Karnataka High Court
Lakkawwa W/O Siddappa Kunchanur vs Yalllawwa W/O Pandappa Kunchanur on 28 August, 2023
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NC: 2023:KHC-D:9595
RFA No. 100170 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100170 OF 2014 (DEC/INJ-)
BETWEEN:
1. SMT. LAKKAWWA W/O SIDDAPPA KUNCHANUR
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. SAIDAPUR GALLI, WARD NO. III,
MUDHOL, TQ: MUDHOL,
DIST: BAGALKOT.
2. SADASHIV S/O SIDDAPPA KUNCHANUR
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: SAIDAPUR GALLI, WARD NO. III,
MUDHOL, TQ: MUDHOL,
DIST: BAGALKOT.
3. KAREPPA S/O SIDDAPPA KUNCHANUR
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: SAIDAPUR GALLI, WARD NO. III,
MUDHOL, TQ: MUDHOL,
DIST: BAGALKOT.
Digitally
signed by
SAROJA
4. KALLAPPA S/O SIDDAPPA KUNCHANUR
SAROJA HANGARAKI
HANGARAKI Date:
2023.09.05
AGE: 32 YEARS, OCC: AGRICULTURE,
11:21:16
+0530
R/O: SAIDAPUR GALLI, WARD NO. III,
MUDHOL, TQ: MUDHOL,
DIST: BAGALKOT.
5. MAHADEV S/O SIDDAPPA KUNCHANUR
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: SAIDAPUR GALLI, WARD NO. III,
MUDHOL, TQ: MUDHOL,
DIST: BAGALKOT.
6. SMT. RUKMAWWA W/O LAXMAN PUJARI
AGE: 31 YEARS, OCC: AGRICULTURE
R/O: DHARMATTI, TQ: GOKAK,
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NC: 2023:KHC-D:9595
RFA No. 100170 of 2014
DIST: BELGAUM.
7. SMT. PADDAWWA W/O LAXMAN PUJARI
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O. DHARMATTI, TQ: GOKAK,
DIST: BELGAUM.
8. SMT. MAYAWWA W/O MAHADEV MAKKALAKI
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O. FARM HOUSE, HARGERI ROAD,
NEAR HIDAKAL CANAL, MUGALKHOD,
TQ: RAIBAG, DIST: BELGAUM.
9. SMT. SAIDAWWA W/O SOMALINGAPPA KADAGI
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O. FARM HOUSE, NEAR GURUPAD TEMPLE,
SANGANKERI ROAD, BALUBAL,
TQ: GOKAK, DIST: BELGAUM.
...APPELLANTS
(BY SRI. GIRISH A YADAWAD, ADVOCATE)
AND:
1. SMT. YALLLAWWA W/O PANDAPPA KUNCHANUR
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. SAIDAPUR GALLI, WARD NO. III,
MUDHOL, TQ: MUDHOL,
DIST: BAGALKOT.
2. SMT. RUKMAWWA W/O BUTALEPPA KUNCHANUR
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: HUNASHIKATTI, TQ: JAMAKHANDI,
DIST: BAGALKOT.
3. BASAPPA S/O BUTALEPPA KUNCHANUR
SINCE DECEASED BY HIS LRS.
VIDE ORDER 23.11.2016, RESPONDENTS 4 TO 8
ARE TREATED AS HIS LRS.
*AMENDED AS PER ORDER DATED 23.11.2016*
4. SMT. GOURAWWA W/O RAMAPPA YANNINAVAR
AGE: 61 YEARS, OCC: AGRICULTURE,
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NC: 2023:KHC-D:9595
RFA No. 100170 of 2014
R/O: SAIDAPUR GALLI, WARD NO.III,
MUDHOL, TQ: MUDHOL, DIST: BAGALKOT.
5. SMT. BHAGAWWA W/O CHANDRAPPA JEERAGAL
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: HUNASHIKATTI, TQ: JAMAKHANDI,
DIST: BAGALKOT.
6. SMT. NEELAWWA W/O LAXMAPPA JEERAGA
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O. SAIDAPUR GALLI, WARD NO.III,
MUDHOL, TQ: MUDHOL, DIST: BAGALKOT.
