Karnataka High Court
Veerabhadrappa S/O. Shiddappa Bengeri vs Smt. Irawwa W/O Bhadrappa Bengeri Since ... on 3 September, 2013
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
R.S.A.NO.632/2004 (DEC. & INJ)
BETWEEN:
1. Veerabhadrappa
S/o Shiddappa Bengeri @ Avvannavar,
Aged about 55 yrs., Occ: Agril.,
R/o Keshwapur, Hubli.
2. Gurushiddappa,
S/o Shiddappa Bengeri @ Avvannavar,
Since dead on 9.2.2003 now by L.Rs.,
2A Parvatavva,
w/o Gurushiddappa Bengeri @ Avvannavar
Aged about 55 yrs., Occ: Agril.,
R/o Keshwapur, Hubli.
2B Basavaraj
S/o Gurushiddappa Bengeri @ Avvannavar,
Aged about 30 yrs., Occ: Agril.,
R/o Keshwapur, Hubli.
3. Bhudawwa,
W/o Shiddappa Bengeri,
Since died on 20.12.2003,
Now by her L.Rs.,
Appellants 1, 2A and 2B ... Appellants
(by Sri.Dinesh M.Kulkarni, Adv)
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AND:
1. Smt.Irawwa,
W/o Bhadrappa Bengeri,
Since deceased by her L.Rs.,
1A Basavva Kom.Basappa Ganiger,
aged 63 yrs., r/o Gokul, Hubli.
1B Yallawwa
w/o Boodappa boodannavar
aged 64 yrs., r/o Gokul, Hubli.
2 Yallappa
Bhadrappa Bengeri 1 Avvannavar
Aged 49 yrs., Occ: KSRTC - Service,
R/o Keshwapur, Hubli.
3. Basappa S/o Bhadrappa Avvannavar
@ Bengeri,
since dead by L.Rs.,
3A Bhimavva w/o Basappa Avvannavar,
aged 45 yrs.,
R/o Keshwapur, Hubli. 580 020
3B Hanumantappa s/o Basappa Avvannavar,
aged 24 yrs.,
R/o Keshwapur, Hubli. 580 020
3C Mangala w/o Basavaraj Budannavar
aged 22 yrs., Occ: Household,
r/o Gukul village, Hubli 580 029.
3D Prakash s/o Basappa Avvannavar,
aged 19 yrs.,
R/o Keshwapur, Hubli. 580 020.
4. Irawwa w/o Channappa Ganiger,
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Aged 48 yrs.,
R/o Nalwadi Tal Navalgund.
5. Paravva w/o Ningappa Benni,
Aged 45 yrs.,
R/o Nalwadi, Tq. Navalgund.
6. Yallawwa w/o Gurappa Koti,
Aged 30 yrs.,
R/o Keshwapur, Hubli. ... Respondents
(by Sri.P.H.Gotkhindi, Adv for R2(a) and R2(b)
Sri.Laxman T.Mantagani, Adv for R2
R1(a), (b), R3(a) to (d) are sd., & Unreptd.,
R4 to 6 are deleted)
This RSA is filed under Section 100 CPC against the
judgment and decree dated 26.6.2001 passed in
RA.No.136/1992 on the file of the Additional Civil Judge (Sr.Dn),
Hubli, partly allowing the appeal and modifying the judgment
and decree dated 21.7.1992 passed in OS.No.55/1984 on the
file of the Prl.Munsiff, Hubli.
This RSA coming on for Hearing this day, the Court
delivered the following:
JUDGMENT
The plaintiff in OS.No.55/1984 on the file of Principal Munsiff, Hubli, has come up in this second appeal impugning the judgment and decree dated 26.6.2001 passed in RA.No.136/1992 on the file of Additional Civil Judge (Sr.Dn), 4 Hubli, wherein the judgment and decree passed in favour of plaintiff in OS.No.55/1984 on 21.7.1992 is modified.
