Karnataka High Court
Balappa S/O Ramanna Kolkar vs Yenkawwa W/O Hanmappa Koppal And Anr on 12 June, 2024
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NC: 2024:KHC-K:4272
RSA No. 7424 of 2013
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7424 OF 2013 (PAR)
BETWEEN:
BALAPPA S/O RAMANNA KOLKAR
AGED: 49 YEARS, OCC: AGRICULTURE
R/O. VILLAGE TELGI, TQ. BASAVANABAGEWADI
DIST. BIJAPUR-586101.
...APPELLANT
(BY SRI GANESH S KALBURGI, ADVOCATE)
AND:
1. YENKAWWA W/O HANAMAPPA KOPPAL
AGE: 58 YEARS, OCC: HOUSEHOLD WORK
R/O. DWAR ONI, GANGAPUR PETH
GADAG-582101.
Digitally signed 2. APPANNA S/O TIMMANNA AMBALJERI
by SWETA
KULKARNI AGE: 70 YEARS, OCC: AGRICULTURE,
Location: High R/O. BINKADAKATTI,
Court of
Karnataka TQ & DIST. GADAG-582101.
...RESPONDENTS
(BY SRI D.P. AMBEKAR, ADV. FOR R1;
APPEAL AGAINST R2 IS DISMISSED AS ABATED V/O DATED
29.08.2023)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
ALLOW THIS APPEAL AND TO SET ASIDE THE JUDGMENT AND
DECREE DATED 18.09.2013 PASSED IN R.A. NO.195/2011 BY
THE III ADDL. DISTRICT JUDGE, BIJAPUR, CONFIRMING THE
JUDGMENT AND DECREE DATE 22.11.2011 PASSED IN O.S.
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NC: 2024:KHC-K:4272
RSA No. 7424 of 2013
NO.20/2008 BY THE SENIOR CIVIL JUDGE AT
BASAVANABAGEWADI.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal by defendant No.1 assailing the concurrent findings of facts of the Courts below in R.A. No.195/2011 dated 18.09.2013 on the file of the III Additional District Judge Bijapur, confirming the judgment and decree dated 22.11.2011 in OS No.20/2008 by the Senior Civil Judge at Baswan Bagewadi.
2. Parties herein are referred to as per their ranking before the Trial Court for the sake convenience.
3. Suit O.S. No.20/2008 was filed by Yankawaa seeking partition and separate possession of 1/3rd share in land bearing Sy. No.106 measuring 9 acres 19 guntas situated at Nagaradini Village in Basavana Bagewadi Taluk (herein after referred to as 'the suit land') against Balappa and Appanna. The plaintiff, defendant No.2 and one Tangewwa are brother and sisters born to Timmanna and Neelawwa. Balappa- defendant No.1 is the son of Tangewwa. The claim laid down -3- NC: 2024:KHC-K:4272 RSA No. 7424 of 2013 by the plaintiff is that mother of the plaintiff and defendant No.2 Neelawwa purchased the suit land in the name of defendant No.2 on 27.04.1944 during the minority of defendant No.2. It is stated that the suit land was purchased out of the joint family funds and it is the joint family property of the plaintiff, defendant No.2 and Tangewwa and their mother Neelawwa. It is the case of the plaintiff that after the death of their mother Neelawwa, defendant No.2 and her sister Tangewwa colluded and got partitioned the suit land without allotting share to the plaintiff and mutation entry was certified behind the back of the plaintiff. The plaintiff contended that she is entitled for 1/3rd share in the suit land as the suit land is purchased by the mother of the plaintiff and defendant No.2 and it is the joint family property of plaintiff, defendant No.2 and mother of defendant No.1.
4. Pursuant to the suit summons issued by the Trial Court, defendant No.1 filed written statement, inter alia contending that defendant No.2 and his mother Tangewwa jointly owned and possessed the suit land and there was a partition in the suit land between his mother and defendant No.2. It is contended that the plaintiff has no right to claim -4- NC: 2024:KHC-K:4272 RSA No. 7424 of 2013 partition in the suit land, which is the property of defendant No.1's mother and defendant No.2.
5. Defendant No. 2 appeared and resisted the claim of the plaintiff contending that the suit land was purchased in his name and he is the exclusive owner of the suit property. It is further contended that O.S.No. 77/2007 is filed by defendant No.2 for declaration that the suit land is the exclusive property of defendant No.2.
6. O.S. No.77/2007 preferred by Appanna-defendant No.2 in O.S.No.20/2008 sought for declaration declaring that he is the owner of the suit land bearing Sy. No.106 measuring 9 acres 19 guntas and consequently, sought for a decree of permanent injunction. The plaintiff Yankawwa in O.S. No.20/2008 was not made as a party in O.S. No.77/2007 preferred by Appanna .
7. The Trial Court, on basis of the pleadings, framed the following issues:
Issues in O.S.No.77/2007 -5-
NC: 2024:KHC-K:4272 RSA No. 7424 of 2013 "1. Whether the plaintiff proves that, he is the absolute owner and in possession of the suit land bearing Sy. No. 106 of Nagaradinni village measuring 9 acre 19 guntas?
2. Whether the defendant proves that, the plaintiff had relinquished all his rights in respect of the suit land in favour of one Tangevva the sister of plaintiff and the mother of the defendant under "Vatni Patra"
Dated: 24.08.1991?
3. Whether the plaintiff is entitled to the relief sought as prayed in the plaint?
4. What order or decree?
ADDITIONAL ISSUES :-
1. Whether the defendant proves that he is in adverse possession over suit property?
2. Whether the defendant proves that suit of the plaintiff is barred by limitation? " Issues in O.S.No.20/2008
1. Whether plaintiff proves that, suit property is joint family property of plaintiff and defendants and no partition is effected in the suit land?
