Karnataka High Court
Bhimbai W/O Late Shivaraya Naikodi vs Smt Jamkabai @ Zumak Bai W/O Chandu Naik on 21 June, 2024
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.977 OF 2006 (SP)
C/W
REGULAR SECOND APPEAL NO.997 OF 2006(DEC & INJ)
REGULAR SECOND APPEAL NO.998 OF 2006 (SP)
REGULAR SECOND APPEAL NO.999 OF 2006 (INJ)
REGULAR SECOND APPEAL NO.1000 OF 2006(DEC & INJ)
IN RSA NO.977/2006:
BETWEEN:
SHIVARAYA S/O MINAPPA
SINCE DEAD THROUGH HIS LR'S.
Digitally signed
1. BHIMABAI W/O LATE SHIVARAYA RAIKODI
by SWETA DIED AND APPELLANTS 2 TO 8 ARE HER LR'S WHO
KULKARNI
Location: HIGH ARE ALREADY ON RECORD
COURT OF
KARNATAKA
i. MINAPPA S/O SHIVARAYA RAIKODI
AGE: 31 YEARS, OCC: AGRICULTURE
ii. SIDDAMMA W/O RACHANNA
AGE: 27 YEARS, OCC: AGRI AND HOUSEHOLD
iii. REVANASIDDAPPA
S/O SHIVARAYA RAIKODI
AGE: 24 YEARS, OCC: AGRICULTURE
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
iv) JAGANNATH S/O SHIVARAYA RAIKODI
AGE: 23 YEARS, OCC: AGRICULTURE
v) LAXAMAN S/O SHIVARAYA RAIKODI
AGE: 21 YEARS, OCC: AGRICULTURE
vi) SHANKARAPPA S/O SHIVARAYA RAIKODI
(DELETED AS PER COURT ORDER DATED
05.03.2021)
vii) AMBANNA S/O SHIVARAYA RAIKODI
AGE: 13 YEARS, OCC: STUDENT,
APPELLANT NO.7 IS MINOR UNDER THE
GUARDINGHIP OF HIS MOTHER BHEEMBAI
L.R. NO.1
ALL R/O. VILLAGE KALBENNUR
TALUKA AND DISTRICT: KALABURAGI-585 102.
...APPELLANTS
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
1. SOMASHEKHAR S/O SHARANAYYA SWAMY
DIED BY LR'S.
1a) MAHADEVI
W/O LATE SOMASHEKHAR SWAMY
AGE: 75 YEARS, OCC: HOUSEWIFE
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
1b) NINGAMMA
W/O SOMASHEKHAR SWAMY
AGE: 50 YEARS, OCC: HOUSEWIFE
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
1c) SHIVASWAMY
S/O SOMASHEKHAR SWAMY
AGE: 47 YEARS, OCC: POOJARI
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
1d) ERAYYA S/O SOMASHEKHAR SWAMY
AGE: 45 YEARS,
OCC: AGRICULTURAL LABOURER
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
1e) SARANGAYYA
S/O SOMASHEKHAR SWAMY
AGE:39 YEARS,
OCC: AGRICULTURAL LABOURER
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
2. SMT. JAMKABAI W/O CHANDU NAIK
SINCE DECEASED BY LR'S.
i) BALARAM S/O CHANDU NAIK
AGE: 23 YEARS, OCC: AGRICULTURE
ii) NARANNA S/O CHANDU NAIK
AGE: 20 YEARS, OCC: AGRICULTURE
BOTH R/O. KALEBENNUR,
TQ: DIST: KALABURAGI-585102
...RESPONDENTS
(BY SRI SHARANASAPPA K. BABSHETTY, ADV. FOR R2(i) & (ii);
NOTICE TO R1(a) TO (e)- SERVED)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO ALLOW
THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 02.03.2006 PASSED IN R.A. NO.102/2005 BY THE
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
LEARNED PRINCIPAL CIVIL JUDGE (SR.DN) AT GULBARGA
PARTLY CONFIRMING AND PARTLY REVERSING THE JUDGMENT
AND DECREE DATED 26.05.2005 PASSED IN O.S. NO.198/1993
BY THE LEARNED PRINCIPAL CIVIL JUDGE(JR.DN.) AT
GULBARGA AND TO DECREE THE SUIT OF THE PLAINTIFF AS
PRAYED FOR.
