Dismissed

R S Shekharappa v. R B Marulasiddappa

Karnataka HC9 Jan 2023RSA/1769/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal against an order of the First Appellate Court upholding a declaration decree. The court held that res judicata did not bar the suit as the land claimed was distinct from earlier decreed karab land, finding no error in the lower courts.

What did the court decide?

The second appeal against the judgment and decree of the First Appellate Court is dismissed.

R S Shekharappa Vs R B Marulasiddappa — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.1769/2017 (DEC/INJ)

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BETWEEN

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R S SHEKHARAPPA S/O LATE SIDDAPPA AGED ABOUT 67 YEARS

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R S NARAPPA S/O LATE SIDDAPPA AGED ABOUT 65YEARS

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BOTH ARE AGRICULTURISTS R/O JAMMENAHALLI SIRIGERE POST, BHARAMASAGARA HOBLI CHITRADURGA TALUK AND DISTRICT-577541

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...APPELLANTS

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(BY SRI GANGADHARAPPA A V, ADVOCATE)

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AND

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R B MARULASIDDAPPA S/O LATE BASAPPA AGED ABOUT 48 YEARS R/O JAMMENAHALLI SIRIGERE POST BHARAMASAGARA HOBLI CHITRADURGA TALUK AND DISTRICT-577541

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… RESPONDENT

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(BY SRI D L SURESH, ADVOCATE AND SRI B P SRIPAD, ADVOCATE)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 05.08.2017 PASSED IN R A NO.18/2017 ON THE FILE OF THE 1^ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA AND ETC.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission. Heard the learned counsel appearing for the parties.

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This appeal is filed challenging the judgment and decree dated 05.08.2017 passed in R A No.18/2017 on the file of the 1^st Additional District and Sessions Judge, Chitradurga.

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The factual matrix of the case of the plaintiff before

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the Trial Court that he is the absolute owner and in possession of the property to the extent of 18 guntas which he has retained after selling the portion of the property of 1 acre 2 guntas out of 1 acre 20 guntas which was allotted to him. It is also his contention that he has been in peaceful possession and enjoyment of the said property. The defendants in pursuance of the suit summons, appeared and contended that the matter was already decided in O.S.No.206/2008 and the said 18 guntas of land has already been declared as karab land hence, the claim of

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the plaintiff is barred under principles of res-judicata and the plaintiff cannot claim the decree in respect of karab land. It is also the contention of the defendants that the entire land of the plaintiff was sold in favour of his brother Parameshwarappa and he has not retained any property. The plaintiff has been examined as PW1 before the Trial Court and also examined his brother as PW2 who had purchased 1 acre 2 guntas of land out of 1 acre 20 guntas and got marked the documents at Ex.P1 to P23. The defendants though set up the defence of res-judicata and claimed that the same is a karab land, not led any evidence and only relied upon the documents at Ex.D1, 2 and 2(a). The Trial Court after considering both the oral and documentary evidence answered Issues No.1 and 2 as affirmative in coming to the conclusion that 18 guntas of land was retained by the plaintiff and the plaintiff is the absolute owner and he is in possession of the said 18 guntas of land and answered Issue No.3 as negative in coming to the conclusion that the suit in O.S.No.206/2008 not substantially and directly involved in respect of the suit schedule property which has been claimed by the plaintiff and the same is different property and same is out of 120 guntas of land allotted in favour of the plaintiff in the

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partition among the mother and brothers. Hence, an appeal is filed by the defendants before the First Appellate Court and in the First Appellate Court also the appellants herein have urged the ground that the Court below committed an error in coming to the conclusion that the suit schedule property is a part and parcel of the land allotted to the plaintiff in the previous partition and the plaintiff became absolute owner of the said property and also other ground is urged that the Trial Court is not justified in holding that the plaintiff is in possession and enjoyment of property and also the Trial Court has committed an error that the suit is not hit by principles of res-judicata and the very approach of the First Appellate Court is erroneous and the Trial Court committed an error in decreeing the suit for declaration declaring that the plaintiff is the absolute owner of the suit schedule property and he has been in possession of the same. And the First Appellate Court after re-appreciation of the evidence on record comes to the conclusion that the Trial Court has not committed any error in decreeing the suit and also comes to the conclusion that the principles of res-judicata is not applicable to the facts of the case on hand. Hence, the present appeal is filed before this Court by the defendants.

