Timmayya S/O. Venkatraman Hegde vs Shivaram S/O. Ramachandra Hegde
2022 Latest Caselaw 1314 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 31ST DAY OF JANUARY 2022

                         BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             R.S.A.NO.5031/2012 (DEC/INJ)

BETWEEN

TIMMAYYA
S/O VENKATRAMAN HEGDE,
AGED 50, OCC: AGRICULTURIST,
R/O SHIGANALLI, TQ: SIRSI,
DIST: N.K, PIN-581401.
                                            ...APPELLANT
(BY   SRI VISHWANATH HEGDE,
      SRI JEEVAN NEERALGI &
      SRI K S PATIL ADVOCATES)

AND

1.    SHIVARAM
      S/O. RAMACHANDRA HEGDE
      AGE: 66 YEARS, OCC: AGRICULTURIST,
      R/O. SHINGANALLI, TQ: SIRSI,
      DIST: N.K, PIN-581401.

2.    SAVITHRI
      W/O. TIMMAYYA HEGDE
      AGEL 88 YEARS,
      OCC: AGRICULTURIST,
      R/O SHINGANALLI, TQ: SIRSI,
      DIST: N.K., PIN-581401.

3.    MANJUNATH
      S/O. VENKATRAMAN HEGDE
      AGE: 73 YEARS,
      OCC: AGRICULTURIST,
      R/O SHINGANALLI, TQ: SIRSI,
      DIST: N.K., PIN-581401.
                                  2




4.    GANAPATI
      S/O VENKATRAMAN HEGDE
      AGE: 57 YEARS,
      OCC: AGRICULTURIST,
      R/O SHINGANALLI, TQ: SIRSI,
      DIST: N.K., PIN-581401.

5.    RAGHUPATI
      S/O VENKATRAMAN HEGDE
      AGE: 63 YEARS,
      OCC: AGRICULTURIST,
      R/O SHINGANALLI, TQ: SIRSI,
      DIST: N.K., PIN-581401.

6.    MAHABALESHWAR
      S/O VENKATRAMAN HEGDE,
      AGE: 58 YEARS,
      OCC: AGRICULTURIST,
      R/O SHINGANALLI, TQ: SIRSI,
      DIST: N.K., PIN-581401.

7.    VISHWANATH
      S/O VENKATRAMMA HEGDE,
      AGE: 60 YEARS,
      OCC: AGRICULTURIST,
      R/O SHINGANALLI, TQ: SIRSI,
      DIST: N.K., PIN-581401.
                                                  ... APPELLANTS

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT AND DECREE DATED 21.11.2011
PASSED IN R.A.NO.33/2008 BY THE FAST TRACK COURT AT
SIRSI AND JUDGMENT AND DECREE DATED 01.04.2008 PASSED
IN   O.S.NO.134/2000     BY    THE   ADDITIONAL   CIVIL    JUDGE
(JR.DN.),   SIRSI   BY        ALLOWING   THIS     APPEAL    AND
CONSEQUENTLY, THE SUIT IN O.S.NO.134/2000 ON THE FILE
OF CIVIL JUDGE (JR.DN) AT SIRSI BE DISMISSED WITH CONST
THROUGHOUT IN THE INTEREST OF JUSTICE.

      THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                    3




                         : JUDGMENT :

The captioned second appeal is filed by

unsuccessful defendant No.1 wherein both the courts

below have decreed the suit filed by respondent

No.1/plaintiff declaring that the plaintiff is the absolute

owner of suit schedule courtyard. Consequently

present appellant/defendant No1 is restrained from

interfering with respondent No.1/plaintiff's peaceful

possession and enjoyment over the suit schedule

courtyard.

2. Facts leading to the above said case are as

follows:

Respondent No.1/plaintiff filed a suit in

O.S.No.134/2000 seeking relief of declaration of his

right over the suit schedule courtyard. Respondent

No.1/plaintiff contended that Sy.No.100 totally

measures 25 guntas and the same was joint family

ancestral property of appellant/defendant No.1 and

respondent No.1/plaintiff. It is specific case of

respondentNo.1/plaintiff that the house and the suit

schedule courtyard situated in the front side of house

allotted to respondent No.1/plaintiff which measures

70 feet in length and 36 feet in width in a family

partition. Respondent No.1/plaintiff also contended

that, the appellant/defendant No.1 was also allotted

house in a family partition and in the said family

partition, the house allotted to appellant/defendant

also includes courtyard, which is on the northern side

of appellant/defendant's residential house.