IN RSA NO.997/2006:
BETWEEN:
BHIMABAI W/O LATE SHIVARAYA NAIKODI
DIED BY LR'S
i) MINAPPA S/O LATE SHIVARAYA NAIKODI
AGE: 37 YEARS, OCC: AGRICULTURE
ii) SIDDAMMA W/O RACHANNA
AGE: 33 YEARS, OCC: AGRI AND HOUSEHOLD
iii) REVANASIDDAPPA
S/O SHIVARAYA NAIKODI
AGE: 30 YEARS, OCC: AGRICULTURE
iv) JAGANNATH
S/O SHIVARAYA NAIKODI
AGE: 29 YEARS, OCC: AGRICULTURE
v) LAXMAN
S/O SHIVARAYA NAIKODI
AGE: 27 YEARS, OCC: AGRICULTURE
vi) SHANKARAPPA S/O SHIVARAYA NAIKODI
(DELETED AS PER COURT ORDER DATED
05.03.2021)
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
vii) AMBANNA S/O SHIVARAYA NAIKODI
AGE: 18 YEARS, OCC: STUDENT,
ALL R/O. VILLAGE KALBENNUR
TALUKA AND DISTRICT: KALABURAGI-585 102.
...APPELLANTS
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
1. SOMASHEKHAR S/O SHARANAYYA SWAMY
DIED BY LR'S.
1a) MAHADEVI
W/O LATE SOMASHEKHAR SWAMY
AGE: 75 YEARS, OCC: HOUSEWIFE
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
1b) NINGAMMA
W/O SOMASHEKHAR SWAMY
AGE: 50 YEARS, OCC: HOUSEWIFE
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
1c) SHIVASWAMY
S/O SOMASHEKHAR SWAMY
AGE: 47 YEARS, OCC: POOJARI
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
1d) ERAYYA S/O SOMASHEKHAR SWAMY
AGE: 45 YEARS,
OCC: AGRICULTURAL LABOURER
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
1e) SARANGAYYA
S/O SOMASHEKHAR SWAMY
AGE:39 YEARS,
OCC: AGRICULTURAL LABOURER
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
2. SMT. JAMKABAI W/O CHANDU NAIK
SINCE DECEASED BY LR'S.
i) BALARAM S/O CHANDU NAIK
AGE: 23 YEARS, OCC: AGRICULTURE
ii) NARANNA S/O CHANDU NAIK
AGE: 20 YEARS, OCC: AGRICULTURE
BOTH R/O. KALEBENNUR,
TQ: DIST: GULBARGA.
...RESPONDENTS
(BY SRI SHARANASAPPA K. BABSHETTY, ADV. FOR R2(i) & (ii);
NOTICE TO R1(a) TO (e)- SERVED)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO ALLOW
THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 02.03.2006 PASSED IN R.A. NO.103/2005 BY THE
LEARNED PRINCIPAL CIVIL JUDGE (SR.DN) AT GULBARGA
PARTLY CONFIRMING AND PARTLY REVERSING THE JUDGMENT
AND DECREE DATED 26.05.2005 PASSED IN O.S. NO.385/99
BY THE LEARNED PRINCIPAL CIVIL JUDGE(JR.DN.) AT
GULBARGA AND TO DECREE THE SUIT OF THE PLAINTIFF AS
PRAYED FOR.
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
IN RSA NO.998/2006:
BETWEEN:
SHIVARAYA S/O MINAPPA
SINCE DECEASED THROUGH HIS L.R'S.
1. BHIMABAI W/O LATE SHIVARAYA RAIKODI
DIED BY LR'S
2. MINAPPA S/O SHIVARAYA RAIKODI
AGE: 31 YEARS, OCC: AGRICULTURE
3. SIDDAMMA W/O RACHANNA
AGE: 27 YEARS, OCC: AGRI., AND HOUSEHOLD
4. REVANASIDDAPPA
S/O SHIVARAYA RAIKODI
AGE: 24 YEARS, OCC: AGRICULTURE
5. JAGANNATH
S/O SHIVARAYA RAIKODI
AGE: 23 YEARS, OCC: AGRICULTURE
6. LAXMAN
S/O SHIVARAYA RAIKODI
AGE: 21 YEARS, OCC: AGRICULTURE
7. SHANKARAPPA S/O SHIVARAYA RAIKODI
(DELETED AS PER COURT ORDER DATED
05.03.2021)
8. AMBANNA S/O SHIVARAYA RAIKODI
AGE: 12 YEARS, OCC: STUDENT,
APPELLANT NO.8 IS MINOR UNDER THE
GUARDINGHIP OF HIS MOTHER BHEEMBAI
L.R. NO.1
ALL R/O. VILLAGE KALBENNUR
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
TALUKA AND DISTRICT: KALABURAGI-585 102.
...APPELLANTS
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
1. SMT. JAMKABAI @ ZUMKA BAI
W/O CHANDU NAIK
SINCE DECEASED BY LR'S.
i) BALARAM S/O CHANDU NAIK
AGE: 23 YEARS, OCC: AGRICULTURE
ii) NARANNA S/O CHANDU NAIK
AGE: 20 YEARS, OCC: AGRICULTURE
BOTH R/O. KALBENNUR,
TQ: DIST: KALABURAGI-585102
2. SOMASHEKHAR S/O SARANGAYYA SWAMY
DIED BY LR'S.
