Karnataka High Court
S.P.Rudrappa, S/O. Late ... vs K.Veerabhadrappa S/O. Late Kallappa, on 2 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2664
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 02ND DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.840 OF 2009 (DEC/INJ)
BETWEEN:
1. S.P. RUDRAPPA,
S/O LATE PARAMESHWARAPPA,
AGED ABOUT 71 YEARS,
AGRICULTURIST,
R/O.SONDEKOLA VILLAGE,
CHITRADURGA TALUK
AND DISTRICT - 577 501.
2. THIPPESWAMY,
S/O LATE BHADRAPPA,
AGED ABOUT 51 YEARS,
R/O SONDEKOLA VILLAGE,
CHITRADURGA TALUK
AND DISTRICT - 577 501.
...APPELLANTS
(BY SRI.SPOORTHY HEGDE N., ADVOCATE)
AND:
K. VEERABHADRAPPA,
S/O LATE KALLAPPA,
AGED ABOUT 64 YEARS,
AGRICULTURIST,
R/O SONDEKOLA VILLAGE,
2
CHITRADURGA TALUK
AND DISTRICT - 577 501.
... RESPONDENT
THIS RSA IS FILED UNDER ORDER SEC.100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 22.04.2009
PASSED BY THE COURT OF II ADDITIONAL CIVIL JUDGE
(SR.DN.) CHITRADURGA, IN R.A.NO.29/2008 CONFIRMING
THE JUDGMENT AND DECREE DATED 04.02.2008 PASSED
BY THE COURT OF THE II ADDITIONAL CIVIL JUDGE
(JR.DN.,) AND JMFC, CHITRADURGA IN O.S.39/2006.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.Spoorthy Hegde.N, learned counsel for appellants, has appeared in-person.
2. This appeal is from the Court of II Additional Civil Judge (Sr.Dn.) at Chitradurga, confirming the judgment and decree passed by the Court of II Additional Civil Judge (Jr.Dn.) & JMFC, Chitradurga.
Appeal is posted for Admission after issuing the notice to respondent.
For the sake of convenience, the parties are referred to as per their rankings before the trial Courts. 3
3. Facts of the case are: - Plaintiff filed the suit seeking the relief of declaration and consequential relief of permanent injunction restraining the defendants from interfering with the joint possession of the plaint suit property.
Suffice it to state that the suit schedule property is an agricultural land measuring 10 guntas situated at Sondekola village which belonged to one - Kyadigere Sanna Rudrappa. It is stated that Kyadigere Sanna Rudrappa had five sons namely, Thippajja, Veerabasappa, Parameshwarappa, Kallappa and Dhanappa. The two sons namely, Thippajja and Veerabasappa have gone out of the joint family by taking their respective shares. Later, Kyadigere Sanna Rudrappa and his other three sons namely, Parameshwarappa, Kallappa and Dhannapa continued the joint family and the suit schedule property also continued in the name of father and three sons.
It is averred that after the death of their father, Parameshwarappa, Kallappa and Dhannapa got partitioned 4 the family properties through a registered deed dated 20.06.1944, in which, the suit schedule property allotted to all the aforesaid three sons, however, they agreed that the Khata shall stand in the name of Parameshwarappa. It is contended that in the Khata extract, the name of the father of Parameshwarappa is shown as Basappa instead of Sanna Rudrappa. It is also stated that after the death of the above said three sons, plaintiff, first defendant and legal representatives of Dhannappa are enjoying the suit schedule property without anybody's interference.
As matter stood thus, first defendant without the knowledge of plaintiff and other defendants gave an application to the Tahsildar for change of mutation. Therefore, plaintiff gave his objection for the same. Contending that first defendant denied his joint ownership over the suit schedule property, plaintiff brought action for the relief of declaration and a direction to change the mutation entries jointly with the defendants. 5
After service of summons, defendant Nos.1 and 3 appeared through their counsels and contested the matter by filing written statement and denied the plaint averments with respect to source of title, possession, and enjoyment over the suit schedule property.
They specifically contended that the suit land originally belongs to one Basappa, the brother of Kyadigere Sanna Rudrappa. After the death of Basappa, the revenue records got changed in the name of his wife - Smt.Gangamma and she was in possession and enjoyment of the suit land.
It is stated that Basappa and Gangamma had no issues and after the death of Basappa, his wife Gangamma adopted Parameshwarappa, who was none other than the son of Kyadigere Sanna Rudrappa, the brother of Basappa. The Adoption Deed is dated 23.11.1926. Therefore, it was sought to contend that Gangamma's right in the property was transferred to her adoptive son Parameshwarappa. Consequently, the khata was also changed in favour of 6 Parameshwarappa with adoptive father's name. After the death of Parameshwarappa, the khata of the suit schedule property was changed in favour of his son Rudrappa on 24.05.1985 as per the succession. Accordingly, they prayed for dismissal of the suit.
Defendant Nos.2, 4 to 12 remained absent and they were placed ex parte.
Based on the above pleadings, the trial Court has framed the following issues.
"1. Whether the plaintiff proves that he is the joint owner of suit schedule property along with defendant No.1 to 12 by virtue of partition deed dated 20.06.1944?
2. Whether the plaintiff further proves that he is in possession and enjoyment of suit schedule property as on the date of suit?
