Karnataka High Court

Gouramma W/O. Giddappa Kengannanavar vs Manjamma W/O. Narasappa on 15 January, 2025

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                                                           NC: 2025:KHC-D:552
                                                     RSA No. 100650 of 2015




                             IN THE HIGH COURT OF KARNATAKA,
                                     DHARWAD BENCH
                         DATED THIS THE 15TH DAY OF JANUARY, 2025
                                          BEFORE
                           THE HON'BLE MR. JUSTICE E.S.INDIRESH
                 REGULAR SECOND APPEAL NO. 100650 OF 2015 (DEC/INJ-)

                BETWEEN:

                1.    GOURAMMA
                      W/O. GIDDAPPA KENGANNANAVAR,
                      AGE: 72 YEARS,
                      OCC: AGRICULTURE

                2.    GOURAMMA
                      W/O. LATE SHIVAPPA KENGANNANAVAR,
                      AGE: 47 YEARS,
                      OCC: AGRICULTURE,

                3.    SHRUTI D/O. SHIVAPPA KENGANNANAVAR
                      AGE: 27 YEARS,
                      OCC: AGRICULTURE,

                4..   BEERESH
                      S/O. LATE SHIVAPPA KENGANNANAVAR
                      AGE: 27 YEARS,
VN                    OCC: AGRICULTURE,
BADIGER
                5.    ANANDAPPA
Digitally             S/O. GIDDAPPA KENGANNANAVAR
signed by V N
BADIGER               AGE: 52 YEARS,
Date:                 OCC: AGRICULTURE,
2025.01.16
12:36:54
+0530
                6.    MANJAPPA
                      S/O. GIDDAPPA KENGANNAVAR
                      AGE: 50 YEARS,
                      OCC: AGRICULTURE,

                7.    NAGARAJAPPA
                      S/O. GIDDAPPA KENGANNANAVAR
                      AGE: 47 YEARS,
                      OCC: AGRICULTURE,
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                                          NC: 2025:KHC-D:552
                                      RSA No. 100650 of 2015




8.   SHIVANAGAMMA W/O. THIRUKAPPA
     AGE: 51 YEARS,
     OCC: AGRICULTURE
     ALL ARE R/O. HALLUR VILLAGE,
     TQ: HIREKERUR, DIST: HAVERI.

                                                    ...APPELLANTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE)

AND:

1.   MANJAMMA W/O. NARASAPPA
     AGE 60 YEARS,
     OCC: AGRICULTURE

2.   GEETHA W/O. KUMAR T. K.
     AGE 34 YEARS,
     OCC: HOUSE WIFE

3.   NAGARAJ S/O. NARASAPPA,
     AGE: 30 YEARS,
     OCC: AGRICULTURE,

4.   SHIVAKUMAR S/O. NARASAPPA
     AGE: 27 YEARS,
     OCC: AGRICULTURE,
     ALL ARE R/O. DURGIGUDI EXTENT,
     HONNALI TOWN,
     TQ and DIST: DAVANGERI.
     577001.
                                              ...RESPONDENTS

(BY SRI. N.R. KUPPELUR, ADVOCATE FOR R1, R3 & R4;
R2 - SERVED)

                           --------
      THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE SENIOR
CIVIL JUDGE AND JMFC., COURT HIREKERUR IN R.A.NO.9/2014
DATED 18.02.2015 AND JUDGMENT AND DECREE PASSED BY CIVIL
JUDGE & JMFC COURT, HIREKERUR IN O.S.NO.101/2013 DATED
21.12.2013 AS NULL AND VOID.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                                                NC: 2025:KHC-D:552
                                          RSA No. 100650 of 2015




CORAM:       THE HON'BLE MR. JUSTICE E.S.INDIRESH

                          ORAL JUDGMENT

This appeal is preferred by the defendants assailing the

judgment and decree dated 18.02.2015 in R.A.No.9/2014 on

the file of the Senior Civil Judge and JMFC, Hirekerur (for short

"the First Appellate Court") confirming the judgment and

decree dated 21.12.2013 in O.S.No.101/2013 on the file of the

Civil Judge and JMFC, Hirekerur (for short "the Trial Court")

decreeing the suit of the plaintiff.

2. For the sake of convenience, the parties are

referred to as per their rank before the Trial Court.

3. The plaintiffs have filed a suit seeking the relief of

declaration with consequential relief of injunction in respect of

the subject matter of the land in question against the

defendants stating that, as per the registered partition deed

dated 04.12.1996 between the father of plaintiff No.2 to 4 and

husband of the plaintiff No.1-Sri.Narasappa with the father of

defendant No.5 to 8 and husband of defendant No.1-

Sri.Gadigeppa Siddappa Keggannavar and therefore, as the

partition had taken place as per the registered partition deed,

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despite the said fact the defendants are interfering with the

right of the plaintiffs and as such, the plaintiffs have filed

O.S.No.101/2013 before the Trial Court.

