Dismissed

Rudrawwa W/O Dharmanna Dalawar, v. Rudrappa S/O Siddappa Kambli

Karnataka HC15 Nov 2018RSA/5011/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka, Dharwad Bench dismissed an appeal filed by plaintiffs challenging a lower court's decision. The court upheld the finding that a specific portion of the property in dispute is a public road, thereby dismissing the plaintiffs' claim for declaration and injunction as they lacked merit to establish ownership based on prior judgments and evidence.

What did the court decide?

Appeal dismissed. No order as to costs.

Rudrawwa W/O Dharmanna Dalawar, Vs Rudrappa S/O… — Property and Title | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2018

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BEFORE

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THE HON’BLE MR. JUSTICE B.A. PATIL

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R.S.A.No.5011/2013 (DECLN. AND PERM. INJC.)

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BETWEEN:

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RUDRAWWA, W/O DHARMANNA DALAWAR @ BHATKURKI, AGED: ABOUT 69 YEARS, OCC: HOUSEHOLD & AGRICULTURE, R/O: JANAMATTI, BILAGI TALUK, BAGALKOT DISTRICT.

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SMT.RENUKA W/O SRIDHAR KARADIGUDDA, AGED: AHOUT 46 YEARS, OCC: HOUSEHOLD, R/O: JANAMATTI, BILAGI TALUK, BAGALKOT DISTRICT. ...APPELLANTS

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(BY SRI SANGRAM S.KULKARNI, FOR SRI V.P.KULKARNI, ADVOCATE)

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A N D :

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RUDRAPPA S/O SIDDAPPA KAMBLI, AGED: ABOUT 52 YEARS, OCC: AGRICULTURIST, R/O: JANAMATTI, BILAGI TALUK,

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SMT.RUDRAWWA. W/O DHARMANNA DALAWAR @ BATAKURKI, AGE:50 YEARS, OCC:HOUSEHOLD/AGRICULTURE, R/O JANAMATTI, TQ:BILAGI, BAGALKOT DISTRICT. ...RESPONDENTS

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(BY SRI SANTOSH B.MANE, ADVOCATE FOR R1: R2 - SD)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 03.11.2012 PASSED IN R.A.No.27/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, BILAGI, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT DATED 31.03.2011 AND THE DECREE PASSED IN O.S.No.61/2006 ON THE FILE OF THE CIVIL JUDGE, BILAGI, DISMISSING THE SUIT FILED FOR DECLARATION AND PERMANENT INJUNCTION.

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THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appeal is preferred by the plaintiffs No.1 and 4/appellants being aggrieved by the judgment and decree passed by Senior Civil Judge, Bilagi, in R.A.No.27/2011 dated 03.11.2012 whereunder the said first Appellate Court has confirmed the judgment and decree passed by Civil Judge, Bilagi in O.S.No.61/2006 dated 31.03.2011.

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I have heard Sri Sangram S. Kulkarni, learned counsel appearing on behalf of Sri V.P.Kulkarni, for the appellants and Sri Santosh B.Mane, learned counsel for respondent No.1. Though notice is served to respondent

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No.2, she has remained absent. There is no representation.

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The brief facts of the case as averred by the plaintiffs/appellants before the Court below are that plaintiffs are the owners and in possession of house property bearing VPC No.222 as shown in the hand sketch map with alphabets ABCDEF and the defendant are the owners of the house property bearing No.221 as shown in the sketch at AGHI. It is further contended that earlier both the properties were belonging to their ancestors and subsequently there was partition and they are independently making vahivat of the said property. It is further submitted that ABEF is a open space covered with wall and it is used for the purpose of tying the cattle and keeping the agricultural implements by the plaintiffs and the defendant are not having any interest and rights over the said properties. It is further stated that earlier O.S.No.106/2000 was filed and the

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said suit was dismissed and now the present suit has been filed for declaration and injunction. On these grounds, he prayed to allow the suit.

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The said suit has been contested by the defendant by filing their written statement. They admitted the fact that house property bearing No.221 belongs to them.

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They denied the other contents of the plaint. It is further submitted that already in O.S.No.169/1997, the matter has been heard and decided by the Court by holding that ABEFG property is a public road and as such, that the declaration which has been sought for by the plaintiffs cannot be granted. It is also further stated in the written statement that against the said judgment and decree, R.A.No.106/2000 was also preferred and the same also came to be dismissed. On these grounds,

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they prayed to dismiss the suit.

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On the said pleadings, the Court below framed as many as four issues and issue Nos.1 to 3 were answered in the negative and ultimately, the suit of the plaintiffs came to be dismissed. Assailing the same, appellants preferred R.A.No.27/2011 and after hearing the parties, the first appellate Court has also dismissed the appeal. Assailing the same, the present appellants are present before this Court.

