Sri K Thimmaiah vs Smt. Venkatamma
2022 Latest Caselaw 934 Kant

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                                                    RSA No.50 OF 2021


                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 20TH DAY OF JANUARY, 2022

                                     BEFORE
                   THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                   REGULAR SECOND APPEAL NO. 50 OF 2021(PAR)
            BETWEEN:

                 SRI. K. THIMMAIAH,
                 S/O LATE KUNNAPPA,
                 AGED AOBUT 71 YEARS,
                 NO 178, 7TH 'C' CROSS,
                 7TH 'C' MAIN ROAD,
                 HAMPI NAGARA,
                 RPC LAYOUT,
                 2ND STAGE, VIJAYANAGRA,
                 BENGALURU 560040.
                 (SENIOR CITIZEN BENEFIT NOT CLAIMED)

                                                         ...APPELLANT
            (BY SRI. SIDDHARTH B MUCHANDI.,ADVOCATE)

            AND:

            1.   SMT. VENKATAMMA,
                 W/O LATE SANNAPPA,
                 AGED ABOUT 58 YEARS,
                 R/AT MANGALAVARAPETE,
                 CHANNAPATANA TOWN,
                 RAMANGARA DISTRICT-562 160.

            2.   SMT. LAKSHMAMMA,
                 W/O LATE PUTTALINGAIAH,
                 AGED ABOUT 63 YEARS,
                 R/AT BASAVANAPURA,
                 KASABA HOBLI,
                 RAMANAGARA TALUK,
Digitally
                 RAMANAGARA DISTRICT-562 128.
signed by
KIRAN
KUMAR R     3.   SMT. RAMADEVI,
Location:
High
Court of
                 W/O LATE RAMAKRISHNA,
Karnataka
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                                        RSA No.50 OF 2021


     AGED ABOUT 49 YEARS,
     R/AT PADARAHALLI,
     KASABA HOBLI, RAMANAGARA TALUK,
     RAMANAGARA DISTRICT-562 159.

4.   SRI. VENKATAGIRIGOWDA
     S/O LATE RAMAKRISHNA,
     AGED AOUT 45 YEARS,
     R/AT RAMADEVARAPADHA,
     BASAVNAPURA VILLAGE,
     B M ROAD, KASABA HOBLI,
     MAYAGANAHALLI POST,
     RAMANAGARA TALUK,
     RAMANAGARA DISTRICT-562 128.

5.   SRI. VENKATARAMA,
     S/O LATE RAMAKRISHNA,
     AGED AOUT 43 YEARS,
     R/AT RAMADEVARAPADHA,
     BASAVNAPURA VILLAGE,
     B M ROAD, KASABA HOBLI,
     MAYAGANAHALLI POST,
     RAMANAGARA TALUK,
     RAMANAGARA DISTRICT-562 128.

6.   SRI. VENKATAGIRI
     S/O LATE RAMAKRISHNA,
     AGED AOUT 45 YEARS,
     R/AT RAMADEVARAPADHA,
     BASAVNAPURA VILLAGE,
     B M ROAD, KASABA HOBLI,
     MAYAGANAHALLI POST,
     RAMANAGARA TALUK,
     RAMANAGARA DISTRICT-562 128.

                                           ...RESPONDENTS
(BY SRI. RAJU S.,ADVOCATE FOR R-1 & R-2;
  R-3, R-4, R-5 AND R-6 ARE SERVED AND UNREPRESENTED)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 16.09.2020 PASSED IN
RA.No.183/2019 ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA, PARTLY ALLOWING THE
APPEAL AND PARTLY SETTING ASIDE THE JUDGMENT AND
DECREE DATED 24.09.2019 PASSED IN O.S. No.377/2010 ON THE
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                                                RSA No.50 OF 2021


FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
RAMANAGARA.

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

                              JUDGMENT

1. This is a second appeal by defendant No.1.

2. Smt.Venkatamma and Smt.Lakshmamma (the sisters of the

appellant herein) instituted a suit for partition against the appellant

and their other brother Sri.Ramakrishna. They stated that their

father Sri.Kunnappa had got the properties in his name in the year

1984-85 and they were joint family properties, as evidenced by the

entries in the revenue records. They stated that there had been no

division of properties and they were thus entitled to an equal share

in the said joint family properties.

3. The suit was contested by defendant No.1/appellant herein.

It was stated that on 25.07.1983, there was a partition and in the

said partition, the plaintiffs had already got their share and hence,

the question of ordering for one more partition would not arise. It

was also contended that Item Nos.1 and 2 had been granted to

defendant No.1 under the Land Reforms Act, while Item Nos.3 and

4 had been granted by the Government to Kunnappa. It was

RSA No.50 OF 2021

stated that since the plaintiffs were signatories to the partition deed

dated 25.07.1983, the plaintiffs were not entitled to any share.

4. The other brother/defendant No.2--through his legal

representatives also supported the case of defendant No.1.

