Vijayalaxmi W/O. Late D. Jagadish vs Vanishree W/O. M. Nagaraj
2022 Latest Caselaw 2057 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 09TH DAY OF FEBRUARY, 2022

                         BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.S.A.NO.5035/2012 (PAR)

BETWEEN

1.    SMT.VIJAYALAXMI
      W/O LATE D. JAGADISH
      AGE: 31 YEARS, HINDU,
      OCC: HOUSEWIFE,
      R/O. C/O. P.G. KRISHNAMURTHY,
      SOMADRI STREET, WARD NO.16,
      MILLERPET, BELLARY-583 203.

2.    SAI SHEKAR
      S/O LATE D.JAGADISH
      AGE: 13 YEARS,
      R/O. C/O. P.G. KRISHNAMURTHY,
      SOMADRI STREET, WARD NO.16,
      MILLERPET, BELLARY-583 203.

3.    SHASHANK
      S/O LATE D.JAGADISH
      AGE: 10 YEARS,
      R/O. C/O. P.G. KRISHNAMURTHY,
      SOMADRI STREET, WARD NO.16,
      MILLERPET, BELLARY-583 203.

      APPELLANT NOS.2 & 3 ARE MINORS
      REPTD. BY THEIR MOTHER AND NATURAL
      GUARDIAN SMT.VIJAYALAXMI
      W/O LATE D.JAGADISH (APPELLANT NO.1)
                                             ... APPELLANTS
(BY SRI SATHISH M.S., ADV.)

AND
                            2




1.    SMT.VANISHREE W/O. M. NAGARAJ
      AGE: 41 YEARS, HINDU,
      OCC: HOUSEWIFE
      R/O. LAXMI GURUKRUPA MEDICAL STORES,
      JAMBUNATH STORES, HOSPET,
      DIST: BELLARY-583201.

2.    SMT.LAXMIDEVI
      W/O. LATE P. CHANDRASHEKHAR
      AGE: 66 YEARS, HINDU,
      OCC: HOUSEWIFE,
      R/O. DOOR NO.495, WARD NO.24,
      JAMBUNATH ROAD,
      GAVISIDDESHWAR NAGAR,
      TQ: HOSPET, DIST: BELLARY-583201.

3.    SMT.G.JYOTHI
      W/O G.VINAYAKA
      AGE: 44 YEARS,
      R/O. YOGINARAYAN BOYS HOSETL,
      RING ROAD,
      LAL BAHADUR SHASTRINAGAR,
      TQ: HOSPET,
      DIST: BELLARY-583 201.
                                          .... RESPONDENTS

(BY   SRI SOWRABH SONDUR ADV FOR
      SRI K.L.PATIL ADV. FOR R.1)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 30.06.2011 PASSED
IN R.A.NO.119/2006 BY THE FAST TRACK COURT-III
CONFIRMING THE JUDGMENT AND DECREE DATED 11.08.2008
PASSED IN O.S.NO.173/2005 BY THE COURT OF ADDITIONAL
CIVIL JUDGE (SR.DN.), HOSPET IN THE INTEREST OF JUSTICE
AND EQUITY.

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




                       : JUDGMENT :

The captioned regular second appeal is filed by

unsuccessful defendant Nos.3 to 5 questioning the

concurrent judgments and decree of the Courts below,

wherein the suit filed by respondent No.1-plaintiff for

partition and separate possession was decreed and

confirmed by the First Appellate Court.

2. The facts leading to the above said case

are as under:

Respondent No.1-plaintiff filed suit for partition

and separate possession in O.S.No.173/2005 by

specifically contending that the suit schedule

properties are the joint family ancestral properties and

she along with defendants constitute an undivided

joint Hindu family. The grievance of respondent No.1-

plaintiff was that after death of husband of defendant

No.1, appellant No.1-defendant No.3 without the

knowledge of respondent No.1-plaintiff got mutated

her name in Schedule-A property and also colluding

with appellant No.2-defendant No.1 tried to alienate

joint family ancestral property and hence the present

suit was filed.

3. In response to suit summons, present

appellant No.1-defendant No.3 filed written

statement. Appellant No.1-defendant No.3 in her

written statement disputed the relationship of

respondent No.1-plaintiff and specifically contended

that she is not the joint family member of defendants'

family. She also specifically contended that the suit

schedule properties are self acquired properties of her

husband and therefore the present suit for partition

and separate possession is not maintainable and liable

to be dismissed. She also specifically contended that

she has incurred Rs.4.65 lakhs for the treatment of

her husband and she availed loan and therefore the

joint family members are liable to discharge the same.