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The learned counsel appearing for the

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appellants/defendants vehemently contend that the property originally belongs to one Narappa to the extent of 9 acres 28 guntas. The counsel also submits that out of 9 acres 28 guntas, 5 acres 7 guntas was allotted in favour of the first wife of Narappa i.e., to the children of first wife and remaining land of 4 acres 7 guntas as per the document at Ex.P12 was allotted in favour of the children of Narappa through the second wifeSiddamma. The counsel would vehemently contend that 11 guntas of land was taken for formation of V.P.road, 6 guntas was taken in respect of stream line and 1 gunta was taken with regard to pathway hence, in total, 18 guntas was karab land and same has been claimed by the plaintiff before the Trial Court and both the Courts have committed an error in decreeing the suit and failed to take note of whether principles of res-judicata applicable to the facts of the case on hand.

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The counsel would vehemently contend that raising substantial question of law in the second appeal that whether the Courts below are justified in law in holding that the judgment and decree passed in R.A.No.7/2013 does not operate as res-

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judicata inspite of the fact that both the plaintiff and the defendants are parties to the said proceedings and also contend that whether both the Courts are justified in law not considering the fact that Siddappa the father of appellants was allotted 5 acres 5 guntas of land excluding 18 guntas of karab land on the northern side of the land in Sy.No.2/2 and the father oif the plaintiff was allotted 4 acres 5 guntas of land on the southern side in Sy.No.2/2, in which the road, halla and footpath are situated and these aspects has not been considered by the Trial Court as well as First Appellate Court.

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Per contra, the learned counsel appearing for the respondent/plaintiff vehemently contend that there is dispute with regard to the property to the extent of 7 acres 20 guntas which belongs to one Narappa and also not in dispute with regard to that the partition was taken place between the children of first and second wives of Narappa. The counsel would vehemently contend that though the document reveals that in terms of Ex.P12, 4 acres 7 guntas was allotted in favour of the plaintiff’s family which was only in existence of 4 acres 5 guntas and the same has been partitioned among the mother and

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children on 17.02.2007 in terms of Ex.P13. In the said partition, the plaintiff’s mother got the share in the partition to the extent of 1 acre, the plaintiff got the share to the extent of 1 acre 20 guntas and his brother Parameshwarappa got 1 acre 25 guntas and in total, only they have divided 4 acres 5 guntas and not 4 acres 7 guntas though described in Ex.P12. The counsel vehemently contend that the suit is filed for the remaining area of 18 guntas which was retained by the plaintiff out of 1 acre 20 guntas and the claim is also in respect of remaining portion in 1 acre 20 guntas of land and not in karab land as contended by the defendants. The counsel also vehemently contend that the defendants though set up the defence in the original suit, they have not entered into witness box and also not produced any documentary evidence with regard to the fact that the claim is in respect of karab land.

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The counsel vehemently contend that the suit filed by the appellants herein in O.S.No.206/2008, they claimed the decree to the extent of 5 acres 23 guntas including karab land and in the said suit also they clearly contend that they are the owners to the extent of 5 acres 23 guntas including karab land

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of 18 guntas and now they cannot contend that claim made by the plaintiff is in respect of the karab land and both the Courts came to the conclusion that 18 guntas of land which was claimed by the plaintiff is with regard to the land which he has retained hence, the very contention of the counsel for the appellants cannot be accepted.

