Karnataka High Court
Shivanawwa W/O Balappa Kadapatti vs Shankar S/O Parappa Madarkhandi on 13 February, 2024
-1-
NC: 2024:KHC-D:3774-DB
RFA No. 100349 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100349 OF 2018 (DEC/INJ)
BETWEEN:
1. SHIVANAWWA
W/O. BALAPPA KADAPATTI
AGE:64 YEARS, OCC:HOUSEHOLD WORK,
R/O HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT-587119.
2. BASAPPA S/O. BALAPPA KADAPATTI
AGE:40 YEARS, OCC:AGRICULTURE,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
3. SHIVAPPA S/O. BALAPPA KADAPATTI
AGE:38 YEARS, OCC:AGRICULTURE,
R/O HUNNUR, TQ:JAMKHANDI,
Digitally signed
by
DIST:BAGALKOT 587119.
VIJAYALAKSHMI VIJAYALAKSHMI
M KANKUPPI M KANKUPPI
Date: 2024.02.23
14:44:35 +0530
...APPELLANTS
(BY SRI. PRASHANT S. KADADEVAR, ADVOCATE)
AND:
1. SHANKAR
S/O. PARAPPA MADARKHANDI
AGE:37 YEARS, OCC:AGRICULTURE,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
-2-
NC: 2024:KHC-D:3774-DB
RFA No. 100349 of 2018
2. ASHOK
S/O. PARAPPA MADARKHANDI
AGE:34 YEARS, OCC:AGRICULTURE,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
BASAPPA
S/O. SATTEPPA MADARKHANDI
SINCE DECEASED REPRESENTED BY HIS LRS
3.
MAHANANDA
W/O. BASAPPA MADARKHANDI
AGE:61 YEARS,
OCC:AGRICULTURE AND HOUSEHOLD WORK,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
4. JAGADISH
S/O. BASAPPA MADARKHANDI
AGE 32 YEARS,
OCC:AGRICULTURE AND HOUSEHOLD WORK,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
5. ANAND
S/O. PARAPPA MADARKHANDI
AGE:31 YEARS, OCC:AGRICULTURE,
R/O:HUNNUR, TQ:JAMKHANDI
DIST:BAGALKOT 587119.
6. LAXMI
W/O. SHANKAR KASARADDI
AGE:36 YEARS,
OCC:HOUSEHOLD WORK,
R/O:MADARKHANDI, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
7. SHOBHA W/O. SIDRAM KASARADDI
AGE:34 YEARS,
OCC:HOUSEHOLD WORK,
R/O:MADARKHANDI, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
-3-
NC: 2024:KHC-D:3774-DB
RFA No. 100349 of 2018
8. RAMAPPA S/O. SATTEPPA MADARKHANDI
AGE:60 YEARS, OCC:SERVICE,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
9. SHANTA W/O. GIRAMALLAPPA MADARKHANDI
AGE:44 YEARS, OCC:HOUSEHOLD WORK,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
10. SHASHIDHAR
S/O. GIRAMALLAPPA MADARKHANDI
AGE:44 YEARS, OCC:SERVICE,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
11. UDAYKUMAR
S/O. GIRAMALLAPPA MADARKHANDI
AGE:44 YEARS,
OCC:AGRICULTURE,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
12. NEELESH
S/O. GIRAMALLAPPA MADARKHANDI
AGE:42 YEARS, OCC:AGRICULTURE,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
13. SHIVAPPA S/O. SATTEPPA MADARKHANDI
SINCE DECEASED BY HIS LRS
13.(A) PADMAVATI W/O. SHIVAPPA MARKHANDI,
AGE: 56 YEARS,
OCC: AGRICULTURE,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
13.(B) SATTEPPA S/O. SHIVAPPA MARKHANDI,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
-4-
NC: 2024:KHC-D:3774-DB
RFA No. 100349 of 2018
13.(C) HANAMANTH
S/O. SHIVAPPA MARKHANDI,
AGE: 25 YEARS,
OCC: AGRICULTURE,
R/O:HUNNUR, TQ:JAMKHANDI,
DIST:BAGALKOT 587119.
