Beemanagouda Ramanagouda ... vs Beemanagouda Tulasigerigouda ...
2022 Latest Caselaw 1179 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 27TH DAY OF JANUARY, 2022

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             R.S.A.NO.100082 OF 2019(PAR)

BETWEEN:

BEEMANAGOUDA RAMANAGOUDA NADAMANI
SINCE DECEASED BY HIS LR'S

1. SRI.VENKANAGOUDA,
S/O BEEMANAGOUDA NADAMANI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

2. SRI.MELAGIRIGOUDA,
S/O BEEMANAGOUDA NADAMANI
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

3. SRI TULASAGERIGOUDA,
S/O BEEMANAGOUDA NADAMANI
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

4. SMT.VENKAVVA,
W/O RANGAPPA GIRADDI,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O HULLIKERI, TQ:NAVALGUND, DIST:DHARWAD.

5. SMT. MALLAVVA,
W/O SANGAPPA HUCHCHAPPANAVAR,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
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R/O HUNASIKATTI, TQ:JAMAKHANDI,
DIST: BAGALKOTE.

6. SRI.HANAMANTAGOUDA RAMANAGOUDA NADAMANI,
AGE: 76 YEARS, OCC: AGRICULTURE,
R/O VASAN, TQ: NARGUND, DIST: GADAG.
                                        ...APPELLANTS
(BY SRI.B.V.SOMAPUR, SRI.V.P.VADAVI AND
    SRI.C.B.SHAKUNAVALLI, ADVS.)

AND:

BEEMANAGOUDA TULASIGERIGOUDA NADAMANI
SINCE DECEASED BY HIS LRS.

1. SMT. BASAVVA,
W/O BEEMANAGOUDA NADAMANI
AGE: 74 YEARS, OCC:HOUSEHOLD WORK,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

2. VENKANAGOUDA,
S/O BEEMANAGOUDA NADAMANI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

3. SMT.JAYAVVA
W/O BEEMANAGOUDA NADAMANI
AGE: 47 YEARS, OCC:HOUSEHOLD WORK,
R/O HUNASIKATTI, TQ:JAMAKHANDI,
DIST:BAGALKOTE.

4. SMT. VIJAYAVVA, W/O VENKAPPA BARADDI,
AGE: 45 YEARS, OCC:HOUSEHOLD WORK,
R/O VALAGERI, TQ & DIST:BAGALKOTE.

5. SMT.KASAVVA, W/O GOPAL MALALI,
AGE: 43 YEARS, OCC:HOUSEHOLD WORK,
R/O INGALAGI-YADAHALLI, TQ:MUDHOL,
DIST:BAGALKOTE.
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6. GOPALAGOUDA,
S/O BEEMANAGOUDA NADAMANI
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

7. TULASIGERIGOUDA,
S/O BEEMANAGOUDA NADAMANI
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

8. SHASHIKALA
D/O BEEMANAGOUDA NADAMANI
AGE: 33 YEARS, OCC:HOUSEHOLD WORK,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

9. ANNAPURNA
D/O BEEMANAGOUDA NADAMANI
AGE:31 YEARS, OCC:HOUSEHOLD WORK,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

10. HANAMANTHAGOUDA,
S/O TIPPANAGOUDA GUDDENNAVAR,
AGE: 64 YEARS, OCC: RETIRED,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

11. TULASIGERIGOUDA,
S/O TIPPANAGOUDA GUDDENNAVAR,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

12. TULASIGERIGOUDA,
S/O HANAMANTHAGOUDA GUDDENNAVAR,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O VASAN, TQ: NARGUND, DIST: GADAG.

13. MUDARADDI, S/O TULASIGEREPPA MALALI,
AGE: 69 YEARS, OCC: RETIRED,
R/O VASAN, TQ: NARGUND, DIST: GADAG.
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VENKAPPA TULASIGEREPPA MALALI
SINCE DECEASED BY HIS LRS

14. SMT. KASTURI W/O VENKAPPA MALALI,
AGE: 51 YEARS, OCC: HOUSEHOLD WORK.

15. SMT.SAVITA, D/O VENKAPPA MALALI,
AGE: 23 YEARS, OCC: STUDENT.

16. SANTOSH, S/O VENKAPPA MALALI,
AGE: 17 YEARS, OCC: STUDENT.

SINCE MINOR R/BY NATURAL MOTHER
RESPONDENT NO.14,
SMT.KASTURI VENKAPPA MALALI,
SMT. KASTURI VENKAPPA MALALI
R/O KALAHAL, TQ:RAMDURGA, DIST: BELAGAVI.
                                            ...RESPONDENTS

(BY SRI.S.V.BAGOORMATH, ADV. FOR C/R8,
    SRI.S.L.MATTI & SRI.Y.S.KHANAPUR &
    SRI.M.B.KULKARNI, ADVS. FOR R1 TO R9)

     THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF
CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE PASSED BY THE LEARNED PRL.SENIOR CIVIL JUDGE AND
CJM, GADAG, IN R.A.NO.51/2014 DATED 05.11.2018 AND THE
JUDGMENT AND DECREE PASSED BY THE LEARNED CIVIL JUDGE
AND JMFC NARGUND IN O.S.NO.74/2009 DATED 27.08.2014 AND
THE SUIT OF THE APPELLANTS/PLAINTIFFS BE DECREED IN
FAVOUR OF THE PLAINTIFFS/APPELLANTS AS PRAYED BY THEM IN
THE SUIT AND ETC.,


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

The captioned second appeal is filed by the unsuccessful

plaintiffs whose suit for partition and separate possession is

dismissed by both the Courts below.