3.1. The defendants entered appearance before the Trial

Court, however have not filed written statement and contested

the matter by adducing evidence. The Trial Court, based on the

evidence of PW1 and the documents produced at Ex.P1 and

Ex.P2, by its judgment and decree dated 21.12.2013 decreed

the suit holding that the plaintiffs are the owners in possession

of the suit schedule property. Feeling aggrieved by the same,

the defendants have filed R.A.No.9/2014 before the First

Appellate Court and same was resisted by the plaintiffs. The

First Appellate Court, after re-appreciating the material on

record, by its judgment and decree dated 18.02.2015

dismissed the appeal and consequently confirmed the judgment

and decree in O.S.No.101/2013. Hence, this Regular Second

Appeal is preferred by the defendants.

4. The appellants have also filed I.A.No.1/2025 under

Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for

short "CPC") seeking permission to produce certain documents

NC: 2025:KHC-D:552

and same was opposed by the respondents herein by filing

objection to I.A.No.1/2025.

5. I have heard Sri. Dinesh M Kulakarni, learned

counsel appearing for the appellants and Sri. N. R. Kuppelur,

learned counsel appearing for the respondent No.1, 3 and 4.

6. The learned counsel appearing for the appellants

has submitted that as the suit came to be decreed on oral and

documentary evidence adduced by the plaintiffs and no fair

opportunity has been extended to the defendants therein and

accordingly, sought for interference of this Court. It is also

contended by the learned counsel appearing for the appellants

that though the registered partition deed has been effected,

however certain properties have been exchanged by the

parties, which is the subsequent event and same has to be

considered in the light of the finding recorded by both the

Courts below. Accordingly, he further sought for interference of

this Court solely on the ground that, no suit was filed during

the lifetime of Narasappa or the father of the contesting

defendants and the suit is filed during 2013 relying upon the

registered partition deed said to have been executed during

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1996 and therefore, the suit itself is barred by limitation and

accordingly, sought for interference of this Court. He also refers

to the documents annexed to the application in I.A.No.1/2025

to substantiate his arguments.

7. Per contra, learned counsel Sri. N. R. Kuppelur,

appearing for the respondent No.1, 3 and 4 submitted that

since the entire case revolves upon Ex.P1-registered partition

deed effected between the father of the plaintiffs as well as

defendants and therefore, sought to justify the judgment and

decree passed by both the Courts below. He also submitted

that the documents sought to be produced by the appellants

herein vide application under Order XLI Rule 27 of CPC is with

regard to revenue documents, which cannot enure to the

benefit of the defendants and accordingly, sought for dismissal

of the said application.

8. Having heard the learned counsel appearing for the

parties and on careful examination of the finding recorded by

both the Courts below, it would indicate that there is no dispute

between the parties with regard to the relationship. On careful

examination of the finding recorded by the Trial Court, it would

NC: 2025:KHC-D:552

indicate that the registered partition deed was effected on

04.12.1996 in respect of the subject matter of the land in

question and therefore, since the said document is a registered

document, which is right-in-rem and therefore, since the said

partition deed referred to at Ex.P1 has not been cancelled yet

as on today, I am of the opinion that the finding recorded by

the Trial Court is just and proper and same has been

considered by the First Appellate Court in the right perspective

and accordingly, I do not find any merit in the submission made

by the learned counsel appearing for the appellants.

9. Insofar as the submission made by the learned

counsel for the appellants that the suit is barred by limitation,

having taken note of the paragraph 6 of the plaint, it makes

clear that the cause of action to file the suit arose on

12.02.2013 when the defendants tried to interfere with

plaintiffs' peaceful possession and enjoyment of the suit

property denying their title over the suit property and

therefore, the suit is filed within time. Paragraph 6 of the plaint

is reproduced, which reads as under:

"6. The cause of action for the suit arose on 12.02.2013 when the defendants tried to interfere

NC: 2025:KHC-D:552

in plaintiff's peaceful possession and enjoyment of the suit schedule property by denying plaintiff title over the suit schedule property at Shankaranahalli M. D. village, which comes will within the jurisdiction of this Hon'ble Court. The plaintiffs have not filed any other suit for the same relief either before this Hon'ble Court or any other Courts."

10. Insofar as contention raised by the learned counsel

appearing for the appellants that a fair opportunity has not

been extended to the defendants, however taking into account

that the defendant No.1 to 8 had appeared before the Trial

Court, however were not diligent in prosecuting the case by not

only in filing the written statement but also producing the

relevant documents to substantiate their right over the

property in question. In that view of the matter, I am of the

view that, both the Courts below have taken note of the factual

aspects on record and have rightly decreed the suit based on

Ex.P1, which cannot be interfered with in this appeal filed under

Section 100 of CPC.