Gadilingamma W/O Poppanal ... vs Gadilingamma W/O Pakkirappa
2022 Latest Caselaw 1255 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

             DATED THIS THE 28TH DAY OF JANUARY 2022

                                 BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM


       REGULAR SECOND APPEAL NO.100821 OF 2014 (PAR)

BETWEEN
SMT. GADILINGAMMA W/O POPPANAL KARLINGAPPA,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. NEAR SRINIVAS RAO HOUSE,
BENCHE CAMP, K. SUGAR (POST),
SIRUGUPPA, BELLARY DISTRICT
PIN CODE 583121
                                                          ...APPELLANT

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

AND
SMT. GADILINGAMMA W/O PAKKIRAPPA,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. BENCHE CAMP, K.SUGAR (POST),
SIRUGUPPA TALUKA, BELLARY DISTRICT,
PIN CODE - 583121.
                                                          RESPONDENT

(R1- NOTICE SERVED UNREPRESENTED)

      THIS    RSA   IS   FILED    U/S.100    OF   CPC,   AGAINST   THE
JUDGEMENT       &   DECREE       DATED      07.10.2014    PASSED    IN
R.A.NO.2/2014 ON THE FILE OF THE FIRST ADDITIONAL SENIOR
CIVIL JUDGE AT BELLARY, ALLOWING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DATED 05.11.2013 AND THE DECREE
PASSED IN O.S. NO.21/2012 ON THE FILE OF THE CIVIL JUDGE
                                   2




AND   JMFC,   SIRUGUPPA,   DISMISSING    THE   SUIT   FILED   FOR
PARTITION.


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

                           JUDGMENT

This captioned regular second appeal is filed by the

unsuccessful defendant questioning the divergent judgment

and decree passed by the Courts below wherein the

Appellate Court has allowed the appeal filed by the

respondent-plaintiff and decreed the suit, which was filed

for partition and separate possession seeking half share in

the suit schedule property. It would be relevant to cull out

the family tree of the parties.

                        Erappa (Dead)


                   Basamma (wife) (dead)




      Karalingappa                    Gadilingamma (Plaintiff)
                                         W/o. Fakirappa

      Gadilingamma (wife) (Deft)

2. The respondent-plaintiff filed a suit for partition

and possession by specifically contending that the suit

schedule property bearing Survey No.95/C, totally

measuring 4.61 cents is also a joint family property and she

being the daughter of propositus-Erappa is entitled for half

share in the suit schedule property. The respondent-plaintiff

specifically averred in the plaint that on 02.06.1995, there

was a partition in the family and as per the partition deed,

appellant's-defendant's husband was allotted 0.75 acres in

Survey No.48A/1P and 0.55 acres in Survey No.55, whereas

respondent-plaintiff was allotted 1 acre in Survey

No.48/B/1. The respondent-plaintiff further specifically

contended that insofar as suit schedule property is

concerned, the same was not the subject matter of 1995

partition and it was kept joint between the respondent-

plaintiff, her mother-Basamma as well as her brother-

Karalingappa, who is none other than the husband of the

appellant-defendant. The respondent-plaintiff contended

that after the death of her brother-Karalingappa, the

respondent-plaintiff and her mother requested appellant-

defendant to effect partition in respect of suit schedule

property and allot their legitimate share in the suit schedule

property. Since the appellant-defendant did not heed to the

request made by the respondent-plaintiff, the respondent-

plaintiff was constrained to file a suit for partition and

separate possession. Respondent-plaintiff, in support of her

contention, examined herself as PW1 and produced

documentary evidence vide Ex.P1 to Ex.P27. The appellant-

defendant also examined herself as DW1 and examined one

independent witness as DW2 and produced documentary

evidence as Ex.D1 to Ex.D41. The Trial Court having

assessed oral and documentary evidence was of the view

that the respondent-plaintiff has failed to prove that the suit

schedule property was kept joint in the family partition

which was effected on 02.06.1995 and this property was

kept joint towards maintenance of respondent-plaintiff and

her mother-Basamma. The Trial Court was of the view that

except self-serving statements of respondent-plaintiff, no

documents are produced to indicate that the present suit

schedule property was kept joint towards maintenance of

her mother. The Trial Court has also drawn adverse

inference that having included property bearing Survey

No.125, however during the pendency of the suit, an

application was filed and Survey No.125 was sought to be

deleted. On these set of reasons, the Trial Court proceeded

to dismiss the suit of the respondent-plaintiff.

3. The First Appellate Court, on reappreciation of

oral and documentary evidence, has reversed the findings

of the Trial Court. The First Appellate Court having

reappreciated the partition deed, which is placed on record

by respondent-plaintiff as per Ex.P3, found that the present

suit schedule property was not the subject matter of earlier

partition. Therefore, the First Appellate Court was of the

view that if the suit schedule property was not partitioned in

the earlier partition, then it would be available for partition

and the respondent-plaintiff being a daughter of propositus-

Erappa is entitled for equal share in the suit schedule

property.

4. Heard the learned counsel appearing for the

appellant-defendant and the learned counsel for the

respondent-plaintiff. Perused the judgment under challenge.

I have also bestowed my anxious consideration to the

records of the Courts below.

5. The respondent-plaintiff has filed the present

suit for partition by specifically contending that though

there was a family partition and the partition deed came to

be effected on 02.06.1995, however the suit schedule

property was kept open towards maintenance of her

mother. Though this Court would find that there are

absolutely no materials placed on record by the respondent-

plaintiff to indicate that the present suit schedule property

was kept joint in lieu of maintenance of her mother-

Basamma, even then respondent-plaintiff is still entitled for

her legitimate share in the suit schedule property. Even if

plaintiff has failed to establish that it was allotted to her

mother towards her maintenance, she would be still entitled

for share as it is an ancestral property. If it is an ancestral

property, respondent-plaintiff being co-parcener, in the light

of the dictum laid down by the Hon'ble Apex Court in the

case of Vineeta Sharma Vs. Rakesh Sharma and others

reported in ILR 2020 KAR 4370 would be entitled for

equal share, as admittedly, suit schedule property was not

the subject matter of the partition effected on 02.06.1995.

Therefore, it can be inferred that there was no severance in

respect of suit schedule property is concerned. The First

Appellate Court, on reappreciation of documentary evidence

on record, has rightly come to the conclusion that the

respondent-plaintiff being daughter of propositus-Erappa, is

entitled for equal share along with appellant-defendant,

who would also be entitled for half share that would be

allotted to her husband-Karilingappa. The findings recorded

by the First Appellate Court to the effect that the

respondent-plaintiff is entitled for share and the consequent

quantification is strictly in consonance with the dictum laid

down by the Hon'ble Apex Court in the case of Vineeta

Sharma (supra). No substantial question of law arises in

the present appeal. Accordingly, the appeal is dismissed

being devoid of merits.

6. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE YAN