2a) MAHADEVI
W/O LATE SOMASHEKHAR SWAMY
AGE: 75 YEARS, OCC: HOUSEWIFE
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
2b) NINGAMMA
W/O SOMASHEKHAR SWAMY
AGE: 50 YEARS, OCC: HOUSEWIFE
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
2c) SHIVASWAMY
S/O LATE SOMASHEKHAR SWAMY
AGE: 47 YEARS, OCC: POOJARI
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
2d) ERAYYA S/O LATE SOMASHEKHAR SWAMY
AGE: 45 YEARS,
OCC: AGRICULTURAL LABOURER
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
2e) SARANGAYYA
S/O LATE SOMASHEKHAR SWAMY
AGE:39 YEARS,
OCC: AGRICULTURE AND LABOURER
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
...RESPONDENTS
(BY SRI SHARANASAPPA K. BABSHETTY, ADV. FOR R1(i) & (ii);
NOTICE TO R2(a) TO (e)- SERVED)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO ALLOW
THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 02.03.2006 PASSED IN R.A. NO.121/2005 BY THE
LEARNED PRINCIPAL CIVIL JUDGE (SR.DN) AT GULBARGA
PARTLY CONFIRMING AND PARTLY REVERSING THE JUDGMENT
AND DECREE DATED 26.05.2005 PASSED IN O.S. NO.198/1993
BY THE LEARNED PRINCIPAL CIVIL JUDGE(JR.DN.) AT
GULBARGA AND TO DECREE THE SUIT OF THE PLAINTIFF AS
PRAYED.
IN RSA NO.999/2006:
BETWEEN:
BHIMABAI W/O LATE SHIVARAYA NAIKODI
DIED BY LR'S
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
i) MINAPPA S/O SHIVARAYA NAIKODI
AGE: 37 YEARS, OCC: AGRICULTURE
ii) SIDDAMMA W/O RACHANNA
AGE: 33 YEARS, OCC: AGRI HOUSEHOLD
iii) REVANASIDDAPPA
S/O SHIVARAYA NAIKODI
AGE: 30 YEARS, OCC: AGRICULTURE
iv) JAGANNATH
S/O SHIVARAYA NAIKODI
AGE: 29 YEARS, OCC: AGRICULTURE
v) LAXMAN
S/O SHIVARAYA NAIKODI
AGE: 27 YEARS, OCC: AGRICULTURE
vi) SHANKARAPPA S/O SHIVARAYA NAIKODI
(DELETED AS PER COURT ORDER DATED
05.03.2021)
vii) AMBANNA S/O SHIVARAYA NAIKODI
AGE: 18 YEARS, OCC: STUDENT,
ALL R/O. VILLAGE KALBENNUR
TALUKA AND DISTRICT: KALBURAGI-585 102.
...APPELLANTS
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
SMT. JAMKABAI @ ZUMKA BAI
W/O CHANDU NAIK
SINCE DECEASED BY LR'S.
i) BALARAM S/O CHANDU NAIK
AGE: 23 YEARS, OCC: AGRICULTURE
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
ii) NARANNA S/O CHANDU NAIK
AGE: 20 YEARS, OCC: AGRICULTURE
BOTH R/O. KALBENNUR,
TQ: DIST: KALABURAGI-585102
...RESPONDENTS
[BY SRI SHARANASAPPA K. BABSHETTY, ADV. FOR R (i) & (ii)]
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO ALLOW
THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 02.03.2006 PASSED IN R.A. NO.126/2005 BY THE
LEARNED PRINCIPAL CIVIL JUDGE (SR.DN) AT GULBARGA
REVERSING THE JUDGMENT AND DECREE DATED 26.05.2005
PASSED IN O.S. NO.765/1997 BY THE LEARNED PRINCIPAL
CIVIL JUDGE(JR.DN.) AT GULBARGA AND TO DISMISS THE
SUIT OF THE PLAINTIFF AS PRAYED FOR AND ETC.
