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RSA No. 100099 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 08TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100099 OF 2014 (-)
BETWEEN:
SUBHASH
SINCE DECEASED BY HIS LRS
1. GANGAVVA W/O. SUBHASH MALAWAD
AGE: 61 YEARS, OCC: HOUSEHOLD WORK
R/O. INGALAGI, TQ: KUNDGOL
DIST: DHARWAD.
2. SMT.MANJULA W/O. KALLAPPA MANJARAGI
AGE: 32 YEARS, OCC: HOUSEHOLD WORK
R/O. NEERASAGAR, TQ: KALAGHATAGI
DIST: DHARWAD.
3. SMT.SHIVAKKA W/O. MAHANTESH GURAV
AGE: 33 YEARS, OCC: HOUSEHOLD WORK
R/O. HIREMUNAVALLI,
TQ: KHANAPUR, DIST: BELGAUM
4. SMT.NIRAMALA W/O. SHEKAPPA AMBALIKOPPA
SHIVAKUMAR
AGE: 31 YEARS, OCC: HOUSEHOLD WORK
HIREMATH R/O. REVADIHAL, TQ: HUBLI
Digitally signed by DIST: DHARWAD.
SHIVAKUMAR
HIREMATH
Date: 2022.06.10
11:47:19 -0700 5. SMT.NAGAVVA W/O. NAGAPPA GURAV
AGE: 29 YEARS, OCC: HOUSEHOLD WORK
R/O. HIREMUNAVALLI, TQ: KHANAPUR
DIST: BELGAUM.
6. SMT.KALLAVVA
W/O. DHARMAGOUDA BHARAMAGOUDAR
AGE: 25 YEARS, OCC: HOUSEHOLD WORK
R/O. NAGARAHALLI, TQ:HUBLI
DIST: DHARWAD
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RSA No. 100099 of 2014
7. SRI.VITTAL S/O. SUBHASH MALAWAD
AGE: 23 YEARS, OCC: AGRICULTURE
R/O. INGALAGI, TQ: KUNDAGOL
DIST: DHARWAD
...APPELLANTS
(BY SRI. RAMESH I. ZIRALI, ADVOCATE)
AND:
1. SHIVARAYAPPA S/O. BASAVARAJ MADLI
AGE: 30 YEARS, OCC: AGRICULTURE
R/O. INGALAGI, TQ: KUNDAGOL 581113
DIST: DHARWAD.
2. CHANNAVEERAPPA S/O. BASAVARAJ MADLI
AGE: 23 YEARS, OCC: AGRICULTURE
R/O. INGALAGI, TQ: KUNDGOL 581113
DIST: DHARWAD.
3. BASAVARAJ S/O. CHANNABASAPPA MADLI
AGE: 61 YEARS, OCC: AGRICULTURE
R/O. INGALAGI, TQ: KUNDGOL 581 113
DIST: DHARWAD
4. SMT. SHANTAVVA
W/O. BASAVANTAPPA SALIMANI
AGE: 38 YEARS, OCC: HOUSEHOLD WORK
R/O. SHEELWANT SOMAPUR
TQ: SHIGGAON, NOW R/AT: INGALAGI,
TQ: KUNDAGOL 581113, DIST: DHARWAD
...RESPONDENTS
(BY MS. DEEPA J, FOR SRI. MRUTYUNJAY TATA BANGI,
ADVOCATE FOR R1 & R2; R4 - NOTICE HELD SUFFICIENT;
R3 - APPEAL ABATED VIDE C/O DATED 31.03.2022)
---
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
04.09.2013 PASSED IN R.A.NO.48/2011 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE & JMFC, HUBLI, DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT AND DECREE DATED
29.03.2011 PASSED IN O.S.NO.52/2009 ON THE FILE OF THE CIVIL
JUDGE AND JMFC, KUNDAGOL, DECREEING THE SUIT FILED FOR
PARTITION AND POSSESSION.
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RSA No. 100099 of 2014
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by the legal representatives of the defendant No.3, challenging the judgment and decree dated 04.09.2013 in R.A.No.48/2011 on the file of the Principal Senior Civil Judge and JMFC, Hubballi (hereinafter referred to as 'the First Appellate Court', for brevity), confirming the judgment and decree dated 29.03.2011 in O.S.No.52/2009 on the file of the Civil Judge and JMFC, Kundagol (hereinafter referred to as 'the trial Court', for brevity) , decreeing the suit in part.
2. For the sake of convenience, the parties to this appeal are referred to as per their ranking before the trial Court.
3. The relevant facts for adjudication of this appeal are that, the plaintiffs are the sons of the first defendant and one Smt.Shantavva (Eravva). The said Shantavva, mother of the plaintiffs died long ago. Plaintiffs and defendant No.1 continue to be the members of the joint family. It is the case of the plaintiffs that, plaintiffs are entitled for 1/3rd share each in the suit schedule properties and the same was denied by defendants and -4- RSA No. 100099 of 2014 accordingly, the plaintiffs have filed O.S.No.52/2009 on the file of the trial Court seeking relief of partition and separate possession in respect of the suit schedule property. It is the specific case of the plaintiffs that second defendant is a stranger to the joint family of plaintiffs and first defendant and third defendant, taking the advantage of the relationship of second defendant and first defendant, have changed the Khata of the scheduled properties in their names and thereafter the plaintiffs came to know about the same. Hence the plaintiffs have filed suit stated above.
