Dundappa Fakkirappa Basapur vs Mala @ Malini W/O. Shivappa ...
2022 Latest Caselaw 2542 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 16TH DAY OF FEBRUARY 2022

                            BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA.NO.100578/2014 (PAR)
BETWEEN

DUNDAPPA FAKKIRAPPA BASAPUR
AGE: 64 YEARS,
OCC: SERVICE
R/O. ADARSH NAGAR,
2ND CROSS, GADAG-582101.
                                                ... APPELLANT

(BY SRI.S.M.KALWAD, ADV.)


AND

1.    SMT.MALA @ MALINI W/O. SHIVAPPA BASAPUR
      AGE: 42 YEARS,
      OCC: HOUSEHOLD WORK
      R/O. GADAG-582101

2.    DEVAKKA D/O. SHIVAPPA BASAPUR
      AGE: 18 YEARS,
      OCC: STUDENT
      R/O. GADAG-582101

3.    MANGALA D/O. SHIVAPPA BASAPUR
      AGE: 14 YEARS,
      OCC: STUDENT
      R/O. GADAG-582101
      R/B HER NATURAL GUARDIAN MOTHER I.E. RESONDENT NO.1,
      SMT. MALA.

4.    SMT.ANNAPURNA W/O. DHARMARAJ CHAKRAPANI
      AGE: 47 YEARS,
      OCC: HOUSEHOLD WORK
                              2




     R/O. TEJASVI NAGAR,
     DHARWAD-580001.

5.   SMT.NAGAMMA W/O. VEERAPPA TALAGADE
     AGE: 45 YEARS,
     OCC: HOUSEHOLD WORK
     R/O. MIG 32, IST CROSS,
     HUDCO COLONY,
     GADAG-582101.

6.   SM.DEVAKKA W/O. ANDANAPPA TALAWAR
     AGE: 44 YEARS,
     OCC: HOUSEHOLD WORK
     R/O. KUNIGAL,
     DIST: TUMKUR-583525

7.   SMT.LAXMI W/O. MALLIKARJUN SOOLIKERI
     AGE: 42 YEARS,
     OCC: HOUSEHOLD WORK
     R/O. NEAR MAILAR TEMPLE,
     KULKARNI GALLI,
     BETGERI GADAG-582101
                                            ... RESPONDENTS

(BY SRI.S.C.BHEEMARADDI, ADV. FOR R1 TO R3,
 R3 MINOR REP.BY R1; R4 TO R7 NOTICE DISPENSED WITH)


     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC SEEKING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 06.06.2014
MADE IN R.A.NO.49/2012 PASSED BY COURT OF ADDL. DISTRICT
AND SESSIONS JUDGE, GADAG AND THEREBY CONFIRMING THE
JUDGMENT    AND   DECREE    DATED    03.07.2012   MADE   IN
O.S.NO.18/2004 PASSED BY THE COURT OF ADDL. SENIOR CIVIL
JUDGE, GADAG.


     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 No.1 questioning the judgment and

decree of the courts below wherein the suit filed by

respondents/plaintiffs is decreed granting half share to

respondents/plaintiffs.

2. Facts leading to the case are as under:

Respondents/plaintiffs filed suit for partition and

separate possession in O.S.18/2004. Respondents/plaintiffs

claims to be the wife and children of one Shivappa Basapur

who is none other than full brother of appellant/defendant

No.1. The respondents/plaintiffs claim that suit schedule

property was jointly purchased in the name of their

ancestor Shivappa and present defendant No.1.

Respondents/plaintiffs to substantiate their claim have

produced copy of the sale deed at Ex.P1.

Appellant/defendant No.1's contention is that

respondents/plaintiffs have relinquished their share by

executing Ex.D2. The trial court having examined title

document at Ex.P1, which clearly shows that husband of

respondent No.1 and defendant No.1 have jointly

purchased the suit schedule property has proceeded to

hold that it is joint property of Dundappa and Shivappa and

therefore, negativing the contention of the present

appellant/defendant No.1 has proceeded to hold that

respondents/plaintiffs are entitled for half share.

3. Feeling aggrieved by the judgment and decree

of the trial court, the present appellant/defendant No.1

preferred an appeal before the first appellate court. The

first appellate court having independently assessed oral

and documentary evidence has come to the conclusion that

appellant/defendant No.1 has failed to prove that

respondents/plaintiffs have relinquished their share by

receiving a sum of Rs.26,000/-. The first appellate court

also concurred with the finding of the trial court by holding

that alleged relinquishment deed vide Ex.P15 and Ex.D2

are unregistered documents and the same cannot create

any right in favour of appellant/defendant On these set of

reasoning, the first appellate court proceeded to dismiss

the appeal. It is against the concurrent judgment and

decree of the courts below, the present appeal is filed.

4. Learned counsel for the appellant would submit

to this court that present suit is one for partial partition.

The appellant/defendant has succeeded in eliciting from the

mouth of the respondents/plaintiffs that family owns some

other properties. It is in this background, learned counsel

for the appellant/defendant submitted that both the courts

below have not taken note of the fact that, in view of

categorical admission, the present suit for partial partition

was not at all maintainable. Therefore, he would submit to

this court that substantial question of law arises for

consideration in the present case on hand.

5. When this court put a query to the learned

counsel for the appellant/defendant that whether the said

contention was raised in the written statement, however,

the learned counsel for the appellant/defendant is not in a

position to demonstrate that such a contention was raised

in the suit. In the absence of pleading and issue to that

effect, the question as to whether the suit for partial

partition is not maintainable cannot be examined under

Section 100 of CPC. Even otherwise, the evidence on

record would clearly indicate that present suit property was

jointly purchased by husband of respondent No.1 and the

present appellant. Therefore, the present suit is not filed in

respect of ancestral properties, but it is filed in respect of

the property which was jointly purchased. Therefore, the

contention of the appellant/defendant at the belated stage

that respondents/plaintiffs have not included all ancestral

properties cannot be acceded to and cannot be entertained

at this juncture. If respondents/plaintiffs are claiming share

only in respect of property which was purchased jointly and

if it is not a joint ancestral property, the suit for partition

pertaining to suit property is very much maintainable. Even

otherwise, there are no pleadings and no evidence is

adduced to indicate that the family owns other properties

also.

6. Insofar as contention of the appellant/defendant

that respondents/plaintiffs have relinquished their share

under Ex.D2 by receiving a sum of Rs.26,000/- is

concerned, both the courts have concurrently held that it is

an unregistered document and the same would neither

create a right in favour of appellant/defendant nor

respondents/plaintiffs would lose their rights under Ex.D2

for want of registration. Since it is an unregistered

document, both the courts below have concurrently held

that defence set up by appellant/defendant cannot be

entertained. Both the courts below have held that

respondents/plaintiffs are entitled for half share. The

concurrent finding of fact is based on legal evidence on

record adduced by respondents/plaintiffs.

7. No substantial question of law arises for

consideration in the present case on hand. Accordingly, the

appeal stands dismissed.

8. In view of dismissal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

SD/-

JUDGE MBS/-