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It is the submission of the learned counsel for the appellants that appellants and respondents divided the property bearing VPC No.221 and 222 and half of the western portion fell to the share of the ancestors of the appellants and eastern side fell to the share of the ancestor of the defendant and that they have constructed the building by leaving certain open space and the said open space belongs to the plaintiffs. It is the further submission of the learned counsel for the appellants that a gift deed has been executed in favour

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of the husband of the appellant No.1 on 14.10.1955 and

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in the said gift deed the boundaries have been mentioned and the same has been got marked as Ex.P.1. Ex.P.2 and Ex.P.3 also clearly establish the fact that the said open space belongs to the appellants. The Court below without considering the said facts and only by relying upon the report of the Commissioner recorded in O.S.No.169/1997 has erroneously passed the impugned judgment and order which is not sustainable in law. He further submitted that the Court below has relied upon the report of the Commissioner without cross-examining the said Commissioner.

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Though the said report is not binding upon the parties, only on the basis of the said report, the Court below has swayed away and passed the impugned order. He further submitted that, though the appellants have contended the said fact as res judicata , but the Courts below have rightly come to the conclusion that the said issue is not going to cover under Section 11 of CPC and

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the same has not been proved. On these grounds he prayed to allow the appeal.

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Per contra, learned counsel appearing on behalf of the respondents vehemently argued and submitted that the Courts below after considering the evidence on behalf of the plaintiffs and defendant has properly come to a right conclusion and has rightly dismissed the suit and the appeal. It is further submitted that, earlier the present plaintiffs have filed a suit in O.S.No.169/1997 before the Civil Judge(Jr.Dn.), Bilagi and in the said suit ABEF suit opon space has been held as a public road and now it cannot be held that the said property belongs to the plaintiffs. He further submitted that the said judgment and decree have reached the finality and the present appellants/plaintiffs have not even challenged the said order. Now they cannot contend that the said property belongs to them. The appellants have not made out any good grounds to allow the appeal

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and the same is liable to be dismissed. On these

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grounds he prayed to dismiss the appeal.

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From the above submissions, the substantial question of law which was made out by the appellants is:

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i. Whether the Courts below are justified in coming to the conclusion that the appellants have failed to establish their title in respect of ABEF portion of the property? and,

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ii. Whether the Courts below are justified in basing upon their reasonings on the report of the Commissioner?

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I have carefully and cautiously gone through the contents of the plaint averments, written statement and other documents which have been secured from the lower Courts.

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As could be seen from the records, it is the specific case of the plaintiffs that they are the absolute owners in possession of the suit ABEF portion with open space

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in VPC No.222 and it is the contention of the defendant that they are the owners of VPC No.221 and that the said portion ABEF is a public road and it does not belongs to the plaintiffs. Plaintiffs got examined PWs.1 to 3 and got marked Exs.P1 to P6. They have also got produced Ex.P3, the certified copy of the gift deed said to have been executed by one Ningappa Bheemappa Dalawar dated 14.10.1955. It is the contention of the plaintiffs that by virtue of the said gift deed, the said property has come to the plaintiffs.

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11. During the course of cross-examination, PW1 has

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admitted the fact that the boundaries shown in the gift deed and registered before the sub-registrar’s office are not tallying. Be that as it may. It is an admitted fact that the father of the present plaintiffs/appellants filed suit in O.S.No.169/1997 and in the said suit it is the specific contention that the defendant that the said ABEF portion is a public road and in the said suit, the

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first Court Commissioner was appointed and he gave a report stating that a shed has been constructed in the said portion. Subsequently the defendant has filed another application for appointment of the Commissioner and in the second report of the Commissioner, it is stated that the said shed has been removed. Even though the said Commissioner has measured the properties and has given a report stating that the said ABEF portion is the road and that the said shed which has been constructed by the plaintiffs has been removed, the Court below has held that the said issue does not even come within the purview of res judicata. But by going through Ex.D2, a copy the judgment and decree in O.S.No.169/1997, the Court has clearly held that the said portion which has been marked as ABEF is a public road and the said finding given by the trial Court as well as the first Appellate Court has not been admittedly challenged by the present appellants/plaintiffs.

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12. Then the fact remains that the said property is a

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public road, then the contention which has been taken up by the plaintiffs/appellants that the said portion belongs to them and they are the owners of the suit schedule property does not stand to any reason. Even as could be seen from the plaint averments, the plaintiffs have made out a specific case that the said portion which has been mentioned as ABEF is a public road and thereafter the property of the defendant starts. When admittedly the said portion has been shown as a public road and thereafter the property of the defendant starts, then the contention of the defendant corroborates with the said pleading.

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Taking into consideration the above said facts and circumstances, I am of the considered opinion that the plaintiffs/appellants have not made out any good grounds to allow the appeal. I have carefully and cautiously gone through the judgment of the trial Court

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as well as the first Appellate Court. Both the Courts below after considering the material facts and law have rightly decided the case. There is no irregularity or illegality in the impugned orders. The appeal is devoid of merits and the same is liable to be dismissed.

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Accordingly, the appeal is dismissed. No order as to costs.

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(SD/-) JUDGE

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Jm/gab

Rudrawwa W/O Dharmanna Dalawar, v. Rudrappa S/O Siddappa Kambli

Case brief

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Rudrawwa W/O Dharmanna Dalawar, v. Rudrappa S/O Siddappa Kambli

Case brief

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What did the court decide?

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