IN RSA NO.1000/2006:
BETWEEN:
BHIMABAI W/O LATE SHIVARAYA NAIKODI
DIED BY LR'S
i) MINAPPA S/O SHIVARAYA NAIKODI
AGE: 37 YEARS, OCC: AGRICULTURE
ii) SIDDAMMA W/O RACHANNA
AGE: 33 YEARS, OCC: AGRI., AND HOUSEHOLD
iii) REVANASIDDAPPA
S/O SHIVARAYA NAIKODI
AGE: 30 YEARS, OCC: AGRICULTURE
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
iv) JAGANNATH
S/O SHIVARAYA NAIKODI
AGE: 29 YEARS, OCC: AGRICULTURE
v) LAXMAN
S/O SHIVARAYA NAIKODI
AGE: 27 YEARS, OCC: AGRICULTURE
vi) SHANKARAPPA S/O SHIVARAYA NAIKODI
(DELETED AS PER COURT ORDER DATED
05.03.2021)
vii) AMBANNA S/O SHIVARAYA NAIKODI
AGE: 18 YEARS, OCC: STUDENT,
ALL R/O. VILLAGE KALBENNUR
TALUKA AND DISTRICT: KALBURAGI-585 102.
...APPELLANTS
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
1. SMT. JAMKABAI W/O CHANDU NAIK
SINCE DECEASED BY LR'S.
i) BALARAM S/O CHANDU NAIK
AGE: 23 YEARS, OCC: AGRICULTURE
ii) NARANNA S/O CHANDU NAIK
AGE: 20 YEARS, OCC: AGRICULTURE
BOTH R/O. KALBENNUR,
TQ: DIST: GULBARAGA.
2. SOMASHEKHAR S/O SARANGAYYA SWAMY
DIED BY LR'S.
2a) MAHADEVI
W/O LATE SOMASHEKHAR SWAMY
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
AGE: 75 YEARS, OCC: HOUSEWIFE
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
2b) NINGAMMA
W/O SOMASHEKHAR SWAMY
AGE: 50 YEARS, OCC: HOUSEWIFE
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
2c) SHIVASWAMY
S/O LATE SOMASHEKHAR SWAMY
AGE: 47 YEARS, OCC: POOJARI
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
2d) ERAYYA S/O LATE SOMASHEKHAR SWAMY
AGE: 45 YEARS,
OCC: AGRICULTURAL LABOURER
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
2e) SARANGAYYA
S/O LATE SOMASHEKHAR SWAMY
AGE:39 YEARS,
OCC: AGRICULTURAL LABOURER
R/O. KORWAR VILLAGE, TQ: CHITTAPUR,
DIST: KALABURAGI-585312.
...RESPONDENTS
(BY SRI SHARANASAPPA K. BABSHETTY, ADV. FOR R1(i) & (ii);
NOTICE TO R2(a) TO (e)- SERVED)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO ALLOW
THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 02.03.2006 PASSED IN R.A. NO.127/2005 BY THE
LEARNED PRINCIPAL CIVIL JUDGE (SR.DN) AT GULBARGA
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
PARTLY CONFIRMING AND PARTLY REVERSING THE JUDGMENT
AND DECREE DATED 26.05.2005 PASSED IN O.S. NO.385/1999
BY THE LEARNED PRINCIPAL CIVIL JUDGE(JR.DN.) AT
GULBARGA AND TO DECREE THE SUIT OF THE PLAINTIFF AS
PRAYED FOR.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.977/2006 is preferred by the legal representatives of Shivaraya S/o Minappa Raikodi against the judgment and decree in R.A.No.102/2005 dated 02.03.2006 on the file of the Principal Civil Judge (Sr.Dn.), Kalaburagi [for short, 'the first appellate Court'], confirming the judgment and decree in O.S.No.198/1993 dated 26.05.2005 on the file of the Principal Civil Judge (Jr.Dn.) Kalaburagi, whereby, the suit seeking specific performance and declaration that the sale deed dated 28.02.1995 not binding on the plaintiff was rejected.
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006
2. RSA No.998/2006 is preferred by the legal representatives of the plaintiff Shivaraya assailing the judgment and decree in R.A.No.121/2005 dated 02.03.2006 on the file of the Principal Civil Judge (Sr.Dn.), Kalaburagi reversing the judgment and decree in O.S.No.198/1993 dated 26.05.2005 on the file of the Principal Civil Judge (Jr.Dn.), Kalaburagi, wherein, the injunction granted in favour of the plaintiff was set aside by the first appellate Court.
3. RSA No.997/2006 is preferred by the legal representatives of plaintiff in O.S.No.385/1999 aggrieved by the judgment and decree in R.A.No.103/2005 dated 02.03.2006 confirming the judgment and decree in O.S.No.385/1999 dated 26.05.2005, whereby, O.S.No.385/1999 was decreed in part declaring decree in O.S.No.164/1997 is not binding was dismissed, perpetual injunction restraining the defendant from interfering in
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 peaceful possession was granted in favour of the plaintiff which stood reversed by the first appellate Court.
4. RSA No.1000/2006 is preferred by the legal representatives of Bhimbai - plaintiff against the judgment and decree in R.A.No.127/2005 dated 02.03.2006, whereby, the first appellate Court reversed the judgment and decree of the Trial Court in O.S.No.385/1999 granting injunction in favour of the plaintiff.
