Second appeal against concurrent dismissal of a suit for declaration of title based on a 1966 gift deed and cancellation of sale deeds, where the grievance was only a boundary dispute. The High Court found no substantial question of law and dismissed the appeal at admission.
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NC: 2024:KHC:30869 RSA NO.2539 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.2539 OF 2018 (DEC)
BETWEEN:
BARIKARA NAGAPPA DEAD BY HIS LR'S.
Digitally signed by ARUNKUMAR M S Location: High Court of Karnataka
APPELLANTS 1 TO 6 ARE R/AT HUVINAHADAGALI TOWN, BALLARI DISTRICT - 583 219.
NC: 2024:KHC:30869 RSA NO.2539 OF 2018
…APPELLANTS
(BY SRI. SUJAN B.K. ADVOCATE FOR SRI. J.M. ANIL KUMAR, ADVOCATE
AND:
NC: 2024:KHC:30869 RSA NO.2539 OF 2018
7. KAJARI MALLAMMA W/O LATE KAJARI SHEKHARAPPA
ALL ARE RESIDING AT: 11TH WARD SUNAGARA STREET, HARAPANAHALLI TOWN, DAVANAGERE DISTRICT - 583 131.
…RESPONDENTS
(BY SRI. M.R. HIREMATHAD, ADVOCATE FOR R2, R3 & R5; SRI. H.H. SHETTY, ADVOCATE FOR R6 & R7; NOTICE TO R1 & R4 - SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 08TH JUNE, 2018 PASSED IN REGULAR APPEAL NO.25 OF 2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., HARAPANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16TH JULY, 2012 PASSED IN ORIGINAL SUIT NO.145 OF 2006 ON THE FILE OF THE CIVIL JUDGE AND JMFC., HARAPANAHALLI.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
ORAL JUDGMENT
This Appeal is filed by the legal representatives of the plaintiff No.1 and plaintiff No.2 assailing the judgment and decree dated 08th June, 2018 passed in Regular Appeal No.25 of 2015 on the file of the Senior Civil Judge and JMFC.,
Harapanahalli (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 16th July, 2012 passed in Original Suit No.145 of 2006 on the file of the Civil Judge and JMFC., Harapanahalli (for short, hereinafter referred to as 'Trial Court'), wherein he suit filed by the plaintiffs came to be dismissed.
No.1 become the owner of the suit schedule property. It is also pleaded by the plaintiffs that the defendants 6 and 7 had encroached the portion of the suit schedule property and the defendants have no right, title and interest over the suit schedule property. Therefore, the plaintiffs have filed suit for declaration with consequential relief of cancellation of Sale Deeds dated 15th May, 1982 and 01st December, 1980.
withdrawn as settled out of the Court between the parties. Therefore, it is the contention of the defendants 1 to 5 that the suit is barred by limitation as well as same is hit by the principles of res judicata. Defendants 5 and 6 have filed written statement stating that they have purchased the suit property from the defendants 1 to 5 and accordingly, submitted that the suit is hit by non-joinder of necessary parties as the said Bheemavva had children and they are not parties to the suit. Accordingly, defendants have sought for dismissal of the suit.
NC: 2024:KHC:30869 RSA NO.2539 OF 2018
same, the legal representatives of the plaintiff No.1 and the plaintiff No.2 have preferred Regular Appeal No.25 of 2015 on the file of the First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court, after considering the material on record, by its judgment and decree dated 08th June, 2018, dismissed the appeal and confirmed the judgment and decree dated 16th July, 2012 passed in Original Suit No.145 of 2006 on the file of the Trial Court. Being aggrieved by the same, the appellants have preferred this Regular Second Appeal.
NC: 2024:KHC:30869 RSA NO.2539 OF 2018
are seeking relief of declaration of title as well as to nullify the Sale Deeds dated 15th May, 1982 and 01st December, 1980. The case of the plaintiffs is based on the Gift Deed dated 13th April, 1966 said to have been executed by the said Pakkiravva in favour of the plaintiff No.1 and Bheemavva. It is forthcoming from the finding recorded by both the Courts below that the lis between the parties is only with regard to boundary dispute and in this regard, the Trial Court, after considering the material on record, had arrived at a conclusion that the legal representatives of the Bheemavva are also having equal right in respect of the suit schedule property and the suit has been filed for non-joinder of the parties as the legal representatives of deceased Bheemavva, though necessary parties, they have not been arraigned as parties. It is the contention of the defendants 1 to 5 before the Trial Court that, they had acquired suit schedule property by inheritance. On the other hand, the plaintiffs have relied upon the Gift Deed dated 13th July, 1966 said to have been executed by the Pakkiravva. Taking into consideration the discussion made by the Trial Court in the suit, particularly at paragraphs 11 and 12 and that apart, the plaintiff No.1 and
Bheemavva had filed suit against the defendants 1 and 2 in Original Suit No.284 of 1972 and the said suit came to be disposed of in terms of compromise entered into between the parties, so also, perusal of the evidence of the PW1 would indicate that the plaintiff No.1 himself had admitted that there is no discrepancy in respect of the suit property as well as the property which has been given to one Hanumanthamma, I am of the view that the finding recorded by the Trial Court, dismissing the suit of the plaintiffs is just and proper. I have also carefully examined the re-appreciation of material by the First Appellate Court. Taking into consideration the factual aspects on record that the grievance of the plaintiffs is only with regard to the boundary and the discussion made by the First Appellate Court in the impugned judgment and decree particularly at paragraph 27 of the judgment, I am of the view that, both the Courts below have rightly passed the judgment, dismissing the suit of the plaintiffs. Therefore, I do not find any material irregularity in the judgment and decree passed by the Courts below, dismissing the suit of plaintiffs. As the plaintiffs were failed to make out a case for formulating the substantial question of law as required under Section 100 of
NC: 2024:KHC:30869 RSA NO.2539 OF 2018
the Code of Civil Procedure, this appeal deserves to be dismissed at the stage of admission itself. Accordingly, Regular Second Appeal is dismissed.
SD/(E.S. INDIRESH) JUDGE
ARK
2 issues framed by the court
Whether the plaintiffs' suit for declaration of title and cancellation of sale deeds could succeed given non-joinder of Bheemavva's legal representatives
Whether a substantial question of law arose under Section 100 CPC warranting interference with concurrent findings
1 provisions across 1 enactments
Barikara Nagappa (dead) by his LRs - Smt. Nagarathnamma
Jagadeesha
Umesha
Krishnaveni
Raghavendra
Sumangla
E.S. Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
