Karnataka High Court
Halappa S/O Basappa Jolad vs Parasappa S/O Mallappa Jolad on 30 January, 2025
-1-
NC: 2025:KHC-D:1874
RSA No. 5147 of 2009
C/W RSA No. 5146 of 2009
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 5147 OF 2009
C/W
REGULAR SECOND APPEAL NO. 5146 OF 2009
IN REGULAR SECOND APPEAL NO. 5147 OF 2009
BETWEEN:
1. BASAPPA S/O JATTEPPA JOLAD
(SINCE DECEASED BY HIS LR'S)
1A. SHANKRAVVA W/O. REVANASIDDAPPA SAMPANNI,
AGE: 53 YEARS, OCC: HOUSEWIFE
R/O. KURBAN ONI, HALLIKERI,
DIST: GADAG
1B. RENUKA W/O. HANUMANTAPPA HANDI,
AGE: 47 YEARS, OCC: HOUSEWIFE,
MANJANNA R/O. ASHRAYA COLONY, MALASAMUDRA,
E
DIST: GADAG.
Digitally signed by
MANJANNA E
Location: High Court of
Karnataka, Dharwad Bench
Date: 2025.02.01 11:43:11
+0530
1C. JAYAMMA JUTLANAVAR W/O. JANARDHANA,
AGE: 39 YEARS, OCC: HOUSEWIFE,
R/O. HESARUR, DIST: GADAG
2. HALAPPA S/O BASAPPA JOLAD,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG-582118
3. SHEKAPPA S/O BASAPPA JOLAD
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG-582118
-2-
NC: 2025:KHC-D:1874
RSA No. 5147 of 2009
C/W RSA No. 5146 of 2009
4. JETTEPPA S/O BASAPPA JOLAD
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG-582118
...APPELLANTS
(BY SRI. H. N. GULARADDI, ADV., FOR A1 (A TO C),
SRI. S. S. PATIL, ADV., FOR A2 TO A4)
AND:
1. SMT. GANGAWWA W/O MALLAPPA JOLAD,
AGE: 65 YEARS,
OCC: HOUSEWIFE & AGRICULTURE
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG-582118
2. PARASAPPA S/O MALLAPPA JOLAD
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG-582118
3. MANJAPPA S/O MALLAPPA JOLAD
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG-582118
4. GONEPPA S/O MALLAPPA JOLAD
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG-582118
...RESPONDENTS
(BY SRI. F. V. PATIL, ADV., AND SRI. NANDISH PATIL, ADV.,)
THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT &
DECREE DATED 27/11/2008 PASSED IN R.A.NO. 129/2001 ON THE
FILE OF THE ADDL. CIVIL JUDGE (SR.DN), GADAG, ALLOWING THE
APPEAL & SETTING ASIDE THE JUDGMENT AND DECREE DATED
20/11/2001 PASSED IN O.S.NO. 216/1999 ON THE FILE OF THE PRL.
CIVIL JUDGE (JR.DN), GADAG.
-3-
NC: 2025:KHC-D:1874
RSA No. 5147 of 2009
C/W RSA No. 5146 of 2009
IN REGULAR SECOND APPEAL NO. 5146 OF 2009
BETWEEN:
1. HALAPPA S/O. BASAPPA JOLAD,
AGE: 40 YEARS, OCC. AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG.
2. SHEKAPPA S/O. BASAPPA JOLAD,
AGE: 38 YEARS, OCC. AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG.
3. JATTEPPA S/O. BASAPPA JOLAD,
AGE: 34 YEARS, OCC. AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG.
...APPELLANTS
(BY SRI. S.S.PATIL AND SRI. H.N.GULARADDI, ADVOCATES)
AND:
1. PARASAPPA S/O. MALLAPPA JOLAD,
AGE: 40 YEARS, OCC. AGRICULTURE,
R/O KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG.
2. MANJAPPA S/O. MALLAPPA JOLAD,
AGE: 29 YEARS, OCC. AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG.
3. GONEPPA S/O. MALLAPPA JOLAD,
AGE: 26 YEARS, OCC. AGRICULTURE,
R/O. KOTE STREET, MUNDARGI,
TQ. MUNDARGI, DIST. GADAG
...RESPONDENTS
(BY SRI. F.V.PATIL AND SRI. NANDISH PATIL, ADVOCATES)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD. 27/11/2008 PASSED IN R.A.NO.
