Karnataka High Court
Shivagouda Lagamanna Hulagabali vs Annappa Bandu Kempawad on 19 January, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 5893 OF 2013 (DEC & INJ)
BETWEEN
SHIVAGOUDA LAGAMANNA HULAGABALI
SINCE DECEASED BY HIS LRS
1. SMT. GANGAWWA
W/O. SHIVAGOUDA HULAGABALI
AGE: 62 YEARS,
OCC: AGRICULTURE
R/O. KRISHNA KITTUR -591 303
TQ: ATHANI, DIST: BELGAUM
2. PEERAGOUDA SHIVAGOUDA HULAGABALI
AGE: 40 YEARS
OCC: AGRICULTURE
R/O.KRISHNA KITTUR-591 303,
TQ: ATHANI, DIST: BELGAUM
3. RAYAGOUDA SHIVAGOUDA HULAGABALI
AGE: 36 YEARS,
OCC: AGRICULTURE
R/O. KRISHNA KITTUR-591 303,
TQ: ATHANI, DIST: BELGAUM
4. SIDRAM SHIVAGOUDA HULAGABALI
AGE: 30 YEARS,
OCC: AGRICULTURE
R/O. KRISHNA KITTUR -591 303
TQ: ATHANI, DIST: BELGAUM
2
5. BASAGOUDA LAGAMANNA HULAGABALI
AGE: 56 YEARS,
OCC: AGRICULTURE,
R/O. KRISHNA KITTUR -591 303
TQ: ATHANI, DIST: BELGAUM
6. CHANNAPPA LAGAMANNA HULAGABALI
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O. KRISHNA KITTUR -591 303,
TQ: ATHANI, DIST: BELGAUM
7. MAHALING LAGAMANNA HULAGABALI
AGE: 49 YEARS,
OCC: AGRICULTURE,
R/O. KRISHNA KITTUR -591 303,
TQ: ATHANI, DIST: BELGAUM
8. AVVANNA LAGAMANNA HULAGABALI
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O. KRISHNA KITTUR -591 303,
TQ: ATHANI, DIST: BELGAUM
9. BALAPPA RAMAGOUDA HULAGABALI
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O. KRISHNA KITTUR -591 303,
TQ: ATHANI, DIST: BELGAUM
... APPELLANTS
(BY SRI. ABHISHEK C. PATIL, SRI. AKSHAY A KATTI AND
SRI. ANAND ASHTEKAR, ADVOCATES)
AND
1. ANNAPPA BANDU KEMPAWAD
AGE: 53 YEARS,
OCC: AGRICULTURE
R/O. AINAPUR-591 303,
TQ: ATHANI, DIST: BELGAUM
3
2. SHARAVVA
W/O. RAMAGOUDA HULAGABALI
AGE: 61 YEARS,
OCC: AGRICULTURE,
R/O. KRISHNA KITTUR-591 303,
TQ: ATHANI, DIST: BELGAUM
...RESPONDENTS
THIS RSA IS FILED U/O. XLII RULE 1 R/W SEC. 100 OF
CPC 1908, AGAINST THE JUDGEMENT & DECREE DATED
09.10.2013 PASSED IN R.A.NO.11/2008 ON THE FILE OF THE VII
ADDITIONAL DISTRICRT & SESSIONS JUDGE, BELGAUM AT
CHIKODI, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT AND DECREE DATED 10.12.2007 AND THE DECREE
PASSED IN O.S. NO.92/1989 ON THE FILE OF THE CIVIL JUDGE
& CIVIL JUDGE (SR.DN), ATHANI, DECREEING THE SUIT FILED
FOR DECLARATION AND INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The respondent No.1-plaintiff filed a suit for declaration and injunction in O.S.No.92/1989. Respondent No.1-plaintiff contended that he has purchased the suit property bearing Survey No.179/1 measuring 8 acres 12 guntas, which was originally owned 4 by one Kashinath Narayan Kudavekar and he sold it to one Rayappa Bhimappa Halagbali under registered sale deed dated 07.05.1951. Respondent No.1-plaintiff further contended that Rayappa had three sons by name Muttappa, Mallappa and Appasaheb and after the death of Rayappa, his children's names were duly mutated in the revenue records. The respondent No.1-plaintiff further contended that he purchased the property from Muttappa and his son under registered sale deed dated 13.04.1981 and his name was duly mutated in the revenue records.
