Kumar. Mailari Yallappa ... vs Kumari Mahadevi D/O. Maruti ...
2022 Latest Caselaw 877 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 19TH DAY OF JANUARY 2022

                            BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA.NO.5414/2013 (DEC/INJ)
BETWEEN

1.    KUMAR. MAILARI YALLAPPA VAGGAYYAGOL
      @ VAGAR,
      AGE: 17 YEARS, OCC: STUDENT

2.    KUMAR MARUTI S/O. YALLAPPA VAGGAYYAGOL
      @ VAGAR,
      AGE: 17 YEARS, OCC: STUDENT,

      BOTH APPELALNT NOS.1 AND 2 ARE MINORS,
      R/BY THEIR GRAND FATHER
      YALLAPPA S/O. MARITAMMAPPA KALASANNAVAR,
      AGE: 76 YEARS, OCC: AGRICULTURE,
      R/O. BHANDARAHALLI, TQ: SAUNDATTI, DIST: BELGAUM

3.    ABDUL S/O. MOHAMMAD IQBAL HONGAL
      AGE: 28 YEARS,
      OCC: AGRICULTURE,
      R/O. RAMPUR SITE, SAUNDATTI,
      DIST: BELGAUM

                                                ... APPELLANTS

(BY SRI.RAVI S.BALIKAI, ADV.)


AND

1.    KUMARI MAHADEVI D/O. MARUTI VAGGAYYAGOL
      @ VAGAR,
      AGE: 16 YEARS, MINOR,
      R/BY HER GRAND MOTHER
                               2




      SMT.NAGAWWA W/O. HANAMANTAPPA VAGGAYYAGOL @
      VAGAR,
      AGE: 86 YEARS, OCC: HOUSEHOLD WORK,
      R/O. MUNAVALLI, TQ: SAUNDATTI, DIST: BELGAUM

2.    SMT.NAGAWWA W/O. HANAMANTAPPA VAGGAYYAGOL
      @ VAGAR, AGE: 86 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O. MUNAVALLI,
      TQ: SAUNDATTI, DIST: BELGAUM

3.    SMT.FAKIRAWWA W/O. MARUTI VAGGAYYAGOL
      @ VAGAR, AGE: 46 YEARS,
      OCC: AGRICULTURE,
      R/O. MUNAVALLI,
      TQ: SAUNDATTI, DIST: BELGAUM

4.    SMT.MALLAWWA W/O. YALLAPPA VAGGAYYAGOL
      @ VAGAR, AGE: 46 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O. HOOLIKATTI, TQ: SAUNDATTI, DIST: BELGAUM

5.    MALLAPPA S/O. YALLAPPA VAGGAYYAGOL
      @ VAGAR, AGE: 83 YEARS,
      OCC: AGRICULTURE, R/O. MUNAVALLI,
      TQ: SAUNDATTI, DIST: BELGAUM

                                              ... RESPONDENTS

(BY DEEPA UDIYAR, ADV. FOR SRI.J.S.SHETTY, ADV. FOR RR1 & R2,
    R3 AND R4 ARE SERVED;
    R5 DISPENSED WITH)

     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 31.01.2012
PASSED IN R.A.NO.14/2011 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE, SAUNDATTI AND RESTORE THE JUDGMENT AND DECREE
DATED 11.07.2011 PASSED IN O.S.NO.135/2007 ON THE FILE OF
THE CIVIL JUDGE, SAUNDATTI AND THIS APPEAL BE ALLOWED WITH
COSTS.

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




                          JUDGMENT

The captioned Regular Second Appeal is filed by the

defendants feeling aggrieved by the judgment and decree

passed by the first appellate court wherein the first

appellate court has reversed the finding of the trial court

and has granted share to the respondents/plaintiffs.

2. Respondents/plaintiffs filed a suit for partition

and separate possession by specifically contending that the

suit schedule properties are the joint family ancestral

properties and therefore, the sale deed executed by

defendant Nos.1 to 3 on 26.03.2004 and sale deed

executed by defendant No.3 in favour defendant Nos.4 and

5 on 19.04.2007 are not binding on their share. The

plaintiffs have also contended that the sale deed executed

by defendant No.3 in favour of defendant No.6 is not

binding on their share.

3. Respondents/defendants on receipt of summons

contested the proceedings and took up the plea of prior

partition. The trial court having assessed oral and

documentary evidence while answering issue Nos.7 and 8

found that respondents/plaintiffs have already filed a suit

in O.S.No.40/2008 against all the children in respect of the

land measuring 2 acres 3 guntas in Block No.327.

Therefore, the trial court was of the view that the present

suit which is filed only in respect of alienated portion is not

maintainable. On these set of reasoning, the trial court

proceeded to dismiss the suit. The first appellate court on

re-appreciation of oral and documentary evidence has

reversed the finding of the trial court by recording a finding

that respondents/plaintiffs are seeking claim only in

respect of property which is allotted to deceased Maruti by

challenging the partition. Therefore, the first appellate

court was of the view that under Section 8 of the Hindu

Succession Act, the plaintiffs are entitled for a share in the

suit schedule property. On these set of reasoning, the first

appellate court allowed the appeal.

4. Learned counsel for the appellants would submit

to this court that there are no instructions from his clients.

However, he would submit to this court that he has oral

instructions that respondents/plaintiffs have also alienated

their legitimate share in the suit schedule property.

5. Be that as it may, if separate suit is pending in

O.S.No.40/2008 in respect of entire extent, no prejudice

will be caused to the appellants/defendants. Though a

statement is made by the learned counsel for the

appellants that respondents/plaintiffs have alienated their

share, however, no documents are produced on record.

The first appellate court on re-appreciation has held that

respondents/plaintiffs are entitled for their legitimate share

in the suit schedule property. The first appellate court has

allotted 1/3rd share in the property of the deceased Maruti.

The first appellate court on re-appreciation of material on

record has recorded a finding that registered sale deed

executed by defendant Nos.1 and 2 in favour of defendant

Nos.3 to 6 is not binding on the share of

respondents/plaintiffs. I do not find any irregularity or

illegality in the judgment rendered by the first appellate

court.

6. No substantial question of law arises for

consideration in the present appeal. Accordingly, the

appeal stands dismissed.

Sd/-

JUDGE MBS/-