IN THE HIGH COURT OF KARNATAKA AT,-._
BANGALORE I
DATED THIS THE 23" DAY OF OCTOBER.,"EE0_'1'Q :7
BEFORE
THE HON'BLE MR. JUSTICE ']E3.YR,./1x--I';{E1)vIV_)::V\A:7..I.:
REGULAR sEc0ND AI>I>EAL'Ix:0A; 2}137'v:{}iEv:2.():Q8Tl A
BETWEEN:
Sri. Kokkengada P00I'i:»1§'r;.a
Aged about 72 years, A A _' .
Son of Kariappa.__ _ '
Sulugodu, Ba.leE:e_ Viiiage, 1. .
South K0dag3a14m;1'j7.j_ 2.118, 1], ,.iAppe11ant
(By AS STee1:V)IaSad";n' Advocate)
V ., A ..... .. V
A _ "v..K0kkt§ngada Kuttappa
" "years,
Son' {If Machaiah
A A' Kokkengada Aiyyappa
Aged about 58 years,
Son of Poovaiah
3. Kokkengada Aruna
Aged about 51 years,
Son of Beliiappa,
3
4. Kokkengada Ashoka
Aged about 48 years,
Son of Belliappa,
5. Kokkengada Ganapathy
Aged about 6.1 years,
Son of Machaiah, I
6. Kokkengada Arasu
Aged about 48 years,
Son of Belliappa,
7. Kokkengada ll
Aged about 66 years, '
Son ofKa1'i,appa,""""' _
All residents df',S,ulugodui'l":7i.' Q
South.AKodaguV'¥'57p:ll --- A ' ...Respondents
(By l?_oovay’ya, Advocate for M/s Poovayya &
Co}, ‘for Resp”on_de’nt No.1 to 6, Respondent No.7 served)
;l;This7Regular Second Appeal is filed under Section 100
oflC_i”vil Procedure, 1908, against the judgment and
= decree da’ted’,:Oll 07.2008 passed in R.A.No.2/2002 on the file
o£__the.~A.d%hoc District fudge, Fast Track Court, Virajpet,
dismissing the appeal and confirming the judgment and
as . decree dated 30.01.2002 passed in O.S.No.97/1998 on the
.f1lé’::_«of the Civil Judge (Sr.Dn), Virajpet.
This Regular Second Appeal coming on for Hearing
H this day, the court delivered the following:
5
,[UDGl\/IENT
The appellant was the defendant in 3
declaration and injunction. The suit propertywas describediti f
as tank land, which was the subject mattefr
plaintiffs and defendants ares’farniEy rnernbeifs. 2 was_Hall_eged
by the plaintiffs that suit __wa&\2′, which was
for the common be’netilt”‘olfh ‘Of the family and
since the ideferrdantfigplwwasipl: claim exclusive
possessio3illVof.”t.hleV” contained therein, the
suit restrain thedefendants from preventing
the plamtiffs t’totttotttt1i.sttag*t1te water in the tank.
2.” defendarrts_.’~had entered appearance and had
rvesiisted the suiAt”‘arzd__had also raised a counter claim. The trial
‘ Cot1,rt’-shaving’ ‘framed several issues found that there was yet
another filed later in point of time, which included several
AA the property of the family including the suit property.
However, the trial court took upon itself to decide the
limited issue as to whether there/gas a joint right in the suit
property or exclusive right in favour of the appellant herein.
On consideration of the evidence, namely, I3xhibVi.t.s_ii4’l)ll’1V.
