Karnataka High Court
Sri Krishnappa vs Sri Shamanna on 30 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 2269 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.2269 OF 2006 (DEC/INJ)
BETWEEN:
1. SRI KRISHNAPPA,
SINCE DEAD BY HIS LEGAL HEIRS.
1(a) SMT. MOTAMMA,
W/O LATE KRISHNAPPA,
AGED ABOUT 65 YEARS.
1(b) SMT. RATHNAMMA,
D/O LATE KRISHNAPPA,
W/O SRI. MUNEGOWDA,
AGED ABOUT 40 YEARS,
R/AT AYURU VILLAGE,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT.
Digitally signed
by DEVIKA M 1(c) SRI. NAGESH G.K.
Location: HIGH S/O LATE KRISHNAPPA,
COURT OF AGED ABOUT 38 YEARS.
KARNATAKA
1(d) SRI. RAMA MURTHY,
S/O LATE KRISHNAPPA,
AGED ABOUT 36 YEARS.
1(e) SRI. SRINIVAS,
S/O LATE KRISHNAPPA,
AGED ABOUT 34 YEARS.
SL.NO.1(a), 1(c), 1(d) AND 1(e) ARE
R/AT GOVINDAPURA VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT.
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RSA No. 2269 of 2006
1(f) SMT. LAKSHMI,
D/O LATE KRISHNAPPA,
W/O SRI. RAMESH,
AGED ABOUT 32 YEARS,
R/AT SOLURU VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT.
(AMENDED VIDE COURT ORDER DATED 02.01.2024)
...APPELLANTS
(BY SRI. A.G.NAGARAJA, ADVOCATE)
AND:
1. SRI. SHAMANNA,
SINCE DEAD BY HIS LEGAL HEIRS.
1(a) SRI. KRISHNAPPA (SON-IN-LAW),
H/O LATE SUSHEELAMMA (DAUGHTER),
AGED ABOUT 70 YEARS,
R/AT GOVINDAPURA VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT.
1(b) SMT. RUKMINI (GRAND DAUGHTER),
D/O LATE SUSHEELAMMA (DAUGHTER),
W/O DEVARAJA,
AGED ABOUT 40 YEARS,
RESIDING AT VADIGEHALLI VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT.
1(c) SRI. JAYANNA (SON-IN-LAW),
H/O LATE SAMPIGEMMA (DAUGHTER),
AGED ABOUT 65 YEARS.
1(d) SMT. GEETHA (GRAND DAUGHTER),
D/O LATE SAMPIGEMMA (DAUGHTER),
AGED ABOUT 40 YEARS.
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RSA No. 2269 of 2006
1(e) SMT. SAVITHA (GRAND DAUGHTER),
D/O LATE SAMPIGEMMA (DAUGHTER),
AGED ABOUT 38 YEARS.
SL.NO.1(c), 1(d) AND 1(e) ARE
RESIDING AT CHANNAHALLI VILLAGE,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT.
1(f) SMT. DEVARATHNAMMA (DAUGHTER),
D/O LATE SHAMANNA,
W/O DASHARATHA,
AGED ABOUT 55 YEARS,
R/AT NEAR KANAKANA COMPOUND,
HOSAKOTE TOWN - 562 114,
BENGALURU RURAL DISTRICT.
1(g) SRI. DEVARAJ (SON),
S/O LATE SHAMANNA,
AGED ABOUT 50 YEARS,
R/AT JINNAGARA VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT-562114.
(AMENDED VIDE COURT ORDER DATED 06.02.2023)
...RESPONDENTS
(BY SRI. PRASANNA D.P., ADVOCATE R1[a to g])
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 14.07.2006
PASSED IN R.A.NO.117/2000 ON THE FILE OF THE DISTRICT
AND SESSIONS JUDGE, PRESIDING OFFICER, FAST TRACK
COURT NO.V, BANGALORE RURAL DISTRICT, BANGALORE,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 31.05.2000 PASSE3D IN O.S.NO.419/1992
ON THE FILE OF THE CIVIL JUDGE (JR. DN.) AND JMFC,
HOSKOTE.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 2269 of 2006
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and the
learned counsel for the respondents.