5. RSA No.999/2006 is preferred by the legal representatives of Bhimbai - defendant in O.S.No.765/1997, whereby, the Trial Court dismissed the suit filed by Jamaka Bai for perpetual injunction and R.A.No.126/2005 preferred by Jamaka Bai was allowed granting perpetual injunction in her favour.
6. Parties herein are referred to as per their ranking in O.S.No.198/1993, for the sake of convenience.
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006
7. Since common judgment and decree has been delivered in O.S.No.198/1993, O.S.No.385/1999 and O.S.No.765/1997 and their corresponding regular appeals, the present second appeals are also taken up together for the sake of convenience.
8. This Court, while admitting the appeal on 07.06.2006, has framed the following substantial question of law:
"Whether the lower appellate Court has rightly appreciated the evidence on record while reversing the judgments and decrees of the Trial Court?"
9. Learned counsel Sri Vinayak Apte appearing for the appellants and learned counsel Sri Sharanabasappa K. Babshetty appearing for the respondents have been heard on the substantial question of law framed by this Court.
10. In order to answer the substantial question of law, the following points for determination are framed:
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006
(i) Whether the plaintiff Shivaraya established that he is entitled for specific performance, declaration that the sale deed dated 28.02.1995 does not bind on the plaintiff.
(ii) Whether the plaintiff is entitled for relief of perpetual injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment.
(iii) Whether Jamaka Bai - defendant and plaintiff in O.S.No.765/1997 is entitled for relief of injunction?
11. Facts narrated in O.S.No.198/1993 are that, one Sarangayya Swamy was the owner of the agricultural land bearing Sy.No.72 measuring 6 acres 17 guntas of Kalbenur village, taluk and district Kalaburagi [for short, 'the suit land'] and after his death in the year 1988 the defendant - Somashekar claims himself to be the
- 19 -
NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 successor of the said Sarangayya. It is the case of the plaintiff that he cultivated the land initially as tenant under the said Sarangayya and the record of rights/pahanis from 1967 stand in the name of the plaintiff as occupant. It is further stated that Sarangayya entered into an oral agreement for the sale of the suit land with the plaintiff in the year 1969 for consideration of Rs.4,000/- and received Rs.3,500/- as earnest money and agreed to receive the balance of Rs.500/- at the time of registering the sale deed. It is stated that after coming into force of the Karnataka Land Reforms Act, 1961, the plaintiff filed Form No.7 seeking for grant of occupancy rights. It is stated that Form No.7 was filed at the bequest of Sarangayya before the Land Tribunal, on receiving the notice of the application, Sarangayya submitted his reply by way of an affidavit stating that he has orally agreed to sell the land for Rs.4,000/- in 1969 to the plaintiff and Rs.3,500/- has been received as earnest money. Based on the affidavit filed by Sarangayya, Form No.7 came to be rejected as the
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 plaintiff claimed occupancy rights on the basis of the purchase and not on tenancy. After the proceedings before the Land Tribunal were closed, an attempt was made by the plaintiff to seek for registration of the sale deed in respect of the suit land. But as he could not secure the sale deed and in the meanwhile due to death of Sarangayya, the sale deed could not be executed. It is further stated that the son of the defendant i.e., Somashekhar instituted a suit in the year 1992 for declaration of ownership and injunction in respect of the suit land stating that he is the successor to the said Sarangayya and his name has been mutated as owner and possessor and Form No.7 filed by the plaintiff has been rejected. The plaintiff filed written statement in the said suit. Further, during the pendency of the instant suit, defendant No.1 sold the land to one Jamaka Bai by a registered sale deed dated 28.02.1995. It is stated in the plaint that the sale deed executed is without possession and the sale deed executed in favour of defendant No.2 is
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 not binding upon the rights of the plaintiff. The plaintiff sought for specific performance of contract and for declaration that the sale deed executed on 28.02.1995 in favour of defendant No.2 is not binding on the plaintiff.
12. Defendant No.1 though served with the notice, did not chose to appear and contest the suit. Defendant No.2 the lis pendens purchaser, filed written statement inter alia contending that the suit of the plaintiff is not maintainable and defendant No.2 contended that she is the bonafide purchaser of the suit property from defendant No.1 and after finding the possession of defendant No.1 to be lawful, the suit land has been purchased for valuable consideration of Rs.4,500/-. The defendant No.2 denied that any contract of transfer or any agreement having written in writing in terms of the statement made in the plaint and also stated that the plaintiff was not ready and willing to perform his part of contract. Stating several grounds, the defendant sought to dismiss the suit.
