Karnataka High Court
Sri Basavannippa vs Sri Shidlingappa on 26 November, 2025
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RSA No. 257 of 2008
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 26TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.257 OF 2008 (DEC)
BETWEEN:
1. SRI. BASAVANNIPPA RUDRAPPA DODDAGOUDRA,
SINCE DECEASED BY HIS LRS.
1A. SMT. MALLAVVA W/O. BASAVANNIPPA DODDAGOUDRA,
AGE: 62 YEARS, R/O. SOMANAHALLI,
TQ. HIREKERUR, DIST. HAVERI.
1B. SRI. MOHAN S/O. BASAVANNIPPA DODDAGOUDRA,
AGE: 40 YEARS, OCC. AGRICULTURE,
R/O. SOMANAHALLI,
TQ. HIREKERUR, DIST. HAVERI.
1C. SMT. LATHA W/O. KANIMESHAPPA NANDIHALLI,
AGE: 38 YEARS, OCC. HOUSEHOLD,
R/O. SOMANAHALLI,
Digitally
signed by
TQ. HIREKERUR, DIST. HAVERI.
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2025.11.27
10:51:47
1D. SRI. SATISHA S/O. BASAVANNIPPA DODDAGOUDRA,
+0530
AGE: 36 YEARS, OCC. AGRICULTURE,
R/O. SOMANAHALLI,
TQ. HIREKERUR, DIST. HAVERI.
...APPELLANTS
(BY SRI. CHETAN MUNNOLI, ADVOCATE)
AND:
1. SRI. SHIDLINGAPPA DODDAGOUDA DODDAGOUDRA
SINCE DECEASED BY HIS LRS.
1A. SMT. MALLAVVA W/O. SHIDDALINGAPPA DODDAGOUDRA,
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RSA No. 257 of 2008
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AGE: 45 YEARS, R/O. SOMANAHALLI,
TQ. HIREKERUR, DIST. HAVERI.
1B. SRI. RAJU S/O. SHIDDALINGAPPA DODDAGOUDRA,
SINCE DECEASED BY HIS LRS.
1B(I). SMT. REKHA W/O. RAJU DODDAGOUDRA,
AGE: 35 YEARS, OCC. HOUSEHOLD WORK,
R/O. SOMANAHALLI-581111,
TQ. HIREKERUR, DIST. HAVERI.
1B(II). KUMARI KAVYA D/O. RAJU DODDAGOUDRA,
AGE: 10 YEARS, OCC. STUDENT,
R/O. SOMANAHALLI-581111,
TQ. HIREKERUR, DIST. HAVERI.
1B(III). KUMARI VARSHA D/O. RAJU DODDAGOUDRA,
AGE: 7 YEARS, OCC. STUDENT,
R/O. SOMANAHALLI-581111,
TQ. HIREKERUR, DIST. HAVERI.
SINCE RESPONDENT NO.R1(B)(II) AND R1(B)(III)-ARE
MINORS R/BY. THEIR GURDIAN AND NATURAL MOTHER
I.E. RESPONDENT NO.(B)(I)
SMT. REKHA W/O. RAJU DODDAGOUDRA)
2. SRI. BASAVANNIPPA DODDAGOUDA DODDAGOUDRA
S/O. LATE DODDAGOUDA DODDAGOUDRA,
AGED ABOUT 55 YEARS, OCC. AGRICULTURE,
PRESENTLY R/AT. BELAGAVI, TQ. SHIKARIPURA,
DIST. SHIMOGA-577427.
...RESPONDENTS
(BY SRI. AVINASH BANAKAR, ADVOCATE FOR R1(A);
R1(B)-DECEASED, R2-NOTICE SERVED;
R1(B)(I), R1(B)(II), R1(B)(III)-HELD SUFFICIENT;
R1(B)(II) AND R1(B)(III)-ARE MINORS R/BY. R1(B)(I))
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE/REVERSE THE IMPUGNED JUDGMENT AND DECREE DATED
29.09.2007 MADE BY THE LEARNED CIVIL JUDGE (SR.DN.) AND PRL.
JMFC, HIREKERUR IN R.A.NO.113/2006 AND RESTORE THE JUDGMENT
AND DECREE DATED 18.11.2006 IN O.S.NO.43/2002 RENDERED BY
THE LEARNED CIVIL JUDGE (JR.DN.) AND JMFC, HIREKERUR, IN THE
INTEREST OF JUSTICE.