13(D) SHARAVVA W/O. VENKAPPA PUJAR,
AGE: 24 YEARS,
OCC: HOUSEHOLD WORK,
R/O:MADHURKHANDI, TQ: JAMKHANDI,
DIST: BAGALKOT 587119
13.(E) POOPA W/O. NAGARAJ KUDARI,
AGE: 23 YEARS,
OCC: HOUSEHOLD WORK,
R/O: YEBARATTI, TQ: RAIBAG,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SUNIL S. DESAI, ADVOCATE FOR R1, R3 TO R12;
NOTICE SERVED TO R2;
SRI. CHETAN MUNNOLI, ADVOCATE FOR R13 (A), R13(C),
R13(D), R13(E) ; R13(B) NOTICE HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 AND
READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED:31.05.2018 PASSED IN
O.S.NO.30/2014 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE, JAMKHANDI, AND DECREE THE SUIT OF THE
PLAINTIFFS, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
-5-
NC: 2024:KHC-D:3774-DB
RFA No. 100349 of 2018
JUDGMENT
This appeal is filed by the appellants challenging the Judgment and decree dated 31.05.2018 passed in O.S.No.30/2014 by the Addl. Senior Civil Judge, Jamkhandi.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs and the respondents are the defendants.
3. Brief facts of the case are as under:
The plaintiffs filed a suit for declaration of their title over the suit schedule property bearing R.S.No.20/9 measuring 31 guntas situated at Hunnur village of Jamkhandi taluka and also sought for permanent perpetual injunction against the defendants. It is the case of the plaintiffs that, the predecessor Shivappa Parasappa Kadapatti purchased the suit property from its erstwhile owners i.e. Mahadevappa and Malleshappa, sons of -6- NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 Ramappa Yalagurdri by way of a registered sale deed dated 09.01.1976. After purchasing the land, Shivappa got transferred the mutation in to his name vide M.E.No.3724 and he was in possession over the suit property until his death. After the death of Shivappa, his son Balappa succeeded to the said property and he came in possession of the suit property. Balappa also died leaving behind the plaintiffs as his legal heirs. After the demise of Balappa, the suit property was transferred in the name of plaintiffs i.e., his wife and children and they continued to be in possession of the suit property. The defendants, behind the back of the plaintiffs, colluding with the revenue officials got consolidated the suit property with R.S.No.20/5+6+7+8. The defendants filed a suit in O.S.No.411/2000 for partition and separate possession. The said matter was referred to Lok Adalath, wherein a compromise petition was filed and obtained a compromise decree. The defendants approached the Deputy Director of Land Records (DDLR) seeking rectification of land records. The DDLR, issued a notice to -7- NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 Shivappa Parasappa Kadapatti. In the meantime, the defendants interfered with the peaceful possession and enjoyment of the plaintiffs over the suit property. The plaintiffs requested the defendants not to interfere in the peaceful possession and enjoyment of the suit schedule property. But the defendants have not given any heed to the request made by the plaintiffs. Hence cause of action arose for the plaintiffs to file a suit for declaration and perpetual injunction.
4. The defendants filed their written statement. It is contended that, Shivappa Kadapatti was the owner of the suit property and the same was purchased by him under the registered sale deed and denied the rest of the plaint averments. It is contended that, during the life time of Shivappa, he and his son namely Balappa and Basappa got divided the joint family properties in O.S.No.113/1979. The said suit was decreed. The lands bearing R.S.No.20/5+6+7+8, R.S.No.20/9 and R.S.No.117/1 were fallen to the share of deceased -8- NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 Shivappa Kadapatti on the basis of the decree passed in O.S.No.113/1979, the revenue authorities passed a mutation order vide M.E.No.3899 dated 04.04.1980. After the Court decree, Shivappa got consolidated R.S.No.20/5+6+7+8, measuring 3 acre 10 guntas, R.S.No.20/9 measuring 31 guntas, vide M.E.No.3969 dated 10.07.1981. After the demise of Shivappa, his daughter Nimbewwa succeeded to the properties of Shivappa and her name was entered in the revenue records. In the year 1983 Nimbewwa sold the said property in favour of the defendants family i.e. Basappa and Shivappa sons of Satyappa Madarkhandi. On the strength of the registered sale deed the names of the defendants were entered in the revenue records and Nimbewwa put the defendants family in the possession of the said land. The family members of the defendants filed a suit in O.S.No.411/2000 for partition and separate possession including the suit schedule property. In the said suit, the defendants entered into compromise and a compromise decree was drawn. On the basis of the -9- NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 compromise decree, he submitted an application to the DDLR to divide the shares as per the compromise decree passed in O.S.No.411/2000. The Tahasildar, Jamkhandi divided R.S.No.20/5+6+7+8+9 into four parts. The plaintiffs taking undue advantage of the name of Shivappa appearing in the record of rights, got mutated their names in the revenue records. The defendants challenged the entries in the names of the plaintiffs before the Assistant Commissioner. It is contended that, the entire land is already converted into non-agricultural residential purpose. Hence, on these grounds the defendants pray to dismiss the suit.