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006
13. O.S.No.765/1997 is preferred by Jamaka Bai who claims to have purchased the suit land from Somashekhar - defendant No.1 under registered sale deed dated 28.02.1995. According to the plaintiff the possession of the suit land was delivered as on the date of the execution of the sale deed and that she is in lawful possession of the suit land property and sought for perpetual injunction restraining the defendant Bhimabai - plaintiff in O.S.No.198/1993 from interfering with the peaceful possession and enjoyment. Defendant in the said suit i.e., Bhimabai W/o Shivaraya filed objections taking similar contentions taken in O.S.No.198/1993.
14. O.S.No.385/1999 is preferred by Bhimabai against Somashekhar and Jamaka Bai raising similar grounds as raised in O.S.No.198/1993 seeking a prayer for declaration that the decree passed in O.S.No.164/1997 is not binding upon the rights of the plaintiff and for perpetual injunction restraining the defendant No.2 from
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 interfering with the peaceful possession of the plaintiff over suit land.
15. The Trial Court on the basis of the pleadings, framed the following issues:
In O.S. No.198/93:-
1. Whether the L.Rs of the deceased plaintiff proves that, they against defendant No.1 in pursuance of alleged oral agreement of sale entitled to get the specific performance of contract and of the suit land as described in the plaint?
2. Whether the L.Rs of the plaintiff further proves against the defendant that, the defendant to transfer the suit land by lawful instrument?
3. Whether the L.Rs of the plaintiff proves that, they are not bound over by the alleged sale-deed bearing document No.4735/94-95 dated 28.02.1995?
4. Whether the defendant No.2 proves that, the suit of he plaintiff suffers from legal defect as per the averments of the plaint para No.1 and thereby not maintainable?
5. Whether defendant No.2 proves that, he is the bonafide purchaser for a valid consideration of the suit land?
6. Whether the L.Rs. of the plaintiff on lawful possession of the suit land entitled to get the relief of injunction as prayed for?
7. As to what order or decree?
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 In O.S. No.765/1997:-
1. Whether the plaintiff proves her lawful and peaceful possession of the suit property on the date of suit?
2. Is the alleged interference is illegal from the defendant to claim relief of perpetual injunction?
3. As to what order or decree?
In O.S. No.385/1999:-
1. Whether plaintiff proves that, the decree passed in O.S. 164/97 on the file of Ist Addl. Civil judge (JD), Gulbarga Dt. 05.04.1997 is not binding upon the rights of plaintiff?
2. Whether plaintiff further proves that, she is in possession of he suit property on the date of filing the present suit?
3. Whether plaintiff further proves that, the defendant No.2 has obstructed in her peaceful possession and enjoyment of the said property
4. Whether the plaintiff is having any right over the suit property
5. Is there any cause of action to institute this suit?
6. Whether plaintiff proves that, the suit property is properly valued and proper court fee is paid?
7. Whether plaintiff is entitled for the relief of declaratory and perpetual injunction as sought for
8. What decree or order?
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006
16. The Trial Court, on the basis of the pleadings, oral and documentary evidence, arrived at a conclusion that:
(i) the plaintiff has failed to prove that in pursuance of the oral agreement of sale the plaintiff is entitled for specific performance of contract;
(ii) the plaintiff proved that he is in possession of the suit land as on the date of filing of the suit;
and by the judgment and decree, dismissed the suit seeking relief of specific performance and declaration that the sale deed dated 28.02.1995 does not bind on the plaintiff, however, granted relief of perpetual injunction restraining the defendant, his agents, servants or anybody interfering with the plaintiff's peaceful possession and enjoyment and defendant Nos.1 and 2 were restrained from interfering with the plaintiff's possession over the suit land, unless in due process of law. The Trial Court held that the plaintiff -
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 Jamaka Bai has failed to prove her lawful and peaceful possession over the suit land as on the date of the suit and dismissed O.S.No.765/1997. O.S.No.385/1999 filed by Bhimabai was partly decreed holding that Bhimabai is not entitled for declaration regarding declaring decree in O.S.No.164/1997 as not binding however held that plaintiff is entitled for relief of perpetual injunction restraining the defendant from interfering with peaceful possession of the plaintiff over the suit land unless in due process of law. Against the appeals preferred by the plaintiff as well as the defendants, the first appellate Court concurred with the rejection of the suit insofar as the relief of specific performance and declaration is concerned and reversed the finding of the Trial Court in granting injunction to the plaintiff and held that defendant/plaintiff in O.S.No.765/1997 is entitled for perpetual injunction. Against the same, the plaintiff in O.S.No.198/1993 is before this Court.
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006
17. The claim of the deceased Shivaraya is that he was cultivating the land as a tenant under Sarangayya Swamy, the father of defendant No.1. The name of the plaintiff - Shivaraya was appearing in the revenue records in the cultivator's column No.12 of the revenue records pertaining to the suit land since 1967-68 to 1987-88, which is evident from Exs.P-1 to P-5. Deceased Sarangayya, father of defendant No.1 was the owner of the suit land and Shivaraya was cultivating the suit land as tenant since 1967-68 is not in dispute.