2. This appeal is filed against the divergent finding of
the Appellate Court reversing the finding of the Trial Court and
granting the relief in favour of the plaintiff in the appeal.
3. Being aggrieved by the judgment and decree of the
Appellate Court, the sole defendant has filed this appeal before
this Court. Having considered the grounds urged in the second
appeal, this Court has framed the following substantial question
of law on 10.08.2010, which reads as follows:
Whether the Appellate Court was justified in
reversing the judgment and decree passed by the
Trial Court holding that the plaintiff is the owner
of the property bearing Sy.No.39/2 based on
Exs.P.1 and P2 and holding that Exs.D.3 and D4
are not proved by the appellant/defendant?
4. Having considered the material available on record,
the properties which both the appellant and the respondent
claim belongs to the same property, is not in dispute. It is not
in dispute that family partition was taken amongst them. In
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terms of the family partition, an extent of 25 guntas was allotted
in favour of the vendor of the appellant and he executed the
sale deed dated 12.12.1969 selling the property to the extent of
14 guntas. The Court has to take note of the original family
partition, wherein the boundary shown in the partition is, on the
west property of Marappa, on the west in respect of the property
allotted in favour of the vendor of the appellant Erappa, the
property of Ramaiah and on the west of the property of Ramaiah
the property of Ramaswamappa i.e., the plaintiff and on the
west of the plaintiff Ramaswamappa, allotment was made in
favour of Nagappa. In terms of the said partition, Erappa was
allotted 25 guntas and remaining 3 brothers are allotted with
16½ guntas of the property. Though it appears that 16½ was
allotted, but the actual measurement of the property is 1 acre 3
guntas in Sy.No.39/3 and in Sy.No.39/2 extent is 29 guntas and
in terms of the partition, it comes to 49 guntas + 25 guntas =
74½ guntas, but actual remaining guntas is 72. In terms of the
partition, it is shown as 74½ guntas. With regard to the
identity of the property is concerned, it is not in dispute that in
terms of Ex.P.2 family partition, on the east property allotted in
favour of Erappa is shown Marappa and hence regarding identity
of the property is not in dispute.
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5. This Court also directed the Commissioner to identify
the property twice and appointed the Court Commissioner and
the Court Commissioner also visited the spot and prepared the
sketch and there are three sketches before this Court. In sketch
No.1 total extent of Sy.No.39/2 was identified. In sketch No.3
both Sy.No.39/2 and Sy.No.39/3 are identified and both of them
have claimed in terms of sketch No.3 that they are in
occupation, but not demarcated the extent of possession and
shown in green colour the area claimed by both the plaintiff and
defendant that they are in occupation of the property. It is
important to note that in sketch No.2, the surveyor identified
the property which has been sold in favour of the appellant's
vendor and the same is part of Sy.No.39/2. Having taken note
of sketch of Sy.No.39/3, it is clear that the respondent/plaintiff
is also in occupation of portion of the property in Sy.No.39/2
and also portion of property in Sy.No.39/3 since both of them
claims their respective occupation and once Erappa who was
allotted property on the eastern side of remaining brothers, it is
clear in terms of the sale deed executed in favour of the
appellant also i.e., on the east of all the allottees of the same
family. When such being the case, it is clear that the plaintiff
had purchased the property of Ramaiah, which is allotted on the
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west of the property of Erappa and thereafter the plaintiff was
allotted with 16½ guntas in terms of the partition. Hence, it is
specific that he has been in possession of Sy.No.39/2 portion as
well as Sy.No.39/3 and sketch clearly indicates with regard to
possession is concerned.
