Dismissed

P B Durgappa v. Smt Siddaveeramma

Karnataka HC23 Aug 2024RSA/2040/2015

Case brief

AI extract

What is this about?

The appellant filed a second appeal challenging decrees dismissing a suit for declaration and permanent injunction regarding joint agricultural property. The High Court dismissed the appeal, holding that the appellant failed to prove acquisition of title to the co-owner's half share merely through execution proceedings, as no sale deed had been executed.

What the court decided

AI extract

P B Durgappa Vs Smt Siddaveeramma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:34004 RSA No. 2040 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2040 OF 2015 (DEC/INJ)

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BETWEEN:

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P.B. DURGAPPA, S/O BHEEMAPPA, AGED 62 YEARS, AGRICULTURIST, R/O IGOOR VILLAGE, DAVANGERE TALUK, DAVANGERE DISTRICT - 577 001.

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…APPELLANT

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(BY SRI. SRIDHARA MURTHY K.S, ADVOCATE)

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AND:

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Digitally signed by YAMUNA K L Location: High Court of Karnataka

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SMT. SIDDAVEERAMMA, W/O BASAVANTEPPA GODERA, AGED ABOUT 55 YEARS, AGRICULTURIST & HOUSE HOLD,

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ANJINAPPA,

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S/O BASAVANTEPPA GODERA, AGED ABOUT 38 YEARS, AGRICULTURIST,

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PARAMESHWARAPPA, S/O BASAVANTEPPA GODERA, AGED ABOUT 42 YEARS, AGRICULTURIST,

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MANJUNATH,

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S/O BASAVANTEPPA GODERA, AGED ABOUT 36 YEARS,

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NC: 2024:KHC:34004 RSA No. 2040 of 2015

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AGRICULTURIST,

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ALL ARE R/O MUKTENAHALLI VILALGE, HONNALI TALUK, DAVANGERE DISTRICT - 577 001.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SEC.100 OF CPC., R/W ORDER 41 RULE 1 AND2 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.07.2015 PASSED IN RA NO.54/2013 ON THE FILE OF THE Ist ADDL. SENIOR CIVIL JUDGE DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.07.2013 PASSED IN OS NO.286/2009 ON THE FILE OF THE PRL. CIVIL JUDGE DAVANAGERE.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This RSA is filed by the appellant challenging the judgment and decree dated 27.07.2015 passed in R.A.No.54/2013 by the I Additional Senior Civil Judge, Davanagere confirming the judgment and decree dated 12.07.2013 passed in O.S.No.286/2009 by the Prl. Civil Judge, Davanagere.

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For the sake of convenience the parties are referred to as per their ranking before the Trial Court. Appellant is the plaintiff and respondents are the defendants.

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3 - NC: 2024:KHC:34004 RSA No. 2040 of 2015

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Brief facts leading to the filing of the appeal are as under:

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The plaintiff has filed a suit for declaration and permanent injunction. It is the case of the plaintiff that, the plaintiff is an agriculturist and permanent resident of Igoor Village in Davangere Taluk and owning 4 acres of irrigated land and 10 acres of dry land. Defendant No.1 is the elder sister of the plaintiff’s wife. She is having one daughter by name Gowramma and three sons, i.e., defendant Nos.2 to 4. Defendant No.1 is the resident of Muktnahalli Village in Honnali Taluk and defendant Nos.2 and 3 stayed in the house of the plaintiff from their childhood and studied from nursery to High School.

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It is the case of the plaintiff that, the defendant No.1 was in the need of funds to perform the marriage of her daughter and son in the year 2006-2007 and accordingly borrowed money from the plaintiff. But defendant No.1 did not repay the same inspite of repeated requests and demand. Therefore, the plaintiff filed a suit in O.S.No.42/2008 for recovery of money of Rs.6,06,250/- with cost and interest.

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4 - NC: 2024:KHC:34004 RSA No. 2040 of 2015

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Defendant No.1 appeared in the said suit and did not file any written statement. The said suit was decreed and defendant No.1 did not pay the decreetal amount. Hence, the plaintiff filed an execution petition in Exe.C.No.17/2009 against defendant No.1 for recovery of the decreetal amount by the sale of the half share of defendant No.1 in the suit schedule property. The said proceedings are well within the knowledge of the defendant No.1.

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It is contended that defendant No.1 and the plaintiff had jointly purchased the agricultural land bearing Sy.No.121 measuring 9 acres, 38 guntas and it is contended that, filing the aforesaid suit against defendant No.1 for recovery of the amount, their relationship is strained. Since then, the defendants are trying to cause obstruction to the plaintiff in his peaceful possession, enjoyment and cultivation of the suit schedule property in one way or the other. The plaintiff approached the police, requesting the police to get possession of the half share of defendant No.1. The police, after an enquiry, directed the plaintiff to approach the Civil Court. Hence, the plaintiff filed a suit for declaration and possession.

