N L Rangegowda Since Dead By Lrs vs N L Vijayakumar
2022 Latest Caselaw 1848 Kant

                           1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU


       DATED THIS THE 7TH DAY OF FEBRUARY, 2022

                        BEFORE

         THE HON'BLE MR.JUSTICE M.G.S. KAMAL

              RSA No.576 OF 2009 (PAR)
BETWEEN:

N.L. RANGEGOWDA SINCE DEAD BY LRS

1(a)   SMT. GOWRAMMA
       W/O LATE N.L. RANGEGOWDA
       AGED ABOUT 58 YEARS
       R/AT NAVILURU GRAMA
       SANTHEMARAHALLI HOBLI
       CHAMARAJANAGAR TALUK

1(b)   SMT. VISHALAKSHI
       W/O K.K. ANDHANIGOWDA
       AGED ABOUT 38 YEARS
       D/O LATE N.L. RANGEGOWDA
       KEMPAIAHNA HUNDI
       GARAGESWARA POST
       KASABA HOBLI
       T. NARASIPURA TALUK

1(c)   SMT. NALINI
       W/O MAHESHGOWDA
       AGED ABOUT 36 YEARS
       D/O N.L. RANGEGOWDA
       NO.426, 4TH MAIN, 6TH BLOCK
       2ND PHASE, BSK, 3RD STAGE
       BANGALORE.

1(d)   SRI. R. NAGENDRA
       S/O LATE N.L. RANGEGOWDA
       AGED ABOUT 32 YEARS
       NAVILURU, GANAGANURU POST
       SANTHEMARALLI HOBLI
       CHAMARAJANAGAR DISTRICT.
                           2




1(e)   SMT. N.R. SHUBHA
       W/O M. LOKESH
       AGED ABOUT 30 YEARS
       SATTEGALA AGRAHARA
       SATTEGALA POST
       KOLLEGALA TALUK
       CHAMARAJANAGAR DISTRICT.

1(f)   SMT. SUMA
       W/O B. CHANNAKESHAVA
       AGED ABOUT 30 YEARS
       D/O LATE N.L. RANGEGOWDA
       NO.549, 2ND MAIN ROAD
       KAMATAGERI, NAZARBAD
       MYSORE - 10.

1(g)   SRI. R. KUMAR
       S/O LATE N.L. RANGEGOWDA
       AGED ABOUT 27 YEARS
       NAVILURU, GANAGANURU POST
       SANTHEMARALLI HOBLI
       CHAMARAJANAGAR DISTRICT.
                                      ... APPELLANTS
(BY SRI. RAHUL, ADVOCATE FOR
    SRI. T.N. RAGHUPATHY, ADVOCATE)

AND:

1.     N.L. VIJAYAKUMAR
       S/O LATE LAKSHMIPATHI GOWDA
       AGED ABOUT 48 YEARS
       R/AT NAVILURU GRAMA
       SANTHEMARAHALLI HOBLI
       CHAMARAJANAGAR TALUK.

2.     N.T. NAGARAJU
       S/O LATE LAKSHMIPATHI GOWDA
       AGED ABOUT 70 YEARS
       R/AT NAVILURU GRAMA
       SANTHEMARAHALLI HOBLI
       CHAMARAJANAGAR TALUK.
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3.   SMT. GEETHA
     W/O LATE N.K. SUNDARA
     MAJOR
     R/AT NAVILURU GRAMA
     SANTHEMARAHALLI HOBLI
     CHAMARAJANAGAR TALUK.

4.   N.L. RAVIKUMAR
     LATE LAKSHMIPATHI GOWDA
     AGED ABOUT 68 YEARS
     R/AT NAVILURU GRAMA
     SANTHEMARAHALLI HOBLI
     CHAMARAJANAGAR TALUK.
                                         ...RESPONDENTS
(BY SRI. P. MAHESH, ADVOCATE FOR R1, R2, R3, R8 SERVED
    V/O DATED:20.04.2010 R4 TO R7 ARE DELETED)

     THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 31.01.2009 PASSED IN R.A. NO. 31/2001 ON THE FILE
OF THE PRESIDING OFFICE, FTC-1, MYSORE (CONCURRENT
CHARGE), DISMISSING THE APPEAL AND UPHOLDING THE
JUDGEMENT AND DECREE DATED:20.10.2001 PASSED IN
O.S.NO.57/1993 ON THE FILE OF THE CIVIL JUDGE (SR. DN.),
NANJANGUD.

     THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

Present regular second appeal is filed by the

appellant/second defendant against the concurrent

findings rendered in O.S.No.57/1993 on the file of

the Civil Judge (Sr.Dn.) Nanjanagud (hereinafter

referred to as the 'Trial Court') and in

R.A.No.31/2001 on the file of the Presiding Officer,

Fast Track Court-I, Mysore (hereinafter referred to

as the 'First Appellate Court'), decreeing the suit for

partition, allotting 1/3rd share in the suit schedule

property in favour of the respondent/plaintiff.

2. Parties are referred to by their original

ranking before the trial Court.

3. Brief facts of the case is;

are the children of Late Lakshmipathi Gowda. The

plaintiff, defendants and their said father constituted

a joint Hindu Family and were enjoying the family

property jointly. The suit schedule properties bearing

Sy.No.357/1 measuring 25 guntas, Sy.No.362

measuring 1 acre 38 guntas, Sy.No.363 measuring 1

guntas totally measuring 5 acres 35 guntas of

Thayoor village, Biligere Hobli, Nanjangudu Taluk

originally belonged to one Sri. Basavegowda s/o Bore

Gowda, Mysore. That Sri. Lakshmipathi Gowda, the

father of the plaintiff and defendant Nos.1 to 4 was

cultivating said land. Upon his demise,

appellant/second defendant filed declaration under

Section 48A of the Karnataka Land Reforms Act,

1961 before Land Tribunal, Nanjanagudu on

28.06.1976. In the said declaration it was specifically

stated that the Lakshmipathi Gowda- the father of

the plaintiff and defendant Nos.1 to 4 being kartha of

the joint family was cultivating the land and that

upon his demise, appellant/second defendant

continue to cultivate the land on behalf of the family.

The Land Tribunal granted the said land in the name

of the appellant/second defendant. That there was a

palupatti dated 03.09.1983 in terms of which all the

joint family properties including suit property were

partitioned dividing the same into three equal

shares. The plaintiff, second and forth defendants

were allotted 1/3rd share each equally. Though after

partition, appellant/second defendant agreed to

deliver the 1/3rd share to the plaintiff, he failed to

deliver the possession constraining the plaintiff to file

the suit for partition and separate possession.

4. Defendant Nos.1 and 4 remained exparte.

Defendant No.3 passed away during the pendency of

the suit and his children were brought on record as

legal representatives. Appellant/second defendant

herein filed written statement denying the plaint

averments to the effect that their father-

Lakshmipathi Gowda, plaintiff and defendant Nos. 1

to 4 were constituted joint family property and also

denied that Lakshipathi Gowda was cultivating the

land and that the grant was for and on behalf of the

family. It is specifically contended that the land grant

was specifically and exclusively for the benefit and in

favour of the second defendant and it was not for the

family. That the plaintiff has no share, title or

interest in the suit schedule property. That the

palupatti dated 03.09.1983 was a created document.

It was further contended that if at all there was a

partition, the plaintiff ought to have sought for the

possession instead of filing the suit for partition.

Hence, sought for dismissal of the suit.

5. The trial Court framed the following issues

for its consideration.

"(1) Whether the plaintiff proves that the suit schedule property was cultivated by joint family of plaintiff and defendants as tenants?

(2) Whether the plaintiff proves that the schedule property was partitioned under the partition on 03.09.1983?

(3) Whether the 2nd defendant was the sole tenant of the schedule properties?

(4) Whether the plaintiff is entitled to 1/3rd share in the schedule property?

(5) Whether the suit is bad for non- jointer of parties?

(6) Whether the plaintiff is entitled to partition and separate possession?

(7) Whether the plaintiff is entitled to order for mesne profits?

(8) To what relief?"

6. Plaintiff examined himself as P.W.1 and

exhibited 11 documents marked as Ex.P.1 to

Ex.P.11. Appellant/second defendant got himself

examined as D.W.1 and one Rajegowda examined as

D.W.2.

7. On appreciation of evidence, the Trial

Court by its judgment and decree dated 20.10.2001

concluded that suit schedule property was the joint

family property having been granted in favour of the

second defendant, for on behalf of the family and

that since the parties had entered into partition on

03.09.1983 in terms of Ex.P.11-Palupatti, the

plaintiff was entitled for 1/3rd share, right, title and

interest and also mesne profit to the extent of 1/3rd

share in the suit schedule property. Accordingly,

preliminary decree came to be drawn.