5. The trial Court on the basis of the pleadings framed the following issues:
i. Whether the plaintiffs prove that, one Shivappa Parasappa Kadapatti was the absolute owner of the suit property on the strength of sale deed dated 09-01-1976?
ii. Whether the plaintiffs further prove that, after the death of Shivappa his son Balappa succeeded to the suit property?
- 10 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 iii. Whether the plaintiffs further prove that, after the death of Balappa they being his sole surviving legal heirs succeeded to the suit property?
iv. Whether the plaintiffs prove that, the
decree passed by the Lok-Adalath in
O.S.No.411/2000 on the file of Prl. Sr. Civil Judge, Jamkhandi is the outcome of collusion and the same is not binding upon the plaintiffs?
v. Whether the defendants prove that, in the partition decree passed in O.S.No. 113/1979 the suit property was fallen to the share of Shivappa Kadapatti?
vi. Whether the defendants prove that, after the death of Shivappa his daughter Nimbevva Mallappa Teli succeeded to the suit property on the strength of will executed by deceased Shivappa? vii. Whether the defendants prove that, the family member of the defendants by name Basappa Satyappa Madarkhandi purchased a the suit property from the said Smt. Nimbevva through a registered sale deed dated 30-03-1983?
viii. Whether the defendants prove that, they have validly got the compromise decree in O.S.No.411/2000?
ix. Whether the plaintiffs are entitled for decree as sought for?
x. What Order or Decree?
- 11 -
NC: 2024:KHC-D:3774-DB
RFA No. 100349 of 2018
6. The plaintiffs in order to substantiate their case, plaintiff No.1 was examined as P.W.1 and examined two other witnesses as P.W.2 and P.W.3 and got marked 23 documents as Ex.P.1 to Ex.P.23. The defendant No.4 was examined as D.W.1 and examined two witnesses as D.W.2 and D.W.3 and got marked 41 documents as Ex.D.1 to Ex.D.41.
7. The trial Court on the assessment of the oral and documentary evidence, answered issue Nos.1, 5, 6, 7 and 8 in the affirmative, issue Nos.2 to 4 and 9 in the negative and issue No.10 as per the final order. The suit of the plaintiffs was dismissed with costs. The plaintiffs aggrieved by the Judgment and decree passed in O.S.No.30/2014 filed this appeal.
8. Heard the learned counsel for the plaintiffs and defendants.
9. Learned counsel for the plaintiffs submits that, admittedly the suit schedule property was owned by
- 12 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 Shivappa. He died intestate. After his demise, the said property was succeeded by his son Balappa. The Balappa died leaving behind the plaintiffs as his legal heirs. After his death, the plaintiffs have succeeded to the suit schedule property and contended that the plaintiffs are in possession of the suit schedule property and the defendants have no right, title or interest over the suit schedule property. The defendants having colluded among themselves filed a suit in O.S.No.411/2000 for the relief of partition and separate possession and obtained a compromise decree. Hence, on the basis of the compromise decree, the defendants tried to interfere with the peaceful possession of the plaintiffs over the suit schedule property. He admits that, the plaintiffs have produced the revenue records which disclose the name of Shivappa in the revenue records and after his death, the names of the plaintiffs appeared in the revenue records. The trial Court has failed to draw a presumption under Section 135 of the Karnataka Land Revenue Act and recorded a finding that, the plaintiffs are not in possession
- 13 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 over the suit schedule property. He further submits that, the compromise decree passed in O.S.No.411/2000 is not binding on the plaintiffs as the plaintiffs were not parties in the said suit. He also submits that, the trial Court without considering the material placed on record by the plaintiff, has dismissed the suit. There is no application of mind and the trial Court has failed to appreciate the oral and documentary evidence. Hence, on these grounds he submits that the Judgment and decree passed by the trial Court is perverse, arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal.