4. After service of notice, defendants entered appearance and filed written statement. It is the specific case of defendants that plaintiffs are the children of first defendant and the second defendant is the step mother of plaintiffs. The mother of the plaintiffs - Eravva died on account of illness and thereafter, the first defendant married the second defendant on 12.06.1990 at Ulavi Channabasaveshwara Temple, Ulavi, Joida Taluka, to take care of the minor children, namely plaintiffs. It is the case of the first defendant that, the first defendant had purchased the land bearing Survey No.125/2A measuring 2 acres 27 guntas at Ingalagi with the financial help rendered by the maternal family of the second -5- RSA No. 100099 of 2014 defendant under a registered sale deed dated 25.05.1992 and therefore, the defendants denied the right of the plaintiffs in respect of the said property as the first defendant relinquished his rights in favour of the second defendant in respect of the said property. It is further averred in the written statement that the first defendant has constructed a house by incurring expenses and as such, the second defendant was informed to sell the aforementioned property and pursuant to the same, a registered sale deed dated 23.03.2009 was executed by the second defendant in favour of the third defendant. Therefore, it is the case of the defendants that the aforementioned property was the self-acquired property of defendants No.1 and 2 and therefore, sought for dismissal of the plaint.
5. Defendant No.3 has filed written statement contending that he has purchased the property in question and objections were called with regard to the same. Since no objections were received, sale deed was executed, and further, pursuant to the sale deed, he is in possession of the suit schedule property and as such, sought for dismissal of the suit.
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RSA No. 100099 of 2014
6. The trial Court based on the pleadings on record formulated the issues for its consideration.
7. In order to establish their case, plaintiffs have examined two witnesses PWs.1 and 2 and produced 16 documents and the same were marked as Exs.P1 to P16. Defendants have examined 6 witnesses as DWs.1 to 6 and produced 28 documents and the same were marked as Ex.D1 to D28. The trial Court after considering the material on record by its judgment and decree dated 29.03.2011, decreed the suit in part and being aggrieved by the same, defendants have preferred R.A.No.48/2011 before the First Appellate Court and the same was resisted by the plaintiffs.
8. The first Appellate Court after considering the material on record, by its judgment and decree dated 04.09.2013, dismissed the appeal, consequently, confirmed the judgment and decree passed in O.S.No.52/2009. Feeling aggrieved by the same, the legal representatives of defendant No.3 have preferred this Regular Second Appeal.
9. I have heard Sri. Ramesh I. Zirali, learned counsel appearing for the appellants and Ms. Deepa J, learned counsel appearing for the respondents.
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RSA No. 100099 of 2014
10. Learned counsel appearing for the appellants contended that, both the Courts below have not considered the fact that the subject matter of item No.1 in the suit schedule property belonged to the second defendant and the said property was given to the second defendant for her maintenance and therefore, he contended that the finding recorded by both the Courts below requires to be interfered in this appeal.
11. Per contra, learned counsel appearing for the respondents sought to justify the impugned judgment and decree.
12. Heard the learned counsel appearing for the parties and perused the original records.
13. Having heard the learned counsel appearing for the parties, it is not in dispute that the first defendant is the father of plaintiffs through his first wife - Shantavva (Eravva). The first defendant married the second defendant after the death of his first wife - Shantavva (Eravva). The trial Court considering the fact that the suit scheduled properties are the joint family properties of defendant No.1, arrived at a conclusion that plaintiffs are entitled for 1/3rd share each in items No.1 to 5 of the property in question. In this regard, I have carefully considered the finding recorded by -8- RSA No. 100099 of 2014 the trial Court on issues No.1 and 2, wherein the trial Court after considering the material on record, has arrived at a conclusion that defendants have failed to prove that the suit schedule properties (i),
(iii) to (v) were acquired by the first defendant without the aid of joint family properties.
14. Perusal of the evidence of PW1 and DW1 would indicate that, on account of the income derived from the nucleus of the joint family of the first defendant and plaintiffs, remaining properties were purchased by the defendant No.1 and in that view of the matter, the trial Court rightly come to the conclusion that the plaintiffs are entitled for the share of 1/3rd each in the suit schedule properties, consequently, holding that the sale deed executed by the second defendant in favour of the third defendant dated 23.03.2009 (Ex. D11) is not binding on the plaintiff.
15. In this regard, I have carefully considered the re- appreciation of the evidence by the First Appellate Court. The First Appellate Court having considered the evidentiary value in the suit, had come to a conclusion that the suit scheduled properties are the joint family properties of defendant No.1. In this regard, the points No.2 to 4 framed for determination were examined in detail -9- RSA No. 100099 of 2014 wherein, the First Appellate Court has rightly come to the conclusion that the transfer of the land by the first defendant in favour of the second defendant towards right of maintenance itself is illegal, as the said property was accrued to the joint family property as the same was acquired as per the income derived from the joint family properties of the first defendant and the plaintiff. The First Appellate Court with cogent reasons, after re-appreciating the material on record, rightly concluded and confirmed the judgment and decree passed by the trial Court and in my opinion, the said conclusion cannot be disturbed in this appeal as there is no illegality or perversity in the impugned judgment and decree passed by the Courts below.
16. In view of the fact that the appellants have not made out a case for framing of substantial question of law, as required under Section 100 of CPC, accordingly appeal is to be dismissed at the stage of admission.
Hence the appeal is dismissed.
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JUDGE gab