Karnataka High Court
Manohar S/O Jyotiram Jatgonda And Anr vs Prakash S/O Manikarao Sonaji And Ors on 30 November, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.7250/2012 (DEC/INJ)
BETWEEN
1. MANOHAR S/O JYOTIRAM JATGONDA
AGE: 38 YEARS, OCC: AGRICULTURE
R/O KANAJI VILLAGE, TALUKA BHALKI,
DISTRICT: BIDAR
2. ISWAR S/O JYOTIRAM JATGONDA
AGE: 32 YEARS, OCC: AGRICULTURE
R/O KANAJI VILLAGE, TALUKA BHALKI,
DISTRICT: BIDAR
...APPELLANT
(BY SRI RAVI B. PATIL, ADVOCATE)
AND
1. PRAKASH S/O MANIKARAO SONAJI
AGE: 56 YEARS, OCC: AGRICULTURE
R/O KANAJI VILLAGE, TALUKA BHALKI
DISTRICT: BIDAR
2. ASHOK KUMAR S/O NARAYAN RAO KANAJIKAR
AGE: 56 YEARS, OCC: AGRICULTURE,
VIVEKANAND COLONY, CHIDRI ROAD, BIDAR
3. DILIP S/O NARAYAN RAO KANAJIKAR
AGE: 58 YEARS, OCC: AGRICULTURE,
VIVEKANAND COLONY, CHIDRI ROAD, BIDAR
2
4. MURLIDHAR S/O NARAYAN RAO KANAJIKAR
AGE: 76 YEARS, OCC: AGRICULTURE,
VIVEKANAND COLONY, CHIDRI ROAD, BIDAR
5. KAMALAKAR S/O NARAYAN RAO KANAJIKAR
AGE: 72 YEARS, OCC: AGRICULTURE,
VIVEKANAND COLONY, CHIDRI ROAD, BIDAR
6. DR. MADHUKAR S/O NARAYAN RAO KANAJIKAR
AGE: 74 YEARS, OCC: AGRICULTURE,
VIVEKANAND COLONY, CHIDRI ROAD, BIDAR
...RESPONDENTS
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R1;
NOTICE TO R2 TO R5 IS HELD SUFFICIENT; R6 SERVED)
THIS RSA IS FILED UNDER SECTON 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 31.07.2010 PASSED IN
R.A.NO.86/2008 ON THE FILE OF THE FAST TRACK COURT - II
AT BIDAR (CAMP AT BHALKI), WHEREIN, THE APPEAL WAS
DISMISSED AND THE JUDGMENT AND DECREE DATED
02.07.2008 PASSED IN O.S.NO.82/2006 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.) AT BHALKI WAS CONFIRMED.
THIS APPEAL IS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful defendant Nos.6 and 7 questioning the concurrent findings of the Courts below, wherein, the plaintiff's suit is decreed in part by declaring plaintiff as joint owner to an extent of 13 guntas of land in Survey No.62/6.
3
2. For the sake of convenience, the parties are referred to as per their ranks before the trial Court.
3. The plaintiff has filed the present suit seeking relief of declaration of his ownership in respect of land bearing No.62/6 measuring 13 guntas. The plaintiff contended that he is the absolute owner in possession of the suit property measuring 13 guntas in Survey No.62/6 totally measuring 26 guntas. The plaintiff contended that his father has purchased the suit property from one Vijaykumar. The plaintiff further contended that towards southern portion measuring 13 guntas was allotted to the share of defendant Nos.1 to 5. The plaintiff further pleaded that insofar as well, karkhana and trees are concerned they were kept common between the plaintiff and defendant Nos.1 to 5. The present suit is filed alleging that defendant Nos.1 to 5 tried to alienate 13 4 guntas of land by showing wrong boundaries and also tried to acquire exclusive rights in the well, karkhana and trees. Hence, the present suit.
4. The defendants on receipt of summons tendered appearance. Defendant Nos.6 and 7, who are the purchasers from defendant No.1 to 5 filed written statement and stoutly denied the entire averments made in the plaint. The defendant Nos.6 and 7 however stoutly denied the claim of the plaintiff that 13 guntas of land on the northern side was sold by the plaintiff's vendor. However, defendant Nos.6 and 7 admitted that defendant Nos.1 to 5 are the owners only to an extent of 13 guntas of land. Defendant Nos.6 and 7 contended that apart from defendant Nos.1 to 5 being the owners of 13 guntas of land are also exclusive owners of well, neem trees and tamarind trees situated therein and therefore, defendant Nos.6 and 7 contended that their vendors 5 i.e., defendant Nos.1 to 5 have got every right to alienate the suit well and common space along with 13 gutnas of land held by their vendors i.e., defendant Nos.1 to 5.
5. The plaintiff and defendant Nos.6 and 7 to substantiate their respective claims led oral and documentary evidence.
6. The trial Court having examined the recitals in the sale deed of plaintiff however was not inclined to accept the contention of the plaintiff that he is in exclusive possession of northern portion. Referring to paragraph No.4 of the recitals in the sale deed, the trial Court was of the view that the plaintiff's vendor Vijaykumar and defendant Nos.1 to 5 were in joint possession of land bearing Survey No.62/6 totally measuring 26 guntas. It is in this background, the trial Court was of the view that the plaintiff's 6 vendor had half share in the land and also right of common enjoyment over well water, karkhana and trees. Referring to revenue records, the trial Court was also of the view that the same also discloses that the entire 26 guntas of land is in joint possession of plaintiff and defendant Nos.1 to 5. Therefore, suit was decreed in part declaring that the plaintiff and defendant Nos.1 to 5 are joint owners of land bearing Survey No.62/6. Further, the trial Court declared that plaintiff and defendant Nos.1 to 5 are entitled to enjoy commonly the suit well, karkhana and trees.
