Dismissed

Sri. Mudlagiriyappa v. Sri. Hanumaiah

Karnataka HC5 Sept 2024RSA/2038/2017

Case brief

AI extract

What is this about?

This was a regular second appeal challenging a decree granted to the plaintiff in a suit for permanent injunction regarding partition shares. The High Court noted the defendant raised no admissions or substantial questions of law and affirmed the first appellate Court's finding that the plaintiff established possession over a specific portion of the land despite disputed boundaries.

What did the court decide?

Regular second appeal dismissed; judgment and decree of the first appellate Court confirmed.

Sri. Mudlagiriyappa Vs Sri. Hanumaiah — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:36944 RSA No. 2038 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA REGULAR SECOND APPEAL NO.2038 OF 2017 (INJ)

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BETWEEN:

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SRI MUDLAGIRIYAPPA S/O. LATE CHOWDAIAH, AGED ABOUT 80 YEARS, R/AT THAVAREKERE VILLAGE, THAVAREKERE HOBLI, BANGALORE SOUTH TALUK, PIN CODE NO.562130. ... APPELLANT

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(BY SRI B.S. VISWANATH, ADVOCATE)

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AND:

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SRI HANUMAIAH SINCE DEAD BY LR’s.

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Digitally signed by SHYAMALA Location: HIGH COURT OF KARNATAKA

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SMT. REVAMMA, W/O. LATE HANUMAIAH, AGED ABOUT 83 YEARS,

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SRI CHOWDAIAH S/O. LATE HANUMAIAH, AGED ABOUT 68 YEARS,

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SRI THIMANNA S/O. LATE HANUMAIAH, AGED ABOUT 66 YEARS,

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SMT. LAKSHMAMMA W/O. MURTHAPPA, D/O. LATE HANUMAIAH, AGED ABOUT 58 YEARS,

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2 - NC: 2024:KHC:36944 RSA No. 2038 of 2017

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SRI VENKATESHA S/O. LATE HANUMAIAH, AGED ABOUT 51 YEARS,

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SRI HANUMANTHAIAH S/O. LATE HANUMAIAH, AGED ABOUT 47 YEARS,

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SMT. PUTTAMMA W/O. NAGARAJA, AGED ABOUT 44 YEARS,

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SRI GANGARAJU S/O. LATE HANUMAIAH, AGED ABOUT 43 YEARS,

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ALL THE RESPONDENT’S ARE RESIDING AT THAVAREKERE VILLAGE, THAVAREKERE HOBLI, BANGALORE SOUTH TALUK, PIN NO.562130. ... RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.09.2017 PASSED IN R.A.NO.111/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., MAGADI, ALLOWING THE APPEAL SETTING ASIDE AND MODIFYING THE JUDGMENT AN DECREE DATED 31.01.2011 PASSED IN O.S.NO.372/1998 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., MAGADI.

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THIS APPEAL COMING ON FOR DISMISSAL, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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3 - NC: 2024:KHC:36944 RSA No. 2038 of 2017

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ORAL JUDGMENT

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Assailing the judgment and decree in

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R.A.No.111/2014, the defendant is before this Court in the regular second appeal.

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The parties herein are referred to as per their rank before the trial Court for the sake of convenience.

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Suit for permanent injunction contending that under the registered partition deed dated 26.04.1971, the suit schedule property has fallen to his share. The suit schedule property is mentioned as land bearing Sy.No.166/3, measuring 0.05 guntas bounded by the following boundaries:

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East : Mudalagiriyappa’s land West : Revanna’s land North : Hulithimmaiah’s land South : Thimmarayappa’s land

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On notice, the defendant appeared and filed his

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written statement contending that he is the owner in

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4 - NC: 2024:KHC:36944 RSA No. 2038 of 2017

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possession of 2 acres 29 guntas of land in Sy.No.166/3 and khata and pahani stand in his name. That the suit schedule property is not in possession and enjoyment of the plaintiff. According to the defendant, in the partition dated 26.04.1971, the suit schedule property has fallen to the share of the defendant.