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Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record admittedly, no dispute with regard to the fact that the property to the extent of 9 acres 28 guntas was belonged to one Narappa and it is also not in dispute that the property was divided among first and second wife’s children of Narappa in the year 1950 in terms of Ex.P12. It is also not in dispute between the parties that 5 acres 7 guntas was allotted in favour of the appellants’ branch and also 4 acres 7 guntas was allotted in terms of Ex.P12 in favour of present plaintiff’s father-Basappa and on account of death of the said Basappa, the family members i.e., mother and two children have partitioned the property to the extent of 4 acres 5 guntas of land. Though the document at Ex.P12 describes that to the extent is 4 acres 7

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guntas, out of that 1 acre 20 guntas was allotted in favour of plaintiff and 1 acre was allotted in favour of the mother and 1 acre 25 guntas was allotted in favour of his brotherParameshwarappa. Out of 1 acre 20 guntas of land, the plaintiff sold only 1 acre 2 guntas of land and retained 18 guntas of land.

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The claim made by the appellants before the Trial

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Court, the First Appellate Court and this Court that the said land of 18 guntas is karab land. It is not in dispute that the appellants herein also filed a suit earlier wherein the plaintiff in the present suit has claimed the counter claim and the Trial Court granted the counter claim in favour of the plaintiff but the same was reversed by the First Appellate Court in R.A.No.7/2013 in coming to the conclusion that both the plaintiff and the defendants in the suit in O.S.No.206/2008 cannot claim any right in respect of karab land and the same is vest with the State and the said order has been attained its finality.

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Now the claim made by the plaintiff before the Trial Court that out of 1 acre 20 guntas of land which was allotted to him, he had sold only 1 acre 2 guntas and retained 18 guntas of land and to that extent, he has filed the suit for the relief of

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declaration and possession of the property. The Trial Court after considered the oral and documentary evidence available on record in O.S.No.88/2015 framed an issue based on the pleadings whether the plaintiff prove that the suit schedule property is a part and parcel of the land allotted to him in the previous partition and hence, he is absolute owner of the said property and also framed an issue with regard to the defence taken by the defendants that the matter has already been decided in O.S.No.206/2008 and that is already been declared as karab land and hence, the claim of the plaintiff is barred under the principles of res-judicata. The Trial Court considering the material on record comes to the conclusion that the finding of the Trial Court in O.S.No.206/2008 and R.A.No.7/2013 not come in the way of seeking the relief of declaration as the decree sought is in respect of the land to the extent of 1 acre 20 guntas, he has retained 18 guntas of land and he has only sold 1 acre 2 guntas of land in favour of his brother who has been examined as PW2 in O.S.No.88/2015. No doubt, in the original suit in O.S.No.206/2008 and an appeal in R.A.No.7/2013, these are the parties in the said suit also but it has to be noted that in terms of Ex.P19-Decree passed in earlier R.A., Court comes to

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the conclusion that they cannot claim any right in respect of 18 guntas of karab land.

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It is also important to note that in the plaint filed by the defendants/appellants herein claimed the decree to the extent of 5 acres 23 guntas including the karab land and only an allotment was made in the original partition deed as per Ex.P12 to the extent of 5 acres 7 guntas but the claim was made to the extent of 5 acres 23 guntas hence, the Court comes to the conclusion that they cannot claim the decree in respect of karab land of 18 guntas. It is also important to note that at the time of partitioning the property, they excluded the extent of 14 guntas out of 9 acres 28 guntas and also the documents reveals that 5 acres 7 guntas was allotted in favour of the plaintiff in O.S.No.88/2015 and they have excluded 2 guntas of land and they have partitioned to the extent of 4 acres 5 guntas. It is not in dispute that out of 1 acre 20 guntas of land allotted in favour of the plaintiff, he sold the property to the extent of 1 acre 2 guntas in the northern boundary and he has retained the remaining property and though it is not mentioned remaining 18 guntas of land he has retained, but the sale deed discloses that

