IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 716 OF 2016 Between:
1. GOVINDA DEVADIGA AGED 73 YEARS SON OF SUBBI HENGSU.
2. VASU DEVADIGA AGED ABOUT 62 YEARS SON OF SUBBI HENGSU.
3. SMT RUKKU DEVADIGATHI AGED ABOUT 66 YEARS DAUGHTER OF SUBBI HENGSU.
4. SMT HALIAMMA AGED ABOUT 68 YEARS DAUGHTER OF SUBBI HENGSU.
5. SMT BABY AGED ABOUT 36 YEARS DAUGHTER OF HALEAMMA.
6. SMT GULABI AGED ABOUT 34 YEARS DAUGHTER OF HALEAMMA.
7. SMT SHOBHA AGED ABOUT 29 YEARS DAUGHTER OF HALEAMMA.
8. SMT SHARADA AGED ABOUT 31 YEARS DAUGHTER OF HALIAMMA.
ALL THE APPELANTS RESIDENT OF UPPINAKUDRU VILLAGE, KUNDAPURA TALUK, P.O:UPPINAKUDUR - 576 201 UDUPI DISTRICT.
... APPELLANTS (BY SRI. VYASA RAO K .S., ADVOCATE ) And:
1 . SMT. GANGA AGED ABOUT 52 YEARS.
2. SMT LACHA AGED ABOUT 50 YEARS.
3. SMT CHINNAMMA AGED ABOUT 40 YEARS 4. SMT NAGARATHNA AGED ABOUT 34 YEARS.
5. SMT JYOTHI AGED ABOUT 32 YEARS.
6. SMT SHANTHA AGED ABOUT 30 YEARS 7. SUDHINDRA AGED ABOUT 28 YEARS THE RESPONDENTS 1 TO 7 ARE THE CHILDREN OF MARLI HENGSU ALL ARE R/AT HALLARABETTU, KATTIDUDRU OF BASRUR VILLAGE, P.O:BASRUR-576 101 UDUPI DISTRICT.
(RESPONDENT 1 DIED ON 12.04.2016 RESPONDENTS 1 TO 7 ARE LRS) 8. NAGA DEVADIGA AGED ABOUT 69 YEARS SON OF SUBBI HENGSU.
9. PUTTAYYA AGED ABOUT 44 YEARS SON OF SUBBI HENGSU.
10. SMT SHUSHEELA AGED ABOUT 38 YEARS DAUGHTER OF HALEAMMA.
11. ANANTHA AGED ABOUT 44 YEARS SON OF RUKKU HENGSU.
12. SHAKARA AGED ABOUT 36 YEARS SON OF RUKKU HENGSU.
13. SURESHA AGED ABOUT 32 YEARS SON OF RUKKU HENGSU.
14. CHANDRA AGED ABOUT 30 YEARS SON OF RUKKU HENGSU.
15. SHEKARA AGED ABOUT 28 YEARS SON OF RUKKU HENGSU.
16. RADHA AGED ABOUT 38 YEARS DAUGHTER OF RUKKU HENGSU.
17. LALITHA AGED ABOUT 31 YEARS DAUGHTER OF RUKKU HENGSU.
18. SHANTHA AGED ABOUT 34 YEARS DAUGHTER OF RUKKU HENGSU.
19. JYOTHI AGED ABOUT 31 YEARS DAUGHTER OF RUKKU HENGSU.
RESPONDENT 8 TO 19 ARE RESIDENT OF UPPINAKUDRU VILLAGE, KUNDAPURA TALUK, P.O:UPPINAKUDUR - 576 201 UDUPI DISTRICT.
20. MANJUNATHA AGED ABOUT 41 YEARS 21. GANGA AGED ABOUT 39 YEARS 22. KRISHNA AGED ABOUT 37 YEARS 23. SRINIVASA AGED ABOUT 35 YEARS 24. UDAYA AGED ABOUT 33 YEARS RESPONDENT 20 TO 25 ARE CHILDREN OF SUKRU HENGSU, ALL ARE R/AT NAIKANAKATTE OF KERGAL VILLAGE, KUNDAPURA TALUK-576 201 UDUPI DISTRICT.
(RESPONDENT NO. 21 DEAD RESPONDENTS 20 TO 24 ARE LR’S) 25. NEELU HENGSU AGED ABOUT 60 YEARS DAUGHTER OF CHIKKI HENGSU.
