Karnataka High Court
Poovani Gowda vs Smt. Poovakka @ Pushpavathi on 4 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:25348
RSA No. 1633 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 1633 OF 2015 (PAR)
BETWEEN:
POOVANI GOWDA
S/O KRISHNAPPA GOWDA,
AGED ABOUT 70 YEARS,
R/AT ADENJA HOUSE,
KANIYOOR VILLAGE,
BELTHANGADY TALUK,
D.K. DISTRICT - 574 214.
...APPELLANT
(BY SRI. N.V. VASANTH, ADVOCATE)
AND:
1. SMT. POOVAKKA @ PUSHPAVATHI,
W/O NONAYYA GOWDA,
Digitally signed AGED ABOUT 52 YEARS,
by
NARAYANAPPA R/AT UGRODY,
LAKSHMAMMA KLOYYUR VILLAGE & POST,
Location: HIGH
COURT OF BELTHANGADY TALUK - 574 214.
KARNATAKA
2. VASANTHI
W/O JARAAPPA GOWDA
AGED ABOUT 65 YEARS,
R/O BAKIDANDA HOUSE,
KOYYUR VILLAGE AND POST
BELTHANGADY TALUK,
D.K. DISTRICT - 574 214.
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NC: 2024:KHC:25348
RSA No. 1633 of 2015
3. RUKMAYYA GOWDA,
S/O LATE KRISHNAPPA GOWDA,
AGED ABOUT 63 YEARS,
R/AT ADENJA HOUSE,
KANIYOOR VILLAGE & POST,
BELTHANGADY TALUK,
D.K. DISTRICT - 574 214.
4. GOPI
W/O VASANTHA GOWDA,
AGED ABOUT 61 YEARS,
R/AT BANKAYA HOUSE,
MOGRU VILLAGE & POST,
VIA: UPPINANGADY,
BELTHANGADY TALUK,
D.K. DISTRICT - 574 214.
...RESPONDENTS
(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE FOR R1;
SRI. A. KESHAVA BHAT, ADVOCATE FOR R3 AND R4;
R2 SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 18.12.2014 PASSED IN
R.A NO.59/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JMFC., BELTHANGADY, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
03.03.2009 PASSED IN O.S NO.274/1999 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) AND JMFC., BELTHANGADY, D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:25348
RSA No. 1633 of 2015
JUDGMENT
1. Defendant No.2 in O.S.No.274/1999 and the appellant in R.A.No.59/2009 is before this Court challenging the concurrent finding of the Trial Court and the First Appellate Court seeking for the following relief:-
"a. Call for the records in O.S.No.274/1999 on the file in the Court of the Junior (Jr.Dn.) and JMFC, Belthangady, and the appeal R.A.No.59/2009 in the Court of the Principal Senior Civil Judge, & JMFC at Belthangady and set aside the judgment and decree passed by the Court of the Principal Senior Civil Judge, & JMFC at Belthangady at R.A.No.59/2009 dated 18.12.2009 in the interest of justice and equity."
2. Respondent No.1 had filed a suit in O.S.No.274/1999 seeking partition and separate possession of the suit schedule properties claiming that the properties are joint family properties on the ground that it had been granted in favour of her father. The said suit was defended by the defendant contending that there was a oral partition, which has been entered into in a panchayath conducted on 24.04.1998 in terms whereof two acres of land was proposed to be handed -4- NC: 2024:KHC:25348 RSA No. 1633 of 2015 over to the plaintiff and as such the suit for partition was not maintainable, after the partition has already been agreed upon in the panchayath in the year 1998 itself. The said contention of the defendant was disbelieved by the trial court by holding that the defendant had not produced any acceptable evidence to show that the oral partition was entered into or acted upon. The katha of the properties continued to remain in the joint names of the plaintiff and the defendants. There is no explanation given as to why the alleged oral partition has not been acted upon. The properties continuing to be joint, the trial Court decreed the suit declaring that the plaintiff is entitled to 1/5th share in the suit schedule properties and so also defendants 4 and 5 are entitled to 1/5th share in the suit schedule properties.
3. Defendant No.2/brother had challenged the said judgment in R.A.No.59/2009. The First Appellate Court after re-appreciating the evidence on record -5- NC: 2024:KHC:25348 RSA No. 1633 of 2015 again came to the conclusion that the so called partition arrived at in the panchayath conducted on 24.04.1998 had not been established or later on acted upon. The alleged amount of Rs.50,000/- to be paid to defendant Nos.4 and 5 had not been handed over. None of the family members had acted upon the so called oral partition. The First Appellate Court came to a categorical finding that defendant Nos.1 and 2 therein had failed to prove that on 24.04.1998 there was a partition in respect of suit schedule properties which had occurred, and therefore, upheld the judgment of the Trial Court. It is challenging the said concurrent finding, appellant is before this Court.
4. Sri N.V. Vasanth, learned counsel for the appellant would again reiterate the contention that the oral partition had taken place on 24.04.1998 and as such the properties cannot be partitioned once again. The appellant is ready and willing to hand over two acres of land as agreed in the oral partition to the plaintiff -6- NC: 2024:KHC:25348 RSA No. 1633 of 2015 and Rs.50,000/- to the defendant Nos.4 and 5, the entire properties cannot be made subject matter of the partition suit once again.
5. Having heard the learned counsel for the appellant and perused the judgments of the Trial Court and the First Appellate Court, I am of the considered opinion that there is no substantial question of law which arises for consideration in the present matter.
6. The properties being joint family properties is not in dispute. The plaintiff and defendants being members of the joint family is not in dispute. The only issue which was required to be considered by both the Courts was whether there was a oral partition, which had been effected in the panchayath held on 24.04.1998 or not. Both the Trial Court and the First Appellate Court have come to a categorical conclusion that defendant Nos.1 and 2 had not established such a oral partition having been arrived at and of the same being acted upon. (Defendant -7- NC: 2024:KHC:25348 RSA No. 1633 of 2015 No.1 had expired on 05.01.2003). The defence set up by defendant Nos.1 and 2 being factual in nature it was required for them to have established the same by way of co-gent evidence. No evidence was placed on record to establish such an oral partition. The RTC's continued to be in the joint names of plaintiff and the defendants, which would also indicate that even after more than a year of the alleged partition, the same has not been given effect to.
7. In that view of the matter, the defence not having been established in factual matrix, there being no substantial question of law, which arises in the present matter, the appeal is dismissed at the stage of admission itself.
Sd/-
JUDGE NG List No.: 2 Sl No.: 20 CT:SNN