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NC: 2024:KHC:34004 RSA No. 2040 of 2015

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The defendants filed a written statement denying the averments made in the plaint and it is contended that there is no cause of action for filing of the suit. It is contended that, the plaintiff and defendant No.1 have jointly purchased the suit schedule property under the registered sale deed. It is admitted that, the plaintiff has filed a suit for recovery of money in O.S.No.42/2008. It is stated that the panchayat was held, the defendants were ready to clear the entire loan borrowed by them and it was the plaintiff to withdraw the suit in O.S.No.42/2008. Defendant No.1 was under the impression that the plaintiff might have withdrawn the suit in O.S.No.42/2008. It is contended that the plaintiff had obtained an ex-parte judgment by creating a forged documents. It is contended that defendant No.1 has also paid the amount for purchasing the said property. Hence, on these grounds, they prays to dismiss the suit.

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The Trail Court on the basis of the pleadings of the

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parties framed the issues.

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The plaintiff, in order to substantiate his case, examined himself as P.W.1 and examined four witnesses as

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6 - NC: 2024:KHC:34004 RSA No. 2040 of 2015

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P.Ws.2 to 4, and got marked 23 documents as Exs.P1 to 23. Defendant No.1 examined herself as D.W.1 and got marked one document as Ex.D1. The Trial Court after recording the evidence, hearing on both the sides and the assessment of the oral and documentary evidence, dismissed the suit vide judgment dated 12.07.2013. The plaintiff aggrieved by the judgment and decree passed by the Trial Court in O.S.No.286/2009 preferred an appeal in R.A.No.54/2013 on the file of learned I Additional Senior Civil Judge, Davanagere. The First Appellate Court, after hearing the learned counsel for the parties, framed the points for consideration and on reassessment of the oral and documentary evidence, dismissed the appeal vide judgment dated 27.7.2015 and confirmed the judgment and decree passed by the Trial Court. The plaintiff aggrieved by the impugned judgments, filed this R.S.A.

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Heard the learned counsel for the plaintiff.

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Learned counsel for the plaintiff submits that the plaintiff and defendant No.1 have jointly purchased the suit schedule property under the registered sale deed, but defendant No.1 borrowed a loan from the plaintiff. Defendant

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7 - NC: 2024:KHC:34004 RSA No. 2040 of 2015

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No.1 failed to repay the amount. Thereafter, the plaintiff filed a suit in O.S.No.42/2008 on the file of learned II Additional Senior Civil Judge, Davanagere. The said suit was decreed. Defendant No.1 did not repay the decreetal amount. The plaintiff filed an Execution Petition and sought for half share of defendant No.1 in the suit schedule property. He submits that the said facts are within the knowledge of defendant No.1. Hence, he submits that defendant No.1 has no right, title, or interest over the suit schedule property. The Trial Court has failed to consider the judgment passed in O.S.No.42/2008 and the order passed in Exe.C.No.17/2009. He also submits that both the Courts below have not properly considered the evidence placed on record. Hence, on these grounds, he prays to allow the appeal.

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Perused the record and considered the submission of the learned counsel for the plaintiff.

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It is not in dispute that the plaintiff and defendant No.1 have jointly purchased the suit schedule property under a registered sale deed as per Ex.P1 for consideration of Rs.40,000/- on 19.05.1989. Though it is the case of the

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8 - NC: 2024:KHC:34004 RSA No. 2040 of 2015

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plaintiff that, the plaintiff has filed a suit for recovery of the money against defendant No.1 in O.SNo.42/2008, the said suit was decreed and he filed an execution petition.

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On the perusal of the entire records, it does not disclose that the plaintiff had purchased a half share of defendant No.1 in the suit schedule property. Though the plaintiff has filed the execution petition, the Executing Court has not passed any order to execute a registered sale deed for a half portion of defendant No.1 in the suit schedule property. Until and unless the sale deed is executed in favour of the plaintiff, the plaintiff cannot claim any declaration of title in respect of the half portion of defendant No.1 is the suit property . The Trial Court considering the documents produced by the plaintiff, has held that the plaintiff and defendant No.1 have jointly purchased the suit schedule property under Ex.P1 and the plaintiff has failed to establish that the plaintiff has acquired the ownership of half share of defendant No.1 is the suit property and rightly dismissed the suit. The First Appellate Court, on re-assessment of the oral and the documentary evidence, held that the plaintiff has failed to prove that he is the absolute owner of the entire property. The defendant No.1

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9 - NC: 2024:KHC:34004 RSA No. 2040 of 2015

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be the co-owner, and no injunction can be granted against the co-owner. The First Appellate Court has rightly affirmed the judgment and decree passed by the Trial Court. Hence, I do not find any error in the impugned judgments. I concur with the judgments of the Courts below, and find any substantial

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questions of law that arise for consideration in this appeal. Accordingly, I pass the following:

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:: ORDER ::

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i) The appeal is dismissed.

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ii) The judgments and decrees passed by the Court below are hereby confirmed and no order as to the cost.

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iii) In view of the dismissal of the above appeal, I.A.No.1/2015 does not survive for consideration. Accordingly, it is disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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GJM

P B Durgappa v. Smt Siddaveeramma

Case brief

What is this about?

What the court decided

P B Durgappa v. Smt Siddaveeramma

Case brief

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What the court decided

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