Karnataka High Court
Iholeppa Rajappa Pawar vs Sharavva W/O.Ishwarappa Angadi on 1 February, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 01ST DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.100079 OF 2014 (DEC & INJ)
BETWEEN
1. THOLEPPA RAJAPPA PAWAR
SINCE DECEASED BY LRS.,
1A. AMBAVVA W/O. LATE THOLEPPA GORE,
AGE: 59 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1B. RENAVVA W/O. KALKAPPA YALABUCHI,
AGE: 38 YEARS, DAUGHTER,
R/O. SHIVAJI PETH, GAJENDRAGAD,
RON, GADAG, 582114.
1C. PARASAPPA S/O.THOLEPPA GORA,
AGE: 35 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1D. HANUMANTHAPPA
S/O. THOLEPPA GORA,
AGE: 36 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1E. MALKAPPA S/O. THOLEPPA GORA,
AGE: 34 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1F. BHIMAPPA S/O. THOLEPPA GORA,
2
AGE: 25 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1G. RATNAVVA D/O.THOLEPPA GORA,
AGE: 15 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1H. RAJAPPA S/O. THOLEPPA GORA,
AGE: 10 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
1I. AKSHATA D/O. THOLEPPA GORA,
AGE: 5 YEARS,
R/O. KAL-KALESHWAR BADAVANI,
GAJENDRAGAD, RON, 582 114.
APPELLANTS 1(G) TO 1(I) ARE MINORS REPRESENTED BY
APPELLANT NO.1(A) AS MINOR GUARDIAN.
2. DAVALAPPA RAJAPPA PAWAR
AGE: 50 YEARS,
R/O. GAJENDRAGAD ,
TQ: RON, DIST: GADAG- 583101.
3. LAXMAN RAJAPPA PAWAR
AGE: 48 YEARS,
R/O. GAJENDRAGAD ,
TQ: RON, DIST: GADAG-583101.
4. PARASAPPA RAJAPPA PAWAR
AGE: 45 YEARS,
R/O. GAJENDRAGAD ,
TQ: RON, DIST: GADAG-583101.
5. YAMANAVVA W/O. RAJAPPA PAWAR
AGE: 85 YEARS,
R/O. GAJENDRAGAD ,
TQ: RON, DIST: GADAG -583101.
...APPELLANTS
3
(BY SRI. DEEPAK C MAGANUR, ADV., FOR A1(A TO I);
SRI. CHANDRASHEKHAR P PATIL, ADV., FOR A1(G TO I))
AND
1. SHARAVVA W/O.ISHWARAPPA ANGADI
AGE: MAJOR,
OCC: AGRICULTURE
R/O. GAJENDRAGADM, TQ: RON
DIST: GADAG
2. SHARANAPPA ISHWARAPPA ANGADI
SINCE DECEASED BY HIS LRS
2A. SHWETHA W/O. AMARESH HALAVAGALI
AGE: 30 YEARS,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
2B. SHILPA SIDDALINGAESH SHETTAR
AGE: 27 YEARS,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
2C. VEERESH SHARANAPPA ANGADI
AGE: 18 YEARS,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
3. DODDABASAPPA ISHWARAPPA ANGADI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
4. VEERAPPA ISHWARAPPA ANGADI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
5. SHREESHAILAPPA ISHWARAPPA ANGADI
SINCE DECEASED BY HIS LRS
5A. KAVITHA W/O. SHREESHAILAPPA ANGADI
4
AGE: 73 YEARS, OCC: AGRICULTURE
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
5B. KAVYA SHREESHAILAPPA ANGADI
AGE: 21 YEARS, OCC: AGRICULTURE,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
5C. KARTHIK SHREESHAILAPPA ANGADI
AGE: 18 YEARS, OCC: AGRICULTURE,
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
6. BASAVARAJ ISHWARAPPA ANGADI
AGE: MAJOR, OCC: AGRICULTURE
R/O. GAJENDRAGAD,
TQ:RON, DIST: GADAG-583101.