-4-
NC: 2025:KHC-D:1874
RSA No. 5147 of 2009
C/W RSA No. 5146 of 2009
130/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN.),
GADAG, ALLOWING THE APPEAL & SETTING ASIDE THE JUDGMENT
AND DECREE DTD. 20/11/2001 PASSED IN O.S.NO. 201/1999 ON
THE FILE OF THE PRL. CIVIL JUDGE (JR.DN), GADAG.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)
These appeals are arising out of judgment and decree
dated 27.11.2008 in R.A.No.129/2001 and R.A.No.130/2001,
on the file of Additional Civil Judge (Sr.Dn.) Gadag (for short
"the First Appellate Court") allowing the appeal and setting
aside the judgment and decree dated 20.11.2001 in
O.S.No.201/199 and 216/1999 on the file of Principal Civil
Judge (Jr.Dn.), Gadag, (for short "the Trial Court") decreeing
the suit in O.S.No.201/1999 and dismissing the suit in
O.S.No.216/1999.
2. For the sake of convenience, parties are referred to
as per their rank in O.S.No.216/1999. Plaintiff No.2 to 4 in
O.S.216/1999 are defendants No. 1 to 3 in O.S.No.201/1999.
NC: 2025:KHC-D:1874
3. It is the case of the plaintiffs in O.S.216/1999 that
the suit schedule property bearing Sy.No.35/1 measuring 5
acres 2 guntas situate at Mundargi village, is measuring 3 acres
38 guntas instead of 5 acres 32 guntas. In order to understand
the relation between the parties the genealogical tree is
referred to as under:
Bandappa
(Died long back)
Jatteppa (Dead) Goneppa (Dead)
1) Basappa 2) Shanirappa 3) Hanamappa
(D-1) Sakrewwa (Wife)
1)Halappa 2)Shekappa 3)Jetteppa
Gangawwa (daughter)
(Plaintiff No.1)
1) Parasappa 2) Manjappa 3) Goneppa
P-2 P-3 P-4
3.1. Perusal of the genealogical tree would indicate that
the original propositus-Bandappa had two children namely
Jatteppa and Goneppa. Jatteppa died leaving behind the
NC: 2025:KHC-D:1874
defendant No.1-Basappa, Shanirappa and Hanamappa.
Defendant No.2 to 4 are the children of defendant No.1. The
second son of Bandappa i.e., Goneppa had a daughter
Gangavva (plaintiff No.1) and having three children namely
Parasappa (plaintiff No.2), Manjappa (plaintiff No.3) and
Goneppa (plaintiff No.4). It is stated in the plaint that the land
bearing Sy.No.35 was phoded into two strips as Survey
No.35/1 measuring 5 acres 2 guntas and Sy.No.35/2
measuring 8 acres. During 1942, oral partition had taken place
between the brothers namely Jatteppa and Goneppa (sons of
Bandappa) in respect of the land bearing Sy.No.35, totally
measuring 13 acres 2 guntas. It is further stated that the
parties were put into possession pursuant to partition took
place in the year 1942. It is the case of the plaintiffs that a
survey settlement was made in respect of the Sy.No.35/1
wherein the land records shows that the suit land is measuring
3 acres 38 guntas instead of 5 acres 2 guntas and on the other
hand, the land bearing Sy.No.35/2 belonged to the defendant is
shown as 9 acres 4 guntas instead of 8 acres and as such, the
plaintiffs have preferred O.S.No.216/1999 seeking relief of
NC: 2025:KHC-D:1874
declaration with consequential relief of permanent injunction
against the defendants.
3.2. It is the case of the plaintiffs in O.S.No201/1999
that the defendants are the children of Goneppa and they have
not disputed the relationship. It is the case of the plaintiffs that
there was a partition during the lifetime of Jatteppa and
Goneappa and thereafter mutation was changed in respect of
the subject matter of the property. It is further pleaded in the
plaint that the defendants without any semblance of right
interfered in the suit schedule property and as such, sought for
declaration that the plaintiffs are the owner in possession of the
entire extent of land in Sy.No.35/2 of Mundargi village. In that
view of the matter the plaintiffs have sought for relief in
O.S.No.201/1999.