3. Present appellant/defendant No.1 on

receipt of summons contested the proceedings. The

present appellant has admitted in unequivocal terms

that there was a partition in the year 1980. The

present appellant further admitted that, Ramachandra

Keshappa Hegde has bequeathed the residential house

which was allotted to him in a family partition.

However,   the     present   appellant/defendant   stoutly

denied     right     and     title   of   the      present

respondent/plaintiff insofar as suit courtyard is

concerned.

4. Respondent No.1/plaintiff in support of his

contention examined himself as PW.1 and relied on

the partition deed dated 24.12.1980 which is produced

at Ex.P.2. Present appellant/defendant No.1 did not

chose to lead any ocular evidence in support of his

contention. However, the Will was marked at the

instance of appellant/defendant No.1 by confronting

the said document.

5. The Trial Court having assessed the oral

and documentary evidence on record has culled out

the relevant portion of registered partition deed at

paragraph No.11 as well as relevant partition of the

Will as per Ex.D.1 at paragraph No.12 in its judgment.

The trial Court having meticulously examined the

terms and conditions in the partition deed has come to

conclusion that the residential house and the abutting

courtyard which is the suit schedule property was

jointly allotted to the share of respondent

No.1/plaintiff and his father. Having further

meticulously examined the partition deed, the Trial

Court found that the present appellant/defendant No.1

was also allotted a house and courtyard towards

northern side. On these set of reasonings the Trial

Court has proceeded to answer Issue Nos.1 and 2 in

the affirmative and thereby declaring that respondent

No.1/plaintiff has succeeded in proving that he is the

absolute owner and he is in possession of the suit

schedule property and has also recorded a categorical

finding that appellant/defendant No.1 has interfered

with his peaceful possession over the courtyard which

is the suit schedule property.

6. Feeling aggrieved by the judgment and

decree of the Trial Court, the present appellant/

defendant No.1 preferred an appeal in

R.A.No.33/2008. The First Appellate Court on re-

appreciation of oral and documentary evidence on

record was of the view that the front yard that is suit

property which is abutting to respondent

No.1/plaintiff's house was in fact allotted to

Ramachandra Keshappa Hegde and his son Shivaram

Ramachandra Hedge jointly. The Appellate Court

having further examined Ex.D.1 which is a certified

copy of the Will dated 24.12.1980 executed by

plaintiff's father Ramachandra Keshappa Hegde has

concurred with the findings of the Trial Court and has

come to the conclusion that the plaintiff's father has

bequeathed his immovable properties in favour of

Shivaram (plaintiff) and also present appellant/

defendant No.1. However, under the Will it is clearly

mentioned that the residential house shall go to

respondent No.1/plaintiff and cattle shed should go to

present appellant/defendant No.1. The Appellate Court

has also taken judicial note of the fact that the

appellant and respondents' father namely

Ramachandra having partitioned the suit schedule

property has executed a Will on the same day. The

appellate Court was of the view that to avoid future

litigation father could have equally divided the

properties. Having meticulously examined the Plaint

sketch, the Appellate Court has also recorded a

categorical finding that the courtyard which is the suit

property is abutting to the plaintiff's house was in fact

allotted to plaintiff's father and plaintiff jointly. The

Appellate Court was of the view that, the

appellant/defendant No.1 who is also allotted the

courtyard towards northern side of residential house,

cannot make a further claim in respect of courtyard

which is abutting to plaintiff's house. Therefore, the

Appellate Court was of the view that by making a false

claim, the appellant/defendant No.1 has interfered

with respondent No.1/plaintiff's peaceful possession

and enjoyment over the suit schedule courtyard. On

these set of reasonings, the Appellate Court has

proceeded to dismiss the appeal.

