Karnataka High Court
Sri. Shanthamalleshappa B N vs Sri. B.N. Manjunathaswamy on 15 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.178 OF 2022 (DEC/PAR)
BETWEEN:
SRI. SHANTHAMALLESHAPPA B.N.,
S/O LATE B.C.NAGAPPA,
AGED ABOUT 59 YEARS,
R/AT D.No.143/G. 12TH MAIN,
13TH CROSS, SARASWATHIPURAM,
MYSURU - 570 009.
PRESENTLY RESIDING AT
D.No.795, 12TH MAIN,
14TH CROSS, SARASWATHIPURAM,
MYSURU - 570 009. ... APPELLANT
(BY SRI. C.A.AJITH, ADVOCATE)
AND:
1. SRI. B.N.MANJUNATHASWAMY,
S/O LATE B.C.NAGAPPA,
AGED ABOUT 55 YEARS,
R/AT BADANAGUPPE VILLAGE,
KASABA HOBLI,
CHAMARAJANAGAR TALUK - 571 313.
CHAMARAJANAGAR DISTRICT.
2. SRI. SHIVAKUMARSWAMY,
S/O LATE K.V.GURUSIDDAPPA,
AGED ABOUT 74 YEARS,
R/AT KAMARAVADI VILLAGE,
SANTHEMARAHALLI HOBLI,
CHAMARAJANAGAR TALUK - 571 316
2
CHAMARAJANAGAR DISTRICT.
3. THE LAND ACQUISITION OFFICER,
KARNATAKA INDUSTRIAL AREA,
DEVELOPMENT BOARD(KIADB),
KRS ROAD, MYSURU - 570 016.
... RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 12.11.2021
PASSED IN RA.No.29/2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND CJM, CHAMARAJANAGARA, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 09.01.2019 PASSED IN OS.No.218/2013 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE, CHAMARAJANAGARA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is a second appeal by the plaintiff who has
failed to obtain a decree of partition at the hands of both
the Trail Court and as well as the Appellate Court.
2. It is an undisputed fact that the plaintiff and
defendant No.1 are brothers. It is also not in dispute
that after the death of their father Sri.B.C.Nagappa, the
family properties were divided under the registered
partition deed dated 20.06.2002, which was entered into
amongst the plaintiff, defendant No.1 and his mother--
Maramma. It is the further case of the plaintiff that
subsequently in the year 2012, he came to know that
defendant No.1 had actually purchased a property on
11.04.1996 in his name, though the sale consideration
for the said purchase was out of the joint family income
and his father had financed the said purchase.
3. It was alleged that defendant No.1 had illegally
sold the said property to defendant No.2 in the year
1999 and this was not disclosed at the time of the
partition and subsequently, on becoming aware of this
sale transaction in O.S. No.35 of 2008, which had been
filed by defendant No.1 seeking for partition of their
mother--Maramma's share, the plaintiff became aware of
the acquisition and hence, was seeking for partition.
4. Defendant No.1 entered appearance, but did not
contest the suit.
5. Defendant No.2, the purchaser, resisted the suit
contending that the property had been sold to him under
a registered sale deed dated 17.05.1999 and he was put
in possession of the same and ever since, he was in
lawful possession and enjoyment of the suit property. It
was alleged that there were several disputes pending
between the plaintiff and defendant No.1 before the
various courts and in order to wreak vengeance against
defendant No.1, the present suit had been filed.
6. The Trial Court in consideration of the evidence
adduced before it, came to the conclusion that the
plaintiff had failed to prove that the suit property was
the joint family property of the plaintiff and defendant
No.1. It held that the suit was barred by limitation and
the plaintiff was not entitled for half a share in the suit
property and it accordingly dismissed the suit.
7. Being aggrieved, the plaintiff preferred an appeal.
The Appellate Court on re-appreciation of the entire
evidence on record, found no reason to disagree with the
findings recorded by the Trial Court. The Appellate Court
noticed that the plaintiff himself had admitted that in the
partition of the year 2002, not only the joint family
properties but also the self-acquired properties were
subjected to partition and this established that the
plaintiff was aware of the property purchased by
defendant No.2 and since the same was not included in
the partition, it was obvious that the said property was
the separate property of defendant No.1. The Appellate
Court accordingly confirmed the findings recorded by the
Trial Court and dismissed the appeal.
8. The learned counsel for the appellant contended
that the plaintiff became aware of the sale only in the
year 2012 and he has taken immediate steps to file a
suit for partition and the statement before the Court
could not be construed as an admission that he was
aware of the sale. He also submitted that he had made
an application seeking permission of the Appellate Court
to adduce the evidence of the vendor of the suit property
and also to produce records and that had been wrongly
refused.
9. The plaintiff during the course of his cross-
examination has deposed as follows:
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10. The above deposition leaves no manner of doubt
that the plaintiff was aware of the happenings in his
family and also the enjoyment of the family properties.
The fact that the plaintiff admitted that all the
properties, including the self-acquired properties, were
subjected to partition in the year 2002 clearly goes to
establish that the plaintiff had taken his share in the
properties that he was entitled to. The fact that the suit
schedule property was excluded from the partition would
indicate that the said property was a separate property
of defendant No.1. The view taken by both the Courts
that the suit property belonged to defendant No.1
exclusively and he was entitled to alienate the property
cannot be found fault with.
11. The argument of the learned counsel that the
Appellate Court had erred in rejecting the application for
production of additional evidence cannot be accepted.
The learned counsel made available a copy of the
application seeking for production of the additional
evidence. In the said application, it has been stated as
follows:
"5. I state that, recently, I have learnt that, at
the time of the purchased the schedule property,
my father was maintained some records which are
along with the list of documents. I further state
that, the vendors of the said sale deed dated:
11.04.1996 and they are very much necessary to
examine as witnesses in this appeal, without their
evidence the Hon'ble court has not appropriate
conclusion of this appeal. Hence, there is no
other alternative, I have filed this annexed
application for my evidence."
12. In my view, the reason afforded by the appellant
seeking for permission to adduce additional evidence
would not be sufficient to entitle him to produce the
additional evidence. Admittedly, the appellant was aware
of the fact that he was required to prove that the funds
for the acquisition of the suit property emanated from
his father and despite being aware of this requirement, if
he had failed to secure the required evidence, he cannot
be permitted, at the appellate stage, to seek for
permission to adduce additional evidence of matters
which were within his knowledge and he could have
easily produced. The decision of the Appellate Court in
rejecting the said application for production of additional
evidence cannot therefore be found fault with.
13. I find no substantial question of law arising for
consideration in this second appeal and the same is
accordingly dismissed.
Sd/-
JUDGE
RK
CT:SN