10. Per contra, learned counsel for the defendants submits that, Shivappa was the absolute owner of the suit property and after his death, the property devolved upon his daughter namely Nimbewwa and later on she sold the suit land in favour of Basappa and Shivappa, who are the sons of Satyappa. On the strength of the registered sale deed, names of Basappa and Shivappa are entered in the revenue records. There was a dispute among the
- 14 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 members of the defendants' family. The defendants filed a suit in O.S. No.411/2000. During the pendency of the suit, the matter was referred to Lok Adalat and a compromise decree was drawn. On the basis of the registered sale deed executed by Nimbewwa in favour of Basappa and Shivappa, who are the sons of Satyappa and also compromise decree passed in O.S. No.411/2000, they became the absolute owners. He also submits that the plaintiffs have not challenged the registered sale deed executed by Nimbewwa in favour of Basappa and Shivappa, who are the sons of Satyappa. A suit for mere declaration without challenging the registered sale deed executed by Nimbewwa in favour of Basappa and Shivappa and the compromise decree passed in O.S. No.411/2000, the suit is not maintainable. He further submits that cloud has been casted on the title of the plaintiffs by virtue of the registered sale deed dated 30.03.1983 and also the compromise decree passed in O.S. No.411/2000. He also submits that the plaintiffs are not in possession of the suit schedule property. Hence,
- 15 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 the plaintiffs have failed to establish their case and the trial Court was justified in dismissing the suit of the plaintiffs. Hence, he submits that the impugned judgment passed by the trial Court is just and proper and does not call for interference. On these grounds, he prays to dismiss the appeal.
11. Perused the records and considered the submissions of the learned counsel for the parties.
12. The points that arise for our consideration are:
i) Whether the plaintiffs prove that after the demise of Shivappa, the suit schedule property devolved upon Balappa, husband of plaintiff No.1 and father of plaintiff Nos.2 and 3 and after the death of Balappa, the plaintiffs being sole legal heirs succeeded to the suit property?
ii) Whether the plaintiffs prove that the decree passed by the Lok Adalat in O.S. No.411/2000 on the file of the learned Principal Senior Civil Judge, Jamkhandi, is the outcome of collusion and same is not binding upon the plaintiffs?
- 16 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018
iii) Whether the defendants prove that after the death of Shivappa, his daughter Nimbewwa Mallappa Teli succeeded to the suit property on the strength of the Will executed by deceased Shivappa?
iv) Whether the defendants prove that the family
of the defendants by name Basappa and
Shivappa-sons of Satyappa purchased the suit property from Nimbewwa under a registered sale deed dated 30.03.1983?
v) Whether the defendants prove that the suit filed by the plaintiffs is not maintainable? and
vi) Whether the plaintiffs prove that the judgment and decree passed by the trial Court is perverse and arbitrary?
13. Point Nos.(i), (ii) and (iv): These points are considered together since they are interconnected and to avoid repetition.
14. The plaintiffs in order to prove their case, examined plaintiff No.1 as PW-1 and she has reiterated the plaint averments in her examination-in-chief and in
- 17 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 support of their case, the plaintiffs produced documents marked as, Ex.P-1 is the certified copy of sale deed dated 09-01-1976 through which Shivappa Parasappa Kadapatti purchased R.S.No.20/9 measuring 31 guntas from its erstwhile owner, Ex.P-2 is the certified copy of M.E.No.3724, which indicates that, on the basis of Ex.P-1 sale deed, the name of Shivappa Kadapatti is entered in the revenue records. Ex.P-3 is the death certificate of Shivappa Parasappa Kadapatti, ,which disclose that he died on 11-02-1982. Ex. P-4 is the death certificate of Balappa Kadapatti, who is the husband of the plaintiff No.1 and father of plaintiff Nos.2 and 3, which disclose that he died on 18-07-2007. Ex.P-5 is the certified copy of M.R.No.H-21/2012-13, which disclose that the name of plaintiff No.1 got entered in the revenue records in respect land bearing R.S.No.20/9 measuring 31 guntas. Ex.P-6 is the RTC of suit property standing in the names of Shivanawwa, Basappa and Shivappa sons of Balappa.
