Karnataka High Court
Sri G H Rangappa vs Sri G H Narayanaswamy on 19 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
R.S.A. No.738/2021 (PAR/POS)
BETWEEN :
SRI G.H. RANGAPPA,
S/O LATE. G.S. HANUMANTHU,
AGED ABOUT 86 YEARS,
R/AT. SEETHEPALLI VILLAGE,
KASABA HOBLI,
GUDIBANDE TALUK,
CHIKKABALLAPUR DISTRICT,
PIN - 561 209.
... APPELLANT
(BY SRI.ADINARAYANAPPA, ADVOCATE)
AND :
1. SRI G.H.NARAYANASWAMY,
S/O LATE. G.S. HANUMANTHU,
AGED ABOUT 98 YEARS,
NO.1,
2. SRI. G.H. ASHWATHANARAYANASWAMY
S/O LATE. G.S. HANUMANTHU,
AGED ABOUT 71 YEARS,
BOTH ARE R/AT SEETHEPALLI VILLAGE
KASABA HOBLI,
GUDIBANDE TALUK,
CHIKKABALLAPUR DISTRICT,
PIN-561209.
2
3. SRI G.H.ANJINAPPA,
S/O LATE. G.S. HANUMANTHU,
AGED ABOUT 81 YEARS,
R/AT RURAL GUDIBANDE VILLAGE,
KASABA HOBLI,
GUDIBANDE TALUK,
CHIKKABALLAPUR DISTRICT,
PIN-561209.
... RESPONDENTS
(BY SMT. PRAMILA NESARGI, SENIOR COUNSEL
FOR SRI. SHAHTAJ, ADVOCATE FOR R1-3)
THIS RSA FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 05.02.2021
PASSED IN RA.NO.141/2019, ON THE FILE OF THE SENIOR
CIVIL JUDGE (ITINERARY COURT) GUDIBANDE,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 23.07.2019, PASSED IN
OS.NO.128/2015, ON THE FILE OF THE CIVIL JUDGE AND
JMFC, GUDIBANDE AND ETC.,
THIS RSA COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a second appeal filed by the first defendant.
2. Admittedly, the plaintiff Nos.1 and 2 and
defendant Nos.1 and 2 are brothers.
3. The plaintiffs filed a suit seeking partition in
respect of 15 guntas of land out of the total extent of 3
acres, 37 guntas of land bearing survey No.4/3, out of
which 3 guntas was karab, situated at Myakalahalli Village,
Kasaba Hobli, Gudibande taluk, Chikkaballapur district.
4. It was their case that there was already a
partition amongst the plaintiffs and the defendants in
respect of the joint family properties and only the suit
schedule property was not partitioned. Despite demands,
the defendants had refused to execute the partition and
hence they had instituted the suit.
5. The defence of the first defendant was one of
total denial. He however, stated that under an
unregistered partition deed dated 11.02.1985, there had
been a partition and ever since the partition, 'C' schedule
property allotted therein, was in his possession and the
revenue records were also mutated in his name. It was his
case that as per the unregistered partition deed dated
11.02.1985, a total extent of 3 acres, 37 guntas of survey
No.4/3, was allotted to him and out of this total extent, 6
guntas of land has been retained as Khana for common
use of both plaintiffs and defendants. He therefore,
contended that the suit for partition in respect of 15
guntas of land was not tenable.
5. The Trial Court after analyzing the evidence
adduced came to the conclusion that the plaintiffs had
proved that they and the defendants were members of the
joint family and the suit schedule property was the joint
family properties. The Trial Court came to the conclusion
that defendant No.1 had failed to prove that the entire suit
schedule property had been allotted to the first defendant,
under the unregistered partition deed dated 11.02.1985.
6. The Trial Court after taking into consideration
the judgment rendered in R.A.No.149/2000 and RSA
926/2002, which arose out of O.S. No.248/1998, which
had been filed by the first defendant (appellant herein)
seeking for a decree of injunction wherein a finding had
been recorded that the first defendant herein had been
allotted only an extent of 3 acres 19 guntas of land of
Survey No.4/3 and the remaining 15 guntas of land had
been set apart for the common enjoyment of both the
plaintiffs and the defendants and the plaintiffs and the
defendants were therefore entitled for partition of this 15
guntas of land. The Trial Court, accordingly, decreed the
suit and granted the plaintiffs together 2/4th share in the
15 guntas.
7. In appeal, the Appellate Court affirmed the
said finding. The Appellate Court took note of the fact that
in Exhibit-P3, it had been clearly observed that 15 guntas
of land was to be enjoyed by both the plaintiffs and the
defendants and only an extent of 3 acres, 19 guntas had
been allotted to the first defendant / appellant under the
partition and as a consequence 15 guntas of land, which
was the subject matter of the suit was required to be
partitioned. The Appellate Court accordingly affirmed the
decree and dismissed the appeal.
8. The learned counsel for the appellant
contended that as a matter of fact under the unregistered
partition deed dated 11.02.1995, only an extent of 6
guntas has been set apart as khana and therefore the suit
for partition in respect of 15 guntas of land at survey
No.4/3 could not be maintained. He further submitted that
the original unregistered partition deed was deposited in
the Bank and an endorsement to that effect had been
issued by the bank and therefore the decreeing of suit
without reference to the partition deed could not be
sustained.
9. It is to be stated herein that in the very suit
filed by the plaintiffs for injunction, a decree for injunction
was granted to the appellant only in respect of 3 acres, 19
guntas out of the total extent of 3 acres, 37 guntas in
survey No.4/3. Admittedly, in the said suit, the partition
under the unregistered sale deed was pressed into service
as per Exhibit-P16 in those proceedings.
10. Both Trial and Appellate courts and this Court
have already recorded a clear finding that the first
defendant (appellant herein) had been allotted only 3
acres, 19 guntas of land and also given a specific finding
that 15 guntas of land had been set apart for the common
enjoyment of both the plaintiffs and the defendants. This
finding recorded by the Appellate Court, as well as by this
Court in R.A.No.149/2000 and RSA 926/2002, has been
accepted by the first defendant (appellant herein) without
demur. Hence, it is clear that the finding of this Court that
under the unregistered partition deed dated 11.02.1995,
an extent of 15 guntas out of the total extent of 3 acres,
37 guntas of land had been set part for common
enjoyment of both the plaintiffs and the defendants,
cannot be in doubt at all. Having regard to the fact that
this remaining 15 guntas of land which has been set apart
for the common enjoyment of the parties (in respect of
which the suit for partition is filed). It is clear that the
plaintiffs were entitled for a share in this 15 guntas of
land.
11. All that the courts below have done is that they
have ordered partition of this 15 guntas of land, which was
admittedly set apart for common enjoyment of the parties
in the earlier unregistered partition deed dated
11.02.1995. In this view of the matter, it is clear that the
plaintiffs were entitled for partition and both the courts
have rightly decreed the suit. There is no question of law
as such, that would arise for consideration in this second
appeal. Accordingly, the appeal is dismissed.
Sd/-
JUDGE
JJ
