Parameshwar S/O. Sannatamma ... vs Nagaveni W/O. Nagesh Gadig
2022 Latest Caselaw 1986 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 8TH DAY OF FEBRUARY 2022

                          BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM


        REGULAR SECOND APPEAL NO.5198 OF 2012 (PAR)

BETWEEN

1.    PARAMESHWAR
      S/O. SANNATAMMA GADIG,
      AGE: 57 YEARS, OCC:COOLIE,
      R/O. HOSAHERWATTA VILLAGE,
      TQ: KUMTA -581343,
      DIST : KARWAR.

2.    HARISH S/O. SANNATAMMA GADIG
      AGE: 53 YEARS, OC: COOLIE,
      R/O. HOSAHERWATTA VILLAGE,
      TQ : KUMTA -581343,
      DIST : KARWAR
                                               ...APPELLANTS

(BY SRI. S N BANAKAR, ADVOCATE)

AND
1.    NAGAVENI W/O. NAGESH GADIG,
      SINCE DECEASED BY LRS.

1A.   NAGESH S/O. APPU GADIG,
      AGE: 61 YEARS, OCC: PORTER,
      R/O. HOSAHERWATA VILLAGE,
      TQ: KUMATA,
      DIST: KARWAR - 581343.

1B.   RAAGU S/O. NAGESH GADIG,
      AGE: 25 YEARS, OCC: MASON,
      R/O. HOSAHERWATA VILLAGE,
                                2




      TQ: KUMATA,
      DIST: KARWAR - 581343.

1C.   RAGHU S/O. NAGESH GADIG,
      AGE: 21 YEARS,
      OCC: PRIVATE SERVICE,
      R/O. HOSAHERWATA VILLAGE,
      TQ: KUMATA,
      DIST: KARWAR - 581343.

2.    SMT. MALA
      W/O. KRISHNAGOUDA
      AGE : 48 YEARS,
      OCC : HOUSEHOLD WORK,
      R/O. MANCHIKERI,
      TQ : YALLAPUR, DIST : KARWAR.

3.    SMT. SUMITRA
      W/O. MAHESH NAIK,
      AGE : 41 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O. NEAR POLICE QUARTERS, KUMTA,
      TQ : KUMTA- 581 343,
      DIST : KARWAR.

                                              ...RESPONDENTS
(BY SRI. S. S. FAKKIRAGOUDAR, ADV., FOR R2;
R1A TO R1C - NOTICE SERVED)

      THIS RSA IS FILED UNDER SECTION 100 OF C.P.C., PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 31.10.2011 IN
R.A.NO.41/2009 PASSED BY THE SENIOR CIVIL JUDGE, KUMTA AND
THE   JUDGMENT     AND    DECREE      DATED   31.08.2009   IN
O.S.NO.61/2009 PASSED BY THE PRINCIPAL CIVIL JUDGE (JR.DN)
KUMTA BY ALLOWING THIS APPEAL.

      THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                      3




                             JUDGMENT

The captioned second appeal is filed by unsuccessful

defendants questioning the concurrent judgment and

decree of the Courts below in granting 1/5th share in the

suit schedule properties to respondents-plaintiffs.

Respondents-plaintiffs have filed a suit for partition and

separate possession in O.S.No.41/2009.

2. The respondents-plaintiffs specifically

contended that the suit schedule properties are joint

family ancestral properties and they are in joint

possession and enjoyment along with appellants-

defendants. The respondents-plaintiffs also contended

that there are ancestral houses, which were constructed

by plaintiff No.3 by securing loan and therefore, plaintiff

No.3 contended that the RCC house situated in the land

bearing Survey No.1/3 is her self-acquired property.

Insofar as suit schedule 'A' properties are concerned,

they are agricultural lands and the ancestors of plaintiffs

and defendants were cultivating the said lands. After

coming into force of Land Reforms Act, the ancestors of

plaintiffs and defendants filed an application and were

granted with occupancy rights. Therefore, it was

contended that suit schedule 'B' properties are also joint

family tenanted lands. On these set of reasons,

respondents-plaintiffs sought for partition and separate

possession by metes and bounds and to allot their

legitimate shares.

3. The present appellants-defendants contested

the proceedings by specifically contending that

respondents-plaintiffs being daughters are not at all

entitled for share in tenanted lands. The present

appellants also contended that insofar as suit schedule 'B'

properties are concerned, they are residential house and

therefore, in terms of section 23 of the Hindu Succession

Act, the married daughters cannot ascertain and claim

partition in the dwelling house. The Trial Court having

assessed the oral and documentary evidence has

negatived the contentions raised by the present

appellants herein. Insofar as tenanted lands are

concerned, both the Courts below have concurrently held

that the occupancy rights were granted in favour of

ancestors of plaintiffs and defendants. Insofar as suit

schedule 'B' properties are concerned, they are joint

family tenanted properties and after the death of original

occupants, the daughters would also succeed to the

estate of grantee in respect of suit schedule 'B' properties

are concerned under Section 8 of the Hindu Succession

Act. Insofar as suit schedule 'A' properties are concerned,

which are residential houses, both the Courts below have

concurrently held that by 2005 Act, section 23 stands

omitted and therefore the bar which was earlier

prevailing is not in existence and therefore, the married

daughters can also assert and claim partition even in

respect of dwelling houses. The concurrent findings

recorded by both the Courts below is based on legal

evidence on record. The appellants having set up two

defences have failed to substantiate their claim by

producing rebuttal evidence. I do not find any infirmity or

illegality in the judgments and decrees under challenge.

No substantial question of law is involved in the present

suit. Hence, the appeal being devoid of merits is hereby

dismissed.

4. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

SD/-

JUDGE YAN