Ex.P-7 is the RTC of property bearing R.S.No.20/5+6+7+8+9 measuring 04 acres 01 gunta for
- 18 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 the year 1976-77 earlier standing in the name of Shivappa and subsequently transferred to Nimbawwa Teli. Ex.P-8 is the RTC of property bearing R.S.No.20/5+6+7+8+9 measuring 04 acres 01 gunta for the year 1981-82 earlier standing in the name of Shivappa and subsequently transferred to Nimbawwa Teli and thereafter to the names of Shivappa and Basappa sons of Satyappa Madarkhandi. Exs.P.9 & P.10 are the RTCs of property bearing R.S.No.20/9 measuring 31 guntas standing in the name of Shivappa Parappa Kadapatti. Ex.P-11 is the certified copy of compromise decree passed in O.S.No.411/2000. Ex.P- 12 is the certified copy of the order passed in APL SR No.50/2011-12. Ex.P-13 is the order sheet in APL SR No.50/2011-12. Ex.P-14 is the certified copy of M.R.No.H- 35/2014-15 through which the plaintiffs got entered their names to the suit property. Exs.P-15 & P-16 are the RTCs of the suit property standing in the names of the plaintiffs. Ex.P-17 is the M.R.No.H-11 through which the name of Shivappa Kadapatti is restored to the suit property. Ex.P- 18 is the certificate issued by the PKPS, Hunnur, stating
- 19 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 that, plaintiff Shivanawwa Kadapatti has raised crop loans on suit property. Exs.P-19 to P-21 are the postal envelops. Ex.P-22 is the application dated 19-03-2016 issued by the plaintiff Gangawwa Kadapatti requesting the Tahasildar not to make any alteration in the revenue records of the suit property. Ex.P-23 is the pass book of PKPS Society Hunnur.
15. During the course of cross examination, she admits that her husband's father name is Shivappa Kadapatti and the said Shivappa Kadapatti possessed lands. She admits that they possessed R.S.No.20 measuring 4 acres 20 guntas and also admit that there was a partition between family members of Shivappa in a suit in O.S. No.113/1979 and she pleads ignorance about filing of the suit in O.S. No.113/1979. There is a land bearing Sy.No.28/1 measuring 19 acres 10 guntas situated at Hanchinal village and R.S. No.5 and VPC No.330 situate at Hunnur village and these suit schedule properties had fallen to the share of Shivappa, who is her
- 20 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 father-in-law and he has retained the said properties for himself. Shivappa had 5 children. She pleads ignorance that the suit land was converted into non-agricultural residential purpose and further admits that, her father-in- law had divided the said properties and also admits that 4 acres 1 gunta of land was given to Nimbewwa. Shivappa died about 30-35 years back. She admits that the property which was fallen to the share of Shivappa was sold by Nimbewwa and she pleads ignorance that the purchasers are in possession of the suit schedule property and also pleads ignorance that Nimbewwa has executed a registered sale deed in favour of Basappa and Shivappa, sons of Satyappa, on 30.03.1983.
16. Further, the plaintiffs also examined 2 witnesses as PW-2-Shri Mallappa and PW-3 Basappa, who are their villagers. They deposed that Shivappa was the erstwhile owner of the suit schedule property and after his demise, the plaintiffs have succeeded to the suit property and they are in possession of the suit property and they
- 21 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 have raised loan from PKPS, Hunnur. PWs.2 and 3 are not aware how Shivappa has acquired the suit schedule property. They admitted that the suit schedule property and other properties were fallen to the share of Shivappa.
