Karnataka High Court
K Eshwarappa vs Gurushankarachari on 30 June, 2010
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30"' DAY OF JUNE, 2010,
BEFORE
THE HO!\E'BLE MR. JUSTICE A.l\i. VENUGOPALA--- 4_
REGULAR SECOND APPEAL.m4O.2j'53/2«0io%'
BETWEEN: ' ' ' " "
K. Eshwarappa,
S/0. i(.Basappa,
Aged about 74 years,'
R/'O. Benakanahaiii,'
Honnaii Taiuk, " "
avanagere District -- 5.27' 2,17.
_ . ; ...APPELLANT
(By Sari R.4.GCpai~,.V"Adv.4)_.
AND: " " ' ' "
1}"IaQU'rUShani<'araC.h«ari,
" Dead by L.R.
" _1"{..a')T '_E-ehakamma,
A é"'--«.,VW/Ov.~v'iate Gurushankarachari,
'Aged about 63 years.
2." B."H_.Hanumanthappa,
S/O. Hanumappa,
" """«_.Aged about 76 years.
Both are R/0. Benakanahaili viliage,
Honnaii Taluk,
Davanagere District - 577 217.
RESPONDENTS
(By Sri G.Balai<riShna Shastry, Adv. for R2; R1(a) is Served) This appeal is filed under Section 100 of CPC"'against the judgment and decree dated 7.8.2007 passed in R.A.No.:1/2006 on the file of the Civil 3udg.e',,(Sr.-D'n.), l-iarihar, dismissing the appeai and c0§1fi'rm..ir:«g"
judgment and decree dated 19.12.2005' .passed=_'in".__V O.S.210/1998 on the file of the Ci\:ii""Ju:dge'v..('3£r.Dn;').y"g Honnali.
This appeal coming on foair".__atir_nission_--v_it'h»is= Court delivered the fo|lowinlg':--.._V ' A 3 v = -- mu D.=G"'Mn[E4 The appeliant filed ._a fo~rlVv.'d~le_'cl_a---ration that he is the rightful" 'o§;§.ih'er iof ithe 'pla'irit'Vv.schedule property; to declare -ttsedsate-..dee'd'~~executed by the 15' defendant dated 19,5.1A9'97*in favour 2"" defendant is null and void; fO.i_i upossessi'o'n._and_permanent injunction restraining the :'d'e%vfE3ifiACiAaslit:S"fi'_Dm interfering with the suit property and also The suit schedule property is the land 1 acre 28 guntas in Sy.No'.10/2, out of 3 acres gvuntas, situated at Chikkabasur village, Sasvehalli '7-!lFloi)li, Honnali Taluk.
2. The case of the appellant is that, his grand father Benakappa had 8 children including his father i<.Basappa and the 15* defendant's father Rudrappa and;"'t'h'er~e__:wasxa division amongst 8 sons of the said prop.o_si"tus,A--l.:in,which, Sy.No.10/2 measuring 8 acres 'fa'|'i--en__:to.,,the ' share of Viswajnachar and.arLimapa'th'achar ,théey'T,sold to one Nanjappa in the year"Vit9:SvC._VVSaVi"d-nanfiaptpa had sold 3 acres 12 guntas:_""i:n favour of Vishwajnachanand acres to one Halappa. date of purchase, the father plaintiff were in poss1evssi_o'n oflllthe same, the katha was chang'ed._ upon the death of his father, heels in elxclusivle possession and enjoyment of the suit ijy._._paying kandayam. It was contended that, the .V_d-fefendainyts~AV.h»ai}e no manner of right, title or interest and they .a'r'e_-.not in possession of the suit property, despite ..w,hich',-'the 15' defendant in coilusion with the revenue élfaruthorities created fictitious document and got changed
-----fkhata in his name without the knowledge and consent of the plaintiff on the ground that father of thé plaintiff and the 15' defendant had partitioned and in the slid partition, ,9:
the suit item was allotted to his share. According to the plaintiff, the partition is not genuine. Accordini_:i:."'to the plaintiff, on the basis of the forged ..in collusion with revenue authorities, the _1§_',':'d.efe.n'dantl' his name entered in the reve;nue_:'recdr_ds'_*and--.,~l.,a'te,r_,t:.n ' under a sale deed datedV,19.5.i9-Qfwsoldyytheflproplerty in favour of the 2"" defendant,""'t«i:ljiiich is Va~.co'iia-sivtéi and sham document. On the document, the 2""
defendant attempted property which he raateaiiaiiaiaierdad the suit for the said reliefs.