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to the northern boundary he has retained the property out of 1 acre 20 guntas. All these factors taken note of by the Trial Court and the Trial Court also in paragraphs 10 to 12 have distinguished the material available on record and also the documents at Ex.P12, P13, D1 and D2 and they failed to get the decree in the original suit as well as in the appeal and when the First Appellate Court comes to the conclusion that they cannot claim to the extent of 18 guntas of karab land and when they claimed to the extent of 18 guntas as owners in the earlier suit and when they failed to get the decree and in the present suit also their defence that the claim of the plaintiff is in respect of karab land and no answer with regard to the excluding the land to the extent of 14 guntas in the earlier partition at Ex.P12 and also the plaintiff in O.S.No.88/20105 contend that out of 4 acres 7 guntas in terms of Ex.P12, partitioned to the extent of 4 acres 5 guntas only. When such being the case and when the material on record discloses that the Trial Court as well as First Appellate Court formulated the points with regard to the question involved between the parties, the Trial Court raised the proper issues and answered Issue Nos.1 and 2 considering both the oral and documentary evidence in coming to the conclusion that the

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plaintiff is the owner to the extent of 18 guntas of land which he has retained and also he has been in possession to that extent of land and comes to the conclusion that the decree passed in O.S.No.206/2008 will not attract the principles of res-judicata and property which has been described is distinct and not sought any relief to the extent of 5 acres 7 guntas which was allotted in favour of the appellants herein and their claim to the extent of 18 guntas of karab land in the earlier suit was also declined by the Trial Court and the First Appellate Court also in the appeal memo on re-appreciation of both the oral and documentary evidence formulated the point with regard to whether the Trial Court has committed an error in granting the decree in coming to the conclusion that the plaintiff has retained to the extent of 18 guntas of land and whether the Trial Court has committed an error in coming to the conclusion that the plaintiff has been in possession and enjoyment of the suit schedule property and whether the Trial Court has committed an error holding that suit is not hit by principles of res-judicata.

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Having perused the material on record, the First Appellate Court also while answering Points No.1 to 4 which has

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been formulated in the appeal, in detail discussed the material on record in paragraphs 15 to 18 and also taken note of he evidence of PW1 and 2 in paragraph 17 and 18 and discussed the evidence of PW2 and having considered the material on record and also considering the evidence led by the defendants before the Trial Court discussed in paragraph 19 and comes to the conclusion that the claim made by the plaintiff is in respect of land allotted in his favour in the family partition and not in respect of the claim made by the defendants in O.S.No.206/2008 and in R.A.No.7/2013. Hence, comes to the conclusion that it does not attract principles of res-judicata as contended by the defendants.

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It is also important to note that though the defence was taken before the Trial Court by the defendants/appellants herein that it is the karab land, in order to prove the said fact, not adduced any evidence before the Trial Court and only relied upon the documents at Ex.D1 and D2 and nothing is placed on record before the Trial Court to comes to a conclusion that the same is a karab land. Having taken note of the material on record it appears that the First Appellate Court has rightly comes

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to the conclusion that 1 acre 20 guntas of land out of 4 acres 5 guntas of land which was fallen to the share of the family of the plaintiff, property was sold to the extent of 1 acre 2 guntas and he has retained 18 guntas of land and hence, granted the relief of declaration declaring that the plaintiff is the owner and in possession to the extent of 18 guntas of land. Hence, I do not find any error committed by both the Courts and though the counsel for the appellants contend with regard to the nonapplication of res-judicata is erroneous approach and the said contention cannot be accepted when both the Courts have given anxious consideration to the material on record and not committed any error. Hence, I do not find any ground to frame any substantive question of law to comes to a conclusion that finding of the Trial Court is perverse as against the records available on record and also did not find any ground to frame any substantive question of law with regard to the applicability of principles of res-judicata when both the Courts applied their mind and given the reasons for non-application of res-judicata. Hence, no merit in the second appeal to frame substantive question of law invoking Section 100 of CPC.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the main appeal, I.A.s if any, do not survive for consideration and the same stand disposed of.

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Sd/JUDGE

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R S Shekharappa v. R B Marulasiddappa

Case brief

What is this about?

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R S Shekharappa v. R B Marulasiddappa

Case brief

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