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Dasappa vs Thimmappa on 21 October, 2010

Karnataka High Court
Dasappa vs Thimmappa on 21 October, 2010
Author: Anand Byrareddy
 ....~AND;iO   

EN THE HIGH COURT OF KARNATAKA AT
BANGALORE

DATED THIS THE 2137' DAY OE OCTOBER, 2010 

BEFORE

THE I~ION'BLE MR. }USTICE ANAND BYRA3Ef<:i;V3I):]Bjji':.eI"'   

REGULAR SECOND APPEAL NO'. 2295iOI%ii2(m    A

BETWEEN:

Dasappa,

Son Of Late Kenchappa,

Aged about 60 years, ' . V -- _  
R/O Moodala S0manaha11i----.Gram;i,  A  " ' .

Singatagerei.HOb:i\i'''   
Kadur 'I':a1L1k_--"':'3TI $438',  _ .-- ...APPELLANT

(By Shri. 'Si._Mahesh,BBA.dvO'ea'Te)"'.

   ._
' AS/0,1 ,atc.. _Kei1'chappa,

Aged-~abOut--5j$ years,
R/OMOO,.§ia1:»1. Somanahalli Grama,

_ _  . _  B V ._»Singat:a~gere Hobli,
., .. _  Kfldigr Tériuk -- 577 548. ...RESPONDENT

A ‘SEi_ri. Vigneshwar S. Shastri, Advocate)

This Regular Second Appeal is filed under Section 100

O of Cocie of Civil Procedure, 1908, against the judgment and

/5

i\.)

decree dated ll.07.2008 passed in R.A.No.llO/2005 on the

file of the Civil Judge (Sr.Dn) & Additional CEM, Arasikere,
partly allowing the appeal and setting aside the judgment and

decree dated 07.11.2005 passed in O.S.No.22-4/2003

file of the Principal Civil Judge (Jr.Dn), Arsikere.

This Regular Second Appeal coming if

this day, the court delivered the following:’*–. A

UDGMENT

Heard the learned counsel afoaf the._a”ppellant’ the V

respondent.

2. The appellant;-was plai.§iti:ff«.y_in a” suit for

declaratioinwiand:poss:esision~..;:”The iaippiellant had claimed that
the suit property’ property and that the

defendaritpp ought. tobe hestirained from interfering with his

‘possession, The suit was decreed in favour of the appellant

i’nspii–t_e of eo_nteat”hy the respondent herein. The same having

‘V beeniii’cai”ried’ appeal, the lower appellate court has found

iC_’thiati”t-he gxhibit P.l would disclose that the property was

0′ granted in favour of the plaintiff. The plaintiff and the

defendant are brothers and had fired jointly up to the year

1974 and that the Grant Certificate was issued in favour of

the appellant in the year 1983. However, the partition deed

that was set up as per Exhibit 13.2 being an unregi_Sterc.di~.._

document, the lower appellate court held that it ~

admissible in law and there was nca””m-entioitr of

property in the schedule to the partitionzdeed. Si1_hi_1arly,

no.4 also was not mentioned in the«l3″iSchedalei_ and’.=therel’ore,
it could not be acceptedi:_as._ a clieedi,iof.,_p.airtition took
into account all the itenisef. pr,0pert;yv,of’:ithe*i”family. The

lower appell.a.te.coiitrtyhasi’ifo_andtl;at”‘t’he mother of the
plaintiff andiihlsi.i’,_.,si_steiri wpeiretnot parties to the partition deed
and since’ they were to a share, their exclusion

was therefore aglaring circumstance, which did not enable

the ..part,iiesptoi.’1iel_y upon the said partition deed. The lower

i’appe–1taté also held that insofar as Exhibit 13.1

sought. tape produced by the respondent was concerned, it

‘ilwasii”apparently a tampered document and therefore no

_Mr_éliance could he placed on it. In that View of the matter,

the lower appellate court founjghat insofar as possession pf

the suit property is concerned, the plaintiff had clearly

established that he was in continuous possession of the same

and therefore, at best could be entitled to the re1j.efi_i”o_}fi’~..V

perinaneiit injunction, but it could not be said that_.p’iiiere:ipi2vas–i A i-

absolute right and title over the proprxerty’-by the

the right of the fact that the partition aeee coi;id”not

accepted in establishing that therewqas a partitions Between
the plaintiff and the respondent. .iACpo_i’di.ngiy, lower

appellate court has modified }the_ 3’iidg.ir:enti5i,pVarid decree to
restrict the reiief44toion_e oi’«pe=;:nianent ,injiiii’ction till such time
that tliti plaiiitiwff hefldispossesised or the defendant -«~
respondentpcould right insofar as the property

was ‘concerned apipropriate proceedings, if he was entitled.

this iudgirtent which is sought to be questioned in the

present V V S

A. .3’: ii The appeal has been admitted on the following

iisuhstantial question of law namely, whether the lower

“appellate coiirt was in error in not granting the relief of

5

declaration, having held that the land was granted to the

plaintiff as per Exhibit P. 1.

4. Since the lower appellate court has zregated

partition deed, which was relied upon by the if

the trial court, the only conclusionlawasrzhatu’–the._lpartit,i’op

between the parties was not
jointness of the family being lhowernlipztpriellate
court in having held if granted
exclusively in ‘_jd_id”‘notlilenable him to

claim exclusive t-itl_e”tol”thel’propierty; *t.he’jo.int family was not

divided or notllestablishedftog: ‘ll:-1v’e,._h’e–en divided. Therefore,
there is no infirmity. _,invvthe-_reAaso11jlrig of the lower appellate
ceitrt.«~._,Noi,,_jsl’ubstarrtial qttes’ti–err’of law arises. Accordingly,

the appeal. is of and the parties are left to their

respective ‘r.emedic._s,Iif’ any, in appropriate proceedings.

sag
Judge

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