3.E"--i'l,"iiheVirespondelnts/defendants filed the written wh"erve.i.n.~they denied the claim of the plaintiff to ' .-t'rre_ suiti :,Diro'p~erty. It was stated that, the father of the .'ipl'aintiff"v'V9.?i;ia.sthe eldest member of the family and was the entire affairs of the family which consisted of 1-'ii defendant and father of the plaintiff. Father of the tplaintiff purchased 3 acres 12 guntas in Sy.i\io.10/2. They lived jointly up to 1981 and during the life time of the father of the plaintiff and in his presence, oflai partition 3 /' took place on 1.6.1981 between the plaintiff andfthe 15' defendant, in which the plaintiff was al|otted__"1:V,':ac're"-24 guntas and the 15' defendant was allotted rerna'i'niirigfi acre 28 guntas of land. A merhofranduin of .Apartitvion' was 7 also drawn and thus, the di,sruptio.nlo.fA'the place from which date, the'"ft"=defendant'~.wasV«V"i.nV'Hexclusive possession and enjoynjent.~ro'f' proiperty', the katha of which, was changedliwtog-.w'fii:s he paid the kandayam. l~%e,soldlA_1 acte land in favour of the the registered sale deed dated
19.S.199g7',,frorn the 2"" defendant is in possession' anVd"'enjceyrnent of the same having acquired jvright, titluewand interest thereon. It was contended .AVpla'intiff was not at all in possession and enjoy,._n1'e-ht' of the suit property since 1981 and that, the " suit lisidarred by time.
4. The Trial Court framed 10 issues. For the plaintiff, PWs.1 to 3 deposed and E><s.P1 to P14 were marked. 15' defendant having passed away, his wife depofd as DW.1. ,4?
.4' 2"" defendant deposed as DW.2. 3 others were' as DWs.3 to S and Exs.D1 to D17mwere ma'r».<e':d..: 'D if
5. After appreciation of answered issues 1, 3, 7, 9 in 'the*...r§e,gVa'ti've; heid that the suit is nothaVrred,b'y-tim'e"'ra._nd i"ss'ues7:2 and 4 in the affirmative. The was dismissai of the suit.
6. 1AVg'§.rie:veVd,'_thex.'p.ia'i'ntiff filed appeal in the Court below andAcfo.nteridped..:t'i.-at,.his case has not been correctiy noticed and aprp're.c'ia.t'ed:"and hence, interference is cailed forg.' "
appellant fiied I.A.1 under o.41 R.27 cpc C'seeking.'.V'V'pjferi11ission of the Court to produce additional evidence -- documents. Considering the rivai contentions the record, the appeiiate Court heid that, the Vfgpiaintiff/appeiiant has faiied to prove that he is the title hoider of the suit property and is in possession of the same. It heid that the defendants have provedéthat in the ,9?
./' partition deed dated 1.6.1981, the suit property h.a'd.ggfallen to the share of late 15' defendant. Permission._"to:'p4r'od"uge additional evidence and in the facts and circ_umjst.ai1ces"..'ioiV' the case is uncalled for and heldbl that "C.l_'le1'J".|A.ll:'C1'b§_I'V!'.l_€'l'iV"E a"nd7 decree under appeal does not reo_uir_e inter'feren"ce'.;'"As"a result, the appeal was dismisised.
