Karnataka High Court
Fakkirawwa W/O Fakkirappa Balehosur vs Hussiansab S/O Allasaab Avaradi on 4 June, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 6032 of 2012
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JUNE 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO.6032/2012(DEC/INJ)
BETWEEN:
FAKKIRAWWA W/O. FAKKIRAPPA BALEHOSUR,
AGE: MAJOR, OCC: AGRICULTURE AND HOUSEHOLD,
R/O: SANSHI, TQ: KUNDAGOL,
DIST: DHARWAD, PIN: 581 113.
...APPELLANT
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND:
1. HUSSIANSAB S/O. ALLASAAB AVARADI,
SINCE DECEASED BY HIS LRS,
Digitally signed by
SAROJA
1A. SMT. FATHIMA W/O. MAKTUMSAB MULLA,
HANGARAKI
Location: High
AGE: 62 YEARS, OCC: HOUSEHOLDK WORK,
Court of
Karnataka, R/O: SANSHI, TQ: KUNDAGOL,
Dharwad Bench,
Dharwad DIST: DHARWAD - 581 113,
NOW RESIDING AT MUMBAI.
1B. GOUSESAB S/O. HUSSAINSAB AVARADI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: SANSHI, TQ: KUNDAGOL,
DIST: DHARWAD - 581 113.
1C. MULLASAB S/O. HUSSAINSAB AVARADI,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: SANSHI, TQ: KUNDAGOL,
DIST:DHARWAD - 581 113.
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RSA No. 6032 of 2012
HC-KAR
1D. SMT. JANGAHMA W/O. BABUSAB YALIGAR,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O: ROTTIGAWAD, TQ: KUNDAGOL,
DIST: DHARWAD - 581 113.
... RESPONDENTS
(BY SMT. POOJA S. KULKARNI, ADVOCATE FOR
SRI. DINESH M. KULKARNI, ADVOCATE FOR R1(B TO D);
V/O DATED: 05.12.2018 NOTICE TO R1(A) IS
DISPENSED WITH)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, CALL FOR RECORDS; SET ASIDE THE JUDGMENT
AND DECREE DATED 16.07.2012 PASSED BY THE LEAREND II
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI IN
R.A.NO.95/2005 CONFIRMING THE JUDGMENT AND DECREE
DATED 28.02.2005 PASSED BY THE LEAREND CIVIL JUDGE
(JR.DN) AND JMFC, KUNDGOL, IN O.S.NO.44/2001, AND
CONSEQUENTLY DECREE THE SUIT AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
1. The unsuccessful plaintiff is before this Court
being aggrieved by the judgment and decree, dated 28th
February 2005, passed in O.S. No.44/2001, on the file of
the Civil Judge (Jr. Dn.) & JMFC, Kundgol (for short "the
trial Court"), dismissing the suit of the plaintiff seeking
relief of declaration of her title over the suit schedule
property and also for a consequent mandatory injunction for
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the possession of the suit schedule property, which is
confirmed by the judgment and decree, dated 16th July
2012, passed in R.A. No.95/2005, on the file of the II -
Addl. Senior Civil judge, Hubli (for short "the First Appellate
Court").
2. The case of the plaintiff is that, the suit schedule
property bearing VPC Nos.1496 and 1497 consisting of
residential house and backyard situated at Saunshi Village,
originally belonged to her mother namely Iravva Balehosur.
Upon her demise, the plaintiff became the absolute owner
of the suit schedule property by virtue of inheritance. That
one Kallavva Balappa Alagawadi and her son Siddappa
Balappa Alagawadi were the owners of property bearing
VPC No.1463, which was sold by them to one Savavva
Basappa Dyavanur. Thus, the said Kallavva and her son
have no property adjoining to the property of the plaintiff.
