Gurusiddaiah vs Siddaiah
2021 Latest Caselaw 5870 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 9TH DAY OF DECEMBER, 2021

                         BEFORE

      THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

     REGULAR SECOND APPEAL NO. 1257 OF 2014 (PAR)

BETWEEN :

GURUSIDDAIAH
S/O LATE SIDDAIAH
AGED ABOUT 58 YEARS
R/O HANGALAHOSALLI VILLAGE
DEVARAHALLI POST
GUNDLUPET TALUK
MYSORE DISTRICT-571 126
DIED ON 12.06.2015

1(A). SMT. DEVAMMA
      W/O LATE GURUSIDDAIAH
      AGED ABOUT 52 YEARS

1(B). SMT. NEELAMMA
      D/O LATE GURUSIDDAIAH
      AGED ABOUT 35 YEARS

1(C). SRHI. BASAVARAJU
      S/O LATE GURUSIDDAIAH
      AGED ABOUT 32 YEARS

     ALL ARE RESIDING AT
     HANGALAHOSALLI VILLAGE
     DEVARAHALLI POST
     GUNDLUPET TALUK
     MYSORE DISTRICT - 571 126        ...APPELLANTS

(BY SHRI. NAGARAJU, ADVOCATE)
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AND :

1.   SIDDAIAH
     S/O LATE VENKATAIAH
     AGED ABOUT 60 YEARS
     R/O HANAGALAHOSALLI VILLAGE
     DEVARAHALLI POST
     GUNDLUPET TALUK
     MYSORE DISTRICT-571 126

2.   NANJAMMA
     W/O MADAIAH
     AGED ABOUT 63 YEARS
     R/O HANAGALAHOSALLI VILLAGE
     DEVARAHALLI POST
     GUNDLUPET TALUK
     MYSORE DISTRICT-571 126             ...RESPONDENTS

(BY SHRI. MANISH ARADHYA, ADVOCATE FOR
    SHRI. P. MAHESHA, ADVOCATE FOR R1;
     R2-IS SERVED)

     THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT     AND   DECREE   DATED   14.07.2014   PASSED   IN
R.A.NO.16/2009 ON THE FILE OF SENIOR CIVIL JUDGE AND C.J.M,
CHAMARAJANAGAR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 25.10.2008 PASSED IN
O.S.NO.55/2006 ON THE FILE OF CIVIL JUDGE (JR.DN), JMFC,
GUNDLUPET.


      THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
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                         JUDGMENT

This second appeal is filed by the unsuccessful

plaintiff in the suit and regular appeal.

2. Heard Shri P.Nataraju, learned advocate for the

appellants and Shri Manish Aradhya, learned advocate for

respondent No.1

3. For the sake of convenience, parties shall be

referred as per their status in the trial Court.

4. Plaintiff Gurusiddaiah filed a suit, O.S.No.55/2006

on the file of the Civil Judge (Jr.Dn) & JMFC, Gundlupet,

against Siddaiah and Nanjamma. Plaintiff has described

himself as son of Rachamma. He has also described

defendants as son & daughter of Rachamma.

5. Suit is one for partition and separate possession

of 1/3rd share in the suit schedule properties. Plaintiff's

case is, his mother Rachamma had first married Madaiah.

After his death, she married Venkataiah and after

Venkataiah's death, she married Siddaiah. According to

learned advocate for appellant, plaintiff is the son of

Rachamma's third husband- Siddaiah. First defendant is

the son of Venkataiah and second defendant is the

daughter of Madaiah. It is the further case of plaintiff

that suit properties belonged to Rachamma's father and

she succeeded to the said properties. Therefore,

plaintiff is entitled for share in his mother's property.

6. Plaintiff has examined six witnesses as P.Ws.1 to

6 and produced Exhibits P1 to P5. Learned trial Judge

has recorded that P.Ws.2 to 6 have deposed that first

defendant is the son of Nanjaiah and Rachamma.

Learned trial Judge has recorded that witnesses have

stated in unambiguous terms that Rachamma was never

married to anybody and she was kept mistress of

Madaiah, Venkataiah and Siddaiah. In Para 17 of the

judgment, learned trial Judge has recorded that evidence

on record indicated that one Nanjaiah was in peaceful

possession and enjoyment of the property having

acquired the same from the Government and the same

has been transferred in the name of first defendant. All

documents produced before the trial Court show the

name of first defendant's father as Nanjaiah and not

Venkataiah as alleged by the plaintiff.

7. On appeal, First Appellate Court has recorded a

finding of fact at paragraph No.40 of the judgment that

neither plaintiff nor his witnesses have whispered as to

who was Rachamma's father. It has further recorded in

para 44 that the material on record were sufficient to

conclude that suit properties are the absolute properties

of the first defendant.

8. Appellant has raised following substantial

questions in the appeal.

1. Whether the Courts below committed an error in

law in dismissing the suit without properly

appreciating the oral and documentary produced by

the appellant?

2. Whether lower appellate Court having answered

point No.4 in the negative, committed an error in

confirming the judgment and decree passed by the

trial court?

9. Learned advocate for the appellant submitted

that point No.4 as to whether first defendant has proved

that he is absolute owner of the suit property, has been

answered in the negative by the lower appellate Court.

In that view of the matter, dismissal of the appeal by the

first appellate court is unsustainable.

10. In paras No.47 of the judgment,

the lower appellate Court has recorded that plaintiff has

failed to prove that suit properties are joint family

properties of himself and defendants. In Para No.48, it

has recorded that material on record is not sufficient to

conclude that first defendant is the absolute owner of the

property. What is required to be seen is, whether

plaintiff has established that the properties in question

are joint family properties. Both the courts below

have recorded concurrent findings of fact that properties

in question belonged to first defendant and plaintiff has

failed to prove that suit properties are joint family

properties.

11. In view of the above, no substantial question of

law arises for consideration in this appeal. Resultantly,

this appeal must fail and it is accordingly dismissed.

No costs.

Sd/-

JUDGE Yn.