Kolkunte Thipperudrappa vs Heggeri Nagarajappa

K.N. Keshavanarayana

This appeal is directed against, the judgment and order dated 18.04.2011 passed by the I Additional Senior Civil Judge, Davangere, in R.A. No. 129/2006 allowing the appeal and setting aside the judgment and decree dated 06.04.2006 passed by the Principal Civil Judge (Jr.Dn.), Davangere, in O.S. No. 188/2005 decreeing the suit tiled by the appellant/plaintiff for declaration and permanent injunction in respect of the suit schedule property.

The subject matter of the suit is agricultural land bearing Sy. No.42/2P1 measuring 2 acres 25 guntas situated at Katehalli Village in Davangere Taluk.

The case of the appellant/plaintiff in brief was that, he along with his uncle effected partition of the joint family properties under the registered partition deed-Ex.P1 dated 11.08.1980; that as per the said partition deed, the suit schedule property fell to the share of the plaintiff apart from other properties; that thus, the plaintiff has been in lawful possession and enjoyment of the suit schedule property as its absolute owner thereof; that the defendant who has no manner of right, title or interest over the same, is trying to interfere with his peaceful possession and enjoyment of the suit schedule property. Therefore, he sought for declaration of his title to the suit schedule property and also for the relief of permanent injunction.

The respondent/defendant contested the suit denying the case of the plaintiff. He inter alia contended that one Kolkunte Sanna Kariyappa was the propositor of the family and he had 4 sons by name Kariyappa, Ramappa, Kolyappa and Hanumappa; that the plaintiff-Thipperudrappa is the son of Kariyappa, the 1st son of Kolkunte Sanna Kariyappa; that Ramappa, the 2nd son of Kolkunte Sanna Kariyappa and his wife died issueless. while Kolyyappa, the 3rd son of Kolkunte Sanna Kariyappa had three sons namely, Ekanthappa, Ramappa and Kariyappa: that the 4th son Hanumappa had only one daughter Veerabasamma and the defendant is the son of the said Veerabasamma; that Kolkunte Sanna Kariyappa and his sons were members of the joint family which owned the land bearing survey Nos.42/2P1 and 42/2 at Katehalli Village along with other land properties; that after the death of their father and also on the death of Ramappa, the remaining three brothers divided the family properties under an oral partition and in the said oral partition, Hanumappa was allotted with 4 acres 8 guntas of land in survey No. 42/2 while Kariyappa was allotted with other properties in survey No.42/2P1 and 42/2. According to the defendant, his grandfather-Hanumappa executed a Will in favour of his daughter Veerabasamma on 03.07.1978 bequeathing the suit schedule property in her favour and after the death of Hanumappa, Veerabasamma became the owner of the suit schedule property and subsequently upon the death of Veerabasamma, the defendant became the owner of the suit schedule property. He contended that he has been in peaceful possession and enjoyment of suit schedule property and that the plaintiff, who has no manner of right, title or interest over the same, is trying to interfere with his peaceful possession and enjoyment of the suit schedule property, therefore, he sought for dismissal of the suit.

The parties led oral and documentary evidence in support of their respective contentions. The trial Court on assessment of oral and documentary evidence, held that the plaintiff has proved his ownership over the suit schedule property and also his possession of suit schedule property. In that view of the matter, the trial Court decreed the suit, declared the plaintiff as the owner of the suit schedule property and restrained the defendant by means of permanent injunction from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule" property. Aggrieved by the said judgment and decree, the respondent/defendant filed appeal in R.A. No. 129/2006 before the Lower Appellate Court.

The Lower Appellate Court" on re-appreciation of the oral and documentary evidence, reversed the judgment and decree passed by the trial Court holding that the plaintiff has hot proved his title to the suit schedule, property inasmuch as to the alleged partition deed-Ex.P1 all the surviving sons of Kolkunte Sanna Kariyappa were not parties, therefore, it is not binding on the rights of other members of the family. In that view of the matter, the Lower Appellate Court allowed the appeal, set aside the judgment and decree of the trial Court and consequently dismissed the suit. It is against this judgment of the Lower Appellate Court, the appellant/plaintiff is before this Court.

I have heard the learned counsel for the appellant and perused the judgments under appeal.

There is no dispute regarding the inter se relationship between the parties. Both the parties claim through common ancestor by name Kolkunte Sanna Kariyappa. There is no serious dispute that the Kolkunte Sanna Kariyappa had 4 sons. The plaintiff represents the branch of Kariyappa, the 1st son of Kolkunte Sanna Kariyappa while the defendant represent the branch of Hanumanthappa, the 4th son of Kolkunte Sanna Kariyappa. The plaintiff based on the registered partition deed -Ex.P1. claimed title to the suit schedule property.

As could be seen from the judgments under appeal, the Partition Deed-Ex.P1 dated 11.08.1980 was between the appellant/plaintiff and one Ramappa, the 2nd son of Kolyappa, who is the 3rd son of Kolkunte Sanna Kariyappa. As evidenced by Ex.D4, Hanumappa died on 17.03.1980. However, his daughter Veerabasamma was alive as on the date of Ex.P1 dated 11.08.1980. To the Partition Deed-Ex.P1, Smt. Veerabasamma representing the branch of Hanumappa has not been made a party. No share is assigned to her in the said partition deed. Therefore, the Lower Appellate Court has held that the said partition Deed-Ex.P1 was not among all the sharers of the properties of the family, therefore, the same cannot: be a basis to declare the title of the plaintiff. It is the contention of the plaintiff that Hanumappa during his lifetime along with his father Kolkunte Sanna Kariyappa had alienated an extent of 6 acres in land bearing survey No. 42 out of total extent of 12 acres and therefore, Hanumappa was not entitled for any share in the properly. However, it has to be noticed that the said alleged sale by Kolkunte Sanna Kariyappa and Hanumappa was not challenged or disputed by any other members of the family. Therefore, on the basis of such a sale, it cannot be said that Hanumappa had no share in the remaining properties. Since the partition alleged to have been brought-out under Ex.P1 was only between the appellant and one another person representing one of the branches, the same would not bind the right of the members of the other branch. Therefore, on the basis of Ex.P1, the Lower Appellate Court has rightly held that the plaintiff cannot be declared as the owner of the suit schedule property. The finding of the Lower Appellate Court being questions of fact and having reached on appreciation of oral and documentary evidence, this Court sitting in second appeal cannot reappreciate the same and record a different finding. The Lower Appellate Court has assigned cogent and acceptable reasons for reversing the judgment of the trial Court. The trial Court has merely proceeded on the basis of Ex.P1 to declare the title of the plaintiff without taking into consideration the fact that the members of the other branches are not parties to the said partition deed. In this view of the matter, the Lower Appellate Court is justified in reversing the judgment of the trial Court and in dismissing the suit filed by the appellant/plaintiff. Therefore, I find no grounds to entertain this appeal, as such, it is liable to be dismissed. However, the dismissal of this appeal would not come in the way of the plaintiffs right, if any, to seek the relief of partition.

With the above observations, the appeal is dismissed.

In view of dismissal of this appeal. IA. No.3/2011 filed for Temporary Injunction and the application-Misc. Civil-15274/2011 filed for vacating stay, do not survive for consideration. Accordingly, the said applications stand disposed of.