Sanna Agalurappa S/O. Late ... vs Dodda Kariyappa S/O. Late Dodda ...
2022 Latest Caselaw 494 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH AT
                    DHARWAD

        DATED THIS THE 12TH DAY OF JANUARY, 2022


                        BEFORE

 THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM

                R.S.A.NO.5797/2011 (PAR)

BETWEEN :

SRI SANNA AGALURAPPA
S/O LATE MADDERA POTHAPPA,
AGE : 63 YEARS,
OCC: AGRICULTURIST,
R/O GADIGANUR VILLAGE,
TQ: HOSPET,
DIST: BELLARY,
PIN CODE: 583201.
                                           ... APPELLANT
(BY SRI HANUMANTHAREDDY SAHUKAR, ADV.)

AND :

1. SRI DODDA KARIYAPPA,
   S/O LATE DDDA KALGUDAPPA,
   AGE : MAJOR,
   OCC: AGRICULTURIST.

2. SRI SANNA KARIYAPPA,
   S/O LATE DDDA KALGUDAPPA,
   AGE : MAJOR,
   OCC: AGRICULTURIST.

3. SRI GOWRAPPA
   S/O LATE DDDA KALGUDAPPA,
   AGE : MAJOR,
   OCC: AGRICULTURIST.

4. SMT.HAMPAMMA
   W/O HANUMANTHAPPA,
                              2




  S/O LATE DDDA KALGUDAPPA,
  AGE : MAJOR,
  OCC: AGRICULTURIST.

5. SRI ERANNA
   S/O LATE DDDA KALGUDAPPA,
   AGE : MAJOR,
   OCC: AGRICULTURIST.

6. SMT.SAKRAMMA
   W/O LATE BALE KALLAPPA,
   AGE : MAJOR,
   OCC: AGRICULTURIST.

7. SMT.LAKSHMAMMA
   W/O LATE DDDA AGALURAPPA,
   AGE : MAJOR,
   OCC: AGRICULTURIST.

  ALL ARE R/O GADIGANUR VILLAGE,
  TQ: HOSPET
  DIST: BELLARY, PIN.583201.
                                        ...RESPONDENTS

(NOTICE TO R.1 TO R.3: SERVED & UNREPRESENTED)
(BY SRI SATISH M.S., AND
     SRI SANTOSH M.S., ADVOCATES FOR R.5 TO R.7)

     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 15.02.2011
PASSED IN R.A.NO.20/2020 BY THE LEARNED PRL. SENIOR
CIVIL JUDGE & JMFC, HOSPET AND CONFIRM THE JUDGMENT
AND DECREE DATED 15.02.2010 PASSED IN O.S.NO.133/2008
BY THE LEARNED ADDL. CIVIL JUDGE (JR.DN.) & JMFC,
HOSPET, BY ALLOWING THE ABOVE APPEAL WITH COSTS, IN
THE INTEREST OF JUSTICE AND EQUITY.


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




                    : JUDGMENT :

The captioned second appeal is filed by plaintiff

questioning the divergent finding of the Courts below.

2. The facts leading to the above said case

are as follows:

The appellant/plaintiff filed a suit for partition

and separate possession in O.S.No.133/2008. The

appellant/plaintiff claims that he is the son of one

Maddera Pothappa and further contends that he has

four siblings. It is the case of the appellant/plaintiff

that the mother of Pothappa was in possession and

enjoyment of over the suit schedule properties and

also other landed properties. It is further contended

that defendant Nos.1 to 3 and husband of defendant

No.4 are the children of Dodda Kalgudappa wherein

defendant No.5 is the son of Sanna Kalgudeppa,

defendant No.6 is the wife of Bile Kallappa and

defendant No.7 is wife of Dodda Agalurappa. The

grievance of the appellant/plaintiff is that he is

suffering from leprosy and therefore all his brothers

were taking care of him and residing under the one

roof and were in joint possession of suit schedule

properties and also other landed properties. The

appellant/plaintiff has further contended that, after

death of father of respondent Nos.1 to 3 and husband

of respondent No.4, the appellant/plaintiff and

defendants divided the landed properties and

mutation was also effected. As per the said partition

the appellant/plaintiff and defendants are cultivating

their respective lands as per oral partition. However,

the appellant/plaintiff contends that insofar as suit

schedule properties are concerned, same were kept in

joint and the suit schedule properties as on the date

of filing of the suit, were joint family ancestral

properties. The present suit is filed, as defendants at

the instance of ill-advisers have dispossessed the

appellant/plaintiff from the suit schedule properties

and are not willing to effect partition to give legitimate

share of appellant/plaintiff. On these set of pleadings,

the present suit came to be filed.