7. BUTALEPPA S/O BASAPPA KUNCHANUR
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: SAIDAPUR GALLI, WARD NO. III, MUDHOL,
TQ: MUDHOL, DIST: BAGALKOT.
8. YALLAPPA S/O BASAPPA KJNCHANUR
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: SAIDAPUR GALLI, WARD NO.III,
MUDHOL, TQ: MUDHOL, DIST: BAGALKOT.
...RESPONDENTS
(BY SRI. N L BATAKURKI, ADVOCATE FOR C/R1;
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R2, R4 TO R8;
R4 RO R8- ARE TREATED AS LRS OF DECEASED R3)
THIS RFA IS FILED U/S.96 OF CPC., PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL
JUDGE AND JMFC, MUDHOL IN O.S.NO.2/2013 DATED 12.08.2014
IN THE INTEREST OF JUSTICE AND EQUITY. PASS SUCH OTHER
ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER
THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:9595
RFA No. 100170 of 2014
JUDGMENT
The defendants being aggrieved by the decree for declaration of title and injunction granted in favour of the plaintiffs in O.S.No.2/2013 on the file of the Senior Civil Judge, Mudhol are before this Court.
2. Brief facts:
2.1 The suit property bearing Sy.No.440 measuring 6 acres 34 guntas in Mudhol village, Mudhol taluk which originally belonged to Hanamant S/o Laxmappa Dhanagar.
He died living behind Laxmawwa, his wife and daughters Mayawwa, Yallawwa and Rukmawwa as Class-I heirs. He had no male issues. After the death of Hanamant, the property was mutated in the name of his daughters as well as wife and also the brothers of Hanamant namely Saidappa and Basappa.
2.2 Since the brothers were not the persons entitled to succeed to the property, suit is filed questioning the certification of mutation entry No.4147 which recorded -5- NC: 2023:KHC-D:9595 RFA No. 100170 of 2014 the names of Saidappa and Basappa as joint owners along with Class-I heirs of deceased Hanamant. The said suit in O.S.No.223/1989 is decreed. Class-I heirs of deceased Hanamant namely his wife, Laxmawwa and daughters Mayawwa, Yallawwa and Rukmawwa were declared as the owners of the property. Consequently, the relief of injunction is also granted in favour of the plaintiffs in the said case. The said suit was decreed on 30.11.1992. Appeal filed against the said suit came to be dismissed.
2.3 It appears that the names of the plaintiffs were deleted from the property records and the name of the Government was entered in the property records without notice to the plaintiffs and thereafter name of the present appellants is entered. It appears that the name of the husband of the first appellant and father of the remaining appellants, Siddappa was entered in the property records allegedly as a legetee of Laxmawwa, the wife of propositus Hanamant. This entry was made without notice to the plaintiffs. This entry was made in the year 2003 and after -6- NC: 2023:KHC-D:9595 RFA No. 100170 of 2014 the death of Siddappa, names of the defendants were entered in the property records as successors of Siddappa. This entry was made in the year 2012. Challenging this entry, the suit is filed and the plaintiffs in substance claimed declaration of title over the property on the premise that they succeeded to the property after the death of late Hanamant.
2.4 The suit was resisted by the defendants on the premise that Laxmawwa had executed a Will in favour of Siddappa, the husband of defendant No.1 and father of remaining defendants.
2.5 A defence is also taken to the effect that the daughters of Hanamant have relinquished their right in favour of Siddappa. The trial Court concluded that the plaintiffs are the owners of the property and did not accept the defence based on the alleged Will of Laxmawwa and alleged relinquishment of three daughters of Hanamant. -7-
NC: 2023:KHC-D:9595 RFA No. 100170 of 2014
3. Aggrieved by the aforementioned judgment and decree, the defendants are in appeal.
4. Sri.Girish Yadawad, the learned counsel for the appellants submits that the trial Court ignored vital admissions relating to the knowledge of the plaintiffs with respect to certification of mutation entry in the name of Siddappa which was certified in the year 2003. He also invited attention of this Court to the admission in the evidence of PW.1's cross-examination and would contend that the evidence would disclose that the plaintiffs had knowledge about the certification of the mutation entry in the year 2003 and the suit is filed in the year 2013, as such the suit for the relief of declaration and injunction is barred by limitation. He would also submit that the defendants have led enough evidence to establish that they are in possession of the property and long standing entry in the property records would disclose that they are in possession. Since they are in possession of the -8- NC: 2023:KHC-D:9595 RFA No. 100170 of 2014 property, the trial Court could not have granted the relief of injunction.