2. The respondent No.1-plaintiff further contended that his vendor-Rayappa had a brother by name Lagamanna and Lagamanna's children are defendants in the present suit. It is further stated that Bhimappa owned Survey No.178/2 and 201/1. Respondent No.1-plaintiff has also contended that Bhimappa was in fact the head of the family and he was managing the affairs of the family and Rayappa was in 5 fact residing separately from Bhimappa and Lagamanna. It is the specific contention of respondent No.1-plaintiff that property purchased by Rayappa on 07.05.1951 was his self-acquired property and therefore, defendants' branch has no semblance of right in the present suit land. Appellants-defendants falsely laid a claim by contending that they have got half share in the suit land. This compelled the respondent No.1-plaitniff in filing present suit in O.S.No.92/1989. The Trial Court on appreciation of oral and documentary evidence, answered issue No.2 in affirmative by holding that the respondent No.1-plaintiff has established his right and title pursuant to registered sale deed dated 13.04.1981 and he has also proved that he is in lawful possession and enjoyment of the suit land. While answering issue No.3, the Trial Court recorded a categorical finding that appellants-defendants have failed to prove that they have got half share in the suit schedule property. The present appellants preferred an 6 appeal before the First Appellate Court in R.A.No.11/2008. The First Appellate Court on reappreciation of oral and documentary evidence, concurred with the findings of the Trial Court and has proceeded to dismiss the appeal. It is these concurrent judgments, which are under challenge by the appellants- defendants.
3. Learned counsel appearing for the appellants- defendants would vehemently argue and contend before this Court that the clinching evidence on record would clearly establish that the suit schedule property is a joint family ancestral property and therefore, he would submit to this Court that the concurrent finding of the Courts below in negativing issue No.3 suffers from perversity. Placing reliance on Ex.D13, he would submit to this Court that half share in suit schedule property was in fact allotted to Lagamanna. Therefore, by placing reliance on Ex.D13 coupled with the Court Commissioner's report at 7 Ex.D10, he would submit to this Court that these two documents would clearly establish that the suit land is in fact divided into two strips.
4. Heard the learned counsel appearing for appellants. Perused the judgment under challenge.
5. I have also given my anxious consideration to the records of the Courts below. The appellants- defendants are asserting that in a family partition, southern side land was allotted in favour of Lagamanna. The Trial Court having meticulously examined Ex.D13 has discredited Ex.D13 on the ground that it is totally damaged and therefore, no credence can be attached to Ex.D13. The Trial Court has also taken judicial note of the fact that the plaintiff, who is examined as PW1, has seriously disputed due execution of Ex.D13. It is also noted by the Trial Court that the witnesses to the said document at Ex.D13 are also not examined. The bond 8 papers, which are utilized to pen down the alleged terms and conditions as per Ex.D13 were also not purchased by Muttappa. It is forthcoming that the stamp papers were purchased by one M. N. Shetakar on behalf of Lagamanna. Therefore, both the Courts below have not given any credence to the said document, which is set up by the defendant. The other strong ground to discard Ex.D13 by both the Courts below is that there is no reference in regard to other survey numbers i.e. Survey No.178/2 and 201/1. Both the Courts below having meticulously examined the material on record, have come to the conclusion that there was a partition within the family i.e. more particularly between Lagamanna and Muttappa in respect of properties bearing Survey Nos.178/2 and 201/1 and this partition is of the year 1975. Both the courts below have also taken cognizance of the fact that the plaintiff admits in his evidence the partition between Lagamanna and sons of Rayappa 9 during the year 1975. Therefore, if there was a partition in the year 1975, the disputed document at Ex.D13 which is of the year 1964 cannot be believed and no credence can be attached to this document. Both the Courts below have rejected the defence set up by the appellant by placing reliance on Ex.D13. The Courts below have not taken note of the Commissioner Report, which would have no relevance and it would not assist the Court in assessing as to whether there was severance in the family. After having taken note of these significant details, which are recorded by both the courts below and having taken note of the material documents, I am of the view that the judgment and decree of the Courts below do not suffer from any infirmity. The respondent No.1- plaintiff has purchased the property from one Rayappa. The said land was purchased by Rayappa and it is his self-acquisition and there is a finding that it is the self- acquired property. This view gets strengthened in view of 10 the materials on record, which indicate that there was a partition between the vendor of the plaintiff and the ancestors of the defendants and in the said partition, the present suit land was not at all the subject matter. It presupposes that suit land was self-acquired property of Rayappa, who has purchased it way back in the year 1964. Therefore, no substantial question of law would arise for consideration in the present case on hand. The appeal is devoid of merits and is dismissed accordingly.
6. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
Sd/-
JUDGE YAN