7. MANJUNATH ISHWARAPPA ANGADI
AGE: MAJOR, OCC: AGRICULTURE
R/O. GAJENDRAGAD,
TQ: RON DIST: GADAG-583101.
8. MANJULA D/O. ISHWARAPPA ANGADI
AGE: MAJOR, OCC:HOUSEHOLD WORK
R/O. GAJENDRAGAD,
TQ: RON, DIST: GADAG-583101.
9. SMT. GANGAVVA
W/O. JAGADISHAPPA DUDAGI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. HUNAGUND, DIST: BAGALKOT
NOW AT NAVANAGAR, GAJENDRAGAD,
TQ: RON, DIST: GADAG-583101.
10. SMT. SHARANAVVA W/O. AMARESHAPPA
MADASHIRVAR @ BALIGAR
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. SINDHANOOR, DIST: RAICHUR,
PIN: 583227.
11. SMT. BABI W/O. MUTTAPPA KUDARI
5
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. GAJENDRAGAD,
TQ: RON, DIST: GADAG-583101.
12. RAJAVVA
W/O. SHANTAPPA MAREPPANAVAR
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. GAJENDRAGAD
TQ: RON, DIST: GADAG-583101.
13. DURAGAVVA
W/O. RAMCHDRAPPA JADHAV
AGE: MAJOR,
OCC: HOUSEHOLD WORK
R/O. GAJENDRAGAD
TQ: RON, DIST: GADAG-583101.
14. BALAVVA W/O.TIRUPATEPPA DODDAMANI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. GAJENDRAGAD
TQ: RON, DIST: GADAG-583101.
...RESPONDENTS
(BY SRI. B S KADIBAGIL, ADV., FOR R1, R2A & R2C, R3, R4, R5A
TO R5C, R6 TO R8;
R2B, R10 TO R14 - NOTICE SERVED UNREPRESENTED;
R9- SERVICE HELD SUFFICIENT)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE JUDGEMENT & DECREE DATED 21.12.2013 PASSED IN
R.A.NO.8/2006 BY THE SENIOR CIVIL JUDGE, RON, INSOFAR
HOLDING THAT THE BARE SUIT FOR DECLARATION WITHOUT
SEEKING POSSESSION OF THE SUIT PROPERTY NOT
MAINTAINABLE PARTLY REVERSING THE JUDGMENT AND DECREE
DATED 25.01.2006 PASSED BY THE LEARNED CIVIL JUDGE (JR.DN)
AND JMFC, RON IN O.S.NO.517/1995 AND DECREE THE SUIT OF
THE PLAINTIFF AS PRAYED FOR ALLOWING THIS APPEAL, IN THE
INTEREST OF JUSTICE AND EQUITY.
6
THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful plaintiffs, who are questioning the concurrent judgment and decree of the courts below wherein suit filed by present appellants/plaintiffs seeking relief of declaration and consequential relief of permanent injunction is dismissed by both the Courts below.
2. The facts leading to the case are as under:
The subject matter of the second appeal is an agricultural land measuring 2 acres 20 guntas in Survey No.290/1 which was totally measuring 5 acres. The suit land is the southern portion of survey No.290/1. The appellants/plaintiffs have filed a suit by specifically contending that the suit land is jointly owned and possessed by the plaintiffs and defendant No.2. The appellants/plaintiffs claimed that there is no partition 7 between the plaintiffs and defendant No.2. It is also contended that suit land was Saranjam Inal Land and it was regranted by the Authority to defendant No.2. They also contended that in 1981, suit land was converted into a new tenure. The appellants/plaintiffs have further contended that their father sold half share to one Raghunathsa Babusa Raibagi for repayment of loan. The alienation was for family necessity. The half portion which was sold was the northern portion and therefore, they claim that remaining half portion which is on the southern side is in joint possession of the plaintiffs and defendant No.2. The appellants/plaintiffs further pleaded that defendant No.2 was addicted to vices and therefore, defendant No.1 has entered into collusive decree in O.S.No.12/1988, which was passed on 31.01.1981 thereby admitting the right and title of original defendant No.1 in the suit land. The appellants/plaintiffs have specifically pleaded that original defendant No.1 had no 8 semblance of right in the suit schedule property and taking advantage of bad vices of defendant No.2, he has created an agreement to sale in 1973 and has come up with a false suit in O.S.No.12/1988 asserting that he has perfected his title by way of adverse possession. It is on these grounds, the appellants/plaintiffs have filed present suit for declaration by contending that the suit schedule properties are joint family properties and therefore, have claimed that the decree passed in O.S.No.12/1988 is collusive decree.
