Karnataka High Court
Sri. Dharmaraja Alva vs Sri. Megharaja Alva on 9 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL No.283 OF 2021 (PAR)
BETWEEN:
SRI. DHARMARAJA ALVA,
AGED ABOUT 59 YEARS,
S/O LATE NABHIRAJA ALVA,
"DHOLA HOUSE",
POST KANIYOOR VILLAGE - 574 217,
BELTHANGADY TALUK,
D.K. DISTRICT.
... APPELLANT
(BY SRI.K.CHANDRANATH ARIGA, ADV.,)
AND:
1. SRI. MEGHARAJA ALVA,
AGED ABOUT 60 YEARS,
S/O LATE NABHIRAJA ALVA,
"MAILODY HOUSE",
MACHINA VILLAGE - 574 224,
BELTHANGADY TALUK,
D.K. DISTRICT.
2. SMT. VIJAYA,
D/O LATE NABHIRAJA ALVA,
W/O BABU HEGDE,
AGED 64 YEARS,
UMMETTU, ANANTHANILAYA
2
ELIYANADUGODU VILLAGE,
SIDDAKATTE POST - 574 237,
BANTWAL TALUK,
D.K. DISTRICT.
3. SRI. MUNIRAJA ALVA,
S/O LATE NABHIRAJA ALVA,
AGED ABOUT 55 YEARS,
MAILODY HOUSE,
POST: MACHINA VILLAGE - 574 224,
BELTHANGADY TALUK,
D.K.DISTRICT.
4. SRI. UDAYA ALVA,
S/O LATE NABHIRAJA ALVA,
AGED ABOUT 52 YEARS,
KARKERA MANSION,
MANNAGUDDA - 575 003,
NEAR DURGA MAHAL,
MANGALURU D.K. DISTRICT.
5. SMT. VASANTHI,
D/O LATE NABHIRAJA ALVA,
W/O RAJENDRA AJRI,
AGED ABOUT 48 YEARS,
ADENJA, MAHADEVVRA NILAYA,
POST:KANIYOOR VILLAGE - 574 217,
BELTHANGADY TALUK,
D.K. DISTRICT.
6. SMT. BHARATHI,
D/O LATE NABHIRAJA ALVA,
W/O MAHAVEERA JAIN,
AGED ABOUT 42 YEARS,
ALALLIGE HOUSE,
POST: NELLIKAR VILLAGE - 574 107,
MANGALURU TALUK,
D.K. DISTRICT.
3
7. DR. VIJAYA KUMAR,
H/O LEELAVATHI AT HEMAVATHI,
S/O ADIRAJA VALAVA,
AGED ABOUT 62 YEARS,
KATHODY HOUSE,
POST VENNUR VILLAGE - 574 242,
BELTHANGADY TALUK,
D.K. DISTRICT.
8. SRI. SHRIMUKHA,
S/O LATE LEELAVATHI @ HEMAVATHI,
AGED ABOUT 24 YEARS,
KATHODY HOUSE,
POST: VENUR VILLAGE - 574 242,
BELTHANGADY TALUK,
D.K. DISTRICT.
9. SMT. PRANAMYA,
W/O RAJENDRA KUMAR,
D/O LATE DHANYA KUMARI,
AGED 29 YEARS,
VEERA TAILORS, BALNAADU PETE,
POST: MARJKANJA - 574 248,
SULLIA TALUK,
D.K. DISTRICT.
10. SMT. PRANEETHA,
W/O JINDENDRA,
D/O LATE DHANYA KUMARI,
AGED ABOUT 27 YEARS,
POST: NOORALBETTU VILLAGE - 571 407,
KARKALA TALUK,
UDUPI DISTRICT.
11. PRABHATH JAIN,
S/O LATE DHANYA KUMARI,
AGED ABOUT 25 YEARS,
MAILODY HOUSE,
POST MACHINA VILLAGE - 574 224,
4
BELTHANGADY TALUK,
D.K.
... RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 01.12.2020
PASSED IN RA.NO.9/2019 ON THE FILE OF THE III
ADDITIONAL DISTRICT JUDGE, D.K.MANGALURU,
ALLOWING THE APPEAL AND FILED AGAINST THE
JUDGMENT AND DECREE DATED 16.11.2018 PASSED IN
O.S.NO.7/2016 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND JMFC, BELTHANGADY.D.K.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is a second appeal by defendant No.3.
2. The relationship of the parties is not in dispute. The
plaintiff was the first son of Sri.Nabhiraja Alva.
3. Sri. Nabhiraja Alva had nine children, out of which, five
were daughters and three were sons. Defendant No.3 was
the third son of Sri. Nabhiraja Alva.
4. Sri.Megharaja Alva filed the suit seeking for partition in
respect of eleven items. The Trial Court decreed the suit in
respect of item Nos.1 to 9 but dismissed the claim in
respect of item Nos.10 and 11. The claim in respect of
item Nos.10 and 11 was dismissed on the ground that the
said property was granted to defendant No.3 and hence, it
was his separate property.
5. Sri.Megharaja Alva challenged rejection of his case with
regard to item Nos.10 and 11 in an appeal.
6. The Appellate Court after noticing the plea of defendant
No.3 that he had separated himself from the family in the
year 1975 and had taken possession of item Nos.10 and
11 in his own capacity and had constructed a small
thatched house in the said property and was residing
therein from 1975 itself, concluded that having regard to
the age of the appellant - defendant No.3 as on 1975
which could only be 14 years old, the theory of residing
separately and constructing a house could not be believed.
7. The Appellate Court also came to the conclusion that
defendant No.3 was in fact residing jointly with his father
till his death and that was also evidenced from various
records. The Appellate Court, therefore, came to the
conclusion that regularization of unauthorized occupation
made in favour of defendant No.3 in the year 1975
ennured to the benefit of the entire family.
8. It was held that it was obvious that possession of item
Nos. 10 and 11 was of the entire family and not of
defendant No.3 exclusively. The Appellate Court
accordingly reversed the judgment of the Trial Court in
respect of item Nos.10 and 11 and proceeded to grant
1/9th share in item Nos.10 and 11 also to the plaintiff and
to the other defendants.
9. It is against this grant of 1/9th share in item
Nos.10 and 11, the present appeal has been preferred.
10. Even according to the appellant, when he preferred the
appeal in 2019, he was aged 58 years. This would mean
that he was born in the year 1961. The plea that he got
himself separated in the year 1975 and took possession of
item Nos.10 and 11 and started residing separately in the
said land by constructing a thatched house, when he was
only 14 years is clearly not only unnatural but also
unbelievable. It cannot therefore be accepted.
11. The Appellate Court on re-appreciation of the evidence
has come to the conclusion that defendant No.3 was in fact
jointly residing with his father till his death and this
finding, being a finding of fact, cannot be the subject
matter of scrutiny in a second appeal under Section 100 of
the CPC.
12. In view of the fact that the appellant could not have
got himself separated, when he was hardly about 14 years,
it is clear that the Appellate Court was perfectly justified in
coming to the conclusion that possession over item Nos.10
and 11 was of the entire family and not that of appellant
alone. Consequently, the decree granting item Nos.10 and
11 cannot also be found fault with.
13. I find no substantial question of law arising for
consideration in this appeal and accordingly, the appeal is
dismissed.
Sd/-
JUDGE
GH
