HANUMANTHAPPA v. SMT. CATHORIN S. D SOUZA, AGE: 65 YEARS, OCC: HOUSE WIFE

Judgment

#1. SMT. CATHORIN S. D SOUZA, AGE: 65 YEARS, OCC: HOUSE WIFE R/O: CHURCH ROAD, SIRSI, TQ: SIRSI, DIST: UTTAR KANNADA – 581 401. … APPELLANT HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad

#4. SUNITA W/O. HANUMANTHAPPA BALEGAR, AGE: 28 YEARS, OCC: HOUSEHOLD, R/O: RAMAN BAIL, TQ: SIRSI, DIST: UTTAR KANNADA – 581 401. SHOBHA PRAKASH W/O. HONNAKALAVE K. R. HATTY, AGE: 33 YEARS, OCC: HOUSEHOLD, R/O: GUNJIGANUR POST, CHITRADURGA – 577 501. MANJULA HALESHAPPA W/O. K. HALESHAPPA, AGE: 43 YEARS, OCC: HOUSEHOLD, R/O: NEW INDIRA COLONY, AT POST SAVALANGA, TQ: HONNALLI, DIST: DAVANAGERE – 577 002. THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND DECREE DATED 29.11.2013 IN R.A.NO.11/2011 PASSED BY SENIOR CIVIL JUDGE, SIRSI JUDGMENT AN DECREE DATED 13.01.2011 PASSED IN OS NO.121/1999, BY PRL. CIVIL JUDGE, SIRSI BY ALLOWING THE PRESENT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. … RESPONDENTS - 2 - NC: 2025:KHC-D:8220 RSA No. 101385 of 2022 HC-KAR THIS APPEAL, COMING ON FOR ORDERS THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

#1. This appeal filed by the plaintiff O.S.No.121/1999, (since the deceased represented by the legal representatives), being aggrieved by the common judgment and decree dated 13th January 2011 passed in the said suit in O.S. No.121/1999 and O.S. No.140/2002 by which Prl. Civil Judge, Sirsi (for short “the trial Court”), dismissed the suit in O.S.No.121/1999 and decreed the suit in O.S.No.140/2002, which was modified by the common judgment and decree dated 29th November 2013 in R.A. Nos.11/2011 and 12/2011 by the Senior Civil Judge, Sirsi (for short “the First Appellate Court”).

#2. O.S. No.121/1999: (a) This suit is filed by Hanumantappa Durgappa Balagar the plaintiff for relief of permanent injunction against one Smt. Cathorin, claiming to be in possession and enjoyment of the plaint schedule property being land bearing Sy.No.255, measuring 0-4-10¼ (A-G-A), as - 3 - NC: 2025:KHC-D:8220 RSA No. 101385 of 2022 HC-KAR described in the schedule to the plaint having encroached upon the same about 25 to 30 years prior to filing of the suit. That he has constructed a house thereon and has been residing therein ever since then. The said house is located in Ward No.IIIA of the Sirsi City Municipality and bears the No.642/C1. The plaintiff has also planted coconut trees on the property. The plaintiff, after constructing the house, obtained an electricity connection and has been paying property tax. That the defendants, who have no share, right, title or interest in the property, attempted to interfere with the plaintiff’s peaceful possession and enjoyment of the same. (b) That despite having no lawful right over the property, the defendant allegedly managed to have the revenue records transferred in his name without the knowledge of the plaintiff. The plaintiff had also submitted an application to the Government seeking grant of the suit property in his name. The Authorities conducted a survey and spot inspection and were on the verge of granting the property in favour of the plaintiff. (c) That in the meanwhile, the defendant claimed that the suit property belonged to her late husband and that the Khata had been transferred to her name after his death. - 4 - NC: 2025:KHC-D:8220 RSA No. 101385 of 2022 HC-KAR (d) That she expressed her intention to construction a house on the suit property and demanded the plaintiff to demolish his house and handover the vacant possession of the suit premises. This prompted the plaintiff to file the present suit seeking a permanent injunction to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit property.