3. Per contra, the original defendant No.1, on receipt of summons, contested the proceedings. It is relevant to note that defendant No.2 who entered into compromise with defendant No.1 did not chose to contest the proceedings and he was placed ex-parte. Pending suit, defendant No.1 died and his legal heirs were brought on record. Defendant No.1C filed written statement and stoutly denied the entire averments made in the plaint. 9 Defendant No.1C has specifically contended that the suit land is self-acquired property of defendant No.2 and same was regranted to defendant No.2 in his individual capacity. Therefore, defendant No.1C took a contention that the present appellants have no semblance of right and title over the suit schedule property and therefore, have no locus-standi to question the lawful compromise arrived at between the original defendant No.1 and defendant No.2 in O.S.No.12/1988. Defendant No.1C further contended that defendant No.2 has agreed to sell suit land in favour of their ancestor i.e., defendant No.1 for sale consideration of Rs.9,500/- on 02.05.1973 and they received earnest amount of Rs.8,000/- and in view of the compromise recorded in O.S.No.12/1988, defendant No.2 received balance consideration and has entered into compromise thereby admitting the title of the deceased defendant No.1 in O.S.No.12/1988. Defendant No.1C also contended that the present 10 appellants have executed consent deed on 30.01.1988 admitting that the suit land is self-acquired property of defendant No.2. On this set of defence, the legal representatives of defendant No.1 sought for dismissal of the suit by contending that even otherwise the present suit filed after lapse of seven years is barred by time and therefore, also pressed for dismissal of the suit as barred by time.
4. The trail Court having assessed the oral and documentary evidence on record answered issue No.1 in negative by holding that the present appellants-plaintiffs have failed to prove that the suit schedule property is joint family ancestral property and while dealing with issue No.2 has also recorded a finding that the appellants/plaintiffs have failed to prove that defendant No.1 has obtained a collusive decree in O.S.12/1988. While examining Issue No.3 relating to limitation, Trial Court has perused the date of compromise and has come 11 to conclusion that the present suit is squarely hit by article 58 of the Limitation Act and has proceeded to dismiss the suit as barred by limitation. The said judgment and decree of the Trial Court was assailed in appeal by appellants/plaintiffs in RA No. 8/2006. The Appellate Court having independently assessed the judgment and decree of the Trial Court has also come to conclusion that the relief sought by appellants/plaintiffs is barred by limitation. The appellate Court was also of the view that the appellants/plaintiffs have miserably failed to prove that the decree passed in O.S.No.12/1988 was a collusive decree between the defendant No.1 and defendant No.2. On these set of reasonings the First Appellate Court has proceeded to dismiss the appeal.
