Karnataka High Court
Lumbu W/O Pandu Lamani vs Iramma W/O Shanthappa Patil on 18 April, 2023
-1-
RSA No. 7319 of 2009
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO. 7319 OF 2009 (INJ)
BETWEEN:
LUMBU W/O PANDU LAMANI
AGED ABOUT 55 YEARS,
OCC: AGRICULTURAL
R/O GANIHAR (LT), TQ.SINDAGI,
DIST.BIJAPUR-586128.
...PETITIONER
(BY SRI G. G. CHAGASHETTI, ADVOCATE)
AND:
IRAMMA W/O SHANTHAPPA PATIL
AGED ABOUT 59 YEARS,
OCC:AGRICULTURE
R/O SINDAGI, TQ. SINDAGI
DIST.BIJAPUR-586126.
...RESPONDENT
Digitally signed
by RAMESH (BY SRI SANJAY .A PATIL, ADVOCATE)
MATHAPATI
THIS RSA IS FILED U/S.100 OF CPC PRAYING TO ALLOW THIS
Location: High
Court of APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED
Karnataka 15.09.2009 PASSED BY THE LEARNED CIVIL JUDGE (SR. DN.)
SINDAGI IN RA.NO.3/2008 DISMISSING THE APPEAL CONFIRMING
THE JUDGMENT AND DECREE DATED 7.3.2008 PASSED BY THE
LEARNED CIVIL JUDGE (JR.DN.) SINDAGI IN O.S.NO.170/2005.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
THE ABOVE REGULAR SECOND APPEAL HAVING BEEN HEARD
ON 06.04.2023 AND RESERVED FOR JUDGMENT, COMING ON FOR
"PRONOUNCEMENT OF JUDGMENT" THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
-2-
RSA No. 7319 of 2009
JUDGMENT
This above second appeal is filed by the defendant No.2 seeking to set aside the judgment and decree dated 15.9.2009 in R.A.No.3/2008 by the Civil Judge (Sr.Dn) Sindgi (for short 'First Appellate Court'), and also the judgment and decree dated 07.03.2008 passed in O.S.No.170/2005 by the Civil Judge (Jr.Dn) and JMFC, Sindagi (for short 'trial Court').
2. Parties to the appeal shall be referred to as per their status before the tribunal.
3. The plaintiff had filed a suit in O.S.No.170/2005 seeking the relief of permanent injunction to restrain the defendants from interfering with peaceful possession and enjoyment of the suit property of the plaintiff. It is the case of the plaintiff that he is the owner and in possession of the suit property which was inherited from her father by executing a registered gift deed dated 05.05.1975. Originally, the property in Sy.No.302 was one strip which was got divided into three parts by name Parappa, -3- RSA No. 7319 of 2009 Doddappa and Ningappa. Out of three strips, the strip bearing No.302/2 had fallen to the share of grandfather of plaintiff by name Doddappa Anandappa Jewargi and after his death, it was inherited by his only son Tulajappa Doddappa Jewargi. Tulajappa gifted the said property in favour of his only daughter i.e. plaintiff. Further it is stated that towards Western portion of land in Sy.No.302/1 measuring 5 acres 34 guntas had fallen to the share of husband of defendant No.1 and father of defendant No.2. About six years back, Parappa Jewargi, who died leaving behind the defendants, who were not made any records for their Warsa. Now the defendants are un-necessarily obstructing the possession of the plaintiff inspite of advise of elders, they did not heed their request. Hence, the plaintiff has filed the suit.
