Dismissed

Smt Gangamma v. Sri Nagaraj

Karnataka HC30 May 2023RSA/493/2014

Case brief

AI extract

What is this about?

In this second appeal regarding a suit for declaration of title, a division bench dismissed the plaintiffs' challenge to lower court decrees. The court held that plaintiffs failed to prove ownership of the suit land despite alleging an oral partition and a registered Will, as they could not produce corresponding revenue entries or Rehabilitation/Title Certificates (RTC) to substantiate their claim

What did the court decide?

Appeal dismissed; interim injunction application allowed to lapse.

Smt Gangamma Vs Sri Nagaraj — Succession and Inheritance | Karnataka HC (2023)

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RSA No. 493 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 493 OF 2014 (DEC/INJ)

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BETWEEN:

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SMT GANGAMMA W/O P R RUDRAPPA AGED ABOUT 71 YEARS R/AT NAVALEHAL VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 001.

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SRI P R DHANANJAYAPPA S/O P R RUDRAPPA AGED ABOUT 41 YEARS R/AT NAVALEHAL VILLAGE CHANNAGIRI TALUK

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DAVANAGERE DISTRICT – 577 001.

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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SMT. SHANTHAMMA W/O MAHADEVAPPA AGED ABOUT 68 YEARS R/AT NAVALEHAL VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 001.

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SRI K M BASAVARAJ S/O MAHADEVAPPA AGED ABOUT 46 YEARS R/AT NAVALEHAL VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 001.

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…APPELLANTS (BY SMT. AZRA J.BUNDGE., ADVOCATE)

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RSA No. 493 of 2014

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AND:

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SRI NAGARAJ S/O SHARANAPPA AGED ABOUT 44 YEARS R/AT NAVALEHAL VILLAGE CHANANGIRI TALUK DAVANAGERE DISTRICT – 577 001.

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SRI NARAPPA S/O SHARANAPPA AGED ABOUT 39 YEARS R/AT NAVALEHAL VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 001.

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SRI NINGARAJ S/O SHARANAPPA AGED ABOUT 34 YEARS R/AT NAVALEHAL VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 001.

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…RESPONDENTS

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(BY SRI. YATHISH J NADIG.,ADVOCATE FOR C/R1-R3) (VK RETURNED IN R/O R3)

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THIS RSA FILED U/S.100 OF CPC PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE DTD 01.03.2014 PASSED IN R.A.NO.37/2012 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 08.03.2012 PASSED IN OS.NO.46/2010 (OLD NO.41/2009) ON THE FILE OF THE SENIOR CIVIL JUDGE, CHANNAGIRI AND ETC.

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

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RSA No. 493 of 2014

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JUDGMENT

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The plaintiffs have filed this appeal praying to set aside the judgment and decree dated 01.03.2014 passed in R.A. No. 37/2012 by the II Additional District and Sessions Judge, Davanagere, confirming the judgment and decree dated 08.03.2012 passed in O.S. No. 46/2010 by Senior Civil Judge at Channagiri and prays to decree the suit in O.S. No. 46/2010.

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Appellant Nos. 1 to 4 were plaintiff Nos. 1 to 4 and

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respondent Nos. 1 to 3 were defendant Nos. 1 to 3 before the trial Court. The parties will be referred to their rankings before the trial Court.

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It is the case of the plaintiffs before the trial Court

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that one Narappla Ningappa was the propositus of plaintiffs and defendants’ family. He had 5 children; 4 sons namely, Halappa, Mahadevappa, Chigaterappa and Sharanappa and a daughter – namely Smt. Varavva.