17. In rebuttal, defendant No.4 was examined as DW.1 and he has reiterated the written statement averments in his examination-in-chief and produced the documents marked as, Ex.D-1 RTC of the suit property for the year 2015-16 standing in the name of Shivappa Kadapatti. Ex.D-2 is the M.R.No.H-11/2015-16 whereunder the names of the plaintiffs were entered their in respect of the suit property. Ex.D-3 is the M.R.No.H- 21/2012-13 standing in the name of plaintiffs. Ex.D-4 is the M.R.No.H-35/2014-15 standing in the names of Shivappa Kadapatti, Gangawwa Kadapatti, Akash Kadapatti and Bhavya Kadapatti. Ex.D-5 is the certified copy of order of the Assistant Commissioner dated 27-08- 2015 passed in RTS AP No.21/2014-15 through which learned Assistant Commissioner ordered to cancel
- 22 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 M.R.No.H-21/2012-13. Ex.D-6 is the M.R.No.6247 through which the defendants' family members i.e., Girimallappa, Parappa, Basappa and Ramappa got transferred the revenue entries in to their names. Ex.D-7 is the certified copy of plaint in O.S.No. 113/1979. This document reveals that Shivappa Kadapatti had filed suit for partition against his family members. Ex.D-8 is the certified copy of written statement in O.S.No.113/1979. Ex.D-9 is the court commissioner report. Ex.D-10 is the certified copy of final decree in O.S.No. 133/1979. As per the said decree, apart from other lands R.S.No.20/5+6+7+8 measuring 03 acres 10 guntas and R.S.No.20/9 measuring 31 guntas allotted to the share of Shivappa Kadapatti. Ex.D-11 is the M.R.No.3839 reveals that, as per the court decree the names of Basappa, Balappa, Shivappa and Kallappa entered to the land bearing R.S.No.20/5+6+7+8 and R.S.No.20/9 of Hunnur village. Ex.D-12 is the M.R.No.3969 through which R.S.No.20/5+6+7+8 measuring 03 acres 10 guntas and R.S.No.20/9 measuring 31 guntas were consolidated and new number
- 23 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 20/5+6+7+8+9 was assigned to the consolidated holding totally measuring 04 acres 01 gunta. Ex.D-13 is the M.R.No.4017 reveals that, on 11-02-1982 Shivappa Basappa Kadapatti died and as per the Will written by him the names of his daughters entered to the properties bequeathed. As per the said mutation R.S.No.20/5+6+7+8+9 measuring 04 acres 01 gunta was mutated in the name of Nimbewwa Mallappa Teli. Ex.D-14 is the sale deed dated 30-03-1983 through which Smt.Ninbewwa sold the entire extent of 04 acres 01 gunta in R.S.No.20/5+6+7+8+9 in favour of Shivappa and Basappa sons of Satyappa Madarkhandi i.e., the predecessors of defendants. Ex.D-15 is the M.E.No.4098 through which the names of Shivappa and Basappa were entered to the property sold vide Ex.D-14. Ex.D-16 is the M.E.No.4796 which reveals that said Shivappa and Basappa have raised a crop loan of Rs.40,800/- on the property bearing R.S.No.20/5+6+7+8+9. Ex.D-17 is the M.E.No.5252 which reveals that, Shivappa Madarkhandi raised a loan of Rs.20,000/- in PKPS Bank of the property
- 24 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 bearing R.S.No.20/5+6+7+8+9. Ex.D-18 is the RTC of the property bearing R.S.No.20/5+6+7+8+9 which reveals that, earlier the said property was standing in the name of Shivappa Parasappa Kadapatti and after his demise the name of Nimbewwa Teli was mutated. Exs.D-19 & D-20 are the RTCs of the property bearing R.S.No.20/5+6+7+8+9 for the year 1988-89 to 2000-01 which indicates that, Shivappa and Basappa sons of Satyappa Madarkhandi, are the owners. Ex.D-21 is the copy of compromise decree passed in O.S.No. 411/2000 through which Girimallappa, Parappa, Basappa were allotted with 01 acre each in property bearing R.S.No.20/5+6+7+8+9 and the remaining extent of 01 acre 01 gunta in the same survey number was allotted to Ramappa. Exs.D-22 to D-25 are the RTCs pertaining to property bearing R.S.Nos.20/5, 20/6, 20/7, and 20/8 standing in the names of defendants. Exs.D-26 to D-29 are the conversion orders issued by the Deputy Commissioner, Bagalkot reveals that, R.S.No.20/5 measuring 01 acre 01 gunta, 20/6 measuring 01 acre,
- 25 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 20/7 measuring 01 acre and 20/8 measuring 01 acre converted into non-agricultural residential purpose. Ex.D- 30 is the certified copy of final order dated 11-05-2017 passed by the Deputy Commissioner, Bagalkot in R.P.No.34/2015. This order reveals that, the plaintiffs herein had challenged the order passed by the Assistant Commissioner in RTS AP. No.21/2014-15 and the learned Deputy Commissioner, dismissed the revision petition by upholding the order passed by the Assistant Commissioner. Ex.D-31 is the order dated 09-11-2011 passed by the DDLR, Bagalkot thereby cancelling hissa No.5 to 9 of R.S.No.20 and ordered to demarcate the shares as per the court decree in O.S.No.411/2000. Ex.D- 32 is the pot hissa assessment certificate in form No.11. Ex.D-33 is the form No.4 reflecting the names of the defendants. Ex.D-34 is the akar bundh which indicates that, as per the order of DDLR, hissa number 5 to 9 of R.S.No.20 was cancelled. Ex.D-35 is the certified copy of Will dated 03-06-1980 executed by one Shivappa Parasappa Kadapatti through which, apart from other