4. After service of suit summons, the defendants have appeared through the counsel and filed their written statement.
-4-RSA No. 7319 of 2009 The substance of the written statement is that the defendants have admitted that plaintiff is the owner of Sy.No.302/2 but they have denied the portion of area shown in the records o right from 1955 but the rights from 1955 and prior to them the father of defendant-2 was in possession of Sy.No.302/1 measuring 7 acres 34 guntas and originally Sy.No.302 measuring 18 acres 06 guntas out of them it was divided between three brothers by name Parappa, Doddappa and Ningappa S/o Anandappa Jewergi and in the year 1933 partition was taken place between them as per partition three brothers got each 6 acres 02 guntas as per M.E.No.218 dtd.25.91933 but no measurement was taken place, thereafter in the year 1935 pot hissa was made as per phot-hissa 7 acres 34 fallen to share of Parappa 4 acres 35 guntas fallen to share of grand father of plaintiff and 5 acres 17 guntas fallen to share of Ningappa Jewergi and as per M.E.No.446 dtd. 12- 9-1935, there after, in the year 1955 again phot-hissa 5 acres 34 guntas fallen to share of Parappa Jewergi, 5 acres 35 guntas fallen to share of grand father of plaintiff and 6 -5- RSA No. 7319 of 2009 acres 20 guntas fallen to share of Ningappa S/o Anandappa Jewergi but it was sold in favour of defendant - 2 the same is mutated in M.E.No.1363 dated. 15- 11- 1955. It is also case of the defendants that before phot hissa durasti was effected in the revenue records the said Ningappa Jewergi had sold his land measuring 7 acres 34 guntas to the father of defendant-2 under registered sale deed dtd.28-03-1955 for a consideration of Rs.500/- and given possession to his father, though partition had taken plaintiff in the year 1933 phot hissa taken twice and in 1955 but all the three brother continued in possession of their respective shares without getting the land. actually measured and father of defendant after purchased the land is continued to cultivate and enjoy the same measuring 7 acres 34 guntas. It is further contended that though the partition and phot hissa are effected so many times in the revenue records by way of mutation entries but all those are not recorded in the record of rights by the revenue authorities and there are bunds in between the strips of plaintiff and defendants there are 7 to 8 big -6- RSA No. 7319 of 2009 grownup trees on band about 40 years old it was put up by three brothers in the year 1933. Hence, plaintiff is not in possession of 5 acres 32 guntas and she has not sough for possession but she has filed this suit for bare injunction not tenable under law and if the relief is granted she will use of force and chances to dispossess the defendants by destroying bund and cutting trees and cause of action arise in the year 1933, 1935 and 1955. Hence, they prayed for dismiss the suit.
5. On the basis of the rival pleadings, the trial Court framed the following issues;
(a) Whether plaintiff proves that he is in lawful possession and enjoyment of suit property as stated in the plaint?
(b) Does the plaintiff proves the alleged interference?
(c) Whether plaintiff is entitle permanent injunction as sought for?
(d) What order or decree?
-7-RSA No. 7319 of 2009
6. To prove the case of the plaintiff, plaintiff examined herself as PW.1 and one witness by name Neelakant as PW.2 and got marked 11 documents as Exs.P1 to P11. On the other hand, defendants were examined as DWs.1 and 2 and got marked documents as Exs.D1 to D10.
7. After hearing the arguments on both sides, the trial Court has given finding to all the issues as under;
Issue No.1 is affirmative.
Issue No.2 is affirmative.
Issue No.3 is affirmative.
Issue No.4 is as per final order.
8. In view of the said finding, the trial Court decreed the suit in favour of the plaintiff. Being aggrieved by the judgment and decree passed by the trial Court, defendants have preferred an appeal in RA.No.3/2008 before the First Appellate Court. On considering the grounds urged in memorandum of appeal, the First -8- RSA No. 7319 of 2009 Appellate Court framed the following points for consideration;
(a) Whether plaintiff in OS No. 170/05 proves that she is in peaceful possession and enjoyment of suit property as on the date of suit and alleged interference by the defendants?
(b) Whether findings of trial Court on various issues are in accordance with law?
(c) Whether the Judgment and decree of the Court will requires interference by this Court?
(d) What order?
9. The First Appellate Court held point Nos.1 and 2 in the affirmative and point No.3 in the negative and confirmed the judgment and award passed by the trial Court by dismissing the appeal. Being aggrieved by the judgment and decree passed by the First Appellate Court, the defendant No.2 has preferred this appeal before this Court (since original defendant No.1 has been died, hence appellant herein i.e., defendant No.2 is the sole legal representative of the deceased as noted in the memorandum of appeal.) -9- RSA No. 7319 of 2009
10. This Court while admitting the appeal on 12.04.2010 formulated the following substantial question of law;
"Whether the Courts below were justified in decreeing the suit without reconciling the sale deed dated 28.03.1955 and the Bakshis Patra dated 05.05.1975?"
11. Learned counsel appearing for the appellant submits that the judgment and decree passed by both the Courts below are illegal and erroneous in law and both the Courts below have failed to appreciate the oral and documentary evidence placed by the parties in accordance with law. The plaintiff had filed a suit for bare injunction in respect of suit schedule property. The property bearing Sy.No.302/2 was originally measuring 18 acres and partition had taken place in the year 1933. In that partition, the land was divided equally between all the three brothers and grand-father. The plaintiff had got 6 acres 32 guntas and father of defendants had got 6
- 10 -
RSA No. 7319 of 2009acres 20 guntas. This fact is evidenced by M.E.No.418 dated 25.09.1933. Though the partition has been taken place, the land was never got measured by all the three brothers and have put bunds to their strips and enjoyed their respective strips. Further it is stated that Ex.D1 is the sale deed in favor of father of defendants, wherein the area purchased from Ningappa is shown as 7 acres 34 guntas, on the one hand there is a sale deed of the year 1955 on the other there are revenue entries. Further it is submitted that both the Courts below have not property appreciated the evidence on record and passed the impugned judgment and decree in favour of the plaintiff which is not sustainable in law. Hence, on all these grounds sought for allowing of the appeal.