D2 which was produced by the appe1larit~~…Vherfein to”:
substantiate his case, that thoughizsatheresiwassspai .i
the tank over a period of tirr<e,'«-..in theyear 'there_.3was *
an agreement between the appellant -and the fotherlfmembers
of the family where -the. -of the family had
relinquished theirright"inirespect-ofthe tarh and had handed
over posselss'ion"'~ 'tire-,;-..,,:Siame'4l_ under' Exhibit D.1 and in
considerationjof received Rs.l,00,000/– which was
evidenced' underia~–fe-ceiptiwhich was rnarked as Exhibit o.2 .
lt_;1s" on the'*bVasis of these documents that the appellant
.i 'claimed_that'–..he was in exclusive possession of the tank and
ii '- of the family had relinquished their right
of use loflwater in the tank. It was the further case of the
3" .yap"pellant that the water tank was abandoned since there was
no collection of water over several years and it was in that
background that the appellant had sought exclusive
possession of the tank in order to improve the same and he
8
had expended over Rs.2,00,000/»~ apart from partingwith
Rs.l,00,00()/- in favour of other members of V.
improve the tank and it is thereafter, w.hert~-..wa.ter4 was-« i
collected in the tank that the plaintiff sought to
the tank. The trial court hovvever heldthat
D.l and D2 are prodiiced and signed
by other members of’ are not parties
to the said.’ same were not
registered ididenot create any right or
title fsfrheigiaiaiiirr over the suit land and
since by relihquishment or partition
ought ,to ih’c..V_i_evideinced by compulsoriiy registerable
.i trial court has proceeded to hold that the
H * yiappellaiaphajdtailed to establish his case of seeking exclusive
claimover the suit property. It is on that reasoning that the
. coenter claim of the appellant was dismissed and the suit of
the plaintiffs was decreed. The same having been carried in
appeal, the appellate court has affirmed the findings of the
3
trial court. It is that which is sought to be challenged the
present appeal.
3. The purported substantial questionspiieft _ it
follows:
1. Whether the courts below in ii
decreeing the suit resip”on_dentsi’~.l
and dismissing thepy_Cio:Lrntei’.,_vp clainidof the
appellant tho«ug’h_’tl;e 2apiip’elIan;t”hpas proved
the eztclusivfl. .. pos iewnership
overit?te’plaiint by Virtue
at mend i
–Wl;ethei%; “the-.courtsli’b’e’low are justified in
‘granting relief of injunction in
lfa*.rou1’wof the respondents l and 2 in View of
‘handingi””o’v’er possession of the schedule
ipnoperty to appellant by accepting a sum of
A towards the consideration?”
,__’4′. Since the findings of the trial court are findings of
it is fact and as there is no infirmity in the reasoning of the trial
Atizcoiurt that any relinquishrnent of interest in immoveable
property or partition of a irnrnorgable property, where by
sother members who are entitled to benefit of the-.._psuit
property had parted with the same in favour of the
was required to be evidenced by a compulsorilyj—regi.sterabile*i 9
document cannot be faulted and therefore;re1iance–.pil’aced by .l
the appellant on Exhibits Dgl ‘and itself} not
establish his case for possess1G:_1\v”AA0§~fithe suit
property. However; claimed
that he had experrded improving the
tank ils-also the subject matter of
‘pending and the appellant if
he notraised reimbursement of expenses
incurred in the..i_rnproverr;ent of the tank could very well raise
.i “s.uch_iaw,claim and it would be for that court to consider
‘- pwhethei’il–th–eijsaid claim was barred by limitation or it coul_d
be a.llo’wed by way of amendment. Since that issue has not
examined in this case while the trial court has
incidentally observed that the appellant could lay claim for
expenses incurred, if he has really incurred such expenses, is
an observation that would leave room for the appellant to
8
raise such a claim and it would be in the discretion of th-atrial
court before which the suit is pending either V.
amendment or to reject the same. i*Ience,_.the’~–ap’1::ie1ldnt i’s~i 9
given the option of raising such a ielairin. gheftjreithe–.t4ria}-.teet§ft.i
which shall consider the sa=-Ti1e«-..yvitht)u.tiibeing’v:infiue119e_d hy
any observations made by thisie’o.urt,_independ_ent1i3/, on the
strength of any such apipiieationg g§t3eing’nEi2.de; _
IEV