Hanumakka vs Venkatappa
2022 Latest Caselaw 3249 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF FEBRUARY, 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

            R.S.A. No.1986/2013 (DEC/INJ)

BETWEEN:

HANUMAKKA,
W/O LATE BETTAPPA,
D/O LATE MALLAPPA,
S/O MAKANUR CHOWDAPPA,
AGED ABOUT 58 YEARS,
HOUSEHOLD,
R/O #1948/30, 7TH CROSS,
YELLAMMA NAGARA, RING ROAD,
DAVANAGERE - 577 006.
                                     ... APPELLANT
(BY SRI.REVANNA BELLARY ADVOCATE)

AND:

1.     VENKATAPPA,
       S/O LATE MALLAPPA,
       AGED ABOUT 74 YEARS,
       KIRANI MERCHANT,

2.     THIRUKAPPA,
       S/O LATE MALLAPPA,
       AGED ABOUT 64 YEARS,
       BUSINESS,

       BOTH ARE RESIDENT OF
       YALLAMMANAGAR,
       BEHIND AMEETH TALKIES,
       DAVANAGERE - 577 006.
                            2



3.   SMT. YALLAMMA,
     W/O SUBHASH RAO,
     AGED ABOUT 57 YEARS,
     HOUSEWIFE,
     R/O PWD QUARTERS,
     HAVERI CITY, HAVERI TALUK,
     AND DISTRICT - 581 110.

4.   SMT. SHANTHAMMA,
     W/O MAHALINGAPPA,
     D/O LATE MALLAPPA,
     DEAD BY LRs.,

a)   MAHALINGAPPA, (HUSBAND)
     R/O C/O VENKATAPPA,
     AGED ABOUT 61 YEARS,
     YALLAMMA NAGAR, RING ROAD,
     DAVANAGERE - 577 006.
                                     ... RESPONDENTS
(BY SRI.B.M.SIDDAPPA, ADVOCATE FOR R-2 & R-4(a);
  SRI.BADRUNNISA, ADVOCATE FOR R-3;
  R-1 SERVED)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED:30.08.2013
PASSED IN R.A. No.9/2012 ON THE FILE OF I ADDITIONAL
SENIOR CIVIL JUDGE, DAVANAGERE, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 08.02.2012 PASSED IN O.S. No.360/2007 ON THE
FILE OF PRINCIPAL CIVIL JUDGE, DAVANAGERE.

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

                      JUDGMENT

1. The appellant was the plaintiff. She filed the suit

seeking for declaration that she was the owner of a

house property on the basis of the Will executed in her

favour by her father.

2. The suit was filed against her siblings, which was

contested by them stating that the plaintiff had earlier

filed a suit for partition and in the said suit, she had put

forth a claim that Item No.1 had been bequeathed to her

and this claim had been considered and was rejected by

the Trial Court. It was stated that she had thereafter

preferred an appeal and in the appeal also, this claim

was negatived, but, however, the Appellate Court

granted her 1/15th share in Item No.1 and also a share

in the other two properties. It was stated that since her

claim over the suit property on the basis of the bequest

had already been denied in the earlier suit filed by her,

the present suit could not be entertained.

3. The Trial Court on consideration of the evidence

accepted the defence of the defendants and proceeded

to dismiss the suit. The Appellate Court on re-

appreciation of the evidence came to the conclusion that

the claim of the plaintiff could not be accepted since it

had already been adjudicated in O.S. No.447 of 1997.

The Appellate Court noticed that, challenging the

dismissal of O.S. No.447 of 1997, the appellant had

preferred an appeal and in the appeal, her claim on the

basis of the Will had also been negatived and it was held

that the house property was the property of her father

and she was entitled to a 1/15th share, which had

attained finality. The Appellate Court, therefore,

concurred with the findings of the Trial Court that a fresh

claim in respect of the suit schedule property could not

be instituted by the plaintiff. It accordingly dismissed the

appeal.

4. It is against these concurring judgments, the

present second appeal has been preferred.

5. This appeal was ordered to be clubbed along with

R.S.A. No.1043 of 2017 (PAR), which has been filed four

years after the present second appeal has been filed. In

R.S.A. No.1043 of 2017, the judgment of the Appellate

Court rejecting the claim on the basis of the Will granting

the appellant 1/15th share in the suit property, which

was held to have attained finality in the judgment

impugned in this appeal, had been challenged. The said

second appeal has been dismissed on the ground of

delay by a separate judgment passed today.

6. In view of the indisputable fact that the plaintiff

had made a claim on the basis of a Will in respect of suit

Item No.1 of the suit schedule property in O.S. No.447

of 1997 and the said claim had been negatived both by

the Appellate Court, as well as by the Trial Court,

obviously, the appellant could not have instituted

another suit in respect of the very same property.

7. It may be pertinent to state here that in the earlier

proceedings, the Appellate Court after negativing the

claim on the basis of the Will had, in fact, granted 1/15th

share to the appellant and this order was passed in the

year 2007 and was not challenged till 2017. This

indicates that the appellant had accepted the findings of

the Appellate Court that her claim on the basis of the

Will in respect of the suit property was not sustainable.

Both the Courts were therefore justified in coming to the

conclusion that the claim of the appellant in respect of

the suit property could not have been re-agitated in the

suit, which has culminated in the filing of this second

appeal.

8. I find no substantial question of law arising for

consideration in this second appeal and the same has

been accordingly dismissed.

Sd/-

JUDGE

RK CT:SN