12. Despite sufficient opportunity has been granted, the respondent has not appeared before this Court to submit his arguments. Hence, his arguments is taken as nil.
- 11 -
RSA No. 7319 of 2009
13. Perused the records and impugned judgment and decree passed by both the Courts.
14. On perusal of the entire material on record, it is crystal clear that there is no dispute that the land in Sy.No. 302 was originally measuring 18 acres 6 guntas and it was jointly owned by three brothers by name Parappa, Doddappa and Ningappa. It is also not in dispute that during the year 1933 partition took place between these three brothers wherein land measuring 18 acres 62 has been divided between them measuring 6 acres 2 gs each and same is evidenced by M.E.No418 dated 25.9.1933. ExD3 produced by defendants i.e., certified copy of ME.No.418 shows that land in Sy.No.302 has been divided between Parappa Doddappa and Ningappa equally. It is the specific contention of defendants that though as per M.E.No.418 the three brothers divided 18acres 6gs into 6 acres 2gs each but there was no actual measurement and all the three brothers were enjoying their share of property by putting bunds. It is not in
- 12 -
RSA No. 7319 of 2009dispute between the parties that during the year 1935 and during the year 1955 pot hissa durasti has taken place, wherein the Parappa elder was found in possession of 7 acres 34 guntas, whereas Doddappa and Ningappa were found in possession 4 acres 35 guntas and 5 acres 17 guntas each respectively. Ex.D.2 i.e., certified copy of M.E.No.446 dated 12.9.1935. Ex.D.4 i.e., certified copy of M.E.No.1363 dated 15.11.1955 also shows that as per pot hissa durasti of the year 1955 Parappa was found in possession of 5acres 34 guntas whereas Doddappa and Ningappa were found in possession of 5 acres 32 guntas and 6 acres 20 guntas each.
15. A perusal of RTC extract pertaining to suit Sy.No.302/2 for the year from 1975-76 to 2002-03 wherein the measurement of land pertaining to Sy.No.302/2 is consistently shown at 5 acres 32 gs. Further plaintiff has also produced RTC extract the pertaining Sy No.302/1 for the period from 1982-82 to 1999-2000 wherein extent of land in Sy.No.302/1 has
- 13 -
RSA No. 7319 of 2009been consistently shown at 5 acres 34gs. It is relevant to note here that according to defendants No.1 and 2 the father of defendant No.2 one Pandu Ganu Lamani purchased land in Sy.No.302/1 measuring 7 acres 34 guntas from one Ningappa Anandappa Jewaragi under the registered sale deed dated 28.3.1955. However as per the revenue records more particularly certified copy of M.E.No.418, 446, 1363 marked at Ex.D.3, 2 and 4 by the defendants goes to show that said Ningappa Anandappa Jewaragi was never owing 7 acres 34gs of land in Sy.No.302. Ningappa had acquired third strip i.e., land in Sy No.302/ measuring 6 acres 2 guntass and subsequently as per pot hissa which is evidenced by M.E No. 1.No.446 he was found in possession of land in Sy.No.302/3 measuring 5 acres 17 guntas. Further M.E.No.1363 marked at Ex.D.4 also shows that Ningappa Anandappa Jewaragi was in possession of land in Sy.No.302/3 measuring 6acres 20gs as per pot hissa durasti effected on 5.11.1955. Under these circumstances, the contention of the defendant that father of defendant No.2 Pandu Lamani
- 14 -
RSA No. 7319 of 2009purchased the land bearing Sy.No.7 acres 34 guntas from Ningappa Jewargi, cannot be accepted.
16. Considering the oral and documentary evidence, the trial Court has decreed the suit in favour of the plaintiff. On re-appreciation of the evidence on record, the First Appellate Court has also dismissed the appeal filed by the defendants and confirmed the judgment and decree passed by the trial Court. Both the Courts have appreciated the evidence on record in accordance with law and facts and the Courts below were justified in decreeing the suit. Accordingly, the substantial question of law is answered in the affirmative against the appellant- defendant.
17. Hence, I proceed to pass the following;
ORDER The appeal is dismissed.
Sd/-
JUDGE MSR LIST NO.: 1 SL NO.: 2