2. In this proceedings, for the sake of convenience, the parties herein are referred to by their rank in the original suit. Brief facts leading to this second appeal are as under:
Plaintiff and defendant are sons of Rudrappa and Yallappa. Admittedly, Rudrappa and Yallappa are the third and fourth sons of propositus Erappa. The fact that propositus Erappa, who is head of the joint family consisting of himself and his four sons, namely (1) Basappa (2) Hanumanthappa (3) Rudrappa and (4) Yallappa was the owner of land bearing Sy.No.384 situated in Kusugal village, Hubli Taluk, which was originally measured to an extent of 19 acres 15 guntas is not in dispute. It is not in dispute that in the said family partition was effected after the death of propositus Erappa, wherein Sy.No.384 was divided into four parts i.e., Sy.Nos.384/1 measuring to an extent of 4 acres 31 guntas being allotted to first son of Erappa, namely Basappa, 384/2 measuring to an extent of 4 acres 33 guntas being allotted to the share of second son, namely 5 Hanumanthappa, 384/3 measuring to an extent of 5 acres 14 guntas being allotted to the share of third son, namely Rudrappa, who is the father of plaintiff and 384/4 measuring to an extent of 4 acres 17 guntas being allotted to the share of fourth son, namely Yallappa, who is father of defendant. It is not in dispute that the four sons of propositus Erappa were in possession and enjoyment of Sy.Nos.384/1 to 384/4 in the aforesaid manner.
3. It is seen that the share that was allotted to Rudrappa i.e., Sy.No.384/3 is allotted by him to his son Shiddappa, who is plaintiff and the property that was allotted to the share of Yallappa i.e., Sy.No.384/4 is allotted by him to his son Bhadrappa, who is defendant. When matter stood thus, the revenue authorities, after resurveying the entire area gave block numbers to earlier survey numbers. Accordingly, for the property of plaintiff, which was bearing Sy.No.384/3, block No.824 was allotted and for Sy.No.384/4 belonging to defendant, block No.823 was allotted. While doing so, the extent of land available to 384/3 was shown as the land available to block 6 No.823 and in respect of land available to Sy.No.384/4 measuring to an extent of 4 acres 17 guntas was shown to block No.824. That means the revenue authorities interchanged the extent of land available to plaintiff and defendant as against their revised block numbers, thereby giving room for this litigation.
4. It is seen that subsequently, plaintiff in OS.No.55/1984 filed the said suit for declaration that block number allotted to him should be changed from 824 to 823 and the extent which is presently shown to 823 i.e., 5 acres 14 guntas should be retained to him. While doing so, the revenue authorities should change the block number allotted to defendant i.e., from 823 to 824 and should retain 4 acres 17 guntas in block number 824.
5. In the said suit after service of notice, defendant entered appearance, filed written statement contending that the allotment of block number is just and proper and the error in showing the extent should be treated as the land which is in his possession by virtue of adverse possession.
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6. In the said proceedings, after the pleadings, the following issues were framed:
1. Whether the plaintiff proves that he is the owner in possession of the land bearing block No.823 of Kusugal village?
2. Whether the plaintiff proves that he is entitled to the declaration, and the permanent injunction sought?
3. Whether the defendant proves that he has become owner of the suit property by adverse possession?
4. Whether the defendant proves that the suit is barred by limitation?
5. Whether the defendant proves that the suit is bad for non joinder of necessary parties?
6. What decree of order ?
7. In the said proceedings, on behalf of plaintiff, he examined himself as PW.1 and on behalf of defendant, defendant examined himself as DW.1 and in addition he also examined one Yallappa Bhadrappa Avannavar, who is son of defendant as DW.2. On behalf of plaintiff, in all 7 documents were produced and marked as Exs.P1 to P7 and on behalf of defendant in all 14 documents were produced and marked as Exs.D1 to D14.8
8. The trial Court on appreciation of oral and documentary evidence available on record proceeded to answer issue No.1 in the affirmative, issue No.2 partly in affirmative and issue Nos.3 to 5 in the negative. Consequently, the suit of plaintiff is decreed accepting the pleadings and evidence adduced in support of his case and directed the revenue authorities to correct the block numbers as prayed for in the original suit. Being aggrieved by the same, defendant preferred regular appeal in RA.No.136/1992 on the file of Additional Civil Judge (Sr.Dn), Hubli.