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RSA No. 493 of 2014

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Plaintiff Nos. 1 and 3 are daughters of Mahadevappa. Plaintiff No. 2 is the son of plaintiff No. 1 and plaintiff No. 4 is the son of plaintiff No. 3. Land bearing survey No. 85 of Navilehal Village belong to the propositus Narappla Ningappa. After the death of propositus his sons got effected the partition in the family and their names got mutated as per partition. There was no written partition deed but the revenue documents disclose the factum of partition. In the partition younger son of propositus – Sharanappa was allotted 6 acres 1 gunta and his elder brother Mahadevappa was allotted 3 acres in survey No. 85. Out of the land allotted to Sharanappa he sold 3 acres of land in survey No. 85 to Ramagondanahalli Dodda Ningappa, Kamannara Chitrappa and Hanumanna of Navilehal village and retained 3 acres 1 gunta with him. Similarly Mahadevappa sold eastern side 1 acre land in survey No. 85 and retained western side 2 acres of land with him. It is the further contention of plaintiffs that after the demise of Mahadevappa his younger brother Sharanappa had consented for change of mutation in

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5 - RSA No. 493 of 2014

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favour of Smt. Veeramma wife of Mahadevappa to an extent of 2 acres of land. Defendants being the sons, after the death of Sharanappa succeeded to his estate, i.e., 3 acres 1 guntas of land in survey No. 85. Smt. Veeramma wife of Mahadevappa executed registered Will on 14.05.1993 in favour of plaintiff Nos. 1 to 4. As per the said Will plaintiff No. 1 and 2 got 1 acre of land and plaintiff Nos. 3 and 4 got 1 acre of land in survey No. 85. After the death of Smt. Veeramma plaintiffs have got changed the mutation in their names. They contend that they are owners in possession and enjoyment of the said property i.e., survey No. 85/AP1 measuring 2 acres. It is further case of plaintiffs that in the year 2006 defendants interfered with their peaceful possession over the suit land and therefore they filed O.S. No. 199/2006 before the Principal Civil Judge, Channagiri for the relief of permanent injunction. Said suit came to be dismissed on the ground

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that the land is not in possession of the plaintiffs. Therefore, plaintiffs filed a suit seeking declaration.

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RSA No. 493 of 2014

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Defendant No. 1 filed written statement denying

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the case of the plaintiffs in toto. He contended that Mahadevappa – father of plaintiff Nos. 1 and 3 was not allowed any portion of land in survey No. 85 at any point of time by the members of the family. Father of defendants, i.e., Sharanappa never consented for change of mutation in favour of Smt. Veeramma – wife of Mahadevappa. Said Smt. Veeramma is not having any locus standi to execute the alleged Will in favour of the plaintiffs. Revenue authorities have no power to effect mutation entries on the basis of the Will without obtaining requisite orders from the competent Court of law. The plaintiffs will not get title on the basis of mutation entries. The said land in survey No. 85 or any portion of it was not allotted to deceased Mahadevappa and the whole land in survey No. 85 was allotted to the exclusive share of father of defendants, namely, Sharanappa. It is stated that the defendants are absolute owners of the property and they are enjoying the same by cultivating it personally ever since the date of partition.

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RSA No. 493 of 2014

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Based on the above pleadings the trial Court had

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framed the following points for consideration.

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i. Whether the plaintiffs prove that they are the owners of the suit schedule property by virtue of the Will dated 14.05.1993?

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ii. Whether the plaintiffs prove that they are in possession of the suit schedule property?

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iii. Whether the suit of the plaintiffs is hit by principles of res-judicata, acquiescence, estoppel and equity, as contended in para 10 of the written statement?

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iv. Whether the suit is barred by limitation?

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v. Whether the plaintiffs are entitled for the relief sought for?

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vi. What order or decree?

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Plaintiff Nos. 1 and 3 were examined as P.W.1 and

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P.W.2 and examined two witnesses as P.W.3 and P.W.4

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and got marked Ex.P.1 to Ex.P.23. Ex.D.1 came to be marked in the course of cross-examination of P.W.1 when it was confronted to him. Defendant No. 1 has been

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RSA No. 493 of 2014

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examined as D.W.1 and a witness has been examined as D.W.2 and got marked Ex.D.2 to Ex.D.17. The trial Court

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after hearing the parties and appreciating the evidence on record answered issue Nos. 1 to 5 in the negative and dismissed the suit of the plaintiffs. The trial Court held that the plaintiffs have not proved their title to the suit schedule property.

