In the High Court of Karnataka Circuit Bench at Dharwad Dated This the 26Th Day of July, 2012 Before the Hon'ble Mr.Justice Aj

IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 26 TH DAY OF JULY, 2012 BEFORE THE HON’BLE MR.JUSTICE AJIT J.GUNJAL REGULAR SECOND APPEAL No. 2481/2006 (DEC/INJ) BETWEEN: 1. SHRI SHANKAR S/O SATTEPPA DHAPADULE, AGED ABOUT 59 YEARS, OCC: AGRICULTURAL, R/O SHIRHATTI B.K., TAL: HUKKERI, DIST: BELGAUM-590002. 2. ADINATH S/O APPANNA DHAPADULE, AGED ABOUT 57 YEARS, OCC: AGRICULTURAL, R/O SHRIHATTI B.K., TAL: HUKKERI, DIST: BELGAUM-590002. ... APPELLANTS (BY SRI. SACHIN S MAGADUM, ADV.) AND 1. SMT KRISHNAVVA @ KUTNAWA, W/O APPANNA DHAPADULE, AGE: 58 YEARS, OCC: AGRICULTURAL, R/O SHIRHATTI B.K., TAL: HUKKERI, DIST: BELGAUM-590002. 2. SMT AWAKKA W/O BHARAMU PATIL, AGE: 45 YEARS, OCC: AGRICULTURAL, R/O SARAPUR, TAL: HUKKERI, DIST: BELGAUM-590002. 3. SMT RATNAVVA W/O PARIS CHANDAVAGOL, AGE: 38 YEARS, OCC: AGRICULTURAL, : 2 : R/O DURUNDI, TAL: GOKAK, DIST: BELGAUM-590002. 4. SMT CHAMPAVVA W/O JINNAPPA CHANDAVAGOL, AGE: 37 YEARS, OCC: AGRICULTURE, R/O DURUNDI, TAL: GOKAK, DIST: BELGAUM-590002. ... RESPONDENTS (R1-HELD SUFFICIENT, R2, R3 &R4-SERVED.) THIS APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 07.07.2006 PASSED IN R.A.NO.86/2002 ON THE FILE OF THE FTC-I, DIST. AND SESS. JUDGE, CHIKODI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.10.2002 PASSED IN O.S.NO.164/1997 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), HUKERI. THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Defendants 1 and 2 are before this Court questioning the judgment and decree passed by the learned appellate Judge reversing the judgment and decree of the learned trial Judge decreeing the suit of the plaintiffs. 2. Facts in brief are that the respondents herein filed a suit seeking declaration that they are joint : 3 : owners in possession of the suit schedule properties. Husband of respondent No.1 and father of respondents 2 to 4 and appellant No.1 are full brothers. Appanna had two wives by name Padmavva and Krishnavva-plaintiff- 1. Plaintiffs 2 to 4 are the daughters born to Padmavva the first wife of Appanna. After her death, Appanna married plaintiff No.1 and plaintiff No.1 is the step mother of plaintiffs 2 to 4. Defendant No.1 is the only brother to deceased Appanna. Defendant No.2 is adopted by Appanna which is disputed by the respondents. 3. Both, Appanna and defendant No.2 had taken on lease an area to an extent of 3 acres out of Sy.No.102A which totally measures 6 acres 16 guntas from Deshpande Family of Kabbbur Village. Appanna makes an application for grant of occupancy rights in respect of the said area. The Tribunal granted : 4 : occupancy rights to an extent of 3 acres to the appellants and remaining area was granted to the sons of One Dundappa who are not concerned. The deceased Appanna and appellant No.1 have paid occupancy price and thereafter Form No.10 has been issued. Mutation entry has taken place. Hence, the respondents would claim that they are in joint possession. Hence, they claim that they are in joint possession of the suit property inasmuch as it is a joint family tenancy. The appellants entered appearance and filed written statement denying the plaint averments. They would contend that appellant No.1 developed love and affection towards appellant No.2 who is son of respondent No.1. Appellant No.2 is under the care and custody of appellant No.1. Thus according to appellant No.1 there was an adoption and it was registered before the Sub-Registrar Hukeri on 11/12/1980. They have entered appearance and have denied the plaint : 5 : averments interalia contending that the husband of respondent No.1 had executed a will in favour of appellant No.1. Thus respondents are not entitled for the relief sought for. The learned trial Judge has dismissed the suit holding that the suit is barred by time inasmuch as the title of the respondents was denied in a suit filed by appellant No.1. Aggrieved by the same, respondents were in appeal. The learned trial Judge has found that appellant had failed to prove the will said to have been executed by his brother and it has recorded a finding that there is no denial of the title of the respondent in respect of the property in question. Thus, suit was well within time and consequently decreed the suit. 4. Mr. Sachin S. Magadum, learned counsel for the appellants submits that on the revenue side, the matter was before this Court by way of petition in Writ : 6 : Petition No.3687/1988 marked as Ex.D-5. He submits that the said writ petition was disposed of directing the respondents to seek declaration. He submits that the appellants had filed a suit for bare injunction wherein the claim of the respondents was denied. Hence, the question they claiming to be in joint possession does not arise. 5. I have given my anxious consideration to the submissions made by the learned counsel. 6. Apparently, suit which was filed by the first appellant stood decreed on 16/07/1991 and the present suit is filed in the year 1997 i.e, within 12 years time. In deed the case of the respondents is that they are in joint possession of the property along with the appellants. For the first time, the appellants claim to have exclusive title to the property. The present suit by : 7 : the respondents is filed within 12 years. Indeed it would be a case of ouster inasmuch as before the appellants could perfect their title by adverse possession, plaintiffs were in possession along with the appellants which would necessarily mean that it would be a suit one for partition. 7. Having said so, I am of the view that equities having been done, the question of upsetting the judgment and decree passed by the appellate Court does not arise. The appeal stands dismissed. Sd/- JUDGE kmv.

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