8. Being aggrieved by the judgment and

decree dated 20.10.2001, second defendant filed

regular appeal in R.A.No.31/2001 on the file of the

Presiding Officer, Fast Track Court-I, Mysore and

considering the grounds urged in the appeal memo,

the First Appellate Court framed the following points

for its consideration.

"(1) Whether the plaintiff proves that the suit schedule property was cultivated by joint family of plaintiff and defendants as tenants?

(2) Whether the plaintiff proves that the schedule property was partitioned under the partition on 03.09.1983?

(3) Whether the 2nd defendant was the sole tenant of the schedule properties?

(4) Whether the plaintiff is entitled to 1/3rd share in the schedule property?

(5) Whether the suit is bad for non- jointer of parties?

(6) Whether the plaintiff is entitled to partition and separate possession?

(7) Whether the plaintiff is entitled to order for mesne profits?

              (8)    To what relief?"


        and   by     its    judgment         and       order       dated

31.01.2009 concurred with the findings of the facts

and conclusion arrived at by the trial Court,

consequently dismissed the appeal. Being aggrieved

by the same, second defendant is before this Court

by way of this regular second appeal.

9. This Court by its order dated 20.04.2010

while admitting the above appeal framed the

following substantial questions of law for

consideration.

              "1)    Whether          the    judgment             and
              Decree       of   the    Courts      below          are

perverse in misreading the material

evidence on record with regard to the status of the properties?

           2)     Whether         the   judgment     and
           decree     of    the    Courts   below    are

perverse in misreading Ex.P.11?"

10. Sri. Rahul, learned counsel for T.N.

Raghupathy for the appellant/second defendant

reiterating the grounds urged in the appeal memo

submits that;

(a) the trial Court and First Appellate Court

grossly erred in relying upon the Ex.P.1 and Ex.P.11

to hold that the grant was for the benefit of the

family, while there is no such material evidence

made available by the plaintiff.

(b) that the grant of land in favour of the one

member of the family enuring to the benefit of the

other members of the family cannot be presumed,

unless the same is specifically mentioned in the

order of the grant. That in the instant case, since

there is no such order that the grant was made for

and on behalf of the family, the Courts below erred

in holding that the suit property was the joint family

property.

(c) that the Courts below ought not to have

decreed the suit for partition as it is the contention

of the plaintiff that partition had already taken place

as per Ex.P.11-Palupatti. If that be the case,

question of filing the suit for partition would not

arise. Hence, he submits that there is perversity in

the judgments of the trial Court and First appellate

Court.

11. Heard learned counsel for the parties and

perused the records.

12. The substantial questions of law are

answered in the negative for the following reasons;

The relationship of the plaintiff and defendant

Nos.1 to 4 being sons of Lakshimpathi Gowda is

admitted. It is also admitted that Sri. Lakshmipathi

Gowda was cultivating the land 20 years prior to

filing of declaration under Section 48A of the

Karnataka Land Reforms Act, 1961. Perusal of Ex.P.1

-column under the heading "period for which the

applicant has been cultivating the land as tenant"

categorically refers to Lakshmipathi Gowda- father of

plaintiff and defendant Nos.1 to 4 cultivating the land

over 20 years prior to filing of the application. The

records of rights, Index of land and the RTC

extracts-Ex.P.5 to Ex.P.8 reflects the name of the

Lakshmipathi Gowda. Ex.P.11 is the palupatti in

terms of which 1/3rd share in the property referred

to therein has been allotted to the plaintiff. The trial

Court and the First appellate court have read the

said document for collateral purposes along with

other documents referred to above. The trial Court

and First appellate Court taking into consideration

the material evidence, facts and circumstances of the

case have come to the conclusion that the suit

schedule property was being cultivated by

Lakshmipati Gowda and upon his demise,

appellant/second defendant had applied and

obtained the rights for and on behalf of the family.

Plaintiff and defendant Nos.1 to 4 being children of

the said Lakshmipathi Gowda had constituted joint

family. In view of the law settled by the Apex Court

in the case of B.L. SREEDHAR RAO AND OTHERS

vs. K.M. MUNIREDDY AND OTHERS reported in

(2003) 2 SCC 355, wherein if grant is made

infavour of one member of the family, benefit enures

to the whole family unless the members relinquish

right by word or conduct infavour of other members.

No infirmity, illegality can be found in the

appreciation of the evidence, reasoning and

conclusion arrived at by the trial Court and first

appellate Court. The substantial question of law

formulated above are answered accordingly.

Hence, the appeal is dismissed.

Sd/-

JUDGE

RU