The defendant came to Saunshi for his livelihood, and as he
had no residence, the plaintiff permitted him to reside in
the western portion of the suit schedule property on a leave
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and licence basis. That the defendant has no manner of
right, title and interest. That he in collusion with the
Panchayat authorities created documents, showing that
western side of the suit schedule property, there is a
property of one Kallavva Balappa Alagawadi and got his
name entered in the Boguvatedar Column as well as in the
ownership column of the said property. The plaintiff learnt
about the aforesaid aspect of the matter when the
defendant had filed suit in O.S. No.14/1992 against the
plaintiff and others, which was decreed as the plaintiff did
not contest the said suit out of ignorance. That the said
decree in O.S. No.14/1992 is null and void and not binding
on the plaintiff. The defendant had filed execution in E.P.
No.2/2001 against the plaintiff seeking execution of the said
decree. It is only then, the plaintiff learnt about the
fabrication and forgery of documents committed by the
defendant. Accordingly, she was constrained to file the
present suit seeking the relief of declaration of her title over
the suit property and for consequential relief of mandatory
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injunction and for possession of western portion of the suit
schedule property.
3. The defendant in his written statement, while
denying the case of the plaintiff in its entirety contended
that the property measuring 11 cubits east-west and north-
south 120 cubits consisting of a house, front yard and back
yard was originally belonging to one Yallappa Bhimappa
Balehosur, the father-in-law of the plaintiff. That the said
property was sold by said Yallappa Bhimappa Balehosur for
himself and also on behalf of his minor children in favour of
the defendant as 03.06.1948 for a valuable sale
consideration by executing a deed of sale. That the property
sold by Yallappa Bhimappa Balehosur was bearing VPC
No.509 with specific boundaries and the defendant has been
in possession and enjoyment of the suit property and there
is a fencing in between the property of defendant and the
property of Yallappa Bhimappa Balehosur. That the property
purchased by the defendant has been renumbered as VPC
No.1495. That the plaintiff had attempted to interfere with
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the possession and enjoyment of the aforesaid property of
the defendant, constraining him to file the suit in O.S.
No.14/1992, which is decreed against the present plaintiff
and others. The defendant has also filed execution of the
decree in E.P. No.2/2001. Hence, sought for dismissal of
the suit.
4. The trail Court based on the pleadings, framed
the following issues:
1. Whether the plaintiff proves that originally suit
property was belongs her mother Iravva?
2. Whether plaintiff proves her title over the suit
property?
3. Whether plaintiff proves that she allowed the
defendant to occupy the portion of the suit
property on permissive possession?
4. Whether plaintiff proves that the decree in
O.S.No.14/1992 against her was obtained
fraudulently?
5. Whether plaintiff proves that the title deeds in
favour of defendant in respect of Western
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portion of the suit house is fraudulent
document?
6. Whether plaintiff is entitled for the relief of
declaration of her title over the suit schedule
property?
7. Whether plaintiff is entitled for the possession
of Western portion of suit house?
8. Whether the suit is not maintainable?
9. Whether defendant proves that plaintiff's
father-in-law Yallappa Bhimappa Balehosur sold
the portion of the suit property to him?
10. Whether the suit is barred by law of Limitation?
11. Whether the suit is hit by doctrine of res-
judicata?
12. Whether the suit is bad of non-joinder of
necessary parties?
13. Whether the valuation of the suit property is in-
correct?
14. Whether the Court Fee paid is in sufficient?
15. What Order or Decree?
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5. The plaintiff examined herself as PW1 and two
other witnesses as PW2 and PW3 and exhibited 22
documents marked as Exs.P1 to P22. The defendant himself
examined as DW1 and closed his side.
6. On appreciation of the evidence, the trial Court
answered issue Nos.1, 8, 9, 10, 13 & 14 in the affirmative
and issue Nos.2, 3, 4, 5, 6, 7, 11 & 12 in the negative and
consequently dismissed the suit.
7. Being aggrieved, the plaintiff preferred appeal in
R.A. No.95/2005 before the First Appellate Court, , who on
consideration of the grounds urged and based on the
pleadings, framed the following points for its consideration:
1. Whether the plaintiff proves her title over the
suit properties?
2. Whether she further proves that the defendant
is in permissive possession of western portion
of suit house?
3. Whether she further proves that the decree
obtained in O.S.No.14/1992 against her and
others is fraudulent one?
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4. Whether the suit is barred by principles of res-
judicata?