5. It is against this concurrent judgment and decree of the Courts below the present appellants are before this Court.
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6. On perusal of the judgment under challenge this Court would find that the appellants/plaintiffs have stated that their father had already sold half share in agricultural land bearing Survey No.290/1, which was infact totally measuring 5 acres. In view of alienation, the suit land which is situated in southern side is assigned survey No.290/1B measuring 2 acres 20 guntas. If appellants'/plaintiffs' father has already alienated the northern half share in favour of one Raghunathsa Babusa Raibagi, then this Court would find that prima-facie the appellants/plaintiffs have no locus-standi to question the compromise decree passed in O.S.12/1988. The appellants'/plaintiffs' contention is that the land was Saranjam Inam land and it was regranted to defendant No.2 in the capacity of a manager and therefore, the re- grant enure to the family of appellants/plaintiffs and the family of defendant No.2. Even if this contention is accepted and the regrant was infact not in individual 13 capacity of defendant no.2, from the admitted set of facts in the pleadings, which is culled out in the judgment of the Trial Court, this Court would find that the father of the plaintiffs has already sold his half share to one Raghunathsa Babusa Raibagi. I have examined the sketch which is annexed with the plaint. Even in the sketch, the plaintiffs have clearly admitted that the northern portion measuring 2 acre 20 guntas was sold by the plaintiffs' father. If this material aspect is taken into consideration, then the contention of the appellants/plaintiffs that they continued to be in joint possession in the remaining extent along with defendant No.2 cannot be acceded to. If their father has already sold out half portion, then they cannot assert and further claim right in remaining half share, which was owned by defendant No.2. Both the courts below have meticulously examined the clinching evidence on record coupled with Ex.D1, which is a consent deed executed by the present appellants/ 14 plaintiffs admitting the terms of compromise decree. The present appellants are estoped from further claiming a share in the southern portion which is present suit land. The legal representatives of defendant No.1 have examined DW3, who is a witness to the consent deed and has withstood test of cross-examination. He has categorically deposed in ocular evidence that in his presence, appellants 1 to 4 have signed the consent deed. The respondents/defendants have also examined DW4 and DW5 to indicate that the legal representatives of defendant No.1 are in exclusive possession. Coupled with this, if compromise decree is also looked into, both the Courts have come to the conclusion that pursuant to compromise decree passed in O.S.No.12/1988, possession was handed over to defendant No.1 by defendant No.2.
7. If appellants/plaintiffs have no semblance of right in the remaining half share, which is owned by 15 defendant No.2, then both the Courts were justified in holding that the appellants/plaintiffs have failed to prove that the compromise decree arrived at between defendant No.1 and defendant No.2 in O.S.No.12/1988 is not proved to be a collusive decree. One more relevant aspect which needs to be examined in the present case on hand is appellants/plaintiffs having approached the Court by specifically alleging that the compromise decree passed in O.S.No.12/1988 is a collusive, were required to enter the witness box to lead evidence. Both the Courts have taken judicial note of this fact that appellants/plaintiffs have not chosen to enter the witness box. On the contrary, they have prosecuted the present suit by leading evidence through GPA Holder. This factual aspect also goes against the claim of appellants/plaintiffs, who have not chosen to enter the witness box. Both the courts were justified in drawing adverse inference against the present appellants/plaintiffs.
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8. In regard to limitation, admittedly, the consent deed was executed by appellants/plaintiffs on 30.01.1988. Both the Courts have concurrently held that respondents/defendants have succeeded in proving the execution of consent deed by the present appellants. The clinching evidence on record clearly demonstrates that the appellants/plaintiffs admitted the terms of compromise decree and consequently executed a consent deed in favour of defendant No.1. If this consent deed was executed on 30.01.1988, then both the Courts were justified in answering issue No.3 relating to limitation in affirmative by recording a categorical finding that suit filed in the year 1995 is barred by limitation in terms of Article 58 of the Limitation Act. The concurrent findings recorded by the Courts below clearly establish that the appellants/plaintiffs have no locus-standi to question the decree passed in O.S.No.12/1988. Even otherwise, the prayer sought in the present plaint cannot be entertained 17 as the relief claimed is barred by limitation in terms of Article 58 of the Limitation Act. No substantial question of law is involved in the present appeal. Accordingly, the appeal being devoid of merits is hereby dismissed.
9. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
SD/-
JUDGE YAN