5. Learned counsel for the respondents would submit that there is no admission by the plaintiffs in the cross-examination relating to the knowledge of the certification of mutation entry in the year 2003. It is their specific contention that they had no knowledge about the certification of mutation entry till 2012 and though it was certified in 2003, it was one without notice to the plaintiffs. Thus, they would contend that the cause of action arose only in the year 2012 and suit filed in 2012 is in time.
6. It is also contended that the defendants have not produced the alleged Will of Laxmawwa and also not produced the alleged relinquishment deed of the daughters of Hanamant. That being the position, title inherited by the plaintiffs after the demise of Hanamant is not divested, as such they continued as owners of the suit -9- NC: 2023:KHC-D:9595 RFA No. 100170 of 2014 schedule property and the trial Court rightly decreed the suit and granted the relief of declaration and injunction.
7. After considering the contentions raised at the bar, the following points would arise for consideration:
(i) Whether the trial Court is justified in granting a decree for declaration of title and injunction in favour of the plaintiffs?
(ii) Whether the suit of the plaintiffs is barred by limitation?
8. Since the plaintiffs have sought relief of declaration, plaintiffs must establish that they have title over the property. There is no dispute that Hanamant was the propositus and he owned the property. There is further no dispute over the fact that plaintiffs No.1 and 2 are the daughters of Hanamant and plaintiffs No.3 to 8 are the daughters of Mayawwa, the deceased daughter of Hanamant. This being the position, the Court would hold that the plaintiffs have inherited the property from the deceased Hanamant.
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9. The question is whether the husband of defendant No.1 and father of remaining defendants namely Siddappa succeeded to the property of Hanamant under the alleged Will of Laxmawwa and under the alleged relinquishment deed of daughters of deceased Hanamant. Admittedly, the alleged Will is not produced and alleged relinquishment deed by the daughters of Hanamant is also not produced. This being the position, Siddapa does not succeed to the property of late Hanamant as he is not the heir of late Hanamant. Naturally the property would devolve upon the Class-I heirs of late Hanamant.
10. As far the question of limitation is concerned, though Sri.Girish Yadawad would urge that there is an admission in the cross-examination of the plaintiffs to the effect that the plaintiffs had knowledge about the certification of mutation entry in the year 2003. On perusal of the evidence, this Court is of the view that the statement made by PW.1 in the cross-examination cannot be construed as an admission to hold that the plaintiffs
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NC: 2023:KHC-D:9595 RFA No. 100170 of 2014 had knowledge about certification of mutation entry in the year 2003. At the most, the statement made in the cross- examination by PW.1 can be construed to hold that the mutation entry was certified in the year 2003 in the name of Siddappa and the statement made in para No.4 of the cross-examination would again indicate that the plaintiffs have questioned the said mutation by filing an appeal before the Court where the suit is pending.
11. Merely because the party has referred the suit as an appeal, it cannot be construed that an appeal was filed before the jurisdictional Assistant Commissioner challenging the mutation entry. There is nothing on record to show that the mutation entry was certified with the knowledge of the plaintiffs. Moreover, alleged mutation entry in the name of Siddappa is based on the alleged Will of Laxmawwa. It is well settled position of law that the Revenue Court cannot effect mutation based on the Will when the Will is not produced before the Court. That being the position, this Court is of the view that the trial Court is
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NC: 2023:KHC-D:9595 RFA No. 100170 of 2014 justified in granting a decree for declaration of title and injunction in favour of plaintiffs.
12. Though Sri.Girish Yadawad would urge that the defendants are in possession and to that effect there is entry in the record of right, this Court is of the view that the entry in the record of right is not based on any valid document transferring either the title or possession. Hence, the entry in the record of right cannot be accepted to hold that the defendants are in possession of the property.
13. For the aforementioned reasons, this Court does not find any merit in the appeal.
14. Accordingly, the appeal is dismissed and the judgment and decree dated 12.08.2014 passed in O.S.No.2/2013 on the file of Senior Civil Judge, Mudhol are confirmed .
Sd/-
JUDGE SH, List No.: 1 Sl No.: 45