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RSA No. 257 of 2008
HC-KAR
THIS RSA APPEAL HAVING BEEN HEARD AND RESERVED ON
19.11.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, COURT DELIVERED THE FOLLOWING:
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
This appeal arises out of the divergent findings in
O.S.No.43/2002 by learned Civil Judge (Junior Division) and
JMFC at Hirekerur and R.A.No.113/2006 by learned Civil Judge
(Senior Division) and Itinerate Court, Hirekerur dated
29.09.2007. By the impugned judgment, the First Appellate
Court had decreed the suit by reversing the dismissal of the Trial
Court. The defendant No.1 before the Trial Court is in appeal
before this Court.
2. The parties would be referred to as per their rank
before the Trial Court for the sake of convenience.
3. The factual matrix that is necessary for the purpose
of this appeal may be summarized as below:
a. The suit property is a cattle shed situated in Gram
Panchayat No.11 (portion of Survey No.1/10)
measuring 2 ½ guntas and it is bounded by the
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remaining 2 ½ guntas in the said survey number
on the northern side.
b. The suit schedule property was owned by the
family of one Doddagouda. Doddagouda had four
sons i.e. Channabasappa, Basavannippa,
Dundappa and Shidlingappa.
c. It is the case of the plaintiff that, during lifetime
of Doddagouda, a partition had been effected in
the family properties and in the said partition,
Survey No.1/10, measuring 5 guntas came to be
allotted commonly to the said Channabasappa and
the plaintiff-Shidlingappa. The said partition was
recorded in mutation entry No.249, dated
17.12.1985.
d. The Survey No.1/10 was again divided among the
said Channabasappa and Shidlingappa and the
northern portion came to the share of the
plaintiff- Shidlingappa. He had constructed a cattle
shed in the said property and his brother
Channabasappa has constructed a residential
house.
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e. It was contented by the plaintiff that in the
revenue records i.e., RTC, the name of the
plaintiff appears as the owner and possessor and
the property was not converted into
non-agriculture.
f. The plaintiff came to know that the Panchayat
officials had given a Panchayat No.11 and name of
the plaintiff was appearing for some years and
later, his name was deleted and the name of the
defendant No.1 was entered. Therefore, he had
given a representation to the Zilla Panchayat, but
it has not been considered.
g. The suit schedule property was never the property
belonging to his brother Basavannippa (Defendant
No.2) and he colluded with the Panchayat officials
and got his name entered though he had no right,
title or interest over the same.
h. The defendant No.1 got his name entered in the
Panchayat records and started obstructing the
enjoyment of the plaintiff and therefore, the
plaintiff was constrained to file the suit.
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i. The plaintiff sought a declaration that he is the
owner of the suit schedule property and as a
consequence, the defendant No.1 be restrained
from obstructing the enjoyment of the suit
schedule property by the plaintiff.
4. On service of notice, the defendant No.1 appeared
through his counsel and filed the written statement. The
defendant No.2, who is the brother of the plaintiff, did appear
before the Trial Court, but he did not file any written statement.
5. The contention of defendant No.1 is summarized as
below:
a. It is his contention that there was no such
partition as contented by the plaintiff on
17.12.1985 as per M.E.No.249. The defendant
No.1 contended that the defendant No.2 has sold
the Panchayat No.11 in Survey No.1/10 to the
defendant No.1 under a registered sale deed
dated 09.08.1982 for a consideration of
Rs.2,000/- and as such, he is in possession and
enjoyment of the same.
