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2024 Supreme(Online)(Kar) 44592
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2024 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 562 OF 2013 (DEC/INJ)
BETWEEN:
1. H S PALANETHRA AGED ABOUT 65 YEARS, S/O LATE H.S. SHANKARAPPA, ANAGONDANAHALLI KASABA HOBLI, TIPTUR TALUK, TUMKUR DISTRICT.
2. A. SHASHIDHARA AGED ABOUT 46 YEARS, S/O H.S.JAYADEVAPPA, LIBRARIAN, MS RAMAIAH COLLEGE OF DENTAL NEW BEL ROAD Digitally signed BENGALOORE.
by R DEEPA Location: H IGH
3. MAHESHA COURT OF AGED ABOUT 43 YEARS, KARNATAKA S/O H.S.JAYADEVAPPA, C/O RENUKAIAH, REVANASIDDESHWARA ELECTRICALS NH 206, GUBBI TOWN TUMAKURU DISTRICT.
4. PRASAD S/O H.S. JAYADEVAPPA AGED ABOUT 50 YEARS R/O ANAGONDANAHALLI VILLAGE, KASABA HOBLI, TIPTUR TALUK.
…APPELLANTS (BY SRI. M VINAYA KEERTHY, ADVOCATE)
AND:
1. A H KUMARASWAMY AGED ABOUT 71 YEARS, S/O LATE HALAGAPPA, SINCE DEAD BY HIS LR'S
1(A) VISHALAMMA AGED ABOUT 65 YEARS W/O KUMARASWAMY
1(B) VISHWANATH AGED ABOUT 36 YEARS S/O KUMARASWAMY
1(C) UMADEVI AGED ABOUT 30 YEARS D/O KUMARASWAMY ALL ARE R/AT #41, III MAIN II BLOCK, III STAGE BASAVESHWARANAGAR BENGALURU - 560 079.
…RESPONDENTS [BY SRI. K.N. NITHESH, ADVOCATE FOR R1(A-C)]
THIS RSA IS FILED U/S. 100 R/W ORDER XLII OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 7.1.2013 PASSED IN R.A.NO.15/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., TIPTUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 15.11.2006 PASSED IN OS.NO.248/2002 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN) & JMFC., TIPTUR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular second appeal is filed by the appellants challenging the judgment and decree dated 07.01.2013 passed in R.A.No.15/2007 by the Senior Civil Judge and J.M.F.C., at Tiptur.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the defendants and the respondent is the plaintiff.
3. The brief facts leading rise to filing of this appeal are as under:
The plaintiff filed a suit for declaration of title and permanent injunction in respect of the suit schedule property. It is the case of the plaintiff that the suit schedule property was granted in favour of his father i.e., late Halagappa in the year 1945-46 under Darakasth and after his demise, the plaintiff and his brothers got divided the property under registered partition deed dated 26.10.1977. In the said partition, the suit schedule property was fallen to the share of the plaintiff. On the basis of the registered partition deed dated 26.10.1977, the name of the plaintiff was entered in the revenue records. It is contended that after entering the name of the plaintiff in the revenue records, a survey was conducted and new survey number was assigned as Sy.No.178/2. The plaintiff raised loan of Rs.8,500/- from the Karnataka State Co-operative Agriculture and Rule Development Bank Ltd., Tumkuru on the suit property. The said loan was repaid on 30.09.1999 by the plaintiff. It is contended that the defendants have no right, title or interest in any manner over the suit property. The defendants are not in possession and enjoyment of the suit schedule property at any point of time. The defendants tried to interfere into the peaceful possession and enjoyment over the suit schedule property and denied the title of the plaintiff over the suit property. Hence, cause of action arose for the plaintiff to file a suit for declaration of title and permanent injunction.
4. The defendants filed the written statement denying the averments made in the plaint. It is contended that the plaintiff is not the owner of the suit schedule property and the land was granted in favour of father of the plaintiff under Darakasth and the said grant was in favour of entire family. Since father of the plaintiff and his other brothers were owning ancestral properties in the village and he is the senior member of the family of Snankregowda and same was granted to enure the benefit of the family. It is contended that the land bearing Sy.No.45/1 originally measuring 5 acres in Anagondanahally village. The father of the plaintiff and his brothers namely H.S.Shankarappa (father of 2nd defendant and grandfather of defendant Nos.1, 3 and 4) entered into the partition. As per the said partition, 1 acre was allotted in favour of Halagappa and 1 acre was allotted in favour of H.S.Shankarappa i.e., father of defendant No.2 and grandfather of defendant Nos.1, 3 and 4 and 1 acre 20 each was allotted in favour of Mahalingappa and Shivanna. On the basis of the said partition, RTC and other revenue records were entered accordingly in the year 1992. It is further contended that sole intention of the plaintiff is to grab the suit schedule property and created the partition deed dated 26.10.1977. It is contended that defendants approached the Land Tribunal challenging the survey records. The Karnataka Appellate Tribunal set aside the order passed by the ADLR fixing the hud-bust and making of phodi and remanded the matter for fresh consideration. It is contended that the defendants are in possession of 1 acre of suit land. Hence, on these grounds, sought for dismissal of the suit.
5. The Trial Court, on the basis of the above said pleadings, framed the following issues:
1) Whether the plaintiff proves that he is the absolute owner of suit schedule property?
2) Whether the plaintiff proves he has been in actual possession and enjoyment of suit schedule property as on the date of suit?
3) Whether the defendants prove that out of suit schedule property they