- 26 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 properties, an extent of 03 acre 10 guntas in R.S.No.20/5+6+7+8 and 31 guntas in R.S.No.20/9 was bequeathed in favour of Nimbewwa Teli. Exs.D-36 to D-40 are the photographs of the suit property. Ex.D-41 is the Compact Disk. Ex.D-42 to 45 are the approved layout maps indicating that, residential layout has been formed in R.S.No.20/1, 20/2, 20/3 and 20/4. Ex.D-46 is certified copy of the order dated 14-02-2018 passed by the learned Assistant Commissioner in RTC CR.No.185/2017-18 whereby it is ordered to cancel the revenue entries of R.S.No.20/9 measuring 31 guntas as the same is continued as hallow entry. Ex.D-47 is the certified copy of M.R.No.H-49 through which the revenue entry of R.S.No.20/9 was deleted.
18. Further, the defendants also examined 2 witnesses as DWs.2 and 3, who are the residents of Hunnur village. They have deposed that the defendants are in possession of the suit property.
- 27 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018
19. From the perusal of the oral and documentary evidence of the parties, it is clear that Shivappa has purchased the suit land under a registered sale deed dated 09.01.1976. Further partition was effected amongst the family members of Shivappa in O.S. No.113/1979. In the said suit, the suit schedule property fell to the share of Shivappa. During the lifetime of Shivappa, Shivappa executed a Will bequeathing the suit property in favour of Nimbewwa, who is the daughter of Shivappa. After the demise of Shivappa, Nimbewwa, on the basis of the Will executed, submitted an application to the Revenue Authorities to enter her name in the Revenue Records and on the strength of the Will, her name was entered in the Revenue Records as per M.E. No.4017. Nimbewwa had sold the suit land in favour of Basappa and Shivappa, sons of Satyappa, under the registered sale deed dated 30.03.1983 and she also delivered possession of the suit property to the purchasers. On the basis of the registered sale deed executed by Nimbewwa in favour of Basappa and Shivappa, they submitted an application before the
- 28 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 Revenue Authorities to enter their names in the Revenue Records. On the strength of the registered sale deed executed by Nimbewwa, their names came to be entered in the Revenue Records under M.E.No.4098. After purchasing the suit property, a dispute arose between the family member of the defendants and a suit came to be filed for partition in O.S.No.411/2000 in respect of the properties. During the pendency of the said suit, the properties were divided between the family members of the defendants amicably and filed the compromise petition before the Lok-Adalat. The Lok-Adalat accepted the compromise petition filed by the parties and compromise decree was drawn. On the strength of the registered sale deed as well as the compromise decree passed in O.S. No.411/2000, the defendants filed an application to the Tahsildar to divide properties into 4 parts and to enter their names in the revenue records.
20. Thus, it is clear from the records that Shivappa had acquired property under compromise decree passed in
- 29 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 O.S. No.113/1979 and he has executed a Will in favour of Nimbewwa as per Ex.D-35 bequeathing the suit property in favour of Nimbewwa. She in turn, sold the property in favour of Basappa and Shivappa. Thus, the plaintiffs have failed to establish that after the death of Shivappa, Balappa has succeeded to the suit property and after his death, the plaintiffs have succeeded to the suit property as his sole legal heirs. As observed above, Shivappa executed a Will bequeathing the suit property in favour of Nimbewwa. After the demise of Shivappa, Nimbewwa had succeeded to the property under the Will executed by Shivappa in favour of Nimbewwa. In case, if Shivappa died intestate, then Balappa could have succeeded to the suit property. As we have already recorded a finding that Shivappa had executed a Will in favour of Nimbewwa, hence, Balappa did not succeed to the properties of deceased Shivappa.
