Karnataka High Court
Sharanappa S/O. Yallappa Sulibhavi vs Basavva W/O. Parappa Huggi on 17 March, 2025
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NC: 2025:KHC-D:4831
RSA No. 100110 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100110 OF 2014 (DEC-)
BETWEEN:
SHARANAPPA
S/O. YALLAPPA SULIBHAVI @ BAGALI,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. HONNARALLI, TQ: HUNGUND,
DIST: BAGALKOT-587118.
...APPELLANT
(BY SRI. GIRISH A. YADAWAD, ADVOCATE)
AND:
1. SMT. BASAVVA W/O. PARAPPA HUGGI,
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O. ILAHAL, NOW AT HONNARALLI,
TQ: HUNAGUND, DIST: BAGALKOT-587118.
2. MAHANTESH
S/O. YALLAPPA SULIBHAVI @ BAGALI,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O. HONNARALLI, TQ: HUNGUND,
DIST: BAGALKOT-587118.
Digitally signed by
ASHPAK
...RESPONDENTS
KASHIMSA
MALAGALADINNI (BY SRI. HARISH S. MAIGUR, ADVOCATE FOR R1;
Location: HIGH
COURT OF
KARNATAKA
R2-SERVED AND UNREPRESENTED)
DHARWAD BENCH
Date: 2025.03.18
10:57:29 +0530 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT & DECREE DATED 03.12.2013 PASSED BY THE SENIOR
CIVIL JUDGE, HUNAGUND, AT HUNAGUND IN R.A.NO.19/2013
MODIFYING THE JUDGMENT AND DECREE PASSED BY THE
PRINCIPAL CIVIL JUDGE & JMFC., HUNAGUND IN O.S. NO.111/2010
DATED 15.04.2013 AND ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC-D:4831
RSA No. 100110 of 2014
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by the defendant No.1
challenging the judgment and decree dated 03.12.2013 in
R.A.No.19/2013 on the file of the Senior Civil Judge,
Hunagund1 allowing the appeal and modifying the
judgment and decree dated 15.04.2013 in
O.S.No.111/2010 on the file of the Principal Civil Judge
and JMFC, Hunagund2 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 plaintiff and
defendants are the children of Yallappa and Mallavva. It is
also stated that the parents of the plaintiff and defendants
died leaving behind the suit schedule properties to be
succeeded by the plaintiff and defendants. It is the case
of the plaintiff that there is no partition in respect of the
hereinafter referred to as 'First Appellate Court'
hereinafter referred to as 'Trial Court'
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joint family properties, hence the plaintiff has filed
O.S.No.111/2010 before the Trial Court seeking relief of
partition and separate possession in respect of the suit
schedule properties.
4. After service of notice, the defendant No.1
entered appearance and filed detailed written statement
denying the averments made in the plaint. Defendant No.2
remained absent and placed ex-parte. It is stated in the
written statement that the plaintiff is not entitled for 1/3rd
share in respect of the land bearing Sy.No.30/1+2/B and
plot No.97 as those properties stand in the name of the
mother of the defendants - Mallavva and same was given
to the defendants and accordingly sought for dismissal of
the suit.
5. The Trial Court based on the pleadings on
record, has framed issues for its consideration. In order to
establish their case, the plaintiff has examined two
witnesses as PW.1 and PW.2 and produced 7 documents
and same were marked as Exs.P.1 to P.7. The defendants
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have examined three witnesses as DW.1 to DW.3 and got
marked 8 documents as Exs.D.1 to D.8.
6. The Trial Court after considering the material on
record, by its judgment and decree dated 15.04.2013
partly decreed suit holding that the plaintiff is entitled for
1/3rd share in the suit schedule property, however,
rejected the claim made by the plaintiff insofar as land
bearing Sy.No.30/1+2/B and plot No.97. Feeling aggrieved
by the same, the plaintiff has preferred R.A.No.19/2013 on
the file of the First Appellate Court and same was resisted
by the defendants. The First Appellate Court after re-
appreciating the material on record, by its judgment and
decree dated 03.12.2013, decreed the suit in entirety and
modified the judgment and decree in O.S.No.111/2010.