18. During the lifetime of Sanrangayya, he orally agreed to sell the suit land in favour of Shivaraya during the year 1969 for consideration of Rs.4,000/- and after receiving the sum of Rs.3,500/- as earnest money. It is also stated by the plaintiff that in the meanwhile after coming into force of the Karnataka Land Reforms Act, 1961, deceased Shivaraya filed Form No.7 before the Land Tribunal, Kalaburagi for grant of occupancy rights and the
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 filing of Form No.7 was as per the instructions of Sarangayya. Pursuant to the filing of Form No.7, notice was issued to the deceased Sarangayya and on his appearance he filed an affidavit along with covering letter before the Land Tribunal admitting the oral transaction of sale of the suit land in favour of Shivaraya and also receipt of the part sale consideration amount of Rs.3,500/- pertaining to the suit land, which is evident from Exs.P-8 and P-9 from the records. In the light of the affidavit filed by the deceased Sarangayya, Form No.7 came to be rejected in the light of the transaction being of sale by Sarangayya. It appears that several times the deceased Shivaraya requested Sarangayya to execute the sale deed, however, till his death no execution had come forward.
19. The dispute arose between the parties when the son of Sarangayya entered his name in the revenue records after the death of Sarangayya and the revenue proceedings were initiated between the parties as per
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 Ex.P-6. Aggrieved, Shivaraya filed revision before the Deputy Commissioner and in the meanwhile the Tahasildar, Kalaburagi also conducted panchanama and observed the cultivation of Shivaraya since 25 to 30 years as per Ex.P-14. It is relevant to note here that Somashekhar - defendant No.1 had instituted a civil suit against deceased Shivaraya and his son Minappa for the relief of declaration and perpetual injunction in respect of the suit land in O.S.No.136/1992 and an application under Order 39 Rule 1 and 2 CPC was filed as I.A.No.1 for grant of interim injunction which is evident from Ex.P-10. The deceased Shivaraya and his son Minappa filed written statement to O.S.No.136/1992. The learned Civil judge, after hearing both side and perusing the documentary evidence, rejected I.A.No.1 filed by Somashekhar under Order 39 Rule 1 and 2 CPC in O.S.No.136/1992 by its order dated 16.06.1993 Ex.P-12 and observed that deceased Shivaraya and Minappa are in possession and
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 enjoyment of the suit land. The relevant portion of the order dated 16.06.1993 is extracted as below:
"8. ...... It is already held that the documents relied upon by the plaintiff do not make out prima facie case of his possession at this stage. On the other hand the documents produced by the defendants prima facie show their possession over the suit land and at any rate their possession cannot be termed as illegal at this stage."
20. It appears that thereafter the suit in O.S.No.136/1992 was dismissed for default on 29.03.1994. In the meanwhile, the proceedings initiated by the deceased Shivaraya before the Deputy Commissioner was allowed thereby directing the Tahasildar to conduct panchanama and to ascertain as to who is cultivating the land in dispute and further directed the revision petitioner to approach the appropriate Court for redressal. It is pursuant to the order passed by the Deputy Commissioner, the plaintiff Shivaraya instituted O.S.No.198/1993. In O.S.No.198/1993 plaintiff filed an
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 application under Order 39 Rule 1 and 2 CPC to grant exparte injunction in respect of the suit land. The Trial Court, on hearing has allowed I.A.No.1 filed by the plaintiff by a considered order dated 08.12.1995. Jamaka Bai purchaser under the registered sale deed dated 28.02.1995 during the pendency of O.S.No.198/1993, filed suit for bare injunction claiming her right of possession over the property by way of the registered sale deed executed by defendant No.1.
21. It is not in dispute that as per Ex.P-8 and P-9, Sarangayya had stated by way of affidavit before the Land Tribunal that he orally agreed to sell the suit land in favour of Shivaraya during the year 1969 for consideration of Rs.4,000/- and after receiving the sum of Rs.3,500/- as earnest amount he treated the possession of Shivaraya as purchaser of the suit land.
