Sri. Boregowda Vs Sri. Shivaramegowda

THIS RSA IS FIELD UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.11.2022 PASSED IN RA.NO.147/2021 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU. DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 01.07.2020 PASSED IN OS NO.560/2008 ON THE FILE OF THE I ADDITIONAL II CIVIL JUDGE AND JMFC, MYSURU.

¶25

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

¶26

CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

¶27

ORAL JUDGMENT

¶28

This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 18.11.2022 in RA No.147/2021 passed by the learned Principal District and Sessions Judge, Mysuru, and the judgment and decree dated 01.07.2020 in OS No.560/2008 passed by the learned I Addl. II Civil Judge and JMFC, Mysuru.

¶29

For convenience, the parties are referred to based

¶30

on their rankings before the Trial Court, i.e., the appellant was the plaintiff, and the respondents were the defendants.

¶31

Brief facts, leading rise to the filing of this appeal are as follows:

¶32

3 -

¶33

NC: 2025:KHC:33173 RSA No. 334 of 2023

¶34

HC-KAR

¶35

3.1. The plaintiff filed a suit against the defendants for

¶36

a declaration of title and a permanent injunction. It is the case of the plaintiff that, one Karigowda of Koorgalli village had two sons by name, Boregowda and Shivaramegowda. Boregowda is the father of the plaintiff, who is no more. Shivaramegowda is defendant No.1. Defendant No.2 is the son of defendant No.1 and defendant No.3 is the unmarried daughter of late Karigowda. During the lifetime of Karigowda, some lands of the joint family were acquired by the Government for development of BEML Factory. After the demise of Karigowda, his two sons viz., Boregowda and Shivaramegowda divided the entire ancestral properties between them orally at the instance of panchayardars. In the said oral partition, an extent of 3 acres 24 ½ guntas of land fell to the share of the plaintiff’s father, and remaining 1 acre 34 ½ guntas in Sy.No.71/1 of Koorgally village fell to the share of defendant No.1. The khatha was mutated in the names of the respective parties. The plaintiff’s father was possessing and enjoying the suit land during his lifetime and later on, the plaintiff and his father sold some portion and

¶37

4 -

¶38

NC: 2025:KHC:33173 RSA No. 334 of 2023

¶39

HC-KAR

¶40

retained the suit schedule property, and constructed a house and residing therein. After the death of the plaintiff’s father, it was mutated in his name. Defendant No.3, colluding with defendant No.1, issued a legal notice to the plaintiff. On 28.08.2008, she claimed 20 guntas of land which is part of the suit schedule property. The plaintiff replied to the legal notice and the defendants tried to interfere with the peaceful physical possession and enjoyment of the plaintiff, and attempted to put up foundation in the schedule property. Hence, a cause of action arose for the plaintiff to file a suit for declaration and injunction. Accordingly, prays to decree the suit.

¶41

Defendants No.1 to 3 filed their written statements respectively. Defendant No.3 filed a written statement, denying the averments made in the plaint, and it is denied that the plaintiff is the absolute owner of the suit schedule property and contended that, the plaintiff by suppressing the fact that in family portion Sy.No.71/P new 71/1 was allotted to his share, measuring 20 guntas, has filed a suit. Hence, prayed to dismiss the suit against

¶42

5 - NC: 2025:KHC:33173 RSA No. 334 of 2023

¶43

HC-KAR

¶44

defendant No3. Defendants No.1 and 2 filed a written statement reiterating the written statement filed by defendant No.3 and accordingly, prayed to dismiss the suit against defendants No1 and 2.

¶45

The Trial Court, based on the pleadings of the

¶46

parties, framed the relevant issues.

¶47

The plaintiff, to substantiate his case, examined himself as PW-1 and got marked nine documents as Exs.P1 to P9. Conversely, the defendants have examined the power of attorney holder of defendant No.3 as DW-1, one more witness was examined as DW-2, and marked six documents as Exs.D1 to D6.

¶48

The Trial Court, after assessing the verbal and documentary evidence, dismissed the suit vide judgment dated 01.07.2020. The plaintiff, aggrieved by the judgment and decree passed in OS No.560/2008, preferred an appeal in RA No.147/2021 on the file of the Principal District and Sessions Judge, Mysuru. The First Appellate, after hearing the parties, framed the relevant points for consideration.

¶49

6 - NC: 2025:KHC:33173 RSA No. 334 of 2023

¶50

HC-KAR

¶51

The First Appellate Court, after assessing the entire evidence on record, Court dismissed the appeal vide judgment and decree dated 18.11.2022. Aggrieved by the impugned judgments, the plaintiff has filed this Regular Second Appeal.

¶52

Heard the arguments of learned counsel for the

¶53

plaintiff.

¶54

Learned counsel for the plaintiff submits that, the plaintiff is the absolute owner of the suit schedule property, and he acquired the suit schedule property in a partition effected between him and his siblings, and based on the oral partition, the names of the parties were entered in the revenue records. Thus, the plaintiff became the absolute owner of the suit schedule property. The said aspect was not considered by the Courts below and committed error in passing the impugned judgments. On these grounds, he prays to allow the appeal.

¶55

Perused the records and considered the

¶56

submissions of learned counsel for the plaintiff.

¶57

7 -

¶58

NC: 2025:KHC:33173 RSA No. 334 of 2023

¶59

HC-KAR

¶60

Admittedly, the plaintiff has filed a suit for declaration of title, and a permanent injunction based on the oral partition alleged to have been effected between him and his brother. To establish that there was a prior partition between the plaintiff and his brother, the plaintiff has not produced any records, nor examined any witnesses present at the time of alleged partition. The Trial Court placing reliance on the judgment of this Court in the case of Sri. Aralappa Vs. Sri. Jagannath and Others¹ , wherein this Court held that mere suit for declaration of title based on partition is not maintainable, dismissed the suit of the plaintiff. Further, the plaintiff has not produced any title deeds to seek a relief of declaration of a title. Both the Courts below were justified in passing the impugned judgments.

¶61

Hence, I do not find any error in the impugned judgments and substantial question of law arises for my consideration in this appeal. Accordingly, I concur with the

¶62

1 ILR 2007 KAR 339

¶63