Dismissed

Timmanna S/O. Vittaldas Palmari v. Tejamma W/O. Dodda Ramappa Hotti

Karnataka HC6 Mar 2017RSA/6039/2012

Case brief

AI extract

What is this about?

In this second appeal under Section 100 CPC concerning a suit for permanent injunction regarding property possession, the High Court held that concurrent findings of fact by lower courts established the property belonged to the defendants' ancestor. The appeal was dismissed with liberty already inherent to file a declaration suit.

What did the court decide?

Appeal dismissed; no express liberty granted as it is inherent.

Timmanna S/O. Vittaldas Palmari Vs Tejamma W/O. Dodda Ramappa… — Partition | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF MARCH, 2017

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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R.S.A. NO.6039/2012 (PAR)

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BETWEEN :

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TIMMANNA S/O. VITTALDAS PALMARI AGE: 54 YEARS, OCC: WEAVER R/O. KAMPLI ALAWANDI, TQ & DIST: KOPPAL-583226.

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... APPELLANT

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(BY SRI.G.I.GACHCHINAMATH & SRI.VERESH H.M., ADVS.)

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AND

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TEJAMMA W/O. DODDA RAMAPPA HOTTI AGE: 62 YEARS, OCC: HOUSEHOLD WORK R/O. NEKAR COLONY, BHAGYANAGAR, TQ & DIST: KOPPAL-583226.

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SANNA RAMANNA S/O. SHASTREPPA HOTTI AGE: 72 YEARS, OCC: NIL R/O.KAMPLI ALAWANDI, TQ & DIST: KOPPAL -583226.

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HANAMAVVA W/O. NEELAKANTHAPPA HOTTI AGE: 57 YEARS, OCC: HOUSEHOLD WORK R/O.KAMPLI ALAWANDI, TQ & DIST: KOPPAL -583226.

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LOKAPPA S/O. AVINALAPPA HOTTI AGE: 37 YEARS, OCC: WEAVER R/O.KAMPLI ALAWANDI, TQ & DIST: KOPPAL -583226.

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THE GRAM PANCHAYAT SECRETARY, ALAWANDI, TQ & DIST: KOPPAL -583226.

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... RESPONDENTS

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(BY SRI.MRUTYUNJAY TATA BANGI, ADV.)

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THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE JUDGEMENT & DECREE DTD:9.8.2012 PASSED IN R.A.NO.16/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AT KOPPAL, DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT DTD:2.04.2012, AND THE DECREE PASSED IN O.S.NO.198/2010 ON THE FILE OF THE CIVIL JUDGE & JMFC, AT KOPPAL, DISMISSING THE SUIT FILED FOR PERPETUAL INDUNCTION.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, THIS COURT, PASSED THE FOLLOWING:

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ORDER

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The appellant is the plaintiff in O.S.No.198/2010 on the file of the Civil Judge & J.M.F.C., Koppal.

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In respect of Plot No.90, measuring East-West 84ft. North-South 60ft. situated at Koppal-Alawandi village of Koppal, he brought a suit for permanent injunction against the defendants. According to the plaintiff, the suit property originally belonged to his

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father, Vilttaldas Palmari. After the death of his father, he succeeded to that property and he was in possession of the property. The defendant Nos.1 to 4 being the strangers and having no manner of right title or interest, tried to interfere with the plaintiff’s possession and enjoyment of the suit property. The First defendant also made an application on 17/9/2010 to the Panchayat, i.e. defendant No.5 for entering his name in the mutation register. The plaintiff having come to know about this, filed statement of objections. So, this development made the plaintiff to file a suit.

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Defendant Nos.1 to 4 entered appearance and defendant No.4 filed written statement contending that the suit property bearing No.90 does not belong to the plaintiff. He also denied the plaintiff’s possession over the suit property. According to the defendants, the said property earlier belonged to one Hanumappa Hotti, their ancestor. Therefore, they made an application to Panchayat seeking mutation of the suit property, to their names.

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The trial Court framed 4 issues and after assessing the evidence of both sides, came to the conclusion that the plaintiff was not able to prove his lawful possession over the suit property on the date of the suit and that he also failed to prove interference by the defendants. Therefore, the trial Court dismissed the suit. The trial Court has given findings that though Ex.P1-Assessment extract for the year 2010-11 stands in the name of the father of the plaintiff, but, it does not disclose the boundaries and extent of the suit property. It is also observed when the defendants made an application seeking change of Kata of the suit property to their names, Panchayat issued a public notice calling for objections. At that time, the plaintiff filed statement of objections in which he did not state that the suit property was ancestral property. Only objection that he took at that time was that the suit property was a vacant land situated adjacent to Plot No.89 and it belongs to Vittala Rukmini temple.

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On the other hand, the documents produced by the defendant Nos.1 to 4 disclose that earlier the suit property was in the name of Hanumappa Hotti, the ancestor of the defendants. The trial Court has relied upon Ex.D6, according to which the property No.89 belongs to the plaintiffs, and as per Ex.D7, property No.90 belongs to the defendants. The trial Court has also opined that it is not the case of the plaintiff that Hanumappa Hotti was his ancestor. Specific reference is made to an answer given by PW-1 in the crossexamination. When it was suggested to him in the cross-examination that Plot No.90 stands in the name of Hanumappa Hotti, PW-1 should have either denied or admitted it. But, he showed his ignorance. Therefore, for all these reasons, the trial Court came to the conclusion that the plaintiff was not able to prove his possession over the suit property on the date of suit. Hence, the suit came to be dismissed.

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The Court of Senior Civil Judge, Koppal, to

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which decree of the original suit was appealed, also re-

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appreciated the facts and confirmed the judgment of the trial Court.

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Now, the learned counsel argues that earlier the properties bearing Nos.89 and 90, was a single plot and therefore, the plaintiff could not give the exclusive boundaries of Plot No.90. According to him, the trial Court and the First Appellate Court have not correctly appreciated the evidence. At last, he made a submission that liberty can be given to the plaintiff to file a suit for declaration of his title.

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Having gone through the judgement of the trial Court and the First Appellate Court, it has to be stated that both the Courts have held that the suit property was not in possession of the plaintiff on the date of the suit. On the basis of the documents produced, the Courts have held that the suit property earlier stood in the name of Hanumappa Hotti who was said to be ancestor of the defendant Nos.1 to 4. So, this being the concurrent finding of the two Courts on facts, in the

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second appeal this Court cannot interfere with the findings of the Courts below.

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On perusal of the judgment, I do not find scope for formulating any substantial question of law. As regards the submission made by the learned counsel for the appellant that the plaintiff can be given liberty to file a suit for declaration, it has to be stated that no express permission is necessary to the plaintiff. Subject to limitation, the plaintiff is always liberty to file appropriate suit. Accordingly, this appeal is dismissed.

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Sd/JUDGE

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Vmb

Timmanna S/O. Vittaldas Palmari v. Tejamma W/O. Dodda Ramappa Hotti

Case brief

What is this about?

What did the court decide?

Timmanna S/O. Vittaldas Palmari v. Tejamma W/O. Dodda Ramappa Hotti

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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