Sri Bheemappa S/O Punappa Lamani Vs Smt.Basamma W/O Mudigouda Patil and Ors.

SRI BHEEMAPPA S/O PUNAPPA LAMANI AGE: 47 YEARS, OCC: AGRICULTURE, R/O: AMBALNUR, TQ: B.BAGEWADI, REP BY HIS P.A. HOLDER, HANAMANTH S/O PUNAPPA LAMANI @ NAYAK, AGE: 67 YEARS, OCC: AGRICULTURE, R/O:AMBALNUR, TQ: B.BAGEWADI, DIST: VIJAYAPUR – 586 101.

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…APPELLANT

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Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA

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(BY SRI S.S.MAMADAPUR, ADVOCATE)

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AND:

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SMT.BASAMMA W/O MUDIGOUDA PATIL AGED ABOUT 80 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK,

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SRI BASAVARAJ S/O MUDIGOUDA PATIL AGE: 54 YEARS, OCC: AGRICULTURE & SERVICE

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SRI RAVI S/O MUDIGOUDA PATIL

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2 -

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NC: 2025:KHC-K:2143 RSA No. 200216 of 2016

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AGED ABOUT 47 YEARS, OCC: AGRICULTURE,

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SMT. PADMAVATI W/O LINGANGOUDA PATIL AGED ABOUT 55 YEARS, OCC: HOUSEHOLD WORK,

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SMT GEETA D/O LINGANGOUDA PATIL AGED ABOUT 32 YEARS, OCC: HOUSEHOLD WORK,

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SMT VIJAYLAXMI D/O LINGANGOUDA PATIL AGED ABOUT 29 YEARS, OCC: HOUSEHOLD WORK,

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SRI RAVISHANKAR S/O LINGANGOUDA PATIL AGED ABOUT 26 YEARS, OCC: PRIVATE SERVICE,

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RESPONDENTS 4 TO 7 ARE ALL R/O: NEAR RAGHVENDRA SWAMY TEMPLE, B. BAGEWADI, DIST: VIJAYAPUR – 586 101.

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…RESPONDENTS

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(BY SRI ANANT JAHAGIRDHAR, ADVOCATE AND SRI GANESH KALBURAGI, ADVOCATE FOR R1 TO R3; R4 TO R7 SERVED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.01.2016 PASSED BY THE LEARNED I ADDITIONAL DISTRICT JUDGE, VIJAYAPURA DISMISSING R.A.NO.65/2014 AS WELL AS THE JUDGMENT AND DECREE DATED 29.01.2013 PASSED BY THE LEARNED SENIOR CIVIL JUDGE, B.BAGEWADI DECREEING O.S.NO.117/2011 AND DISMISS THE SAME IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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3 - NC: 2025:KHC-K:2143 RSA No. 200216 of 2016

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)

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This appeal is against concurrent findings in the suit for declaration, injunction, and possession in alternative. The suit is decreed for the alternative relief of declaration and possession. Appeal by the defendant is dismissed. Hence, the defendant is in this second appeal.

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This Court vide order dated 05.08.2021 has admitted the appeal to consider the following substantial question of law:

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“In a suit, where the plaintiffs claim relief of declaration and injunction based upon a registered sale deed in their favour, can the relief as claimed be granted in the absence of prayer for relief of possession when the contesting defendant also contends his ownership over the property by virtue of another sale deed along with possession of the property with himself?”

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Learned counsel appearing for the defendant / appellant referring to the facts would urge that the suit could not have been decreed when the plaintiff is not pleaded that he has

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4 - NC: 2025:KHC-K:2143 RSA No. 200216 of 2016

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been dispossessed. He would submit that the suit for declaration, injunction, and possession in the alterative, and the same is not maintainable and the suit ought to have been one for possession assuming that the plaintiff is dispossessed illegally and in that event, the question of limitation would also arise.

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Having noticed that the plaintiff is not possession of the property, the Trial Court could not have decreed the suit without giving a finding relating to limitation.

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The brief facts of the case would reveal that on 27.08.1997, plaintiff’s husband purchased 20 guntas of land in Sy No.348/2A of Basavana Bagevadi Village, Basavan Bagevadi Taluk. It is also noticed that the total extent of said survey number is 5 acres 29 guntas.

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The defendants / appellants claims to have purchased entire 5 acres 29 guntas under registered sale deed dated 26.12.1997. When the name of the defendants was entered in respect of entire 5 acres 29 guntas, the plaintiff filed the suit on the premise that her husband is the prior purchaser in respect of 20 guntas and sought relief of declaration, injunction and possession in the alternative. The Trial Court

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5 - NC: 2025:KHC-K:2143 RSA No. 200216 of 2016

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noticed that defendants though claim to have been purchased 5 acres 29 guntas under registered sale deed dated 26.12.1997, could not have acquired title and possession in respect of 20 guntas, which was already sold under registered sale deed dated 27.08.1997.

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It is noticed both the Courts have concurrently held that, the sale deed in favour of plantiff’s husband to the extent of 20 guntas is proved. This being the position, the declaration of title granted by the Trial Court as well as the First Appellate Court is certainly valid. As far as relief of possession is concerned, the alternative prayer sought by the plaintiff for relief of possession is not inconsistent or mutually destructive to the prayer for a declaration of title and injunction. The Trial Court on appreciation of evidence has concluded that the plaintiff is not in a possession and granted a decree for possession.

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Though, the learned counsel for the appellant would contend that the appellant ought to have prayed for possession and in that event, the Court would have considered the defence based on limitation, this Court has to notice that the suit is filed in the year 2009 and the entry is made in the year 1998. There

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is nothing on record to indicate that entry in the RTC is made by issuing notice to the plaintiff or plaintiff’s husband. It is also noticed that the defendants have not raised plea of adverse possession.

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Under these circumstances, the question of limitation does not arise. This Court does not find any reasons to interfere with the Judgment and Decree passed by the Trial Court which is confirmed by the First Appellate Court. Accordingly, the substantial question of law answered against the appellant and in favour of the respondents.

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It is also submitted that the plaintiff has executed a decree for possession and taken possession in Execution Case No.14/2014 on the file of Senior Civil Judge, Basavan Bagevadi. This fact is not disputed.

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Hence, the appeal is dismissed.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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TMP/THM List No.: 1 Sl No.: 48

Sri Bheemappa S/O Punappa Lamani v. Smt.Basamma W/O Mudigouda Patil and Ors.

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Sri Bheemappa S/O Punappa Lamani v. Smt.Basamma W/O Mudigouda Patil and Ors.

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