- 30 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018
21. In view of the above discussion, we answer Point No.(i) in the negative and Point Nos.(ii) and (iv) in the affirmative.
22. Point No.(iii): As we have already recorded a finding on Point No.(i) that Shivappa was the absolute owner of the suit property and he has acquired the property under compromise decree before the Lok Adalat in O.S. No.113/1979 and he has executed a Will in favour of Nimbewwa bequeathing the suit property, Nimbewwa after the demise of Shivappa, became the absolute owner and she, in turn, has sold the suit property in favour of Basappa and Shivappa. There was a dispute among the family members of the defendants. They filed a suit in O.S. No.411/2000. They entered into compromise before the Lok Adalat and the Lok Adalat, after satisfying that the compromise entered between the parties is legal and valid, accordingly, accepted the compromise petition and passed a compromise decree. As we have already recorded that the plaintiffs have no right, title or interest
- 31 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 over the suit property, we, further, hold that they have no locus standi to challenge the decree passed in O.S. No.411/2000.
23. In view of the above discussion, we answer Point No.(iii) in the negative.
24. Point Nos.(v) and (vi): Admittedly, the defendants have taken a defence that the suit of the plaintiffs for the relief of declaration of title is not maintainable. As we have already observed that Shivappa acquired the property under the compromise decree passed in O.S. No.113/1979 and he has bequeathed suit property in favour of Nimbewwa under the Will and after the demise of Shivappa, Nimbewwa has succeeded to the suit property by virtue of the Will and the name of Nimbewwa was entered in the Revenue Records and that Nimbewwa has sold the land in favour of Basappa and Shivappa sons of Satyappa under a registered sale deed, the plaintiffs have not challenged the Will executed by Shivappa in favour of Nimbewwa and also the registered
- 32 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 sale deed executed by Nimbewwa in favour of Basappa and Shivappa and also the compromise decree passed in O.S. No.411/2000. In the absence of seeking the relief of declaration that the Will executed by Shivappa in favour of Nimbewwa, the registered sale deed executed by Nimbewwa in favour of Basappa and Shivappa sons of Satyappa, and the compromise decree passed in O.S. No.411/2000, the suit of the plaintiff for the relief of declaration is not maintainable. Further, when the cloud is casted on the title of the plaintiffs, it was obligatory on the part of the plaintiffs to challenge the Will executed by Shivappa in favour of Nimbewwa and execution of the registered sale deed in favour of Basappa and Shivappa and the compromise decree.
25. Further, the revenue entries disclose that the defendants are in peaceful possession and enjoyment of the suit property. The plaintiffs are not in possession of the suit property. Hence mere suit for declaration without seeking any consequential relief of possession, suit is not
- 33 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 maintainable as per the provisio to Section 34 of the Specific Relief Act. The Hon'ble Apex Court in the case of Vasantha (dead) thr. LR v. Rajalakshmi @ Rajam (dead), thr. LRs. in Civil Appeal No.3854/2014 disposed of on 13.02.2024 has held that, 'when the plaintiff is not in possession of the suit, mere suit for declaration of title without seeking for recovery of possession, is not maintainable'.
26. In view of the above discussion, we hold that the defendants have proved that the suit filed by the plaintiffs is not maintainable and the trial Court was justified in dismissing the suit of the plaintiffs and the plaintiffs have failed to prove that the judgment and decree passed by the trial Court, is arbitrary and erroneous.
27. In view of the above discussion, we answer Point No.(v) in the affirmative and Point No.(vi) in the negative and proceed to pass the following:
- 34 -
NC: 2024:KHC-D:3774-DB RFA No. 100349 of 2018 ORDER The appeal is dismissed. The judgment and decree dated 31.05.2018 passed in O.S.No.30/2014 by the learned Additional Senior Civil Judge, Jamkhandi, is hereby confirmed.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Svh / KMV LIST NO.: 1 SL NO.: 9