6. It is important to note that the defendant claims
portion of the property only to an extent of 14 guntas what he
had purchased from the vendor of the defendant. The vendor of
the vendor of the defendant is none other than the family
member of the very same family. When such being the material
on record, it is clear that the appellant/defendant is in
possession only to an extent of 14 guntas on the eastern portion
of the family of the plaintiff. The remaining portion is in the
possession of the plaintiff since he had purchased 14 guntas
from Ramaiah and also he is having his own share in terms of
partition Ex.P.2. It is important to note that admittedly the
vendor of the vendor of the defendant also belongs to the same
family and the family was not having any property in Sy.No.49/2
and the plaintiff also not disputes the fact that the family was
having any property of Sy.No.49/2. There was an error in
mentioning the survey number in the sale deed of the
defendant, but schedule is shown correctly as property of
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Marappa on the east and the schedule will prevail in terms of
the sale deed and hence the rectification deed of Exs.D.3 and 4
are executed by the legal heirs of the vendor of the defendant.
The Appellate Court failed to take note of the said fact into
consideration and the schedule mentioned in the sale deed.
When such being the case, the Appellate Court committed an
error in coming to the conclusion that Exs.D3 and D4 are not
proved by the appellant/defendant and the fact that legal heirs
have executed Exs.D3 and D4 is not in dispute. The fact is that
the plaintiff is not the owner of the property in Sy.No.39/2 to
the whole extent of what he had purchased and also the extent
what was allotted to him and the same is in Sy.No.39/2 and
Sy.No.39/3 and hence there is no mistake in identifying the
property. The First Appellate Court committed an error in
holding that the plaintiff is the owner of the property bearing
Sy.No.39/2 only and the fact that when Sy.No.39/2 only
consists of either 26 guntas or 23 guntas including the kharab
land, the question of the plaintiff is in possession of property of
39 guntas to the whole extent what he had purchased and what
he had allotted does not arise having taken note of the schedule
mentioned in the document of Ex.P.2. Hence, the Appellate
Court committed an error in coming to such a conclusion.
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7. Having taken note of the material on record, this
Court twice appointed the Court Commissioner with regard to
the identification of the property is concerned and the Court
Commissioner at the fist instance only identified the property of
Sy.No.39/2. When the possession of both the plaintiff and
defendant was not identified, this Court directed to identify the
possession of both the plaintiff and the defendant and
accordingly sketch No.3 is produced and the possession claimed
by both the parties is clearly disclosed in sketch No.3. Hence, it
is clear that on the east the appellant is in possession of the
property, on the west of the property of the appellant the
plaintiff is in possession of the property of Sy.No.39/2 portion as
well as Sy.No.39/3. Hence, the substantial question of law is
answered accordingly that the Appellate Court committed an
error in coming to the conclusion that Exs.D3 and D4 are not
proved by the appellant/defendant. The very reasoning given
by the Appellate Court that the plaintiff is the owner of the
property in Sy.No.39/2 to the whole extent is not correct and
hence the judgment of the Appellate Court is modified in coming
to the conclusion that the appellant is in possession of the
property on the eastern portion of the property of Sy.No.39/2
and on the east of the property of the appellant, property of
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Marappa is shown in the sale deed and hence the identification
is also very clear and the remaining extent of the land is in
possession of the plaintiff both in Sy.No.39/2 and Sy.No.39/3.
Hence, the same is clarified and the relief is granted in favour of
the plaintiff though in the plaint not correctly mentioned the
boundaries and the description of the property and this Court
clarified the possession of the plaintiff that he has been in
possession of portion of Sy.No.39/2 and Sy.No.39/3 as per
sketch No.3. The appellant/defendant is in possession of the
property to an extent of 14 guntas as shown in sketch No.2.
Accordingly, the suit of the plaintiff is decreed as he is the owner
of the property as observed above. It is clarified that the
defendant/appellant is in possession of the property on the
eastern portion of the property which is shown in terms of
sketch No.2.
8. There is also dispute with regard to cutting and
removing of eucalyptus trees existing in these properties and
the defendant/appellant is entitled for 14 guntas of land, which
has been shown in the sale deed of Ex.D.1 and sketch No.2.
The plaintiff is entitled to enjoy the property as shown in sketch
No.3.
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9. Accordingly, the second appeal is disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
MD
