IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 7 T H DAY OF FEBRUARY 2017

BEFORE

THE HON’BLE MR. JUSTICE S.N. SATYANARAYANA

R.S.A.NO.5023/2010

BETWEEN:

SHRI SIDRAM VITHOBA JADHAV, SINCE DECEASED BY HIS L.RS.,

1. SMT. YALLAWA W/O. SIDRAM JADHAV AGE : 75 YEARS, OCC: HOUSEHOLD, R/O : SHINDIKURBET TQ : , DIST :

2. SHRI BALAPPA SIDRAM JADHAV AGE : 50 YEARS, OCC : AGRICULTURE, R/O : SHINDIKURBET, TQ : GOKAK, DIST: BELGAUM.

3. SHRI GANAPATI SIDRAM JADHAV AGE : 47 YEARS, OCC : AGRICULTURE, R/O : SHINDIKURBET TQ : GOKAK, DIST : BELGAUM.

4. SMT. AKKAWA W/O. YASHWANT PAWAR AGE: 40 YEARS, OCC : AGRICULTURE, R/O : SHINDIKURBET TQ: GOKAK, DIST : BELGAUM

5. CHAMPAWA D/O. SIDRAM JADHAV AFTER MARRIAGE KNOWN AS SMT. CHAMPAWA @ SAVITA W/O.VIJAY MORE AGE: 30 YEARS, OCC: AGRICULTURE, R/O: SHINDIKURBET TQ: GOKAK, DIST: BELGAUM, 2

NOW AT , TQ: , DIST: BELGAUM.

... APPELLANTS

(BY SRI M G NAGANURI, ADVOCATE.)

AND

SHRI DUNDAPPA MAHADU @ MAHADEV JADHAV SINCE DECEASED BY HIS L.RS.,

1. SMT. GOURWA W/O. DUNDAPPA JADHAV AGE : 65 YEARS, OCC : AGRICULTURE, R/O : MUGALI TQ : CHIKODI, DIST : BELGAUM

2. SHRI BASAVANNI DUNDAPPA JADHAV AGE : 45 YEARS, OCC : AGRICULTURE, R/O : MUGALI TQ : CHIKODI, DIST : BELGAUM

3. SHRI CHANDRAKANT DUNDAPPA JADHAV AGE : 45 YEARS, OCC : AGRICULTURE, R/O : MUGALI TQ : CHIKODI, DIST : BELGAUM

4. SHRI SURESH DUNDAPPA JADHAV AGE : 35 YEARS, OCC : AGRICULTURE, R/O : MUGALI TQ : CHIKODI, DIST : BELGAUM

5. SHRI SHIVAJI DUNDAPPA JADHAV AGE : 33 YEARS, OCC : AGRICULTURE, R/O : MUGALI TQ : CHIKODI, DIST : BELGAUM

6. SHRI ANAND DUNDAPPA JADHAV AGE : 31 YEARS, OCC : AGRICULTURE, R/O : MUGALI TQ : CHIKODI, DIST : BELGAUM 3

7. SMT.AVVAKKA D/O. DUNDAPPA JADHAV AGE : 29 YEARS, OCC : AGRICULTURE, R/O : MUGALI TQ : CHIKODI, DIST : BELGAUM

8. SMT.KASTURI D/O. DUNDAPPA JADHAV AGE : 27 YEARS, OCC : AGRICULTURE, R/O : MUGALI TQ : CHIKODI, DIST : BELGAUM

9. SHRI SHANKAR MAHADU @ MAHADEV JADHAV AGE : 65 YEARS, OCC : AGRICULTURE, R/O : SHINDIKURBET TQ : GOKAK, DIST : BELGAUM

10. SHRI SUBHAS MAHADU @ MAHADEV JADHAV AGE : 60 YEARS, OCC : AGRICULTURE, R/O : SHINDIKURBET TQ : CHIKODI, DIST : BELGAUM, NOW AT , TQ: , DIST: BELGAUM.

11. SHRI SHANKAR SIDRAM JADHAV AGE : 63 YEARS, OCC : AGRICULTURE, R/O : SHINDIKURBET TQ : CHIKODI, DIST : BELGAUM,

... RESPONDENTS

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH XLII RULE 1 OF CPC, SEEKING TO SET ASIDE THE JUDGEMENT AND DECREE DATED 22.12.2009, PASSED IN R.A.NO.53/2003, ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.), GOKAK, AND TO RESTORE THE JUDGMENT AND DECREE DATED 28.11.2000, PASSED IN O.S.NO.470/1989, ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN.), GOKAK, ETC.,.

THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: 4

JUDGMENT

The plaintiffs in O.S.No.470/1989, on the file of Civil Judge (Jr.Dn.), Gokak, have come up in this second appeal impugning the concurrent finding rendered in declining the relief of declaration. However it is stated that in the

Courts below i.e., in O.S.No.470/1989 his possession was recognized in judgment dated

28.11.2000 and subsequently in two appeals, i.e., the one which was filed by defendant No.2, in

R.A.No.53/2003 was allowed and another one filed by plaintiff No.1(b), in R.A.No.32/2009 is dismissed, consequently the entire suit is dismissed. Being aggrieved by the same, this second appeal is filed by the plaintiffs.

2. The brief facts leading to this second appeal are that the plaintiff and defendants are members of the same family. The propositus of the said family is said to be one Vithoba. The record 5

would disclose that Vithoba had in all five children and they are (1) Appoji, (2) Mahadev @

Mahadu, (3) Sidram, the plaintiff in the original suit, (4) Satyappa and (5) Mahipati. Admittedly the partition among the children of Vithoba has taken place in the year1971 based on which a wardi is given by each one of them and entries are made with reference to the property which are allotted to each one of them.

3. It is the case of the plaintiff that he was given possession of the land bearing Block

No.195/2 of Shindikurbet village in Gokak taluk of , measuring to an extent of 1 acre 31 guntas. The records would disclose that the plaintiff got entered in the revenue records in respect of this property in his name and continued to be in possession of that property.

However subsequently Sidram’s elder brother

Mahadu’s son Shankar initiated proceedings 6

before the Tahasildar in RTA (AP) 107/86-87 contending that the aforesaid land belongs to him.

However, it is seen that the authorities accepted his plea and changed the revenue entries registering the khata of the same in the name of

Mahadu’s children, which was challenged by the plaintiff by filing a suit for declaration and also seeking decree with reference to possession of the said property.

4. In the original suit he was not able to establish his title. The trial Court went through the records of the property and noticed that the said property was portion of old Sy.No.66/4 of

Shindikurbet village in Gokak taluk, measuring

4 acres 30 guntas, in which 1 acre 31 guntas being a portion was renumbered as Block

No.195/2 and the plaintiff claimed declaration of title of that portion, which was denied by the

Courts below and however possession of plaintiff 7

to the said property was confirmed by the trial

Court on appreciation of material available on record. Hence two appeals came to be filed. One by the defendant No.2 and another by plaintiff

No.1(b). The appeal filed by plaintiff No.1(b) is with reference to denial of prayer of declaration which was subject matter of R.A.No.32/2009.

However the appeal which was filed by 2 nd defendant is with reference to the finding given so as to alleged possession of plaintiff over the suit schedule property which is in R.A.No.53/2003.

5. The Court of Civil Judge (Sr.Dn.),

Gokak, while sitting in appeal has allowed the appeal filed by the 2 nd defendant in

R.A.No.53/2003 and set aside the finding that

Sidram’s children are in settled possession. In so far as the appeal which was filed by plaintiff

No.1(b), Sidram’s son is concerned, the same is rejected in confirming the denial of the prayer for 8

declaration in their favour. As against the concurrent finding of both the Courts below regarding declaration and divergent finding regarding possession, this second appeal is filed.

6. Heard the learned counsel Sri

M.G.Naganuri appearing for the appellants.

Perused the judgment impugned of both the

Courts below. On going through the same, it is seen that the relationship between the plaintiffs and defendants as children of Mahadu and Sidram is not in dispute. It is also not in dispute that there was a partition in the family of Vithoba in the year 1971, based on which the title was traced and possession was decided by both the Courts below.

7. Though it appears that the lower appellate Court while reconsidering the finding regarding possession has given an erroneous view as stated by the counsel for the appellant, what is 9

required to be seen is, the dispute is not between strangers, but it is between the members of same family. However at one point of time common possession of the entire extent of land belonging to Vithoba is subsequently divided among his five children, in the bargain there appears to be some discrepancies in the possession, the same cannot be highlighted as if the possession itself would decide the title. Here the title is based on a wardi, which is given to the revenue authorities subsequent to partition, which has taken place in the year 1971.

8. If the entire material on record is viewed from that angle, the divergent finding rendered by the lower appellate Court in disturbing the finding regarding possession in favour of Sidram’s children who are plaintiffs in the original suit appears to be just and proper.

Therefore when the title with reference to property 10

based on revenue entries reached finality, question of pursuing the possession on technical grounds would not inure to the benefit of the appellants who are plaintiffs in the trial Court.

9. With such observation this second appeal is dismissed holding that no grounds are made for admission of this appeal.

Sd/- JUDGE Mrk/-