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The plaintiffs, aggrieved by the said judgment and

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decree passed in O.S. No. 46/2010 filed an appeal in R.A. No. 37/2012 before the II Additional District Judge, Davanagere (first appellate Court). The first appellate Court formulated the following points for consideration:

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i. Whether the judgment and decree passed by the trial Court is illegal, capricious and arbitrary and the same required tobe interfered by this Court sitting in appeal?

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ii. What order?

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The first appellate Court answered point No. 1 in

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the negative and dismissed the appeal confirming the

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RSA No. 493 of 2014

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judgment and decree passed by the trial Court in O.S. No. 46/2010. The plaintiffs have challenged the judgments and decrees passed in O.S. No. 46/2010 and R.A. No. 37/2012 in this appeal.

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Heard the learned counsel for appellants/plaintiffs on admission and perused the records.

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It is the specific case of the appellants/plaintiffs

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that the suit property bearing survey No. 85 to an extent of 3 acres has been allotted to the share of Mahadevappa

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– father of plaintiff Nos. 1 and 3 and an extent of 6 acres 1 gunta in survey No. 85 has been allotted to the share of Sharanappa – father of defendant Nos. 1 to 3 in the oral partition. The plaintiffs have not placed any documents to show that an extent of 3 acres of land in survey No. 85 was allotted to the share of Mahadevappa in the oral partition. Learned counsel for appellants would contend

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RSA No. 493 of 2014

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that the very sale of 1 acre of land by Mahadevappa in survey No. 85 by sale deed dated 20.04.1966 as per Ex.P.1 itself shows that 3 acres of land was allotted to the share of Mahadevappa.

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On perusal of the recitals in sale deed – Ex.P.1 there is no mention that an extent of 3 acres was allotted to the share of Mahadevappa and he is selling 1 acre out of the same. In the said recitals it is only stated that he is selling 1 acre of land allotted to his share. Name of Mahadevappa has not been mutated in the RTC of survey No. 85. It is only the name of Smt. Veeramma is ordered

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to be mutated to an extent of 2 acres of land in survey No. 85 as per mutation MR 5/1992-93. There is no corresponding RTC produced by the plaintiffs to show the entry of name of Smt. Veeramma to an extent of 2 acres in the RTC. The defendants have produced Ex.D.1 – certified copy of jubani hissa. Said document was also produced in the suit in O.S. No. 199/2006 filed by the

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RSA No. 493 of 2014

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plaintiffs for the relief of permanent injunction. P.W.1 in the said suit in O.S. No. 199/2006 and P.W.1 in the present suit, i.e., O.S. No. 46/2010 have admitted the oral partition as per Ex.D.1. In the said oral partition entire extent of land in survey No. 85 was allotted to the share of Sharanappa – father of defendant Nos. 1 to 3. The trial Court and the first appellate Court, placing reliance on the said admission of P.W.1 and taking into consideration the oral partition as per Ex.D.1, have held that the plaintiffs have failed to prove their title over the suit schedule properties. No error has been committed by the trial Court and the first appellate Court in holding so.

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In view of the above, no substantive question of law arises for consideration in this appeal. Accordingly, appeal is dismissed.

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In view of disposal of the appeal, I.A. No. 1/2014 for temporary injunction does not survive for consideration.

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RSA No. 493 of 2014

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Smt. Azra J. Bundge, learned counsel for appellants is permitted to file her vakalathnama within one week

from today.

Sd/JUDGE

LRS

List No.: 1 Sl No.: 15

Smt Gangamma v. Sri Nagaraj

Case brief

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Smt Gangamma v. Sri Nagaraj

Case brief

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