7. Learned counsel appearing for the

appellant/defendant No.1 would vehemently argue and

contend before this Court that the judgment and

decree of the First Appellate Court suffers from

perversity and the same is contrary to the procedure

contemplated under Rule 31 of Order XLI of CPC. He

would submit to this Court that the Appellate Court

has not formulated relevant points for consideration

and therefore he would submit to this Court that the

judgment and decree of the First Appellate Court is

not based on independent assessment of relevant

evidence on all points and therefore there is no

substantial compliance of Rule 31 of Order XLI of CPC.

8. To buttress his argument, he has placed

reliance on judgment rendered by the coordinate

Bench of this Court in the case of Bangarappa Vs.

Rudrappa1.

ILR 2012 KARNATAKA 1020

9. Per contra, learned counsel appearing for

respondent No.1/plaintiff would submit to this Court

that appellant/defendant No.1 is signatory to the

partition deed as per Ex.P.2. Further he has not at all

disputed the partition deed and bequeath made by his

father. Both the Courts have concurrently held that

respondent No.1/plaintiff would succeed to the

residential house and also suit property which is

abutting to the residential house jointly allotted to the

plaintiff in a family partition. In that view of the

matter, he would submit to this Court that, no

substantial question of law would arise for

consideration in the present case on hand.

10. Heard learned counsel appearing for the

appellant/defendant No.1 and respondent No.1/

plaintiff. Perused the judgment under challenge and

also Trial Court records.

11. The Trial Court has culled out the recitals of

the partition deed, wherein the present

appellant/defendant No.1, respondent No.1/plaintiff

and other defendants have effected partition by meets

and bounds. The recitals clearly indicate that the

residential house was jointly allotted to respondent

No.1/plaintiff and his father Ramachandra. The recitals

clearly indicate that the courtyard which is adjoining

the residential house was also allotted to the share of

respondent No.1/plaintiff's father. The very recitals in

the partition deed also indicate that the present

appellant/defendant No.1 is also allotted a residential

house and courtyard abutting to his house in the said

family partition. The severance in the family by way of

partition dated 24.12.1980 as per Ex.P.2 is not at all

in dispute. The appellant/defendant No.1 has admitted

the partition dated 24.12.1980. He has also admitted

due execution of Will by his father as per Ex.D.1. In

registered partition deed it is clearly stated that the

residential house along with abutting courtyard, which

is subject matter of the present suit is jointly allotted

to plaintiff and his father. Through Will the father of

the plaintiff has bequeathed the residential house in

favour of respondent No.1/plaintiff. Both the Courts

below have concurrently held that the appellant/

defendant No.1 is independently allotted a courtyard

and a residential house and therefore he cannot claim

any right and title in respect of open space/courtyard

which is adjoining to the plaintiff's house.

12. On perusal of the judgment and decree of

the First Appellate Court, this Court would find that,

the Appellate Court has independently assessed the

oral and documentary evidence on record. The

procedure contemplated under Rule 31 of Order XLI of

CPC has to be strictly complied where the Appellate

Court having independently assessed oral and

documentary evidence proceeds to reverse the finding

of the Trial Court. When there is reversal of decree,

the Appellate Court has to advert to the reasons that

are recorded by the Trial Court and specific finding has

to be recorded. However, while affirming the reasons

and conclusion rendered by the Trial Court, the

Appellate Court need not exhaustively record its

finding. However, on examination of judgment passed

by the First Appellate Court, this Court would find that

the Appellate Court has in fact dealt with the matter

and it clearly reveals that the Appellate Court has

independently assessed the oral and documentary

evidence. Therefore, the judgment cited by the

learned counsel appearing for the appellant has no

application to the present case on hand.

13. The parties are litigating since 2000. When

appellant/defendant No.1 was allotted a residential

house and open space abutting to his house, it was

not fair on the part of the appellant/defendant No.1 in

laying a false claim in respect of courtyard which is

attached to the residential house allotted to plaintiff in

a family partition. This is a sheer abuse of process.

Both the brothers have virtually spent 22 years in

Courts. Therefore, I am of the view that the precious

time of the Courts is also wasted as there was a

frivolous claim made by appellant/defendant No.1.

Therefore, the appeal is devoid of merits and

accordingly the same stands dismissed with cost of

Rs.5,000/-.

Sd/-

JUDGE EM