly, sought for dismissal of the appeal.
It is also submitted by the learned counsel for the respondent
that, liberty was reserved to the plaintiff/respondent in SLP
No.22542 of 2019 by the Hon'ble Supreme Court vide order
dated 10.01.2020 to institute fresh suit seeking proper remedy
and as such, the plaintiff/respondent has filed suit in OS No.3
of 2011.
12. Having heard the learned counsel appearing for the
parties, it is not in dispute that the plaintiff has purchased the
suit schedule property as per registered sale deed dated
25.07.2003 (Ex.P14) from Hanamant Gopal Deshpande, who is
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the defendant in OS No.171/1996 filed by the defendant
herein. The said suit came to be dismissed. Consequently, the
defendant has preferred RA No.69/1998 which came to be
allowed holding that, the defendant herein is entitled for ½
share in the suit schedule property. The said judgment and
decree is confirmed by this Court in RSA No.1188/2004 and by
the Hon'ble Supreme Court in SLP No.33698/2013 dated
01.11.2013.
13. In that view of the matter, the Trial Court after
appreciating the material on record rightly held that the plaintiff
is entitled for ½ share in suit land bearing Sy. No.216/3 of
Dhawaleshwar village. However, same has been erroneously
interfered with by the First Appellate Court. The First Appellate
Court has not property re-appreciated the material on record as
required under Order 41 Rule 31 of CPC and has misconstrued
the rulings by this Court in RSA No.1188 of 2004 and RSA
No.100250 of 2018 and the Hon'ble Supreme Court confirming
the judgment and decree in RA No.69/1998. It is also to be
noted that, the appeal preferred by the plaintiff /respondent
confirmed in RSA No.100250 of 2018 by this Court and the
Hon'ble Supreme Court in SLP No.22542 of 2019 dated
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10.01.2020 and therefore, the relief sought for by the plaintiff
is only to the extent of ½ share in land bearing Sy.No. 216/3 of
Dhavaleshwara Village. In that view of the matter, I find force
in the submission made by learned counsel appearing for the
appellant and accordingly, appeal is allowed by setting aside
the judgment and decree passed by the First Appellate Court by
restoring the judgment and decree passed by the Trial Court.
In the result, I pass the following:
ORDER
i) Appeal is allowed.
ii) Judgment and decree dated 03.07.2018
in RA 91/2013 on the file of I Additional District
and Sessions Judge, is set aside.
iii) Judgment and decree dated 28.08.2013
in OS No.3/2011 on the file of Senior Civil
Judge, Mudhol, is hereby confirmed.
iv) Suit is partly decreed accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM