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b. The defendant No.1 after ascertaining that the
name of the defendant No.2 is appearing in the
Panchayat records for VPC No.11, bonafide
believed it and purchased the property.
c. It is his contention that the VPC No.11, which is
part of Survey No.1/10, measuring 2 ½ guntas,
was allotted to the defendant No.2 in the partition
and accordingly, the name of the defendant No.2
was appearing in the Panchayat records. After
purchasing the property, the defendant No.1 has
constructed a cattle shed (warjat) and he is in
possession since the date of the sale deed.
d. He contends that the defendant No.2 and the
plaintiff knew that the defendant No.1 has
purchased the suit schedule property under a valid
sale deed in the year 1982 and it was during the
lifetime of the propositus-Doddagouda. Therefore,
when the plaintiff knew about the purchase of the
suit schedule property by the defendant No.1 in
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the year 1982, the suit is being filed in the year
2002 is barred by time.
e. He contends that the alleged partition of the year
1985 is not binding on the defendant No.1 and it
is a bogus entry and the name of the defendant
No.2 was entered in the Panchayat records, much
prior to the year 1981-1982 and therefore, the
suit deserves to be dismissed.
6. On the basis of the above contentions, the Trial Court
has framed the following issues:
"1) Whether plaintiff proves that, his title over the
suit schedule property and also in lawful possession
as on the date of the suit?
2) Does the plaintiff prove obstruction by defendant
No.1 as alleged in para-7 of the plaint?
3) Whether defendant No.1 proves that, valuation
of the suit and court fee paid by the plaintiff is not
proper and correct?
4) Whether defendant No.1 proves that, suit of the
plaintiff is barred by limitation?
5) Whether defendant No.1 is entitled for the
compensatory cost U/s.35 (a) of CPC?
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6) Whether plaintiff is entitled for the relief of
declaration and consequential relief of injunction as
prayed for?
7) What order or decree?"
7. The plaintiff entered the witness box and deposed as
PW1 and Exs.P1 to 24 were marked. One witness was examined
as PW2. The defendant No.1 was examined as DW1 and three
witnesses were examined as DW2 to DW4. Exs.D1 to D9 were
marked in evidence.
8. After hearing the arguments by both the sides, the
Trial Court by impugned judgment dated 18.11.2006, dismissed
the suit with costs.
9. Being aggrieved, the plaintiff approached the First
Appellate Court in R.A.No.113/2006. After hearing the
arguments, the First Appellate Court reversed the impugned
judgment and decreed the suit. Being aggrieved, the defendant
No. 1 is before this Court in appeal.
10. It is pertinent to note that this Court has framed
three substantial questions of law on 12.03.2008, 26.06.2004
and 08.08.2024 as below:
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Substantial Question of Law framed on
12.03.2008
"Whether the Lower Appellate Court was justified in
holding that the plaintiff is the exclusive owner of
the suit schedule property having acquired the
same at a family partition on 17.12.1985 when the
2nd Defendant, the member of joint family had sold
the schedule property to the 1st Defendant under
registered sale deed dated 9.8.1982?"
Substantial Question of Law framed on
26.06.2024
"Whether the First Appellate Court was justified in
allowing the appeal filed by the plaintiff without
specifically interfering with and setting aside the
findings recorded by the Trial Court on Issue No.4
that the suit was barred by limitation?"
Substantial Question of Law framed on
08.08.2024
"Whether, under the facts and circumstances
involved in the case, the suit is maintainable in the
absence of relief of declaration that the sale deed
executed on 09.08.1982 by the defendant No.2 in
favour of defendant No.1, is maintainable?"
ARGUMENTS:
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11. The learned counsel appearing for the
appellant/defendant No.1 submits that the alleged partition
between Doddagouda and his four children, including the
defendant No.2 and the plaintiff had taken place in the year 1985
and a mutation entry came to be effected as per Ex.P6.
Evidently, the said mutation entry was in pursuance to a
report/varadi given to the Village Accountant as per Ex.P14.
Thus, it is evident that the said partition was reported to the
revenue authorities in the year 1985. He further points out that
the records are not available as to how the name of the
defendant No.2 was entered for VPC No.11 in the year
1981-1982. The Panchayat records, including resolutions to enter
the name of the defendant No.2 were not available as per the
endorsements/letters issued by the Panchayat as per Ex.P11.
What is available on record is that the name of the defendant
No.2 was entered for VPC No.11 in the year 1982. He further
submits that Ex.P14 was submitted to the revenue authorities on
17.12.1985 as per the endorsement that may be found on it.
Therefore, when the suit survey number i.e. Survey No.1/10 was
partitioned in the year 1985, half portion of Survey No.1/10,
comprising of VPC No. 11, which is the suit property, was not
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standing in the name of the said Doddagouda or anybody else in
the Panchayat records. In the year 1982 itself, VPC No.11 was
entered in the name of the defendant No.2.
12. It is his contention that by virtue of the sale deed
dated 09.08.1982, the defendant No.1 purchased the suit
schedule property from the defendant No.2 for valuable
consideration. Thus, the suit schedule property was transferred
by one of the family member of Doddagouda, who was party to
the alleged partition in the year 1985 to the defendant No.1 in
the year 1982. Therefore, when the said Doddagouda, the
plaintiff, the defendant No.2 and his brothers Chanabasappa and
Dundappa, partitioned the property in the year 1985, they could
not have included the suit property. Inclusion of the suit property
in the partition of the year 1985, is without any right, title or
interest and they had lost the title over the suit property by
virtue of the sale deed in favour of defendant No.1 as per Ex.D1.
13. He further contends that the plaintiff, the defendant
No.2 and his brothers as well as Doddagouda knew about the
sale of the suit schedule property in favour of the defendant No.1
in the year 1982 and therefore, they could not have included the
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same in the partition of the year 1985. Such inclusion in a
partition document is only with an intention to defraud the
defendant No.1.
14. He further contends that when the plaintiff is party to
the said partition in the year 1985, he being a member of the
joint family was well aware of the transactions made by the
defendant No.2 prior to the said partition. He cannot contend
that he was unaware of the said transactions with the defendant
No.1 and therefore, the knowledge in respect of the sale in
favour of the defendant No.1 has to be imputed to him in the
year 1982 itself. Obviously, the plaintiff has filed this suit in the
year 2002 and therefore, the suit is barred by time. Even if it is
held that the plaintiff is claiming possession, it has to be held
that 12 years have lapsed and therefore, the plaintiff does not
have any right to file the suit.
15. His next submission is that the plaintiff was part of
the member of the joint family in the year 1982 and therefore,
unless he seeks a declaration that the sale deed as per Ex.D1 is
cancelled, the suit was not maintainable. In this regard, he
places reliance on the judgment in the case of Bhimasi
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Fakirappa Bijjur and Others V/s Nagesh Bhimappa
Waddar @ Maktedar and Others1 rendered by the Division
Bench of this Court. In this decision it was held that there is no
bar for a member of the joint family to alienate his share. It was
also held that if the non-executant of a sale deed seeks rights,
he has to seek declaration and he need not seek annulment of
the sale deed.
16. Per contra, learned counsel appearing for the
respondent-plaintiff contends that there is no record to show that
the suit schedule property was at any time converted as a non-
agricultural property. It may be true that it was not used for the
agricultural purposes and therefore, the suit property was
basically an agricultural property and as such, the revenue
records depict the title to the property. He contends that simply
because a cattle shed was constructed and a Panchayat number
was given as 11, it cannot be said that the title had vested with
the defendant No.2. It was the joint family property and there
was a partition in the year 1985 and therefore, the plaintiff and
his brother-Chanabasappa got the suit schedule property
2023(3) KAR LJ 203
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commonly and the northern half portion measuring 2 ½ guntas
fell to the share of the plaintiff. It is his contention that the
defendant No.1 purchasing the suit schedule property based on
the entry in the name of the defendant No.2 in the Panchayat
records, cannot be upheld for any reason. He submits that as on
the date of transaction between the defendant No.1 and
defendant No.2, the property was standing in the name of
Doddagouda and therefore, mentioning of the name of the
defendant No.2 in the Panchayat records would not be in any
way enure to the benefit of the defendant No.1. Therefore, he
contends that the judgment of the First Appellate Court considers
these aspects and no indulgence is required in the decree passed
by the First Appellate Court. It is pointed out that no records are
available in the Panchayat as to how and when the name of the
defendant No.2 was entered for the Panchayat No.11. Therefore,
the entry of the name of the defendant No.2 itself is erroneous
and cannot be upheld.
17. His next contention is that the report/varadi given to
the revenue authorities in the year 1985 reporting the partition
mentioned that the partition had taken place about 4-5 years
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earlier. Therefore, in the year 1982, there is no room to predict
that the name of the defendant No.2 was validly entered in the
Panchayat records. Hence, he contends that the defendant No.2,
with an ulterior motive of defrauding the plaintiff from the suit
schedule property, has executed the sale deed in the year 1982
in favour of the defendant No.1. Therefore, he contends that the
impugned judgment of the First Appellate Court is justifiable and
no interference can be made.
ANALYSIS AND CONCLUSIONS:
18. The first substantial question of law framed by this
Court is in respect of the validity of the family partition on
17.12.1985 and the effect of the sale deed executed by the
defendant No.2 as a member of the joint family in favour of
defendant No.1 on 09.08.1982.
19. The second substantial question of law is in respect
of the bar of limitation.
20. The third substantial question of law is in respect of
the need for a declaration to declare the sale deed dated
09.08.1982 to be void and whether it acts as a precondition for
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maintainability of the suit. Let me consider the third substantial
question of law at the beginning. Evidently, the plaintiff was not
a party to the sale deed dated 09.08.1982 produced at Ex.D1. It
was a sale deed entered into between the defendant No.1 and
the defendant No.2 inter se. A perusal of Ex.D1 shows that
nothing is mentioned in the said sale deed which would show
that apart from the defendant No.2, there are other sharers in
respect of the said property. It mentions that the defendant No.2
wanted to settle at Balligavi, which is away from Somanahalli of
Hirekerur Taluk and therefore, to purchase another property, the
defendant No.2 is selling the suit schedule property. The sale
deed do not mention as to how the defendant No.2 had obtained
title over the same. Therefore, when the plaintiff was not a party
to Ex.D1, it cannot be said that he had to seek a declaration that
the said sale deed is void. The said sale deed binds the share of
the defendant No.2 only. The defendant No.2, if is proved to
have no title in respect of the property involved, cannot transfer
any title. Therefore, the suit is maintainable when the plaintiff
expresses his ignorance about the Ex.D1. The plaint does not
mention anywhere that the defendant No.2 had sold the property
to defendant No.1. Therefore, unless the knowledge of Ex.D1 is
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imputed to the plaintiff, it cannot be held that the suit is not
maintainable. The plaintiff is entitled to seek his relief ignoring
the Ex.D1. Therefore, absence of the relief of declaration that the
sale deed dated 09.08.1982 to be void cannot affect the
maintainability of the suit. In the result, the third substantial
question of law is answered in the 'negative'.
21. The other two substantial questions of law are
interlinked to each other. For this, it is necessary to look into the
evidence on record.
22. The First Appellate Court in the impugned judgment
has recorded certain erroneous facts. First Appellate Court does
not frame any specific points for consideration, which affect the
findings on the issues. It takes up the points No.1 and 2 together
and comes to the conclusion that the impugned judgment of the
Trial Court is not sustainable. In paragraph No.13, the First
Appellate Court observes as below:
13) "*** It is admitted fact that prior to
partition in the year 1982 alongwith father and all
other brothers were in joint family members. the
said partition on 17/12/85 if it is believed as true,
if the same is taken into consideration, the court
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comes to the conclusion that document is
produced by the plaintiff clearly reveals that deft.
No.2 has not been allotted any share by way of
either registered partition or by the partition or
by with documents evidence in the partition.
Therefore it is the case of plaintiffs that suit
property is not allotted to deft.No.2, but it was
allotted in favour of Channabasappa, i.e. 1st son
of Doddagouda and later on to show that khata is
made in favour of deft. No.2, there is no
documentary evidence in favour of deft. No.2.
The trial court has blindly accepted the evidence
on record in respect of defendants without
looking to the documents produced by the
plaintiffs before the court."
23. It may be noted that the evidence on record shows
that the southern portion of Survey No.1/10, measuring 2½
guntas was in possession of Chanabasappa and it was bearing
the Panchayat No.12. This aspect is not denied either by the
plaintiff or by the defendant No.1. It is also an admitted fact that
son of Chanabasappa, namely Basavaraj, had sold the said 2½
guntas in favour of the defendant No.1 under a registered sale
deed dated 14.02.2003. Admittedly, the said portion sold by the
Basavaraj son of Chanabasappa, covers the half portion which
has been allotted to Chanabasappa in the partition of the year
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1985. What the partition document mentions in respect of the
other portion of Survey No.1/10 is that it was allotted to
Shidlingappa i.e., plaintiff. But prior to the said partition in the
year 1985, the property was standing in the name of the
defendant No.2 in Panchayat records as VPC No.11. If the
property which had fallen to the share of Chanabasappa in the
partition was bearing the Panchayat No.12, why the partition
document of the year 1985 did not mention that the other half
belongs to Basavannippa is not known. Therefore, the
observation of the First Appellate Court that there is no
documentary evidence to show that how the name of the
defendant No.2 was mentioned in the records appears to be
without appreciating the evidence. Obviously, even the
observation that prior to the partition in the year 1982 along
with father and all other brothers they were in joint family is also
erroneous since the partition is of the year 1985.
24. In paragraph No.15, the First Appellate Court
observes that the property purchased by the defendant No.1 was
not by a person who is competent to sell the same. It holds that
the defendant No.2 did not had any title to the property and
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therefore, it comes to the conclusion that the tax paid receipts
etc., would not constitute the title and as such, the suit deserves
to be decreed.
25. In paragraph No.17, it holds as below:
"17) I have looked into evidence of DW.1 to 4.
DW.1 has deposed with regard to the same that of
W.S. averments. On perusal of his evidence it is clear
that deft. No.1 is also bonafide purchaser and he has
not looked into title deed and also partition deed in
between 4 brothers, who are sons of Doddagouda.
Hence without looking to the genuine documents,
same is made in favour of deft.No.1. Hence the said
sale deed is taken by the deft. No.1 is illegal and
against the facts on record. On perusal of evidence of
Dw.2 to 4 who are supporting to the Dw.1 case."
26. It is evident that the First Appellate Court has not
assigned any cogent reasons to overcome the conclusions
reached by the Trial Court. The judgment of the First Appellate
Court falls short of re-appreciation of the evidence and therefore,
it doesn't answer the reasons assigned by the Trial Court in
dismissing the suit.
27. Let me consider the evidence on record to ascertain
whether the Trial Court was right in coming to the conclusion
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that the defendant No.2 had the title in the year 1982 while he
sold the property to the defendant No.1.
28. The Exs.P1 to P5 are the RTC's of Survey No.1/10
measuring 5 guntas. There is no doubt that in the year 1981 to
1983, the name of the propositus-Doddagouda was appearing for
Survey No.1/10. It is pertinent to note that in a portion of the
said property, there was a house. The entry of the crops show
that only three guntas was used for growing Ragi and Jowar and
the remaining two guntas was occupied by a house. Later, from
the year 1985 onwards, the name of the plaintiff and his brother-
Chanabasappa was entered and obviously, it was in pursuance to
the partition recorded as per M.E.No.249 dated 17.12.1985. It is
worth to note that the tax assessment register extract of the
Panchayat, Tavargi produced at Ex.P7 for the year 1981-1982 to
1985-1986 show the name of the defendant No.2. In the year
1999-2000, it showed the name of the plaintiff. Obviously, it is
the dispute which is involved in the present suit. The Ex.P11
shows that the Panchayat doesn't have the records as to how
and in what manner, the name of the defendant No.2 was
entered for VPC No.11. It simply mentioned that on 31.08.1982,
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the name of Doddagouda was deleted and the name of the
defendant No.2 was entered for VPC No.11. Ex.P14 happens to
be the certified copy of the report submitted to the revenue
authorities by all the sharers with the request to make the
entries as per the partition and obviously, acting on this
document, the revenue authorities have mutated the names as
per the mutation entry No.249 at Ex.P6.
29. It is to be noted at this juncture that, the varadi as
per Ex.P14 is signed by the plaintiff as well as the defendant
No.2 and Chanabasappa and it was during the lifetime of their
father-Doddagouda.
30. The Ex.P17 is a representation submitted by the
plaintiff to the President of the Zilla Panchayat. In this
representation, the plaintiff mentioned that there was a partition
in the family of himself, his father and brothers sometime around
17.12.1984. It is pertinent to note that the plaintiff do not
mention that partition was affected prior to 1982.
31. In the said representation, he also mentioned that
when he requested the Panchayat Officials to record his name to
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the suit schedule property, he came to know that it was already
given VPC No.11 and it was standing in the name of defendant
No.1 on the basis of a sale deed executed by defendant No.2 in
favour of defendant No.1. Therefore, he alleges that there was
some fraud and therefore, he seeks redressal of the same.
32. Ex.P.19 is the sketch prepared by the revenue
authorities in respect of R.S.No.1/10. This document is not of
any help since it is the combined map of the property, which
bears VPC No.11 and 12.
33. So far as the documents of the defendant No.1 is
concerned, he has produced the Tax Assessment Register Extract
of the Panchayat of VPC No.11 for the year 1981-82 to 2000-
2001, where the name of the defendant No.2 was entered and
later, it was bracketed and the name of the defendant No.1 was
entered. Subsequently, from the year 1994-95, the name of the
plaintiff was entered for VPC No.11. Ex.D.4 happens to be the
sale deed executed by the son of Channabasappa concerning the
southern property, which had fallen to the share of
Channabasappa. Ex.D.5 is the Tax Assessment Register Extract
for the year 1981-82 to 1993-94 and it shows the name of
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Channabasappa for VPC No.12 and the name of defendant No.2
was rounded off and the name of defendant No.1 was entered for
VPC No.11.
34. Ex.D.8 and 9 are the tax paid receipts in respect of
VPC No.11 produced by the defendant No.1. The testimony of
DW2-Basavarajappa S/o.Channabasappa shows that in his cross
examination he admits that earlier 5 Guntas was under the
Khata of his father and the plaintiff. He denies that it was jointly
enjoyed by his father and the plaintiff, but says that it was
allotted to the defendant No.2. In other words, his testimony
shows that the property in fact was allotted to Channabasappa
and the defendant No.2. He admits that the plaintiff is
permanently residing at Balligavi of Shikaripura Taluk, but not in
his village. Thus, the testimony of DW2 doesn't support the
contention of the plaintiff.
35. The DW3 happens to be Dundappa, who is another
brother of the plaintiff and the said Channabasappa. He also
states that the VPC No.11, measuring about 2½ guntas was in
the possession and enjoyment of the defendant No.2 and he has
sold the same to defendant No.1. In his cross-examination, he
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reiterates that 5 guntas in Survey No.1/10 was in fact allotted to
Channabasappa and the defendant No.2 and it was never
allotted to the plaintiff. He states that there was partition in
respect of the houses in the year 1976-77 and accordingly the
names were entered. In his cross-examination, it is elicited that
in the year 1986, they found that the name of the plaintiff was
entered in the revenue records and they had asked the plaintiff
to get his name deleted. This testimony of DW2 and DW3 throws
light in respect of the manner in which the partition was effected
in the family and it is their case that the partition was much
earlier in respect of the house properties, but in so far as other
properties, a Varadi was given in the year 1985. The testimony
of DW2 and DW3 shows that the suit schedule property was
enjoyed by the defendant No.2 and his name was found in the
panchayat records. Even the revenue records also show that only
about 3 guntas was used for raising the crops and remaining
portion was a house. In that view of the matter, the house
standing in the name of the defendant No.2 in the year 1982
cannot be disputed. The said property, which was standing in the
name of the defendant No.2, was sold to defendant No.1.
Therefore, the evidence on record shows that the reasoning of
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the Trial Court that plaintiff was not in possession of the property
but it was the defendant No.2, who was in enjoyment of the
same has to be accepted. This being the fact, which is borne out
from the records, let me turn to the legal position.
36. The Ex.P.6, the mutation entry, obviously records an
earlier partition. As per the earlier partition, a report was given.
If that is so, it has to be held that the plaintiff knew about
portion of Survey No.1/10 being occupied by the defendant No.2
in the form of cattle shed, which also finds place in the revenue
records. The plaintiff cannot deny that Survey No. 1/10 was used
partly for raising crops and partly for a house existed in it. If that
is so, the necessary inference that is to be drawn is that, the
house property was occupied by the defendant No.2. The plaintiff
cannot deny that in the portion of the house mentioned in Ex.P.1
to 4, it was the defendant No.2 who enjoyed it. Therefore, the
allotment of the share to the plaintiff as per the memorandum of
partition or the Varadi given to the revenue authorities as per
Ex.P.6 (mutation entry) and Ex.P.14 (Varadi) appears to be
erroneous only in respect of mentioning the name of the plaintiff
instead of the defendant No.2. In other words, the error that
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crept in Ex.P.14 was that for Survey No.1/10, it was jointly given
to the Channabasappa and the defendant No.2. Therefore, the
necessary inference that is to be drawn from the revenue
records, panchayat records and the testimony of the witnesses,
pointedly shows that it was the defendant No.2 who got the
property in the partition, but wrongly it was mentioned as the
plaintiff.
37. In that view of the matter, the conclusions of the
Trial Court have to be upheld. With this let me consider the
question relating to limitation, which encompasses the second
substantial question of law.
38. The Trial Court, in the impugned judgment, notes
that as per the sale deed executed by defendant No.2-
Basavannepa in favour of defendant No.1/appellant, his name
was entered in the property tax assessment register for the year
1982-83 itself. Such entry of the name of the defendant No.1 for
the house property, which is situated in Survey No.1/10 and
occupied by the defendant No.2, was to be held well within the
knowledge of the plaintiff since he was member of the joint
family.
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39. The Trial Court observes that Article 58 of the
Limitation Act is applicable and the plaintiff has produced the tax
assessment extracts at Ex.P.8 to Ex.P.10 pertaining to the year
1999-2000 and earlier to it, the name of the defendant No.1 was
appearing in the records. It also notices that the plaintiff had
filed an application to the panchayat for 'Durasti' work on
27.09.1998. At that time itself, he had knowledge of the fact that
the defendant No.2 had sold the property in favour of defendant
No.1. It is pertinent to note that Ex.P.10 shows the name of the
plaintiff and the correction has been made as per the application
given by him on 27.09.1998. Obviously, the plaintiff had come to
know about the sale deed executed by defendant No. 2 in favour
of defendant No.1 in the year 1998. Therefore, this application
submitted by the plaintiff goes contrary to the testimony of PW1
that he had not given any application to the panchayat to enter
his name for VPC No.11. This aspect has been considered by the
Trial Court in Paragraph 31 of its judgment.
40. Therefore, when the plaintiff came to know that the
name of the defendant No.1 was appearing in the panchayat
records in the year 1998 itself or a little prior to it, the limitation
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starts to run from that date. The title of the defendant No.1
came to the knowledge of the plaintiff prior to 27.09.1998.
Therefore, claim for declaration should have been made within
three years from such date. The present suit was filed on
04.03.2002. Obviously, it is beyond the period of limitation.
41. Under these circumstances, the date of knowledge to
the plaintiff that the suit schedule property was under the title of
the defendant No.1 was prior to three years from the date of
filing of the suit. Obviously, the plaintiff had not paid any tax in
respect of VPC No.11 from 27.09.1998 till the filing of the suit.
He had come to know about the entries that were found in the
panchayat records prior to 27.09.1998, which invariably
indicated that the said property was owned by the defendant
No.1. Therefore, the finding of the Trial Court that the suit is
barred by time has to be upheld. Conspicuously the First
Appellate Court did not consider the question of limitation at all.
There is absolutely no finding as to why the judgment of the Trial
Court on the issue of limitation has to be reversed. It simply
holds that the defendant No.1 cannot be a bona fide purchaser
and proceeds to reverse the judgment of the Trial Court.
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42. In that view of the matter, the second substantial
question of law has to be answered to the effect that the suit
was barred by limitation. In view of the above conclusions on the
substantial questions of law, the appeal deserves to be allowed.
Hence, the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment of the First Appellate Court in
R.A.No.113/2006 is hereby set aside and the
judgment of the Trial Court dismissing the suit
in O.S.No.43/2002 is hereby confirmed.
(iii) In view of disposal of the appeal, pending
interlocutory applications, if any, do not
survive for consideration and are disposed of.
SD/-
(C M JOSHI)
JUDGE
RKM-para 1 to 30
YAN - para 31 till end., CT:PA
