- 1 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.2269 OF 2006 (DEC/INJ) BETWEEN: 1. 1(a) SRI KRISHNAPPA, SINCE DEAD BY HIS LEGAL HEIRS. SMT. MOTAMMA, W/O LATE KRISHNAPPA, AGED ABOUT 65 YEARS. 1(b) SMT. RATHNAMMA, D/O LATE KRISHNAPPA, W/O SRI. MUNEGOWDA, AGED ABOUT 40 YEARS, R/AT AYURU VILLAGE, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT. 1(c) SRI. NAGESH G.K. S/O LATE KRISHNAPPA, AGED ABOUT 38 YEARS. 1(d) SRI. RAMA MURTHY, S/O LATE KRISHNAPPA, AGED ABOUT 36 YEARS. 1(e) SRI. SRINIVAS, S/O LATE KRISHNAPPA, AGED ABOUT 34 YEARS. SL.NO.1(a), 1(c), 1(d) AND 1(e) ARE R/AT GOVINDAPURA VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 1(f) SMT. LAKSHMI, D/O LATE KRISHNAPPA, W/O SRI. RAMESH, AGED ABOUT 32 YEARS, R/AT SOLURU VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT. (AMENDED VIDE COURT ORDER DATED 02.01.2024) …APPELLANTS (BY SRI. A.G.NAGARAJA, ADVOCATE) AND: 1. 1(a) SRI. SHAMANNA, SINCE DEAD BY HIS LEGAL HEIRS. SRI. KRISHNAPPA (SON-IN-LAW), H/O LATE SUSHEELAMMA (DAUGHTER), AGED ABOUT 70 YEARS, R/AT GOVINDAPURA VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT. 1(b) SMT. RUKMINI (GRAND DAUGHTER), D/O LATE SUSHEELAMMA (DAUGHTER), W/O DEVARAJA, AGED ABOUT 40 YEARS, RESIDING AT VADIGEHALLI VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT. 1(c) SRI. JAYANNA (SON-IN-LAW), H/O LATE SAMPIGEMMA (DAUGHTER), AGED ABOUT 65 YEARS. 1(d) SMT. GEETHA (GRAND DAUGHTER), D/O LATE SAMPIGEMMA (DAUGHTER), AGED ABOUT 40 YEARS. - 3 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 1(e) SMT. SAVITHA (GRAND DAUGHTER), D/O LATE SAMPIGEMMA (DAUGHTER), AGED ABOUT 38 YEARS. SL.NO.1(c), 1(d) AND 1(e) ARE RESIDING AT CHANNAHALLI VILLAGE, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT. 1(f) SMT. DEVARATHNAMMA (DAUGHTER), D/O LATE SHAMANNA, W/O DASHARATHA, AGED ABOUT 55 YEARS, R/AT NEAR KANAKANA COMPOUND, HOSAKOTE TOWN – 562 114, BENGALURU RURAL DISTRICT. 1(g) SRI. DEVARAJ (SON), S/O LATE SHAMANNA, AGED ABOUT 50 YEARS, R/AT JINNAGARA VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT-562114. (AMENDED VIDE COURT ORDER DATED 06.02.2023) …RESPONDENTS (BY SRI. PRASANNA D.P., ADVOCATE R1[a to g]) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.07.2006 PASSED IN R.A.NO.117/2000 ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE, PRESIDING OFFICER, FAST TRACK COURT NO.V, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 31.05.2000 PASSE3D IN O.S.NO.419/1992 ON THE FILE OF THE CIVIL JUDGE (JR. DN.) AND JMFC, HOSKOTE. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel for the appellants and the learned counsel for the respondents. 2. This appeal is filed against the divergent finding of the Appellate Court reversing the finding of the Trial Court and granting the relief in favour of the plaintiff in the appeal. 3. Being aggrieved by the judgment and decree of the Appellate Court, the sole defendant has filed this appeal before this Court. Having considered the grounds urged in the second appeal, this Court has framed the following substantial question of law on 10.08.2010, which reads as follows: Whether the Appellate Court was justified in reversing the judgment and decree passed by the Trial Court holding that the plaintiff is the owner of the property bearing Sy.No.39/2 based on Exs.P.1 and P2 and holding that Exs.D.3 and D4 are not proved by the appellant/defendant? 4. Having considered the material available on record, the properties which both the appellant and the respondent claim belongs to the same property, is not in dispute. It is not in dispute that family partition was taken amongst them. In - 5 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 terms of the family partition, an extent of 25 guntas was allotted in favour of the vendor of the appellant and he executed the sale deed dated 12.12.1969 selling the property to the extent of 14 guntas. The Court has to take note of the original family partition, wherein the boundary shown in the partition is, on the west property of Marappa, on the west in respect of the property allotted in favour of the vendor of the appellant Erappa, the property of Ramaiah and on the west of the property of Ramaiah the property of Ramaswamappa i.e., the plaintiff and on the west of the plaintiff Ramaswamappa, allotment was made in favour of Nagappa. In terms of the said partition, Erappa was allotted 25 guntas and remaining 3 brothers are allotted with 16½ guntas of the property. Though it appears that 16½ was allotted, but the actual measurement of the property is 1 acre 3 guntas in Sy.No.39/3 and in Sy.No.39/2 extent is 29 guntas and in terms of the partition, it comes to 49 guntas + 25 guntas = 74½ guntas, but actual remaining guntas is 72. In terms of the partition, it is shown as 74½ guntas. With regard to the identity of the property is concerned, it is not in dispute that in terms of Ex.P.2 family partition, on the east property allotted in favour of Erappa is shown Marappa and hence regarding identity of the property is not in dispute. - 6 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 5. This Court also directed the Commissioner to identify the property twice and appointed the Court Commissioner and the Court Commissioner also visited the spot and prepared the sketch and there are three sketches before this Court. In sketch No.1 total extent of Sy.No.39/2 was identified. In sketch No.3 both Sy.No.39/2 and Sy.No.39/3 are identified and both of them have claimed in terms of sketch No.3 that they are in occupation, but not demarcated the extent of possession and shown in green colour the area claimed by both the plaintiff and defendant that they are in occupation of the property. It is important to note that in sketch No.2, the surveyor identified the property which has been sold in favour of the appellant’s vendor and the same is part of Sy.No.39/2. Having taken note of sketch of Sy.No.39/3, it is clear that the respondent/plaintiff is also in occupation of portion of the property in Sy.No.39/2 and also portion of property in Sy.No.39/3 since both of them claims their respective occupation and once Erappa who was allotted property on the eastern side of remaining brothers, it is clear in terms of the sale deed executed in favour of the appellant also i.e., on the east of all the allottees of the same family. When such being the case, it is clear that the plaintiff had purchased the property of Ramaiah, which is allotted on the - 7 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 west of the property of Erappa and thereafter the plaintiff was allotted with 16½ guntas in terms of the partition. Hence, it is specific that he has been in possession of Sy.No.39/2 portion as well as Sy.No.39/3 and sketch clearly indicates with regard to possession is concerned. 