Karnataka High Court
Shri.Laxman S/O Yallappa Khanagavi vs Shri.Maruti S/O Yallappa Khanagavi on 10 February, 2025
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RSA No. 100188 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100188 OF 2021 (MON-)
BETWEEN:
SHRI. LAXMAN
S/O. YALLAPPA KHANAGAVI,
AGE. 64 YEARS,
OCC. COOLIE,
R/O. RAYAPUR GALLI,
NANDGAD,
TQ. KHANAPUR,
DIST. BELAGAVI - 590002.
...APPELLANT
(BY SRI. SADIQ N. GOODWALA, ADVOCATE)
AND:
SHRI. MARUTI
S/O. YALLAPPA KHANAGAVI,
AGE. 59 YEARS,
OCC. COOLIE,
R/O. RAYAPUR GALLI,
VN
BADIGER NANDGAD,
TQ. KHANAPUR,
DIST. BELAGAVI.
Digitally signed ...RESPONDENT
by V N BADIGER
Location: High
Court of
Karnataka,
Dharwad Bench
(BY SRI. PRUTHIVIRAJ P. HITTALAMANI, ADVOCATE)
Date:
2025.02.11
16:19:17 +0530
THIS RSA IS FILED U/SEC.100 OF CPC, 1908 PRAYING TO SET
ASIDE JUDGMENT AND DECREE DATED 26.03.2021 PASSED BY THE
SENIOR CIVIL JUDGE AND JMFC., KHANAPUR, IN R.A.NO.14/2017
CONFIRMING THE JUDGMENT AND DECREE DATED 07.02.2017
PASSED BY THE ADDL. CIVIL JUDGE AND JMFC., KHANAPUR IN
O.S.NO.02/2014, IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100188 of 2021
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by the defendant
challenging the judgment and decree dated 26.03.2021 in
R.A.No.14/2017 on the file of the Senior Civil Judge and
JMFC at Khanapur1 dismissing the appeal and confirming
the judgment and decree dated 07.02.2017 in
O.S.No.2/2014 on the file of the Additional Civil Judge and
JMFC at Khanapur2 decreeing the suit of the plaintiff.
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
and defendant are brothers and have purchased open
space as per the registered sale deed dated 29.12.1983
from its erstwhile owner - Sitaram Mahadev Padvad of
Nandagad and in the said open space, the plaintiff had
constructed two houses which have been numbered by the
Panchayat Nos.1682 and 1683. It is also stated in the
hereinafter referred to as 'First Appellate Court'
hereinafter referred to as 'Trial Court'
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plaint that the plaintiff is residing in the aforementioned
suit property and suit house No.1683 was kept vacant. It
is also stated in the plaint that the panchayat had given
house No.1681 in respect of the property purchased by
the defendant. Thereafter, there was a rift in the family
and as such, the plaintiff came to know that the defendant
has encroached the land belonging to the plaintiff and as
such the plaintiff has filed O.S.No.2/2014 before the Trial
Court seeking relief of recovery of possession of the suit
property.
4. After service of notice, the defendant entered
appearance and filed detailed written statement denying
the averments made in the plaint. It is the specific case of
the defendant that the property bearing Panchayat
Nos.1682 and 1683 have been allotted to the share of the
defendant as per the family agreement and accordingly
sought for dismissal of the suit.
5. The Trial Court based on the pleadings on
record, has framed issues for its consideration. In order to
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establish their case, the plaintiff has examined himself as
PW.1 and produced 23 documents and the same were
marked as Exs.P.1 to P.23. The defendant was examined
himself as DW.1 and produced 19 documents and the
same were marked as Exs.D.1 to D.19.
6. The Trial Court after considering the material on
record, by its judgment and decree dated 07.02.2017
decreed the suit and as such directed the defendant to
deliver the vacant possession of the suit property within
three months. Feeling aggrieved by the same, the
defendant has preferred R.A.No.14/2017 on the file of the
First Appellate Court and the same was resisted by the
plaintiff. The First Appellate Court after re-appreciating the
material on record, by its judgment and decree dated
26.03.2021, dismissed the appeal, consequently confirmed
the judgment and decree in O.S.No.2/2014. Feeling
aggrieved by the same, the defendant has preferred this
Regular Second Appeal.
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7. I have heard Sri.Sadiq N Goodwala, learned
counsel appearing for the appellant and Sri.Pruthviraj P
Hittalamani, learned counsel appearing for the respondent.
8. Sri.Sadiq N Goodwala, learned counsel
appearing for the appellant/defendant submitted that the
Trial Court has not properly framed issues relating to the
ownership insofar as the subject land and also contended
that the Trial Court has committed an error in arriving at a
conclusion that the appellant is not residing in the said
land. He further contended that since the appellant is
residing in the suit schedule property for more than 30
years and as such the finding recorded by the Trial Court
requires interference in this appeal.
9. Per contra, Sri.Pruthviraj P Hittalamani learned
counsel appearing for the respondent sought to justify the
impugned judgment and decree passed by the Courts
below.
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10. In the light of the submission made by the
learned counsel appearing for the parties, on careful
examination of the finding recorded by the Trial Court
would indicate that the plaintiff along with the defendant
have purchased open space measuring 2 acres 39 guntas
in land bearing Sy.No.55A/3 of Nandagad village and
thereafter the plaintiff has constructed two houses bearing
Panchayat Nos.1682 and 1683. The defendant also
constructed a house in Panchayat No.1681 and thereafter
the defendant with mutual arrangement with the plaintiff
and another brother by name Arjun, had transferred the
house bearing Panchayat No.1681 in favour of his brother
- Arjun.
11. In that view of the matter, taking into
consideration the fact that the plaintiff had purchased the
open space as per the registered sale deed referred to
above and also in view of the judgment and decree passed
in O.S.No.110/2010 filed by the appellant/defendant
herein which came to be decreed on 03.10.2013 and
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further taking into consideration the finding recorded by
the Trial Court at para No.9 of the impugned judgment, I
am of the view that no interference is called for in this
appeal as the Trial Court after considering the material on
record, rightly come to the conclusion while answering
issue relating to subject matter of the suit.
12. Taking into consideration the decree in
O.S.No.110/2010 (Ex.D.2) and as the Trial Court rightly
decreed the suit in favour of the plaintiff and same was
considered by the First Appellate Court as required under
Order 41 Rule 31 of CPC, I am of the opinion that, no
interference is called for in this appeal.
13. Accordingly, the appeal is dismissed at the
stage of admission as the appellant herein has not made
out a case for framing substantial question of law as
required under law. Hence, appeal fails.
14. After dictating the order, learned counsel
appearing for the appellant submitted that the Trial Court
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has granted three months time to the appellant/defendant
to deliver the vacant possession of the suit schedule
property to the plaintiff and accordingly he sought for
similar prayer.
15. Having taken note of the factual aspects on
record, three months time is granted from today to the
appellant/defendant to vacate the suit schedule property
and hand over the same to the plaintiff.
Sd/-
(E.S.INDIRESH)
JUDGE
SH
