Karnataka High Court
Namadev S/O Ningappa Lamani vs Somappa S/O Ningappa Lamani on 4 March, 2025
-1-
NC: 2025:KHC-D:4181
RSA No. 2756 of 2007
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 2756 OF 2007 (DEC/INJ-)
BETWEEN:
NAMADEV S/O. NINGAPPA LAMANI,
48 YEARS, OCC: AGRICULTURE,
R/O. CHANNAPUR DODD-LAMANI TANDA,
TQ: RAMADURG, DIST: BELGAUM-591332.
...APPELLANT
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND:
SOMAPPA S/O. NINGAPPA LAMANI,
34 YEARS, OCC: AGRICULTURE,
R/O. CHANNAPUR DODD-LAMANI TANDA,
TQ: RAMADURG, DIST: BELGAUM-591332.
...RESPONDENT
(BY SRI. ARUN L. NEELOPANT, ADVOCATE)
MOHANKUMAR
B SHELAR
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
Digitally signed by
MOHANKUMAR B
SHELAR
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
DATED 25.07.2007 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.)
RAMDURG, IN R.A.NO.10/2007 AND ALSO SET ASIDE THE
JUDGMENT AND DECREE DATED 07.10.2005 PASSED BY THE
LEARNED CIVIL JUDGE (JR.DN.) RAMDURG IN O.S.NO.9/2003 SO
FAR AS IT RELATES TO DISMISSAL OF THE SUIT WITH REGARD TO
THE DECLARATION IS CONCERNED AND CONSEQUENTLY DECREED
THE SUIT IN RESPECT OF DECLARATION IS CONCERNED IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-2-
NC: 2025:KHC-D:4181
RSA No. 2756 of 2007
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
JUDGMENT
This Regular Second Appeal is preferred by the
plaintiff assailing the judgment and decree dated
25.07.2007 in RA No.10/2007 on the file of Civil Judge
(Sr.Dn.), Ramdurg (for short, hereinafter referred to as
'First Appellate Court), dismissing the appeal and
modifying the judgment and decree dated 07.10.2005 in
OS No.9/2003 on the file of Civil Judge (Jr.Dn.), Ramdurg
(for short, hereinafter referred to as 'Trial Court')
decreeing the suit of the plaintiff in part.
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 land
bearing Sy.No.94/2B is the suit schedule property and
plaintiff and defendant are the brothers. It is also stated
that, the plaintiff and defendant had remaining two
brothers namely Pandappa and Pundalikappa. Smt.
NC: 2025:KHC-D:4181
Gangawwa is the mother of the plaintiff and defendant. It
is stated that, during 1997, partition had taken place
between the plaintiff and defendant and suit property was
fallen to the share of defendant and thereafter, same was
mutated by the Revenue Authorities. It is stated that, the
defendant was minor during 1997 and as such,
represented through his mother. Thereafter, the defendant
attains majority and they have cultivated the land
together. It is also stated that, the defendant has raised
loan of Rs.45,000/- for its personal requirements and
same was repaid by the plaintiff in the presence of the
elders. It is also stated that, on the very same day i.e., on
10.08.1994, a settlement was arrived as the defendant
executed 'Apsat Watni Patra' in favour of the plaintiff and
as such the plaintiff seeking ownership in respect of the
suit schedule property based on 'Apsat Watni Patra'. It is
stated that, the defendant has also put the plaintiff in
possession of the schedule property however, thereafter
interfering with the peaceful enjoyment of the property by
the plaintiff and as such, the plaintiff filed OS No.9/2003,
NC: 2025:KHC-D:4181
seeking relief of declaration with consequential relief of
injunction.
4. On 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 defendant has not executed any
registered document in favour of the plaintiff and
accordingly, sought for dismissal of the suit.
5. The Trial Court based on pleadings, has
formulated the issues for its consideration. In order to
establish their case, plaintiff has examined five witnesses
as PW1 to PW5 and produced 12 documents and same
were marked as Ex.P.1 to P12. On the other hand,
defendant was examined as DW1 and no documents were
marked on behalf of the defendant.
6. The Trial Court after considering the material on
record by its judgment and decree dated 07.10.2005,
dismissed the suit. Being aggrieved by the same, the
plaintiff has preferred RA No.10/2007 before the First
NC: 2025:KHC-D:4181
Appellate Court. The First Appellate Court after re-
appreciating the material on record by its judgment and
decree dated 25.07.2007 dismissed the appeal and
confirmed the judgment and decree in Os No.9/2003.
Feeling aggrieved by the same, the plaintiff has preferred
this Regular Second Appeal.
7. This Court vide order dated 11.06.2013,
formulated the following substantial question of law;
"1) Whether the Lower Appellate
Court was justified in disturbing the
judgment regarding perpetual injunction
in the absence of challenge to the same
by the defendant in the original suit?"
8. I have heard Sri. Mahesh Wodeyar, learned
counsel appearing for the appellant and Sri. Arun L.
Neelopant, learned counsel appearing for the respondent.
9. Sri. Mahesh Wodeyar, learned counsel
appearing for the appellant submitted that, the defendant
has executed 'Apsat Watni Patra' which has been styled as
NC: 2025:KHC-D:4181
Relinquishment Deed and the defendant has parted with
the possession of the suit schedule property in favour of
the plaintiff and therefore, the Trial Court rightly granted
the relief of injunction however, committed an error in
refusing to grant relief of declaration.
9.1. It is also contended by the learned counsel that,
both the courts below have not properly appreciate 'Apsat
Watni Patra' produced by the plaintiff and accordingly,
sought for interference of this Court.
10. Per contra, learned counsel appearing for the
respondent sought to justify the impugned judgment and
decree passed by the Courts below.
11. In the light of the submission made by learned
counsel appearing for the parties, it is not in dispute that,
the plaintiff and defendant are the brothers. Apart from
plaintiff and defendant, one Pandappa and Pundalikappa
are the brothers of the plaintiff. There was a partition
during 1977 and the suit property was fallen to the share
of the defendant and as the defendant was minor
NC: 2025:KHC-D:4181
represented by his mother-Smt. Gangawwa. Thereafter,
the plaintiff and defendant jointly cultivated the lands
including the schedule property. It is the case of the
plaintiff that, the defendant has raised loan of Rs.45,000/-
for his personal requirements and in order to clear the said
debt, defendant has executed 'Apsat Watni Patra' /
Relinquishment Deed (Ex.P.12) in favour of the plaintiff. In
this regard, plaintiff has cleared the loan of defendant.
12. Taking into consideration the finding recorded
by both the Courts below admittedly, Ex.P12 is not a
registered document and therefore, both the Courts below
have rightly dismissed the suit of the plaintiff holding that
the Ex.P12 is an unregistered document and therefore, I
am of the opinion that, in the light of the judgment of the
Hon'ble Supreme Court in the case of Yellapu Uma
Maheswari and Another v. Buddha Jagadheeswararao
and Others1, both the Courts below have rightly refused to
grant relief of declaration and as such, I do not find any
substance in the appeal, hence, appeal is dismissed by
(2015) 16 SCC 787
NC: 2025:KHC-D:4181
confirming the judgment and decree passed by both the
Courts below.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM
CT-MCK