Feeling aggrieved by the same, the defendant No.1 has
preferred this Regular Second Appeal.
7. This Court by order dated 19.02.2014,
formulated the following substantial questions of law:
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"1) Whether the lower appellate Court has committed
a serious error in ignoring the statutory presumption
available u/S 90 of the Evidence Act in regard to the
due execution of the Gift Deed relied upon by
defendant no.1?
2) Whether the first appellate Court has committed
serious error in the material evidence placed on record
and thereby come to the conclusion that acquisition of
agricultural land by the first defendant by means of
tenancy rights was for and on behalf of the joint family
3) Whether the first appellate Court has committed a
Serious error in ignoring the material evidence and
thereby judgment of the first appellate Court is
perverse?"
8. I have heard Sri.Girish A Yadawad, learned
counsel appearing for the appellant and Sri.Harish S
Maigur, learned counsel appearing for the respondent
No.1.
9. Learned counsel appearing for the appellant
contended that the First Appellate Court has committed an
error in decreeing the suit insofar as land bearing
Sy.No.30/1+2/B and plot No.97 situate at Honnaralli
village as those properties are stridhan properties of
Mallavva - mother of plaintiff and defendants and she has
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relinquished her right in favour of defendants by executing
Vatani Patra - relinquishment deed and gave varadi to the
revenue authorities and the said aspect of the matter was
ignored by the First Appellate Court and accordingly
sought for interference of this Court.
10. It is also submitted by the learned counsel
appearing for the appellant that PW.1 made admission
with regard to relinquishment deed said to have been
executed by the mother of plaintiff in favour of defendants
and therefore, Section 58 of the Evidence Act attracts to
the facts of the case and the said aspect of the matter was
brushed aside by the First Appellate Court and accordingly
sought for interference of this Court.
11. Per contra, learned counsel appearing for the
respondent submitted that though the varadi has been
given as per Ex.D.8, however, it is only a revenue
document which do not confer title to the defendants and
therefore the First Appellate Court has rightly modified the
judgment and decree passed by the Trial Court and
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decreed the suit in entirety and accordingly sought for
dismissal of the appeal.
12. In the light of the submissions made by the
learned counsel appearing for the parties, I have carefully
examined the findings recorded by both the Courts below
and perused the original records.
13. It is not in dispute that the plaintiff and
defendants are the children of Yallappa and Mallavva.
Parents are no more leaving behind the suit schedule
properties. The main contention of defendant No.1 is only
with regard to two items of the properties namely land
bearing Sy.No.30/1+2/B measuring 6 acres 3 guntas and
another Item of the suit property - plot No.97 situate at
Honnaralli village. It is the case of the defendant No.1 that
the said two items belong to Smt.mallavva - mother of
plaintiff and having acquired the same through stridhan. It
is also contended that, said Mallavva has relinquished her
right and allowed the defendants to enjoy the
aforementioned two properties. In this regard, having
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taken note of the documents at Ex.D.6 to D.8, wherein it
is not in dispute that the said properties belong to
Smt.Mallavva, however, the defendant No.1 has not
produced any document to establish the right in respect of
those two items of properties has been relinquished by his
mother devoid of plaintiff and defendant No.2.
14. Admittedly, defendant No.2 has not contested
the matter on merits which makes it clear that, the case of
defendant No.1 cannot be believed to the fact that the
defendants were putting possession in entirety by their
mother - Smt.Mallavva. It is well established principle in
law that the revenue documents do not confer title and
therefore since it is the case of the plaintiff seeking
partition and separate possession in respect of the suit
schedule properties and therefore the argument advanced
by the learned counsel appearing for the appellant to
import Section 58 of the Evidence Act to the admission
made by PW.1 cannot be accepted on the sole ground that
as it is the pleading in the plaint by the plaintiff seeking
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partition in respect of the entire suit schedule properties
belonging to her parents.
15. Hence, I do not find any perversity in the
judgment and decree passed by the First Appellate Court
and First Appellate Court rightly interfered with and
modified the judgment and decree passed by the Trial
Court in O.S.No.111/2010. In the result, the substantial
questions of law referred to above favours the plaintiff and
accordingly the appeal fails.
16. In view of the above, the appeal is dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SH
CT-MCK