#3. The defendant filed a written statement denying the allegations made in the plaint. She contended: (a) That the coconut trees standing on the suit property were planted by her husband. She further stated that plot No.161, measuring 4 guntas 10¼ anna in Sy.No.255 at Sirsi, had been granted by the Government in favour of her husband in the year 1971, and his name was duly entered in the revenue records. He was in possession and enjoyment of the said property and had also constructed a residential house thereon, where he was residing with his family. (c) That since, the defendant suffered loss, the family had shifted to another house located at Bhagavati Oni, Near Five Road Circle, Sirsi. Despite this, the possession of the suit property remained with the defendant. In the meanwhile, her husband passed - 5 - NC: 2025:KHC-D:8220 RSA No. 101385 of 2022 HC-KAR away, and the defendant came in possession of the property. (c) That taking advantage of her being a widow, the plaintiff had created bogus documents and started making illegal claims over the suit property. That the plaintiff has no right to the suit property and therefore, prayed for dismissal of the suit.

#4. O.S.No.140/2022: (a) The above suit in O.S. No. 140/2002 is filed by Smt. Carolin kom. Simav D’Souza and four others against Hanumantappa Durgappa Balagar (plaintiff in O.S.No.121/1999) and one Presilla in respect of the very same property (subject matter of suit O.S.No.121/1999) seeking a declaration that the plaintiffs and defendant No.2 are the owners in possession of the aforesaid property and permanent injunction restraining defendant No.1 from interfering with the possession and enjoyment of the plaintiffs and defendant No.2 over the plaint schedule property. In the alternate, the plaintiffs sought possession of the plaint schedule property if it was - 6 - NC: 2025:KHC-D:8220 RSA No. 101385 of 2022 HC-KAR found that the defendant No.1 was in possession of the plaint schedule property.

#5. Based on the above pleadings, the trial Court framed the following issues in O.S. No.121/1999: 1) Whether the plaintiff proves that the suit property is in his possession and enjoyment as on the date of suit? (2) Whether the plaintiff proves that the defendant has obstructed his peaceful possession and enjoyment of the suit property? (3) Whether the defendant proves that the plaintiff suit is not maintainable as alleged in para ii of the W.S? (4) Whether the plaintiff entitled the relief as prayed for? (5) What order or decree?

#6. The trial Court also framed the following issues in O.S. No.140/2002:

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#7. The aforesaid suits were clubbed together, and common evidence was recorded. On appreciation of the evidence, the trial Court answered the issues framed in O.S. No.121/1999 as follows: Issue No.1 Issue No.2 Issue No.3 Issue No.4 Issue No.5 : : : : : in the affirmative, in the affirmative, in the affirmative, in the negative, & as per final order. and also answered the issues framed in O.S. No.140/2002 as under: Issue No.1 Issue No.2 Issue No.3 Issue No.4 Issue No.5 Issue No.6 : : : : : : partly in the affirmative, in the negative, in the affirmative, in the affirmative, in the affirmative, & as per final order. - 8 - NC: 2025:KHC-D:8220 RSA No. 101385 of 2022 HC-KAR Consequently, the trial Court dismissed the suit of the plaintiffs in O.S. No. 121/1999 and decreed the suit in O.S. NO.140/2002, declaring that the plaintiffs and defendant No.2 in O.S. No.140/2002 are the owners of suit schedule property. As a result, defendant No.1 was directed to handover the possession of suit schedule property to the plaintiffs and defendant No.2 after receiving value of the structures existed on the plaint schedule property. The value of the said structures was to be determined during the final decree proceedings.