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006
22. Whether plaintiff has made out a case of oral agreement in between the deceased Shivaraya and Sarangayya Swamy has to be perused from the documents placed before the Trial Court. Shivaraya filed Form No.7. Sarangayya appeared and filed affidavit at Exs.P-8 and P-9 stating that there is a sale agreement which is oral and he is ready to execute the sale deed. Based on the affidavit filed by Sarangayya, the Land Tribunal rejected Form No.7 of the deceased Shivaraya holding that he is not entitled for occupancy rights. The nature of oral agreement between the parties appears to be evident from Exs.P-8 and P-9. Whether it was really intending to execute a registered sale deed from Sarangayya, nothing is forthcoming since immediately after the death of Sarangayya dispute arose between the plaintiff and defendant No.1. What could be gathered from the affidavit of Sarangayya before the Land Tribunal is that an apprehension of the deceased Sarangayya that the land would be vested to the Government after coming
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 into force of the Karnataka Land Reforms Act and as such, such arrangements were made to save the property. Sarangayya though stated about an oral agreement and even assuming that oral agreement is been entered by the deceased Sarangayya, the suit for specific performance has been filed only in the year 1993 i.e., nearly after 24 years. The law is well settled that the time is not the essence of contract in case of sale of immovable property. The Apex Court in Gomathinayagam Pillai vs. Pallaniswami Nadar1 and Govind Prasad Chaturvedi vs. Hari Dutt Shastri & Anr.2 held that even if time is not the essence of immovable property contracts, it may be inferred that performance should be within a reasonable period of time depending upon the contractual terms, nature of property and circumstances. Looking into the fact of the instant case, agreement is oral of the year 1969 as admitted by deceased Sarangayya himself, 1 AIR 1967 SC 868 2 (1977) 2 SCC 539-5
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 what made the plaintiff not to come forward for execution of the sale deed is not forthcoming. Presumption arises that the agreement (oral) was not intended to be performed. The Trial Court and the first appellate Court have rightly held that the plaintiff has failed to establish that there exists an oral agreement of sale in between Shivaraya and Sarangayya and the plaintiff is not entitled for specific performance of contract.
23. Perusal of the order passed on I.A.No.1 in O.S.No.136/1992 as per Ex.P-11 on the file of the I Additional Civil Judge, Kalaburagi and order passed on I.A.No.1 dated 08.12.1995 in O.S.No.198/1993 clearly indicates that the plaintiff is in possession and enjoyment of the suit land and the defendants were restrained from causing any kind of interference in the possession of the plaintiff. Before the Trial Court in O.S.No.198/1993 defendant No.1 remained absent. The suit was contested by Jamaka Bai who is the pendente lite purchaser having
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 purchased the property on 28.02.1995. Exs.P-1 to P5, Exs.P11 to P-15 clearly indicate that deceased Shivaraya was in possession and enjoyment of the suit land way back from 1967-68 and after his demise his son Minappa. The defendant Jamaka Bai though contends that she is put in possession of the suit land pursuant to the sale deed dated 28.02.1995, other than the sale deed and the mutation entry which stand in the name of Jamaka Bai, no materials are forthcoming. The plaintiff, by placing cogent documentary evidence, has established his possession over the suit property.
24. For the foregoing reasons, the substantial question of law framed by this Court is answered holding that the first appellate Court was not justified in reversing the judgment and decree of the Trial Court insofar as granting of permanent injunction in favour of the plaintiff in O.S.No.198/1993 and this Court pass the following:
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NC: 2024:KHC-K:4147 RSA No. 977 of 2006 C/W RSA No. 997 of 2006 RSA No. 998 of 2006 RSA No. 999 of 2006 RSA No. 1000 of 2006 ORDER
(i) RSA No.977/2006 is hereby dismissed.
The judgment and decree in
O.S.No.198/1993 rejecting the relief of
specific performance and declaration is
confirmed;
(ii) RSA No.998/2006 preferred by the plaintiff is allowed. The judgment and decree of the first appellate Court in R.A.No. 121/2005 is set aside. The judgment and decree in O.S.No.198/1993 is confirmed granting permanent injunction in favour of the plaintiff and not to be dispossessed unless in due process of law;
(iii) RSA No.997/2006 is hereby dismissed confirming the judgment and decree in O.S.No.385/1999 rejecting the relief of declaration;
(iv) RSA No.1000/2006 is allowed setting aside R.A.No.127/2005 and confirming O.S.No. 385/1999 insofar as granting injunction;
and
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NC: 2024:KHC-K:4147
RSA No. 977 of 2006
C/W RSA No. 997 of 2006
RSA No. 998 of 2006
RSA No. 999 of 2006
RSA No. 1000 of 2006
(v) RSA No.999/2006 is allowed. The
judgment and decree in R.A.No.126/2005 is set aside and the judgment and decree in O.S.No.765/1999 is confirmed. The defendant - Jamaka Bai and her legal representatives or any person claiming or acting on her behalf are restrained by way of permanent injunction from interfering with the plaintiff's peaceful possession unless in due process of law.
In the light of disposal of the appeals, pending interlocutory applications, if any, do not survive for consideration.
Sd/-
JUDGE SWK List No.: 1 Sl No.: 54 CT: VD