5. The Trial Court on consideration of the evidence adduced

before it came to the conclusion that the plaintiffs had admitted

affixture of their left hand thumb impressions on Ex.D-4, the

unregistered partition deed dated 25.07.1983 and hence, the

partition stood proved. The Trial Court took the view that the father

of the plaintiffs had died prior to 09.09.2005 and the partition had

also taken place in the year 1983 and therefore, the suit for

partition could not be entertained. Accordingly, the Trial Court

dismissed the suit.

6. Being aggrieved by the dismissal of their suit, the plaintiffs

preferred an appeal.

7. The Appellate Court, on re-appreciation of the evidence,

came to the conclusion that though the defendants had set up the

plea of earlier partition, as per R.T.C. extracts, it was revealed that

RSA No.50 OF 2021

defendant No.2 had got his name entered in the revenue records

on the basis of I.H.C. No.2/1985-86. Similarly, in respect of the suit

schedule Item No.4, it was held Ex.P-7 revealed that the entry in

the names of defendant Nos.1 and 2 had also been made based

on I.H.C. No.87/1983-84, whereas the case set up by the

defendants was one of the partition.

8. The Appellate Court also took the view that despite the

earlier partition set up, the records had not been changed as per

the partition and therefore, the plea of the earlier partition could not

be accepted, at least in respect of suit schedule Item Nos.3 and 4

are concerned.

9. The Appellate Court also took the view that as per the R.T.C.

extracts, suit schedule Item Nos.1 and 2 were stated to have been

acquired through a grant and therefore, these properties would

have to be considered as the separate properties of the

defendants. The Appellate Court accordingly allowed the appeal in

part and decreed the suit only in respect of item Nos.3 and 4, while

rejecting the claim of the partition in respect of suit schedule Item

Nos.1 and 2.

RSA No.50 OF 2021

10. It is against this divergent finding, the present second appeal

has been preferred.

11. It is also pertinent to state here that as against the very same

judgment, challenging the denial of share over suit schedule Item

Nos.1 and 2, R.S.A. No.670 of 2021 has been preferred by the

plaintiffs, which shall be considered separately.

12. By virtue of the fact that the defendants set up the plea that

there was an earlier partition, the fact that the suit properties were

joint family properties stood automatically admitted. If the suit

schedule properties were joint family properties, the defendants

would have to establish that the suit schedule properties had been

subjected to a partition and the partition had been given effect

completely so as to disentitle a fresh claim for partition.

13. Admittedly, the defendants did not even produce the

mutation extracts under which the revenue entries were changed

pursuant to Ex.D-4. As a matter of fact, the revenue entries were

produced by the plaintiffs and were of the year 2010. In the

absence of any document to establish that the alleged partition

under Ex.D-4 was given effect to in full, the findings of the

RSA No.50 OF 2021

Appellate Court that the earlier partition had not been given effect,

will have to be accepted.

14. The assertion of the learned counsel for the appellant that

the L.T.Ms. on Ex.D-4 had been admitted and therefore, the earlier

partition will have to be accepted, is untenable. As stated in the

decision of the Hon'ble Apex Court in Vineeta Sharma vs. Rakesh

Sharma and others, [2020) 9 SCC 1], [Vineeta Sharma], it is only

in exceptional circumstances, where the plea of an earlier partition

is supported by a public document and the partition is finally

evidenced in the manner as if it had been effected by the decree of

a Court, the plea of an earlier partition cannot be accepted.

15. As stated above, the claim that the suit schedule properties

were partitioned under Ex.D-4 and the partition was given effect to

way back in the year 1983, was not at all proved by the defendants.

I am, therefore, of the view that the judgment and decree of the

Appellate Court granting 1/4 th share to the two daughters in suit

schedule Item Nos.3 and 4 cannot be found fault with.

RSA No.50 OF 2021

16. There is no substantial question of law arising for

consideration in this appeal. The appeal is accordingly dismissed.

17. The learned counsel for the appellant submits that during the

pendency of the proceedings, suit schedule Item No.4 was

acquired by the National Highways Authority of India (NHAI) and a

sum of Rs.45,69,841/- had been deposited in the Savings Account

No.54004397375 at the State Bank of India, R.P.C. Layout Branch,

Bengaluru, which is an account held by the appellant and

subsequently, by a communication dated 22.01.2021, NHAI had

requested the said Bank to freeze the account in which the said

deposit has been made and accordingly, the said account has

been frozen. The learned counsel submits that the said amount of

Rs.45,69,841/- may be kept separately in a fixed deposit and

direction may be issued to de-freeze his account.

18. The learned counsel for respondent Nos.1 and 2, Sri.S.Raju,

indicates that he would have no objection for the said course of

action.

RSA No.50 OF 2021

19. In view of the said submission, Rs.45,69,841/- deposited into

the account of the appellant by NHAI is directed to be kept in a

fixed deposit and the State Bank of India, R.P.C. Layout Branch,

Bengaluru, shall de-freeze the said account of the appellant and

permit him to operate the same.

20. It is made clear that the amount so deposited shall be

apportioned in accordance with the decree passed by the Appellate

Court and as affirmed by this Court.

Sd/-

JUDGE

RK CT:SN