#8. Being aggrieved by the aforesaid judgment and decree, the plaintiff – Hanumantappa Durgappa Balagar, filed an appeal in R.A. No.11/2011 challenging the dismissal of his suit in O.S. No.121/1999, and another appeal in R.A. No.12/2011 challenging the decree passed in O.S. No.140/2002. Cross objections were also filed by the defendants, aggrieved by the direction of the trial Court to pay the value of the structures existing on the suit schedule property to the plaintiff. - 9 - NC: 2025:KHC-D:8220 RSA No. 101385 of 2022 HC-KAR

#9. By a common judgment and decree, the First Appellate Court dismissed the appeals filed by the plaintiffs in R.A. Nos.11/2011 as well as 12/2011 and partly allowed the cross-objections preferred by respondents. Consequently common judgment and decree passed in O.S.No.121/1999 and O.S.No.140/2002 dated 13.01.2011 was set aside and modified by declaring plaintiffs and defendant No.2 in O.S.No.140/2002 as the absolute owners of the suit property and further directed that defendant No.1 (Hanumantappa Durgappa Balagar) to handover the vacant possession of the suit property to the plaintiffs and defendant No.2 within three months, failing which it is held the plaintiffs are at liberty to recover the possession of the suit property from defendant No.1, with due process of law.

#10. Being aggrieved by the judgment and decree to the extent of dismissing his suit in O.S.No.121/1999 Hanumantappa Durgappa Balagar, the plaintiff in the said suit, his legal representative has filed the present regular second appeal before this Court. - 10 - NC: 2025:KHC-D:8220 RSA No. 101385 of 2022 HC-KAR

#11. Learned counsel Shri M.S. Hallikeri, appearing for the appellant / plaintiff reiterating the grounds urged in the memorandum of appeal submitted that both the trial Court and the First Appellate Court committed illegality in not properly appreciating the evidence available on record. He contended that the suit in O.S. No.140/2002 ought not to have been decreed, as it was barred by limitation. Though both the Courts have accepted the case of the plaintiff in O.S.No.121/1999 of he being in possession of the suit property for over 30 years, they nevertheless erroneously decreed the suit in O.S.No.140/2002 declaring the title of the plaintiffs therein and directing Hanumantappa Durgappa Balagar to handover the possession of the suit property.

#12. Heard. Perused the records.

#13. The suit for declaration of title and possession filed in O.S. No.140/2002 was decreed by both the trial Court and the First Appellate Court. The said judgment and decree has not been challenged and the same therefore attained finality. The present appeal only challenges the - 11 - NC: 2025:KHC-D:8220 RSA No. 101385 of 2022 HC-KAR judgment and decree passed in O.S. No.121/1999, by which the trial Court dismissed the suit of Hanumantappa Durgappa Balagar the plaintiff, which is confirmed by the First Appellate Court.

#14. The trial Court had directed the Hanumantappa Durgappa Balagar the plaintiff in O.S.No.121/1999 (defendant No.1 in O.S. No.140/2002) to handover the possession of the suit property to the plaintiffs and defendant No.2 in O.S.No.140/2002, upon receiving the value of the structures existing in the plaint schedule property. However, the First Appellate Court modified the judgment and decree and directing the plaintiff (defendant No.1 in O.S. No.140/2002) to handover the possession of the suit property within three months, failing which the plaintiffs in O.S. No.140/2002 were granted liberty to recover the possession from defendant No.1 with due process of law.

#15. What emanates from the judgments of both the trial Court and the First Appellate Court is that, they held - 12 - NC: 2025:KHC-D:8220 RSA No. 101385 of 2022 HC-KAR the plaintiff/appellant herein to be in possession of the suit property and affirmed that he cannot be dispossessed without due process of law. Since the relief of declaration of title has been granted in favour of plaintiffs and defendant No.2 in O.S. No.140/2002 and this not having been challenged by the plaintiff in O.S. No.121/1999 and the plaintiffs in O.S.No.140/2002 having been directed not to dispossess Hanumantappa Durgappa Balagar without due process of law, no interference is warranted with the impugned judgment and order passed by the First Appellate Court in R.A. No.11/2011, as no substantial question of law arises for consideration. Accordingly, the appeal dismissed. Sd/- (M.G.S. KAMAL) JUDGE VNP/CT-ASC List No.: 1 Sl No.: 46