Karnataka High Court
Ambanna vs Thippaiah on 10 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5184/2012 (PAR-DEC.)
BETWEEN
1. AMBANNA,
54 YEARS, S/O ERAPPA.
2. DEVANDRA,
44 YEARS, S/O ERAPPA.
3. KRISHNAPPA,
38 YEARS, S/O ERAPPA.
ALL ARE RESIDENTS OF
K.YERRAGUDI VILLAGE,
TALUK & DISTRICT : BELLARY,
PIN-583101.
...APPELLANTS
(BY SRI HARSH DESAI, ADV.)
AND
1. THIPPAIAH S/O MALLAIAH.
SINCE DECEASED REPRESENTED BY HIS
LRS., RESPONDENT NOS.5 & 6.
2. KESHAPPA
72 YEARS, S/O MALLAIAH
SINCE DECEASED REPRESENTED
BY HIS LRS.,
2(A) DODDA ERAPPA
MAJOR, S/O LATE KESHAPPA.
2
2(B) BASAVARAJ,
MAJOR, S/O LATE KESHAPPA.
2(C) GOVINDARAJU,
MAJOR, S/O LATE KESHAPPA,
RESPONDENT NOS.1(A) TO 2(C)
ARE RESIDENTS OF
K.YERRAGUDI VILLAGE,
TALUKA & DISTRICT : BELLARY,
PIN-583101.
3. GANGAPPA,
63 YEARS, S/O LATE BASAPPA.
4. SANNA LINGAPPA,
54 YEARS, S/O LATE BASAPPA.
5. SANNA ERAPPA,
40 YEARS, S/O LATE THIPPAIAH.
6. BASAVARAJ,
29YEARS, S/O LATE THIPPAIAH.
7. THIPPAMMA,
69 YEARS, W/O RANGAIAH,
D/O MALLAIAH.
RESPONDENT NOS.3 TO 7 ARE
RESIDENTS OF
K.YERRAGUDI VILLAGE,
TALUK & DISTRICT: BELLARY,
PIN-583101.
8. SUNKAMMA,
42 YEARS, W/O SIDDARAMAIAH,
NIMBAGAL VILLAGE,
URAVAKONDA TALUK,
ANANTHAPUR DISTRICT,
ANDHRA PRADESH,
PIN-515812.
3
9. LAKSHMI,
39 YEARS, W/O PEDDA VANNAPPA,
PALTHURU VILLAGE,
URAVAKONDA TALUK,
ANANTHAPUR DISTRICT,
ANDHRA PRADESH,
PIN-515 812.
10. GANGANNA,
44 YEARS, W/O LATE NARAYANAPPA,
NO.35/937/A, WARD-18B, 1ST CROSS,
KAPPAGAL ROAD, M.V.NAGAR,
BELLARY, PIN-583101.
11. EMANTHAMMA,
35 YEARS, W/O LATE ANJINAPPA,
OLD YERRAGUDI VILLAGE,
TALUK & DISTRICT : BELLARY,
PIN-583 101.
.... RESPONDENTS
(BY SIR GODE NAGARAJ ADV. FOR R2(A) TO R2(C))
SRI DINESH M.KULKARNI ADV. FOR R.8 & R9)
(NOTICE TO RESPONDENT NOS.3, 4, 7, 10 AND
11 ARE SERVED.
(NOTICE TO RESPONDENT NO.5 : HELD SUFFICIENT.
(RESPONDENT NOS.5 & 6 ARE TREATED AS LRS. OF
DECEASED RESPONDENT NO.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 25.11.2011 PASSED
IN R.A.NO.91/2010 BY THE PRINCIPAL DISTRICT JUDGE,
BELLARY CONFIRMING THE JUDGMENT AND DECREE DATED
28.07.2010 IN O.S.NO.5/2008 BY THE PRINCIPAL SENIOR CIVIL
JUDGE & CJM, BELLARY AND ALLOW THIS APPEAL WITH COSTS
IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
4
: JUDGMENT :
The captioned regular second appeal is filed by
the unsuccessful plaintiffs who are questioning the
judgment and decree of the Courts below, wherein the
suit filed by the plaintiffs seeking partition and
separate possession is negatived and the suit is
dismissed.
2. Facts leading to the above said matter are
as follows:
The appellants-plaintiffs filed a suit for partition
and separate possession in O.S.No.5/2008 by
specifically contending that the appellants-plaintiffs
along with respondents-defendants constitute an
undivided joint Hindu family and that they are jointly
cultivating the suit schedule properties and there is no
partition in the family.
3. On receipt of summons, respondents-
defendants contested the proceedings. The 2nd
defendant filed written statement which was adopted
by defendant Nos.1, 3 & 4 to 7. Respondents-
defendants stoutly denied the entire averments made
in the plaint. Respondents-defendants specifically
contended that there is already severance in the
family and further the 2nd defendant has set up a
specific plea that the property bearing Sy.No.221/B is
his self-acquired property and therefore same is not
available for partition. Both the parties have led in
evidence to substantiate their claim.
4. The Trial Court having appreciated oral and
documentary evidence, though answered Issue No.1
partly in the affirmative by holding that the suit
schedule properties are ancestral properties, but
however accepted the contention of respondents-
defendants that there is already severance in the
family. Plaintiff No.1 was examined as PW.1 and he
has admitted in unequivocal terms that there was a
partition during the lifetime of their grandfather and
accordingly in terms of the said partition the
appellants-plaintiffs are cultivating the properties
allotted to them separately. Similarly, respondents-
defendants are also in exclusive possession of the
properties which were allotted to them in the family
partition and they are separately cultivating their
respectively lands. Both the Courts have concurrently
held that there is severance in the family and
therefore, the present suit filed for partition and
separate possession is not at all maintainable.
5. Heard learned counsel appearing for the
appellant and learned counsel appearing for the
respondents-defendants and perused the judgments
under challenge.
6. The material on record would clearly
indicate that appellant-plaintiff has filed the present
suit by alleging that there is no severance in the
family. However, the clinching rebuttal evidence on
record coupled with several categorical admissions
given by appellant-plaintiff who is examined as PW.1
would clearly establish that the respondents-
defendants are cultivating the properties allotted to
their share separately. Similarly, the appellants-
plaintiffs are also cultivating their properties
separately. The appellant-plaintiff has admitted in
unequivocal terms that there was a division of
properties during the lifetime of his grandfather and
as per the said partition, the appellants-plaintiffs
enjoying their properties separately. If there is already
severance in the family, this court unable to
understand as to how the present suit for partition
and separate possession filed by the appellants-
plaintiffs is maintainable. Both the Courts have
meticulously dealt with evidence on record and have
recorded concurrent findings that there is already
severance in the family. No substantial question of law
arises. The appeal is devoid of merits and accordingly
the same stands dismissed.
SD/-
JUDGE
EM