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On the basis of the pleadings, the trial Court

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framed the following:

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ISSUES

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(i) Whether the plaintiff proves that, he is in lawful possession and enjoyment of the suit schedule property? (ii) Whether the plaintiff further proves that, defendant is interfering with the possession of the suit schedule property? (iii) Whether the plaintiff further proves that, he is entitled for the relief as sought for?

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The plaintiff examined himself as PW.1 and got marked documents at Exs.P-1 to P-11. On the other hand, defendant is examined as DW.1 and marked documents at Exs.D-1 to D-8.

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5 - NC: 2024:KHC:36944 RSA No. 2038 of 2017

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The trial Court arrived at a conclusion that the plaintiffs have failed to prove that they are in lawful possession and enjoyment of the suit schedule property as on the date of the suit and dismissed the suit.

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Aggrieved, the plaintiff preferred appeal before the first appellate Court. The first appellate Court on reappreciation and reconsidering the entire oral and documentary evidence, reversed the judgment and decree of the trial Court and decreed the suit in part holding that the plaintiff is entitled for injunction in respect of 3 guntas in Sy.No.166/3 (suit schedule property) and restrained the defendant from interfering with the possession and enjoyment of 3 guntas land. Against the decreetal of the suit in part, plaintiff has not preferred any appeal. The present appeal is by the defendant against the granting of injunction to the extent of 3.00 guntas of land to the plaintiff.

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6 - NC: 2024:KHC:36944 RSA No. 2038 of 2017

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Learned counsel for the appellant submitted

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that the first appellate Court has failed to appreciate the registered partition deed – Ex.P-2 which the plaintiff relied, there is no boundary mentioned the 5 guntas of land given to deceased Hanumaiah, the husband of plaintiff No.1 and father of plaintiff No.2. Learned counsel contended that the first appellate Court has wrongly reappreciated and reversed the well versed finding of the trial Court and that there arises a substantial question of law in the present appeal.

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Both the parties admit the partition of the year 1971. The plaintiff’s suit is based on the registered partition deed dated 26.04.1971. Exs.P-2 and D-9 are the registered partition deeds dated 26.04.1971. The first appellate Court referred to the partition deed and arrived at a conclusion that under the partition deed it discloses that one plot measuring 1 acre 38 guntas and another plot measuring 5 guntas in Sy.No.166/3 have been allotted to the share of Hanumaiah, the branch of the plaintiffs and in

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7 - NC: 2024:KHC:36944 RSA No. 2038 of 2017

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the said partition deed 2 acres 22 guntas in Sy.No.166/3 is allotted to the defendant. The first appellate Court, while re-appreciating and reconsidering the entire oral and documentary evidence, held that the extent of Hanumaiah being in possession is only 3.00 guntas of land in Sy.No.166/3 and not 5.00 guntas as contended by the plaintiff. The contention of the appellant is that, the plaintiff is seeking for the entire Sy.No.166/3 does not find place in the pleadings or in the judgment and decree of the Courts below as the suit is not for declaration, but for permanent injunction in respect of certain portion of Sy.No.166/3, which according to the plaintiff, the defendant is causing interference. The first appellate Court, being the last fact finding Court, has re-appreciated the entire oral and documentary evidence and held that the plaintiff has proved his possession over 3 guntas of land in Sy.No.166/3 with the boundaries stated in the plaint.

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NC: 2024:KHC:36944 RSA No. 2038 of 2017

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The defendant has made out no ground for admission in the present second appeal warranting any interference by this Court and no substantial question of law arises for consideration in this second appeal and this Court pass the following:

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ORDER

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(i) The regular second appeal is dismissed.

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(ii) The judgment and decree of the first appellate Court

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stands confirmed.

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Sd/(K.S. HEMALEKHA) JUDGE

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List No.: 2 Sl No.: 15

Sri. Mudlagiriyappa v. Sri. Hanumaiah

Case brief

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Sri. Mudlagiriyappa v. Sri. Hanumaiah

Case brief

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