26. ANTHI HENGSU AGED ABOUT 58 YEARS DAUGHTER OF CHIKKI HENGSU.
27. SURESHA AGED ABOUT 38 YEARS SON OF ANTHI HENGSU.
28. BABY AGED ABOUT 36 YEARS SON OF ANTHI HENGSU.
29. ASHOKA AGED ABOUT 34 YEARS SON OF ANTHI HENGSU.
30. RANGUNATHA AGED ABOUT 32 YEARS SON OF ANTHI HENGSU.
31. HERIYA DEVADIGA AGED ABOUT 54 YEARS SON OF CHIKKI HENGSU.
32. SEETHA AGED ABOUT 52 YEARS DAUGHTER OF CHIKKI HENGSU.
33. KRISHNA AGED ABOUT 32 YEARS DAUGHTER OF SEETHA HENGSU.
34. HARISHA AGED ABOUT 32 YEARS SON OF SEETHA HENGSU 35. KAVERI HENGSU AGED ABOUT 50 YEARS DAUGHTER OF CHIKKI HENGSU.
36. RAGHAVENDRA AGED ABOUT 30 YEARS SON OF KAVERI HENGSU.
37. GURURAJA AGED ABOUT 28 YEARS SON OF KAVERI HENGSU.
RESPONDENTS 25 TO 37 ARE R/AT NAIKANAKATTE OF KERGAL VILLAGE, KUNDAPURA TALUK-576 201 UDUPI DISTRICT.
... RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.01.2016 PASSED IN R.A. NO. 12/2006 ON THE FILE OF SENIOR CIVIL JUDGE, KUNDAPURA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 09.01.2006 PASSED IN O.S. NO. 400/1992 ON THE FILE OF PRL. CIVIL JUDGE (JR.DN), KUNDAPURA.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is by the certain defendants in O.S.No.400/1992 on the file of the Principal Civil Judge (Jr.Dn.), Kundapura (for short, ‘trial Court’). This suit in OS No.400/1992 is filed for partition of the different movable and immovable properties described in the plaint schedule ‘A’ and ‘B’ properties respectively. The trial Court by its judgment dated 9.1.2006 has decreed the suit declaring that the plaintiffs viz., the respondent Nos.1 to 8 (the first plaintiff having died, her legal representatives have continued the proceedings) are jointly entitled for 8/47th share and each of the defendants (including the appellants) are entitled for 1/47th share. The appellants, being aggrieved, impugned the trial Court’s judgment in RA No.12/2006 on the file of the Senior Civil Judge, Kundapura (for short, ‘appellate Court’). The appellate Court has confirmed the decree of the trial Court insofar as immovable properties mentioned in the plaint schedule ‘A’ properties, but dismissed the suit as against grant of decree for partition of the immovable properties mentioned in the plaint schedule ‘B’ properties. The appellants, being aggrieved by the judgements of both the Courts below, have preferred this second appeal.
2. It is undisputed that the parties to the proceedings claim under three sisters namely, Smt.Marli Hengsu, Smt.Subbi Hengsu and Smt.Chikki Hengsu and Aliyasanthana law applies to the parties. It is undisputed that the aforesaid three sisters filed form No.7 viz., Exs.P.14 to P.16 seeking occupancy rights for the immovable properties described in the plaint schedule, and the land tribunal by its order dated 16.9.1991 granted occupancy rights to three sisters jointly. Further, it is undisputed that this order of the land tribunal has attained finality.
3. The appellants’ grievance is that they would be entitled exclusively to the immovable properties mentioned in the schedule because grant of occupancy rights by the land Tribunal should be understood as being only in favour of Smt.Subbi Hengsu because she was in exclusive cultivation and possession of the land. They also contend that they have perfected title to the land by adverse possession.
4. The appellants’ contentions have not found favour either by the trial Court or the appellate Court; these Courts, on appreciation of the evidence on record, have concluded that the appellants have not placed any evidence except the self-serving testimony of DW.1 to establish that Smt.Subbi Hengsu had taken the properties from the respective landlord exclusively after the marriage of other two sisters. If the Courts below, being the final arbiters of question of facts have upon appreciation of the evidence on record concluded that grant of occupancy rights by the land tribunal on 16.9.1991 was to all the three sisters and therefore, the parties to the proceedings who claim under the aforesaid three sisters would be entitled to the respective shares as decreed in accordance with the applicable law, there would no reason for this Court to interfere in this appeal. Similarly, the Courts below have concurrently concluded that the appellants have not been able to establish necessary ingredients to succeed in their defence that they have perfected title to the land by adverse possession. As such, no substantial question of law arises of consideration, and the appeal is accordingly dismissed.
Sd/- Judge SA Ct:sr