- 1 - NC: 2025:KHC-D:4181 RSA No. 2756 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 2756 OF 2007 (DEC/INJ-) BETWEEN: NAMADEV S/O. NINGAPPA LAMANI, 48 YEARS, OCC: AGRICULTURE, R/O. CHANNAPUR DODD-LAMANI TANDA, TQ: RAMADURG, DIST: BELGAUM-591332. …APPELLANT (BY SRI. MAHESH WODEYAR, ADVOCATE) AND: SOMAPPA S/O. NINGAPPA LAMANI, 34 YEARS, OCC: AGRICULTURE, R/O. CHANNAPUR DODD-LAMANI TANDA, TQ: RAMADURG, DIST: BELGAUM-591332. …RESPONDENT (BY SRI. ARUN L. NEELOPANT, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.07.2007 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.) RAMDURG, IN R.A.NO.10/2007 AND ALSO SET ASIDE THE JUDGMENT AND DECREE DATED 07.10.2005 PASSED BY THE LEARNED CIVIL JUDGE (JR.DN.) RAMDURG IN O.S.NO.9/2003 SO FAR AS IT RELATES TO DISMISSAL OF THE SUIT WITH REGARD TO THE DECLARATION IS CONCERNED AND CONSEQUENTLY DECREED THE SUIT IN RESPECT OF DECLARATION IS CONCERNED IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:4181 RSA No. 2756 of 2007 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH JUDGMENT This Regular Second Appeal is preferred by the plaintiff assailing the judgment and decree dated 25.07.2007 in RA No.10/2007 on the file of Civil Judge (Sr.Dn.), Ramdurg (for short, hereinafter referred to as ‘First Appellate Court), dismissing the appeal and modifying the judgment and decree dated 07.10.2005 in OS No.9/2003 on the file of Civil Judge (Jr.Dn.), Ramdurg (for short, hereinafter referred to as ‘Trial Court’) decreeing the suit of the plaintiff in part. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that, the land bearing Sy.No.94/2B is the suit schedule property and plaintiff and defendant are the brothers. It is also stated that, the plaintiff and defendant had remaining two brothers namely Pandappa and Pundalikappa. Smt. - 3 - NC: 2025:KHC-D:4181 RSA No. 2756 of 2007 Gangawwa is the mother of the plaintiff and defendant. It is stated that, during 1997, partition had taken place between the plaintiff and defendant and suit property was fallen to the share of defendant and thereafter, same was mutated by the Revenue Authorities. It is stated that, the defendant was minor during 1997 and as such, represented through his mother. Thereafter, the defendant attains majority and they have cultivated the land together. It is also stated that, the defendant has raised loan of Rs.45,000/- for its personal requirements and same was repaid by the plaintiff in the presence of the elders. It is also stated that, on the very same day i.e., on 10.08.1994, a settlement was arrived as the defendant executed ‘Apsat Watni Patra’ in favour of the plaintiff and as such the plaintiff seeking ownership in respect of the suit schedule property based on ‘Apsat Watni Patra’. It is stated that, the defendant has also put the plaintiff in possession of the schedule property however, thereafter interfering with the peaceful enjoyment of the property by the plaintiff and as such, the plaintiff filed OS No.9/2003, - 4 - NC: 2025:KHC-D:4181 RSA No. 2756 of 2007 seeking relief of declaration with consequential relief of injunction. 4. On service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendant that, the defendant has not executed any registered document in favour of the plaintiff and accordingly, sought for dismissal of the suit. 5. The Trial Court based on pleadings, has formulated the issues for its consideration. In order to establish their case, plaintiff has examined five witnesses as PW1 to PW5 and produced 12 documents and same were marked as Ex.P.1 to P12. On the other hand, defendant was examined as DW1 and no documents were marked on behalf of the defendant. 6. The Trial Court after considering the material on record by its judgment and decree dated 07.10.2005, dismissed the suit. Being aggrieved by the same, the plaintiff has preferred RA No.10/2007 before the First - 5 - NC: 2025:KHC-D:4181 RSA No. 2756 of 2007 Appellate Court. The First Appellate Court after re- appreciating the material on record by its judgment and decree dated 25.07.2007 dismissed the appeal and confirmed the judgment and decree in Os No.9/2003. Feeling aggrieved by the same, the plaintiff has preferred this Regular Second Appeal. 7. This Court vide order dated 11.06.2013, formulated the following substantial question of law; “1) Whether the Lower Appellate Court was justified in disturbing the judgment regarding perpetual injunction in the absence of challenge to the same by the defendant in the original suit?” 8. I have heard Sri. Mahesh Wodeyar, learned counsel appearing for the appellant and Sri. Arun L. Neelopant, learned counsel appearing for the respondent. 9. Sri. Mahesh Wodeyar, learned counsel appearing for the appellant submitted that, the defendant has executed ‘Apsat Watni Patra’ which has been styled as - 6 - NC: 2025:KHC-D:4181 RSA No. 2756 of 2007 Relinquishment Deed and the defendant has parted with the possession of the suit schedule property in favour of the plaintiff and therefore, the Trial Court rightly granted the relief of injunction however, committed an error in refusing to grant relief of declaration. 9.1. It is also contended by the learned counsel that, both the courts below have not properly appreciate ‘Apsat Watni Patra’ produced by the plaintiff and accordingly, sought for interference of this Court. 10. Per contra, learned counsel appearing for the respondent sought to justify the impugned judgment and decree passed by the Courts below. 11. In the light of the submission made by learned counsel appearing for the parties, it is not in dispute that, the plaintiff and defendant are the brothers. Apart from plaintiff and defendant, one Pandappa and Pundalikappa are the brothers of the plaintiff. There was a partition during 1977 and the suit property was fallen to the share of the defendant and as the defendant was minor - 7 - NC: 2025:KHC-D:4181 RSA No. 2756 of 2007 represented by his mother–Smt. Gangawwa. Thereafter, the plaintiff and defendant jointly cultivated the lands including the schedule property. It is the case of the plaintiff that, the defendant has raised loan of Rs.45,000/- for his personal requirements and in order to clear the said debt, defendant has executed ‘Apsat Watni Patra’ / Relinquishment Deed (Ex.P.12) in favour of the plaintiff. In this regard, plaintiff has cleared the loan of defendant. 12. Taking into consideration the finding recorded by both the Courts below admittedly, Ex.P12 is not a registered document and therefore, both the Courts below have rightly dismissed the suit of the plaintiff holding that the Ex.P12 is an unregistered document and therefore, I am of the opinion that, in the light of the judgment of the Hon’ble Supreme Court in the case of Yellapu Uma Maheswari and Another v. Buddha Jagadheeswararao and Others1, both the Courts below have rightly refused to grant relief of declaration and as such, I do not find any substance in the appeal, hence, appeal is dismissed by 1 (2015) 16 SCC 787 - 8 - NC: 2025:KHC-D:4181 RSA No. 2756 of 2007 confirming the judgment and decree passed by both the Courts below. Sd/- (E.S.INDIRESH) JUDGE SMM CT-MCK List No.: 1 Sl No.: 38