2. Whether plaintiff proves that defendant No.2 and the mother of defendant No.1 got partitioned the suit land without allotting share to the plaintiff? -6-
NC: 2024:KHC-K:4272 RSA No. 7424 of 2013
3. Whether defendant No.1 proves that, defendant No.2 and mother of the defendant No.1 jointly owner and possessed the suit land?
4. Whether plaintiff proves that she is entitled for 1/3rd share in the suit land?
5. Whether plaintiff is entitled for relief sought for?
6. What order or decree?
Additional issues framed on 11.12.2009
1. Whether the defendant No.1 proves that suit of the plaintiff is not maintainable as contended in para No.10A of written statement?
Additional issues framed on 28.10.2011
2. Whether the defendant No.1 proves that he has become the owner of the suit land by way of adverse possession?"
8. In order to substantiate the claim, the plaintiff examined herself as P.W.1 and got marked documents at Exs.P.1 to P.5 and defendant No.1 examined himself as D.W.1 and defendant No.2-Appanna examined himself as D.W.2 and got marked documents at Exs.D.1 and D.2.
9. The Trial Court, on basis of the pleadings, oral and documentary evidence, held that:-7-
NC: 2024:KHC-K:4272 RSA No. 7424 of 2013 i. Plaintiff has proved that the suit property is the joint family property of the plaintiff and defendants and no partition has been effected;
ii. Plaintiff proved that defendant No.2 and mother of defendant No.1 got partitioned the suit land without allotting share to the plaintiff iii. Defendant No.1 failed to prove that defendant No.2 and mother of defendant No.1 jointly owned and possessed the suit land and by the judgment and decree, the Trial Court decreed the suit allotted 1/3rd share in the suit land.
10. O.S. No.77/2007 and O.S. No.20/2008 were clubbed together though separate evidence were let-in in both the suits, the Trial Court by the judgment and decree, decreed O.S.No.20/2008 holding that the plaintiff-Yenkawwa is entitled for 1/3rd share and counter claim of defendant No.2 seeking 1/3rd share in O.S. No.20/2008, was also rejected. Defendant No.1 aggrieved by allowing of 1/3rd share to plaintiff, preferred R.A. No.195/2011 before the First Appellate Court. -8-
NC: 2024:KHC-K:4272 RSA No. 7424 of 2013
11. The First Appellate Court, while re-appreciating and re-analyzing the entire oral and documentary evidence, dismissed the appeal preferred by defendant No.1, the First Appellate Court confirmed the judgment and decree in O.S. No.20/2008.
12. Against the rejection of the cross-objection, review petition was preferred, the review petition was allowed, awarding 1/3rd share to Appanna. MFA preferred against the allowing of review petition came to be disposed of as having become infructuous in view of death of respondent No.2 - defendant No.2.
13. The Courts below arrived at a conclusion that the suit land is the joint family property of Yenkawwa, Appanna and mother of Balappa-defendant No.1. The fact that the suit land was purchased by the Neelawwa mother of plaintiff No.2 and she was the actual owner of the suit property is not in dispute. After the death of Neelawwa, the property devolves upon her sons and daughters and the husband of deceased Neelawwa under Section 15 of the Hindu Succession Act 1956. Appanna though contended that it is the self acquired property, -9- NC: 2024:KHC-K:4272 RSA No. 7424 of 2013 later in O.S No.20/2008 by way of counter claim, sought for 1/3rd share. The purchase of the property by Neelawwa was in the name of Appanna during his minority, defendant No.2 cannot be held to be the exclusive owner of the suit land and the declaration sought by defendant No.2 that his absolute property has been dismissed in O.S. No.77/2007, confirmed in the regular appeal RA No.46/2002 and no appeal has been preferred more so, the review petition seeking to allot 1/3rd share to Appanna has been confirmed.
14. The appellant-defendant No.1 contended that defendant No.2 and his mother Tangewwa jointly owned and possessed the suit land, further defendant No.2 on 24.08.1991 relinquished all his rights in the suit land in favour of his mother by executing a deed 'Watni Patra' parties on at Ex.D24, Appellant-defendant No.1 has no independent claim, Ex.D24 is executed by defendant No2. Defendant No.2 was not the absolute owner of the property, as defendant Nos.1 and 2 do not dispute the suit land was purchased by Neelawwa during minority of defendant No.2, When Neelawwa purchased the suit land, Yankawwa -plaintiff, defendant No.2 and Tangewwa have share in the suit land in Ex.D.24 Yankawwa has relinquished
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NC: 2024:KHC-K:4272 RSA No. 7424 of 2013 her, if Ex.D.24 is to be treated as partition, in the absence of Yankawwa the partition as per Ex.D24 is not valid and if it is treated as relinquishment deed then Ex.D24 is unregistered under all circumstances Ex.D24 does not confirm any right to defendant No.1.
15. The Trial Court, based on the oral and documentary evidence, has rightly arrived at a conclusion that the plaintiff is entitled for 1/3rd share in the suit land, the First Appellate Court being the last fact finding Court has re-appreciated the entire oral and documentary evidence awarding 1/3rd share and holding that Ex.D24 no valid right can be confirmed in favour of Tangewwa, confirming the judgment and decree of the Trial Court. The concurrent findings of the facts of the Courts below does not warrant any interference and no substantial question of law arises for consideration under section 100 of CPC in the present second appeal and accordingly, this Court pass the following:
ORDER i. The Regular Second Appeal is hereby dismissed.
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NC: 2024:KHC-K:4272 RSA No. 7424 of 2013 ii. Impugned judgment and decree of the Courts below stands confirmed.
Sd/-
JUDGE MBM List No.: 1 Sl No.: 24 CT-VD