4. The Trial Court having assessed oral and

documentary evidence has answered Issue No.1 partly

in the affirmative by holding that respondent No.1-

plaintiff and defendants constitute undivided joint

Hindu family and suit schedule properties are joint

family ancestral properties. While answering issue

No.2, the Trial Court has recorded a categorical

finding that the land bearing Sy.No.102/A measuring

1 acre 52 cents was in fact jointly alienated by

defendant No.1 and husband of present appellant-

defendant No.3. The Trial Court was of the view that

appellant No.1-defendant No.3 has not questioned the

sale deed executed by her husband and respondent

No.2-defendant No.1. The Trial Court having

examined the material on record has also come to

conclusion that even otherwise sale proceed from

above said properties have been utilized for

constructing the residential house in Schedule-A

property. It is in this background, the Trial Court was

of the view that the properties which were alienated

are not available for partition and accordingly Issue

No.2 was answered in the negative.

5. While answering additional Issue No.1, the

Trial Court having examined the evidence adduced by

present appellant-defendant No.3 has come to

conclusion that though appellant No.1-defendant No.3

claims that she has spent more than Rs.4.65 lakhs

towards treatment of her husband, however, no

documents are produced to substantiate her claim.

The Trial Court has discarded the ocular evidence of

DW.6 and also documentary evidence vide Ex.D.172.

Though DW.6 has come forward to depose on behalf

of present appellant No.1-defendant No.3 by

specifically deposing that he had lent a hand loan of

Rs.2,50,000/- to appellant No.1-defendant No.3

towards treatment of her husband, however, DW.6

has not produced any documents to show that he had

in fact lent a sum of Rs.2,50,000/-. The Trial Court

has drawn adverse inference as DW.6 has claimed

that he is an income tax assessee. But however, no

documents were produced to show that the accounts

were maintained. On these set of reasonings,

Additional Issue No.1 also answered in the negative.

6. The First Appellate Court on re-appreciation

of oral and documentary evidence has examined the

entire material on record independently and having

meticulously examined materials on record has come

to the conclusion that the findings and conclusions

arrived at by the Trial Court is in accordance with law

and therefore does not warrant any interference.

7. Heard learned counsel appearing for

appellants-defendant Nos.3 to 5 and learned counsel

appearing for the respondents.

8. The present appellant-defendant No.3 has

contested the proceedings by specifically contending

that respondent No.2-defendant No.1 has sold

agricultural land bearing Sy.No.102/A measuring 1

acre 52 cents for sale consideration of Rs.92,000/-

and plot No.18 in Sy.No.272/A-2 for sale

consideration of Rs.42,000/- under sale deeds dated

16.11.2004 and 05.11.2004 respectively. Therefore

the present appellants-defendants have seriously

disputed the maintainability of the suit without

including the properties which were alienated.

9. Both the Courts having examined the

materials on record have come to conclusion that the

properties were in fact sold by defendant No.1 along

with deceased husband of appellant No.1-defendant

No.3. An attempt was made by learned counsel

appearing for appellant No.1-defendant No.3 to show

that her husband is not the signatory to the sale deed

pertaining to Sy.No.102/A. Even then, I am of the

view that the same would not come to the aid of

appellant No.1-defendant No.3. The conclusions and

findings recorded by the Courts below are based on

evidence placed on record and would not warrant any

interference at the hands of this Court. It has come in

evidence that the sale proceeds from the said property

was in fact utilized to construct a residential house in

Schedule-A property and also for the improvement of

printing press in plaint Schedule-B property.

10. These concurrent findings recorded by the

Courts below cannot be re-assessed and re-examined

under Section 100 of the Code of Civil Procedure,

1908. Even otherwise, it was incumbent on the part of

present appellant-defendant No.3 to set up a counter

claim and seek a share in the property which was

alienated. However appellant No.1-defendant No.3 has

not claimed any share in the property which was sold.

This presupposes that the property which was

alienated was in fact for the benefit of the family.

Since no share is sought in the property bearing

Sy.No.102/A, the claim of appellant No.1-defendant

No.3 that suit for partition and separate possession is

not maintainable cannot be examined by this Court

under Section 100 of CPC. No substantial question of

arises. Accordingly the appeal stands dismissed.

SD/-

JUDGE EM