3. Whether the plaintiff further proves the alleged interference caused by the defendants?
4. Whether the plaintiff is entitled for the reliefs claimed in suit?7
5. What order or decree?"
On trial of the action, the suit came to be decreed, declaring that plaintiff has the right and he is the joint owner of the suit schedule property along with defendants 1 to 12. On appeal, the Appellate Court confirmed the judgment and decree of the trial Court. Hence, this regular second appeal is filed under Section 100 of CPC.
4. Sri.Spoorty Hegde.N, learned counsel contended that the judgment and decree of both the Courts below is contrary to the material evidence on record. Therefore, he submitted that they are liable to be set aside in limine.
Counsel submitted that it is evident from the material evidence on record that Late Parameshwarappa was the son of Kyadigere Sanna Rudrappa and the children of Kyadigere Sanna Rudrappa got partitioned the properties. It is also contended that Parameshwarappa was given in adoption to Smt.Gangamma W/o. Late Basappa. After the death of Gangamma, Parameshwarappa inherited the properties which included the suit land also.
8
It has been contended that the name of Parameshwarappa is entered in the revenue records with respect to 10 guntas of land, by showing Parameshwarappaa, S/o. Basappa.
Next, he submitted that plaintiff has no right, title, interest over the suit schedule property, much less, he could be declared as joint owner along with defendants 1 to
12. He also contended that both the Courts below ignored the revenue records and erroneously proceeded to rely upon Ex.P13 - partition deed and recital with respect to suit land and decreed the suit.
Lastly, he submitted that viewed from any angle, the judgment and finding of both the Courts below are unsustainable in law and therefore, liable to be set aside. Hence, he made a submission that the appeal may be admitted by framing substantial question of law.
5. Heard and perused the records with care. 9 The facts have been sufficiently stated. It is not in dispute that originally suit schedule property belonged to one Kyadigere Sanna Rudrappa who had five sons and four daughters. He performed the marriage of his four daughters and two sons. The two sons namely, Thippajja and Veerabasappa have gone out of the joint family by taking their respective shares. Later, Kyadigere Sanna Rudrappa and his other three sons namely, Parameshwarappa, Kallappa and Dhannapa continued the joint family and the suit schedule property also continued in the name of father and three sons.
It is not in dispute that father Kyadigere Sanna Rudrappa died in 1936. After his death, his three sons namely, Parameshwarappa, Kallappa and Dhannapa partitioned the family properties under a registered partition deed dated 20.06.1944.
Plaintiff is the son of Kalappa. According to him, the suit schedule property was allotted to all the three sons and they decided to be the joint owners and it was agreed that 10 the khata of the suit property should be in the name of Parameshwarappa.
To substantiate his claim over the suit property, plaintiff placed reliance on the partition deed.
Ex.P13 is the certified copy of the partition deed dated 20.06.1944. The trial Court relied upon the recitals in the partition deed and held that the property is the family property of Kyadigere Sanna Rudrappa and the khata of the property was ordered to be in the name of Parameswarappa.
Defendants set up the defense that Kyadigere Sanna Rudrappa had a brother by name Basappa. His wife is Smt.Gangamma. They had no children. Therefore, Smt.Gangamma had adopted Parameswarappa. It was also contended that the suit schedule property is the absolute property of Basappa. Hence, Parameswarappa being the adopted son of Basappa is the owner of the suit property.
As could be seen from the judgment and decree of both the Courts below, learned Judges in extenso 11 considered the material evidence on record and found that defendants have failed to establish that the property is the absolute property of Basappa.
In this appeal, counsel for defendants adhered to the contention that the property is the absolute property of Basappa and Parameswarappa, being the adopted son is the owner of the property and therefore, they stated that plaintiff has no right, title, and interest over the property. I find myself unable to accept this contention. There is nothing on record to show Basappa owned the property. I would observe that the three sons decided to be the joint owners and it was agreed that the khata of the suit property should be in the name of Parameshwarappa.
I would observe further that defendants contended that Parameswrappa was adopted by Smt.Gangamma and that Basappa was the absolute owner of the suit property. But there is no rebuttal evidence with regard to Ex-P13.
As already observed above, both the Courts below justified in holding that the recital of the document clearly 12 shows that the suit schedule property belonged to Kyadigere Sanna Rudrappa and the property should be enjoyed by his three sons but the khata should be in the name of Parameswrappa. Therefore, both the Courts below held that defendants have failed to establish that the property is the absolute property of Basappa. I find it necessary to say this much that I am not prepared to differ from the view taken by the trial Court and by the Court of First Appeal as to the question of fact.
Insofar as the possession and enjoyment of the suit schedule property is concerned, the trial Court found that plaintiff has established as joint owner of the suit schedule property along with defendants 1 to 12. Hence, learned trial Judge held that plaintiff is deemed to be in possession of the suit schedule property. Under the circumstances, the Judge also passed restrained order thereby, restraining the defendants by way of permanent injunction from interfering with joint possession of plaintiff. In my opinion, the Appellate Court has examined the evidence on record and 13 re-appreciated it. I am satisfied that it has been appreciated in the correct perspective.
It is perhaps well to observe here that after 1976 amendment, the scope of Section 100 of CPC has been drastically curtailed and narrowed down. No substantial question of law arises for consideration in this second appeal. In the result, I find no merit in this appeal and accordingly, it is dismissed at the stage of admission.
In view of the dismissal of the main appeal, the application - Misc.Cvl.No.11036/2009 does not survive for consideration and accordingly it is disposed of.
Sd/-
JUDGE SB/VMB