6. It is important to note that the defendant claims portion of the property only to an extent of 14 guntas what he had purchased from the vendor of the defendant. The vendor of the vendor of the defendant is none other than the family member of the very same family. When such being the material on record, it is clear that the appellant/defendant is in possession only to an extent of 14 guntas on the eastern portion of the family of the plaintiff. The remaining portion is in the possession of the plaintiff since he had purchased 14 guntas from Ramaiah and also he is having his own share in terms of partition Ex.P.2. It is important to note that admittedly the vendor of the vendor of the defendant also belongs to the same family and the family was not having any property in Sy.No.49/2 and the plaintiff also not disputes the fact that the family was having any property of Sy.No.49/2. There was an error in mentioning the survey number in the sale deed of the defendant, but schedule is shown correctly as property of - 8 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 Marappa on the east and the schedule will prevail in terms of the sale deed and hence the rectification deed of Exs.D.3 and 4 are executed by the legal heirs of the vendor of the defendant. The Appellate Court failed to take note of the said fact into consideration and the schedule mentioned in the sale deed. When such being the case, the Appellate Court committed an error in coming to the conclusion that Exs.D3 and D4 are not proved by the appellant/defendant and the fact that legal heirs have executed Exs.D3 and D4 is not in dispute. The fact is that the plaintiff is not the owner of the property in Sy.No.39/2 to the whole extent of what he had purchased and also the extent what was allotted to him and the same is in Sy.No.39/2 and Sy.No.39/3 and hence there is no mistake in identifying the property. The First Appellate Court committed an error in holding that the plaintiff is the owner of the property bearing Sy.No.39/2 only and the fact that when Sy.No.39/2 only consists of either 26 guntas or 23 guntas including the kharab land, the question of the plaintiff is in possession of property of 39 guntas to the whole extent what he had purchased and what he had allotted does not arise having taken note of the schedule mentioned in the document of Ex.P.2. Hence, the Appellate Court committed an error in coming to such a conclusion. - 9 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 7. Having taken note of the material on record, this Court twice appointed the Court Commissioner with regard to the identification of the property is concerned and the Court Commissioner at the fist instance only identified the property of Sy.No.39/2. When the possession of both the plaintiff and defendant was not identified, this Court directed to identify the possession of both the plaintiff and the defendant and accordingly sketch No.3 is produced and the possession claimed by both the parties is clearly disclosed in sketch No.3. Hence, it is clear that on the east the appellant is in possession of the property, on the west of the property of the appellant the plaintiff is in possession of the property of Sy.No.39/2 portion as well as Sy.No.39/3. Hence, the substantial question of law is answered accordingly that the Appellate Court committed an error in coming to the conclusion that Exs.D3 and D4 are not proved by the appellant/defendant. The very reasoning given by the Appellate Court that the plaintiff is the owner of the property in Sy.No.39/2 to the whole extent is not correct and hence the judgment of the Appellate Court is modified in coming to the conclusion that the appellant is in possession of the property on the eastern portion of the property of Sy.No.39/2 and on the east of the property of the appellant, property of - 10 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 Marappa is shown in the sale deed and hence the identification is also very clear and the remaining extent of the land is in possession of the plaintiff both in Sy.No.39/2 and Sy.No.39/3. Hence, the same is clarified and the relief is granted in favour of the plaintiff though in the plaint not correctly mentioned the boundaries and the description of the property and this Court clarified the possession of the plaintiff that he has been in possession of portion of Sy.No.39/2 and Sy.No.39/3 as per sketch No.3. The appellant/defendant is in possession of the property to an extent of 14 guntas as shown in sketch No.2. Accordingly, the suit of the plaintiff is decreed as he is the owner of the property as observed above. It is clarified that the defendant/appellant is in possession of the property on the eastern portion of the property which is shown in terms of sketch No.2. 8. There is also dispute with regard to cutting and removing of eucalyptus trees existing in these properties and the defendant/appellant is entitled for 14 guntas of land, which has been shown in the sale deed of Ex.D.1 and sketch No.2. The plaintiff is entitled to enjoy the property as shown in sketch No.3. - 11 - NC: 2025:KHC:4408 RSA No. 2269 of 2006 9. Accordingly, the second appeal is disposed of. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 65