3. Respondents/defendants on receipt of

summons filed independent written statements and

specifically contended that there is already severance

in the family and therefore the present suit for

partition is barred by limitation.

4. The Trial Court having assessed oral and

documentary evidence, answered issue Nos.1 & 2 in

the affirmative and recorded a finding that the suit

schedule properties are joint family ancestral

properties and as such the appellant/plaintiff is

entitled for 1/5th share in the suit schedule property.

The Trial Court further held that there is no partition

in the family insofar as schedule properties are

concerned and accordingly proceeded to decree the

suit awarding 1/5th share to the appellant/plaintiff.

5. The Appellate Court on re-appreciation of

oral and documentary evidence, however

independently assessed the evidence on record and

having taken note of several admissions given by the

appellant/plaintiff and also witness examined on

behalf of him has come to conclusion that the

evidence on record clearly establishes that there is a

severance in the family of the appellant/plaintiff even

in respect of schedule properties.

6. The Appellate Court has taken note of sale

deed executed by the appellant/plaintiff pertaining to

one residential house and having taken note of the

same, the Appellate Court has come to conclusion that

the appellant/plaintiff has dealt with residential

property by selling the same under registered sale

deed dated 29.07.2006 as per Ex.D.2. The Appellate

Court having assessed the evidence was of the view

that the finding of the Trial Court that there is no

severance in the family suffers from perversity. The

Appellate Court reversed the finding of the Trial Court

by allowing the appeal and the suit came to be

dismissed. Being aggrieved by the divergent finding,

the appellant/plaintiff is before this Court.

7. Heard learned counsel appearing for the

appellant/defendant and learned counsel appearing for

the respondents.

8. There is no dispute insofar as agricultural

lands are concerned. Both the parties have admitted

the fact of partition insofar as agricultural lands are

concerned. It is the specific case of the

appellant/plaintiff insofar as residential houses are

concerned the appellant/plaintiffs and defendants are

in joint possession and there is no partition. The

appellant/plaintiffs and respondents/defendants

continued to remain in joint. The Appellate Court on

re-appreciation of oral and documentary evidence has

taken note of several categorical admissions given by

the appellant/plaintiff during the course of cross-

examination. The appellant/plaintiff who is examined

as PW.1 has admitted in unequivocal terms that the

four houses have fallen to the share of his brothers

and he further admitted that he has sold the vacant

site which had fallen to his share through a registered

sale deed as per Ex.D.2 in favour of one

Hanamanthappa. He has further admitted that he was

not living in joint family and he was residing separate

after death of his brothers. PW.2 examined by

appellant/plaintiff also admitted in his cross-

examination that after death of propositus Pothappa,

all his children started residing separately in separate

houses and the appellant/plaintiff was residing in open

space by putting up a hut. PW.2 has also admitted in

unequivocal terms that the appellant /plaintiff has sold

the vacant site that was allotted to him in a family

partition.

9. The Appellate Court having taken note of

these significant details has come to conclusion that

there is severance in the family. On going through the

judgment of the Appellate Court, this Court would find

that the appellant/plaintiff never questioned the

partition in respect of schedule properties during the

lifetime of his brothers. It appears after death of his

brothers, he tried to reclaim a share in the suit

schedule properties. Having sold the vacant site which

was allotted to his share, which is evident from Ex.D.2

registered sale deed dated 29.07.2006, a feeble

attempt is made by the appellant/plaintiff to seek

share in the properties which were allotted to the

share of his brothers that too after death of his

brothers. Therefore, the judgment and decree passed

by the Appellate Court is based on legal evidence,

whereas the Trial Court has not at all taken note of all

these significant details. Therefore I am of the view

that the Trial Court either misread the evidence on

record or has not taken into consideration these

material evidence, which would have change the

course of conclusions, if taken into consideration.

10. In that view of the matter, the judgment

and decree of the Appellate Court is in accordance

with law. No substantial question of law arises. The

appeal is devoid of merits and accordingly stands

dismissed.

Sd/-

JUDGE EM