3.3. After service of summons, respective defendants
entered appearance and filed written statements as per the
averments made therein. The Trial Court, after considering
pleadings on record, clubbed the matters together and framed
issues and additional issues accordingly. The parties adduced
evidence and the Trial Court after considering the material on
NC: 2025:KHC-D:1874
record, by its judgment and decree dated 20.11.2001, decreed
the suit in O.S.No.201/1999 and dismissed the suit in
O.S.No.216/1999. Feeling aggrieved by the same,
R.A.No.129/2001 and R.A.No.130/2001 were filed by the
respondents herein before the First Appellate Court. The
appeals were resisted by the appellants herein. The First
Appellate Court, after re-appreciating the material on record,
by its judgment and decree dated 27.11.2008, allowed both the
appeals and as such, the judgment and decree in
O.S.No.201/1999 and O.S.No.216/1999 on the file of the Trial
Court were set aside and as such, dismissed the suit in
O.S.No.201/1999 and decreed the suit in O.S. No.216/1999.
Feeling aggrieved by the same, the appellants have filed these
two appeals.
4. This Court vide order dated 02.07.2009 framed the
following:
a) Whether the first appellate Court is justified
in ignoring the continuous possession of the
properties by the appellants herein since
1941 onwards?
NC: 2025:KHC-D:1874
b) Whether the first appellate Court is justified
in holding that the respondents have right
over the properties in question particularly
when there is no registered document
executed in thief favour by Sakravva?
5. I have heard the Sri. S. S. Patil, learned counsel for
appellant No.2 to 4 and Sri. Nandish Patil, learned counsel for
the respondents.
6. Learned counsel for the appellant contended that
the First Appellate Court has committed an error in considering
the fact that Jatteppa and Goneppa had divided the property as
per the partition held during 1942 and as such, the land
bearing Sy.No.35/1 measuring 5 Acres 2 Guntas allotted to the
share of Goneppa and the land bearing Sy.No.35/2, measuring
8 Acres was allotted to the share of Jatteppa and continuously
the said arrangement was continued till the survey settlement
was held wherein the measurement of the land was changed
into 3 Acres 38 guntas in Survey No.35/1 and 9 Acres 4 Guntas
in Survey No.35/2. In this regard, referring to the finding
recorded by the First Appellate Court that the appellants herein
have perfected their title by adverse possession and therefore,
sought for interference of this Court. It is also the contention of
- 10 -
NC: 2025:KHC-D:1874
the learned counsel appearing for the appellants that the First
Appellate Court has committed an error in not considering the
fact that Sakrevva (wife of Goneppa) has two daughters and
they have not been made party in the proceedings and
accordingly, it is contended that the exact measurement of the
land in question has not been considered in the right
perspective and as such, sought for interference of this Court.
7. Per contra, learned counsel appearing for the
respondents sought to justify the impugned judgment and
decree of the First Appellate Court.
8. In the light of the submissions made by the learned
counsel appearing for the parties, it is not in dispute that
originally the land bearing Sy.No.35 was measuring 13 Acre 2
Guntas and thereafter the land was phoded with two strips
namely land bearing Sy.No.35/1 measuring 5 Acres 2 Guntas
and land bearing Sy.No.35/2 measuring 8 Acres. It is also
forthcoming from the records that a partition was taken place
during the year 1942 wherein the land bearing Sy.No.35/1
measuring 5 Acres 2 Guntas had fallen to the share of Goneppa
and the land bearing Sy.No.35/2 measuring 8 Acres fallen to
- 11 -
NC: 2025:KHC-D:1874
the share of Jatteppa. The plea of adverse possession cannot
be considered in a suit for partition where the parties are
entitled for their respective share as per Section 6 and 8 of the
Hindu Succession Act. In that view of the matter, I do not find
any illegality or perversity in the judgment and decree passed
by the First Appellate Court. The substantial question of law
framed by this Court referred to above favours the respondents
herein and accordingly, the impugned judgment and decree
passed by the First Appellate Court is confirmed by dismissing
both the appeals.
9. In view of disposal of the appeals, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