2. For the sake of convenience, the parties are

referred to as per their rank before the Trial Court.

3. The facts leading to the case are as under:

The plaintiffs filed a suit by specifically contending that

the suit land bearing Sy.No.246/3 measuring 6 acres 13

guntas and agricultural land bearing Sy.No.25/2 measuring 6

acres 37 guntas are joint family ancestral properties and

hence plaintiffs contended that they are entitled for ½ share in

1/4th share. The plaintiffs specifically contended that they

along with defendants are jointly cultivating the suit property.

The grievance of the plaintiffs is inspite of repeated request,

the defendants are not in a mood to give heed to the request

of the plaintiffs and are not willing to effect partition by metes

and bounds. Finally on 27.07.2009, the plaintiffs through

elders demanded their legitimate share and defendant No.1

outrightly denied the claim of the plaintiffs and hence, the

present suit.

4. On receipt of summons, the defendant No.1 alone

contested the suit and filed written statement. After the death

of defendant No.1, the legal representatives i.e., defendant

Nos.1(a) to 1(i) were brought on record. The legal

representatives of deceased defendant No.1 filed written

statement and stoutly denied the entire averments made in

the plaint.

5. The Trial Court having assessed the oral and

documentary evidence held that the present suit filed by the

plaintiffs is not maintainable as the plaintiffs have not included

all the suit schedule properties held by their family. The Trial

Court also took note of the categorical admission given by the

plaintiff who is examined as PW.1. PW.1 in cross-examination

has admitted in unequivocal terms that the defendant No.1 is

in possession of Sy.No.246/3. The plaintiff has also admitted

that Sy.No.246 was in fact purchased by Tulsigerigouda,

Tippanagouda, Tulsigereppa and Bheemanagouda. Plaintiff has

further admitted that the above said four persons have divided

their property in four parts. Survey No.246/3 fell to the share

of defendant No.1(c). He further admitted that Sy.No.246/3

are self acquired property of defendant No.1. PWs.2 and 3

who are the independent witness have also admitted in cross-

examination that plaintiffs and defendants own other

properties other than the present suit properties. On these

set of reasonings, the Trial Court found that the present suit

filed by the plaintiffsis a frivolous suit and in view of other

categorical admission given by the plaintiffs in cross-

examination coupled with admission given by his witness, the

Trial Court found that there is already severance in the family

and the Court also found that the suit properties are self

acquired property of deceased defendant No.1 and the same is

admitted by the plaintiffs in cross-examination. On these set

of reasonings, the Trial Court proceeded to dismiss the suit.

6. The Appellate Court on re-appreciation of oral and

documentary evidence has also independently assessed the

ocular evidence on record. The Appellate Court has also taken

judicial note of the categorical admission given by the plaintiff

wherein he has stated that apart from suit schedule

properties, the plaintiffs' family also owns residential house

and agricultural lands and has further admitted that these

properties are not included in the present suit. Therefore, the

Appellate Court was also of the view that the suit for partial

partition is not maintainable. The Appellate Court having

concurred with the findings and conclusion arrived at by the

Trial Court, has proceeded to dismiss the appeal.

7. Heard learned counsel appearing for the appellants.

Perused the judgment under challenge.

8. Though the plaintiffs have filed suit seeking relief of

partition and separate possession by specifically contending

that they constitute undivided Joint Hindu Family along with

defendants, however, the clinching rebuttal evidence on

record coupled with several categorical admissions given by

the plaintiff himself and also two witnesses, both the Courts

have recorded a categorical finding that there is already

severance in the family and suit schedule properties are

purchased by defendant No.1 and they are self acquired

properties of deceased defendant No.1. During trial, the

defendants have succeeded in eliciting in cross-examination of

the plaintiffs that suit schedule properties are self acquired

properties of deceased defendant No.1 and further have also

succeeded in eliciting that family of plaintiffs also owns several

residential houses and agricultural lands. Both the Courts

having taken note of these material evidence, have come to

conclusion that the suit for partial partition is not

maintainable. Both the Courts have also taken note of the fact

that there is already severance in the family. Therefore, this

Court is of the view that the judgment and decree of the

Courts below are in accordance with law and the findings

arrived at are based on legal evidence placed on record by the

defendants.

9. No substantial questions of law would arise for

consideration in the present appeal. Accordingly, the appeal is

dismissed.

Sd/-

JUDGE

CA