9. In the regular appeal, the lower appellate Court did not frame any point for consideration. However, on going through the facts and circumstances the lower appellate Court felt that the trial Court while deciding the matter has erroneously relied on the pleadings without looking into the Commissioner's report, which is at Ex.D14, wherein the Court Commissioner i.e., ADLR, Dharwad after measuring all the four blocks i.e., the blocks belonging to plaintiff, defendant and their two paternal uncles, which are given block numbers 819 and 822 held that 9 the extent of land which is in possession of plaintiff is 4 acres 32 guntas, which bears block No.823. So far as the extent that is available to defendant in block No.824 is to an extent of 4 acres 39 guntas and it is not as contended by them to an extent of 5 acres 14 guntas to plaintiff and 4 acres 17 guntas to defendant. On going through said document and also considering the fact that said Commissioner's report is not opposed by both the parties and both parties having accepted the same as in accordance with the possession of the extent of land with them, the lower appellate Court modified the judgment and decree passed by the trial Court in OS.No.55/1984. Being aggrieved by the same, plaintiff (legal representatives of original plaintiff) in the original suit has come up in this second appeal.
10. When this appeal was taken up for admission, this Court has admitted the same to consider the following substantial questions of law:
1. Whether Lower Appellate Court justified in declaring that the plaintiff is the owner in possession of suit land bearing Block No.823 measuring 4 acres 32 guntas, when is claim is 5 acres 14 guntas.10
2. Whether the Lower Appellate Court jsutified in relying upon the Ex.P14 the Additional Commissioenr report and come to that conclusion that appellant is in possession of 4 Acres 32 Guntas of land.
11. Heard the learned Counsel for the appellants. Perused the impugned judgment and decree of both the courts below, particularly, Ex.D14-Commissioner's report with reference to the evidence of PW.1, DWs.1 and 2. On going through the same, it is clearly seen that though plaintiff has claimed that in Sy.No.384/3 he was allotted 5 acres 14 guntas in the partition that has taken place between his father and brothers of his father, what was given to the share of plaintiff's father was only 4 acres 32 guntas, which was in his possession and enjoyment and subsequently, has come to the possession of plaintiff.
Similarly, though in the case of defendant, what was allotted to the share of defendant's father in Sy.No.384/4 was 4 acres 17 guntas, what was in his possession and enjoyment was 4 acres 39 guntas. Since that was the extent, which was in their possession as on the date of filing of suit and as on the date when ADLR, Dharwad, physically measured the property in 11 possession of plaintiff and defendant, to that effect ADLR prepared Ex.D14 and filed the same into the trial Court. Surprisingly, the trial Court has not looked into the same. Though plaintiff and defendant did not file any objection to the Commissioner's report and accepted the finding given therein, the trial Court losing track of the same, believed the pleadings and self-serving evidence of plaintiff without giving any credence to the crucial document at Ex.D14, which is prepared by the ADLR, Dharwad and who is also the Taluka Surveyor.
12. In that view of matter, this Court feel that the lower appellate Court while reappreciating the pleadings, oral and documentary evidence available on record has rightly looked into the evidence of plaintiff, defendant and as well as Ex.D14, which depicts the factual position regarding the possession of plaintiff and defendant with reference to Sy.Nos.384/3 and 384/4, which are respectively given block Nos.824 and 823. In that view of matter, this Court find that the substantial questions of law which are framed in this appeal will have to be answered in the affirmative holding that modification of the judgment and decree 12 of trial Court by the lower appellate Court is just and proper in the facts and circumstances of the case. Therefore, question of disturbing the same in this second appeal, does not arise.
Accordingly, this second appeal filed by plaintiff in the original suit is dismissed without any order as to costs.
Sd/-
JUDGE nd.