V. 7. ygzars """ " W./OfMOh§imfi1,éd__Kha1ee1 gubrani I-zIO'bV1i,CChannagiriTa1uk -- ._ Dayanagere' Dist:rict--5'77 213 .. RESPONDENT
5′;ri.«fP.M.Siddappa, Advocate. for Mylaraiah Associates)
IN THE HIGH COURT OF KARNATAKA AT BANGA.LQR.E
DATED THIS THE 29″” DAY OF NOVEMBER :20%fOm
BEFORE % % %
THE HON’B’LE MR. JUSTICE ANANOEEYRAE EDDY
REGULAR SECOND APPEZXLTNO. 1803. OE fi:069;%M
BETWEEN: s V’ K L A
ManjuI1ath,44 years, ‘»
S/O.Mahadevappa:.. I
Agricuiturist, .. V ”
Residing at Ta’.Iare_i€e_:é’ V.i11agr::j- _ A ” ‘
Ubrani HOh1Ei_.CVCha1i;13é§i17i T.,a1a1k- ”
Davanagevfe Dist1*icvt–577′ _ …APPEL’LANT
(By Shyi’; B.C.VC FEét9;h;”.A;%_:d\fOcate)
AND. , . . .
_…….__._….T.
AgriCultu1*1s’f;_’v_». . __ =1; ”
Residing at. Ta’v_areke.re Village
3
This appeal is filed under section 100 of Code of
Procedure, 1908 against the judgment and decree ”
l3.l0.2009 passed in R.A.No.l69/2006 on the file’ of_:”th’e’*~ *
Additional Civil 5udge(S1′.Dn), Davanagere, allowti–ng:”the’=.appeal'” ._
and setting aside the judgment and decreeidated l’_3.6_..200f3 pas_s’ed7.,
in O.S.No.76/O3 on the file of the AdditionalCivil..}t1dge{‘}r’;Dn»)§e I
Channagiri.
This appeal coming on for A’drni»ssion Court
delivered the following: —
A
Heard the le.a1′.ned_cou_’slnel’
2. H piheipappeiiaht ewesiictheppiainhff before the trial Court.
It is the plaint_iff’s’c’a3e_that”theprcperty described in schedule “A”
was his absolatel pvrolpertyl anildp-.the property described in schedule
of “schedpu”;e “A” property. Hence, sought for
hreicoyeryp “<)4fi'ip_espse–ssion insofar as schedule "B" property was
concerned. . suit was contested whereby the defendant claimed
<.___'that schedule "B" property was gornal land and the defendant had
_ibee'n,_in.–' unauthorised occupation of the same since the year I992
on an application seeking regularisation of unauthorised
A " occupation, an Hakku Patra had been granted by the competent
2
authority. Therefore, her possession and title to the said
been regularised. The trial Court however, on the issues =
decreed the suit in favour of the plaintiff’.’Ai”T’i:e sa_me_, bieenfl. it
challenged in appeal by the respondent, the lower
has found that the appellant wasiiitlaimingp Vuadefiaxreygistered
partition deed executed on xhibipijmiéwhereas
the Hakkupatra under» \whic.h…:t_lie claiming was
issued on found that the
defendantv,,w.asv_Ainfpois:sessiori–ii,oi property since the
year l99fi;._p thus held that the burden
was on the plaintiff .establish that schedule “B” property formed
‘Jlpart ofschedule “tit” property and that it was the family property
the”appe_llarit,,_which was available for partition under Exhibit
Pluarid u_nlesis*,.–the title to the land was proved, Exhibit P10 would
not eonfett any title on the appellant since there was a serious
about the identity of the land and availability of the same
i for partition in favour of the appellant. The appellant had not
produced documents to establish title to the said schedule
%
V the appellant.
property to show that it was the family property of the ap_’pe:l_lant_
and therefore available for partition under Exhibit *
that primary premise that the lower appefIate« Court i;’ey’erjSCtd’i’v.,
the findings of the trial. Court and helds__against thep’appellar1–.r,C’
Hence, the present appeal.
3. The appellant ha:s__’fil’e.d.7an before this
Court under Order Civil Procedure,
1908 seeking tode–ed”:fdalt.ed.-5.5.1965 and copies of
R.T.C. “B” property was indeed
part of schedule it belonged to the family of
C the learned counsel for the respondent would
subnjit4Vthat.’th:ere is no foundation laid to produce the said
U”i§”.’A”–._doeuments__at this belated stage before. this Court and he would
e.f’urjther–.contend that even if such documents are accepted on face
i yaltie, without testing the veracity therein, it cannot be established
3 that schedule “B” property is part of schedule “A” property, in the
3
face of which, the appeal would have to fail at the
Therefore, the question of considering the applicatior-rifilecii ~
Order XLI Rule 27 of the Code of Civil’ii>reeiee1:ireQ.ijaos .Vwo_1ji,1di’, he
not arise for consideration as the conditions prescribed«.
Order XLI Rule 27 are not met appe’lla_ntei’n to
produce the said documents
5. In the z«jh:Q’_v.e biiekgre;rriri;’«~es-..it the burden on the
plaintiff~appeliiaiitijtoiesia.b:li’shj’.–tit’le_sehedule “B” property and
the appe1:Vlaiitiha*=ii»ngdoesomand in the absence of any
material pleadings that “de”ed in respect of the property was
V lost orgjwas misplaced the pendency of the proceedings
‘r.4_eitherl”‘bef2ore the trial Court or the lower appellate Court, the
appellhlaiitiv’seeking’to produce the alleged sale deed pertaining to
‘,schedule property at this stage of the proceedings does not
r~:arisei’for consideration. Even if this document is taken on record,
question of appellant finding a case for himself on the material
on record is dim and the reasoning of the lower appellate Court
7:.
cannot be fauited. Therefore, no substantial question of law arises _i
for consideration. The findings are findings of fact.
6. Hence, the appeal is rejected.
*a1b/»–.