8. Aggrieved,'th_e filed this second appeaL
9. _'Sr§lvl'._«vR..§_3:A3o.pal,:V"'~le'ar_ned counsel appearing for the appellant" contendedt"h'at,"'the judgments under challenge are perverse and illegal. According to the learned counsel, judgments have given rise to substantial .1 ofi..--:l'aw raised in the appeal memorandum and hence,"the matter requires consideration.
10. This is a second appeal under S.10G CPC. The "gonly point in dispute was as to since when the 15' defendant got into possession of the land in question i.e., whether there is a partition on 1.6.1981, in which, the suit \ property i.e., 1 acre 28 guntas of land in Sy.__h;"o'.-1.(3,/'.2: to his share. Indisputably, the revenue rec.ord,.As':ttper-taihing the suit property show the narne ofthe',1'5l,.'d-e4fei'lvd_aAn,t,as ' the owner in possession' and Venjoyme,ntru'su:its. property. He has sold the registered sale deed dated The Trial Court raised the relev.a_n't:--i,ssues, the evidence placed on_vreco:rdih'_pia;cedi t{ot:hv'nhal--t:és and held that, the vvas a partition and since exclusive possession and enjoyrrlent o'f't..thA:e,'A'lan«cl:,V""nrieasuring 1 acre 28 guntas in Sy;.i\io,'10/.2 ltthai. the plaintiff is not the owner of the suit l"a:rid_, possession and enjoyment of the same and tlhat is not entitled to the relief of declaration, p'osse_ssioAn, mesne profits and injunction. The finding of .. fact recorded by the Trial Court having been challenged in lkjlapipeal, the lower appellate Court after re~appreciation of the evidence, both oral and documentary, has concurred with the findings recorded by the Trial Court. The concurrent finding of the Trial Court and appellate Court 2%"
J' has been challenged in this appeal. It is not thefcase of the appellant that, there is any misreading ofthe misconstruction of the documents or omissio'n_V:tojV'notice the' relevant evidence leading to wronig"a'ppreciati.or.«_ofVfact,'to T seek intervention of this Court un'de1r.§_§_100]CPAC. * of the parties has been at'.-vailysed "by._th~e ' below which have recorded firnldirifgs facts "and have concurrently held that, -the has proved that there was parti,t'i'on suit property fell to his s_halAreb'..wh_iVc«h iie""h,el:3 and enjoyed. The categorical admislsion .of't'he "a,ppei«!..a"nt'.has been noticed, which clearly indicates, .VtheV_V'p'arti'Ves holding their respective properties The of the 15' defendant is supported by tiheyxd.o'cuVmen.t'ary evidence in the form of entries in the r'even__ue-records and in exercise of his ownership right, he .. haszsoid the property to the 2"" defendant on 19.5.1997.
11. In view of the findings recorded by the Courts "below, which have the backing of the evidence on record, I do not find the conclusion which was arrived at by the Trial in vi' 10 Court and affirmed by the lower appeliate perverse or iiiegai. Both the Courts be--low.:ihave::taken' particular view with regard to the evAid_e?nc'e_1add-uceti-.._pefore the Tria! Court by the parties: The 'conc!uvs"ioAn:._vvhi_eh arrived at was more thaniéiia pV|_ausib:ei_:one; In the circumstances, theVinnpugned;Vjiu"d.g'nn'en»ts have not given rise to any substantiazic;uest'ion:~.tof'.él'avv"'to' 'interfere with the concu rrent ?ind;§?rI'g.s of fa"
reaso'n'sy this appeai is devoid of any smbistantiai'inqitieisvtiioinhjof iaw. Therefore, the appeai is not_mainitain'abie-_and he-znce, the same stands rejected. In fa.cts.__and"c'ircu~mstances of the case, parties to bear ' vtheEar're'spéct'iv«e costs.
sa/-
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