5. Whether the suit is barred by limitation?
6. Whether the judgment and decree of the trial
court is based upon proper appreciation of law
and facts?
7. Whether the interference of this court is
necessary?
8. What order or decree?
8. The First Appellate Court on re-appreciation of
the evidence, answered point Nos.1 to 5 & 7 in the
negative, point No.6 partly affirmative and consequently
dismissed the appeal confirming the judgment and decree
passed by the trial Court.
9. Being aggrieved, the plaintiff is before this Court.
10. Learned counsel Shri Mahesh Wodeyar appearing
for the appellant taking this Court extensively through the
judgment and decree passed by the trial Court and the First
Appellate court and submits that when the trial Court as
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well as the First Appellate court had concluded that the suit
properties namely the property bearing VPC Nos.1496 and
1497 absolutely belonged to one Iravva Balehosur, who was
none other than the mother of the plaintiff, and when the
plaintiff is claiming only western portion of the said
property, ought not to have dismissed the suit on the
premise of the plaintiff not being able to provide the
measurement of the property claimed by her. He submits
that the finding and conclusion arrived at by the trial Court
and First Appellate Court on issue No.1 run contrary to the
reasoning assigned while answering issue No.2. Thus, the
judgment and decree passed by the Courts below suffer
from perversity and material irregularity giving raise to the
substantial question of law.
11. Per contra, learned counsel Smt. Pooja
S.Kulkarni appearing for the respondents submits that the
property being claimed by the plaintiff is different and
distinct from the property being claimed by the defendant.
She submits that the plaintiff herself had produced the title
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deeds of the defendant in respect of the property being
claimed by him. Besides, the plaintiff has admitted during
the cross-examination about the right, title and interest of
the defendant, which is extensively extracted by the trial
Court as well as the First Appellate Court. Hence, no
substantial question of law would arise for consideration in
the matter and hence, seeks for dismissal of the appeal.
12. Heard. Perused the records.
13. The plaintiff is seeking the relief of declaration of
her title in respect of the property bearing VPC Nos.1496
and 1497 with specific boundaries as mentioned in the
plaint. The claim of the plaintiff is that, the defendant was
permitted by her to occupy western portion of the said
property on leave and licence basis.
14. The case of the defendant on the other hand is
that he purchased the property measuring 11 cubits east-
west and north-south 120 cubits earlier bearing VPC No.509
later renumbered as VPC No.1495 from one Yallappa
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Bhimappa Balehosur, the father in law of the plaintiff. It is
his case that he has enclosed his property by erecting fence
and has got his name entered in the revenue records.
Besides, he had also filed suit in O.S. No.14/1992 against
the plaintiff and others and had obtained the decree of
injunction restraining them from interfering with his
peaceful possession and enjoyment of the property which
has attained finality.
15. The trial Court while answering issue Nos.2 and 5
has taken note of the deposition of the plaintiff, in which
the plaintiff in her unambiguous and categorical terms has
admitted that the property being claimed by the defendant
was purchased by him from her father-in-law in terms of
deed of sale dated 03.06.1948 as per the sale deed at
Ex.P21 produced by herself. The plaintiff has further gone
on to admit that the said document at Ex.P21 is in marathi
modi language and that she has read and understood the
said document. She has also admitted that she was aware
of the defendant having purchased the property and having
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got his name mutated in the revenue records for over 40
years and she not having taken any steps in this regard.
The trial Court and the First Appellate Court based on the
aforesaid categorical admission made by the plaintiff and by
the documents produced by herself with regard to the
right, title interest of the defendant in respect of the
property being claimed by him, which is admittedly distinct,
different and separate from the property being claimed by
the defendant. Further in the absence of plaintiff
establishing her right, title and interest over the property
claimed by the defendant, as taken note of by the trial
Court and First Appellant Court, in the considered view of
this Court, the reasons and conclusions arrived at by the
trial Court and First Appellant Court are just and proper
warranting no interference and no substantial question of
law would arise for consideration. Accordingly the appeal is
dismissed.
Sd/-
(M.G.S. KAMAL)
JUDGE