7. Defendant Nos.6 and 7 feeling aggrieved by the judgment and decree of the trial Court preferred an appeal before the appellate Court while the plaintiff preferred cross appeal feeling aggrieved by the finding of the trial Court holding that the plaintiff and defendant Nos.1 to 5 are in joint possession over entire extent measuring 26 guntas. 7 The appellate Court having independently assessed the oral and documentary evidence however held that plaintiff has succeeded in proving that he has purchased northern portion measuring 13 guntas. Therefore, appellate Court was not inclined to approve the findings recorded by the trial Court on issue Nos.1 and 2. The appellate Court held that the finding recorded by the trial Court on issue Nos.1 and 2 is contrary to the evidence on record and therefore, proceeded to modify the decree by allowing the cross appeal filed by the plaintiff. However, the appellate Court concurred with the finding that the plaintiff and defendant Nos.1 to 5 are entitled to enjoy the well, karkahana and trees as they are kept in common. Therefore, appellate Court held that evidence on record clearly indicates that defendant Nos.1 to 5 are interfering with the plaintiff's right to use the common 8 well, karkhana and trees. Consequently, cross appeal was allowed.
8. The defendant Nos.6 and 7 have only challenged the judgment and decree of the appellate Court in this appeal and they have not filed an independent appeal questioning the finding recorded in the cross appeal.
9. The grievance of defendant Nos.6 and 7 is that defendant Nos.1 to 5 have sold remaining 13 guntas of land in Survey No.62/6 and therefore they have contended that they are the joint owners along with plaintiff. The grievance of the defendant Nos.6 and 7 is that the appellate Court erred in modifying the decree of the trial Court by holding that the plaintiff is in possession of northern portion measuring 13 guntas. However, this Court would find that the finding recorded in cross appeal is not challenged by 9 defendant Nos.6 and 7. The entire controversy between the plaintiff and defendant Nos.1 to 5 appears to be the common area retained by the plaintiff's vendor and defendant Nos.1 to 5. In the common area, well, karkhana and trees are situated. Even the title documents of the plaintiff clearly indicate that the plaintiff is entitled to jointly use the common area. Now defendant Nos.1 to 5 have alienated 13 guntas of land in Survey No.62/6 in favour of defendant Nos.6 and 7. It appears that dispute started only when defendant Nos.1 to 5 chose to sell 13 guntas of land in Survey No.62/6. The plaintiff's father has purchased 13 guntas of land under a registered sale deed vide Ex.P14 while defendant Nos.6 and 7 claim that they have purchased remaining 13 guntas of land under a registered sale deed and its registration is kept pending on account of pendency of the suit. Though 10 the trial Court declined to grant relief of declaration to declare that the plaintiff is the owner of 13 guntas of land on the northern side, however, the trial Court proceeded to hold that the plaintiff along with defendant Nos.1 to 5 are joint owners. The theory of settlement as claimed by the plaintiff that there was a division among the plaintiff's vendor and defendant Nos.1 to 5 towards North - South, was not accepted by the trial Court.
10. Be that as it may, it is not in dispute that the plaintiff was put in possession over 13 guntas of land. The defendant Nos.6 and 7 in their written statement nowhere stated which portion was handed over to the plaintiff pursuant to sale deed executed by the plaintiff's vendor. The plaintiff to establish his possession has produced voluminous documents on record. Exs.P3 to P7 are the electricity bills and Ex.P8 is the revenue receipt. Ex.P14 is the sale deed 11 executed by erstwhile owner Vijaykumar in favour of the plaintiff's father. The evidence on record also indicates that mutation was effected in the name of plaintiff's father. If all these documents are looked into, this Court is of the view that the finding recorded by the appellate Court while deciding the cross appeal filed by the plaintiff which has gone unchallenged and has attained finality, cannot be looked into in the present second appeal.
11. Be that as it may, defendant Nos.1 to 5 have not at all disputed that plaintiff was not delivered the possession pursuant to sale deed nor defendant Nos.1 to 5 nowhere stated that which portion was handed over to the plaintiff. The only contention is that the plaintiff and defendant Nos.1 to 5 are joint owners. If plaintiff and defendant Nos.1 to 5 are joint owners, it was expected for defendant Nos.1 to 5 to take a stand and disclose in which portion the plaintiff 12 is in actual possession. Therefore, claim of the plaintiff that he is in possession of northern portion and finding recorded by the appellate Court while dealing with cross appeal has gone unchallenged. Therefore, the grounds urged in the second appeal cannot be entertained as defendant Nos.6 and 7 as well as their vendors i.e., defendant Nos.1 to 5 have accepted the decree passed by the appellate Court on cross appeal. The appellate Court has granted relief of declaration thereby declaring that plaintiff as absolute owner of 13 guntas of land towards northern side in Survey No.62/6 while the common area is held to be jointly owned by the plaintiff and defendant Nos.1 to 5. Therefore, no substantial question of law arises for consideration.
Accordingly, second appeal is dismissed. 13 At this juncture, learned counsel appearing for appellants/defendant Nos.6 and 7 would contend that the title of defendant Nos.1 to 5 to an extent of 13 guntas is not at all disputed either by the plaintiff or by his vendor. Therefore, rights of defendant Nos.6 and 7 are being affected on account of pendency of this proceeding. In view of disposal of this appeal, this Court is of the view that there should be no impediment for the authority to complete the transaction in accordance with law.
Learned counsel Sri Ravi B. Patil has filed vakalath for appellants. The same is taken on record.
Sd/-
JUDGE Srt