Karnataka High Court
Sri. Manchegowda vs Smt. Shilpa on 28 February, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
REGULAR SECOND APPEAL NO.1360 OF 2018 (PAR)
BETWEEN:
SRI. MANCHEGOWDA,
S/O LATE SIDDEGOWDA,
AGED ABOUT 72 YEARS,
R/AT OPPOSITE TO TALUK OFFICE,
CHAMARAJANAGAR TOWN - 571 440.
...APPELLANT
(BY SRI.P.NATARAJU, ADVOCATE)
AND:
1. SMT. SHILPA,
W/O SHIVAKUMAR,
D/O MAHADEVAPPA,
AGED ABOUT 30 YEARS,
R/AT VEERANAGERE,
LASHKAR MOHALLA,
MYSURU CITY - 570 001.
2. SRI. MAHADEVAPPA,
S/O MAHADEVAPPA,
AGED ABOUT 51 YEARS,
R/AT MARIYALA VILLAGE,
CHAMARAJANAGAR TALUK,
CHAMARAJANAGAR TALUK
AND DISTRICT - 571 440.
3. SHRUTHI,
D/O MAHADEVAPPA,
AGED ABOUT 26 YEARS,
R/AT MARIYALA VILLAGE,
2
CHAMARAJANAGAR TALUK,
CHAMARAJANAGAR DISTRICT - 571 440.
4. SMT. SUDHAMANI,
MAJOR,
W/O M.S. NAGARAJU,
R/AT NO.27/B, N.H.B,
HUNSUR ROAD, HOOTAGALLI,
MYSURU CITY - 570 018.
5. SRI. LOKESH N.,
MAJOR,
S/O M.S. NAGARAJU,
R/AT NO.27/B, N.H.B,
HUNSUR ROAD, HOOTAGALLI,
MYSURU CITY - 570 018.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 20.03.2018 PASSED IN RA.NO.108/2015 ON THE FILE
OF THE ADDL.SENIOR CIVIL JUDGE AND JMFC
CHAMARAJANAGAR DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 26.10.2015 PASSED IN
OS.NO.310/2008 ON THE FILE OF THE PRL. CIVIL JUDGE AND
JMFC CHAMARAJANAGAR.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The purchaser/defendant No.5 in O.S.No.310/2008
has filed this appeal challenging the concurrent finding of
fact determined in O.S.No.310/2008 by the Court of
Principal Civil Judge and JMFC, Chamarajanagar as well as
the Additional Civil Judge and JMFC, Chamarajanagar in
R.A.No.108/2015, by which, they decreed the suit for
partition and declared that the plaintiff and defendant No.2
are entitled to 1/3rd share in the suit schedule property.
2. The parties shall henceforth be referred as
they were arrayed before the Trial Court. The appellant
was defendant No.5, while respondent No.1 was the
plaintiff and respondent Nos.2 to 5 were defendant
Nos.1 to 4.
3. The judgment of the trial Court discloses that
plaintiff and defendant No.2 are the daughters of
defendant No.1. The suit property belonged to
Mahadevappa-grandfather of plaintiff, defendant No.2 and
the same was allotted to the share of defendant No.1 at a
partition. It is therefore claimed that the said properties
were the ancestral properties of plaintiff, defendant Nos.1
and 2. The plaintiff claimed that after her marriage,
defendant No.1 without her consent had sold 2 acres of the
suit property in favour of defendant Nos.3 and 4.
Defendant Nos.3 and 4 in-turn had sold
2 acres of land in favour of defendant No.5 in terms of the
sale deed dated 31.03.2008. Since the plaintiff did not
consent to the sale, she brought a suit for partition of her
1/3rd share in the suit property. Though defendant No.5
contended that the sale of portion of the suit property was
to meet the legal necessities of the family, yet, he could
not establish the said fact. The trial Court was therefore
constrained to decree the suit and declare that the plaintiff
and defendant No.2 are entitled to 1/3rd share in the suit
schedule properties and invalidated the sale deeds dated
05.10.2006 and 20.02.2008 in respect of 28 guntas of
land. This was affirmed by the I Appellate Court in terms of
its judgment and decree dated 20.03.2018.
4. Being aggrieved by the aforesaid, the present
appeal is filed.
5. Learned counsel for the appellant/defendant
No.5 submitted that the suit was filed by the plaintiff in
collusion with defendant Nos.1 and 2 and the same is
evident from the written statement filed by defendant
Nos.1 and 2. He further stated that since portion of the
suit property was sold in the year 2006, where it was
categorically stated that the property was sold to meet the
legal necessities of the family and therefore, defendant
No.1 cannot resile from such a statement. Hence, he
stated that there was ample proof regarding the legal
necessity of the family.
6. Once the plaintiff established her relationship
with defendant No.1 and also the status of the property, it
was inevitable for the Court, but to decree the suit for
partition, more particularly, when she had not joined in the
execution of the sale deed dated 05.10.2006. In that view
of the matter, since the plaintiff had established her
relationship with defendant No.1 and defendant Nos.3, 4,
and 5 failed to prove corresponding legal necessity, the
trial Court as well as the I Appellate Court were justified in
decreeing the suit for partition. There is no merit in this
appeal and the same is dismissed. It is however open for
defendant No.5 to seek allotment of the share of defendant
No.1 to the share of defendant No.5 in final decree
proceedings.
7. Since no substantial question of law arises for
consideration, the appeal is dismissed.
Sd/-
JUDGE
NR/-
