Karnataka High Court
Thimmegowda vs Sri Cheluvegowda on 20 January, 2022
Bench: N S Gowda
1
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
R.S.A. No.427/2021 (PAR)
BETWEEN:
THIMMEGOWDA
AGED ABOUT 84 YEARS,
S/O LATE NARASIMHEGOWDA
@ KULLEGOWDA
R/AT LOKANAYAKANAGAR
OPP. METAGALLI POLICE STATION
MYSURU - 570 016
... APPELLANT
(BY SRI. AJIT KALYAN, ADV.)
AND:
1. SRI CHELUVEGOWDA
AGED ABOUT 79 YEARS,
S/O LATE NARASIMHEGOWDA
@ KULLEGOWDA
2. SRI VENKATARAMU
AGED 72 YEARS
S/O LATE NARASIMHEGOWDA
@ KULLEGOWDA
2
3. SRI JAVAREGOWDA
AGED 69 YEARS,
S/O LATE NARASIMHEGOWDA
@ KULLEGOWDA
RESPONDENT NOS.1 TO 3 ARE
R/AT KUMBARAKOPPAL
CHAMARAJA MOHALLA
MYSURU -570 010
4. SRI JAYARAM
AGED 81 YEARS,
S/O LATE CHELUVEGOWDA
RESIDING AT D.NO.9, "R" BLOCK
FORT ROAD, KUMBARA KOPPAL
MYSURU - 570 004
5. SRI KRISHNA
AGED ABOUT 73 YEARS,
S/O LATE CHELUVEGOWDA
RESIDING AT "Q" BLOCK
FORT ROAD, KUMBARAKOPPAL
MYSURU - 570 004 ... RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 22.12.2020
PASSED IN R.A.No.245/2020 ON THE FILE OF THE
IV ADDL.DISTRICT AND SESSIONS JUDGE, MYSURU
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 29.02.2020 PASSED IN OS No.929/2007
ON THE FILE OF THE ADDITIONAL SMALL CAUSES AND
SENIOR CIVIL JUDGE AT MYSURU.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
1. This is a second appeal filed by the first defendant.
2. It is not in dispute that the plaintiff - Cheluvegowda
and defendant Nos.1 to 3 are brothers and are sons of
late Narasimhegowda alias Kullegowda.
3. The suit was instituted for partition contending that
the suit schedule property was joint family property of
plaintiff and defendant Nos.1 to 3 and the first defendant
being the kartha of joint family, was managing and
looking after the suit schedule property. It was stated
that earlier Narasimhegowda, the father of the plaintiff
and defendant Nos.1 to 3 was in possession and
enjoyment of the suit schedule property and that there
had been no partition despite a request being made in
that regard.
4. During the pendency of the suit, the sons of
Narasimhegowda, the uncle of the first plaintiff got
themselves impleaded and they stated that in the year
1959, there was a oral partition between
Narasimhegowda and Cheluvegowda and the suit
property was being cultivated by Narasimhegowda on a
lease.
5. The first defendant - appellant entered appearance
and contested the suit. It was his case that the suit
property was his separate property and none of his
brothers were entitled to a share in the said property.
He stated that originally the suit property belonged to
the Wholesale Co-operative Society, which had leased
out the property to the father of plaintiff and defendant
Nos.1 to 3 i.e., Narasimhegowda and every year,
Narasimhegowda was paying the rent to the Society.
6. The second and third defendants supported the
case of the plaintiff and sought for allotment of 1/4th
share to them.
7. The Trial Court on appreciation of the evidence
recorded a finding that Narasimhegowda, the father of
plaintiff and defendant Nos.1 to 3 was in possession of
the property and the property was being cultivated by all
the family members and an application had been filed by
the first defendant on behalf of the family and
notwithstanding the fact that occupancy rights were
conferred on the first defendant, the same would have to
be construed as a joint family property.
8. The Trial Court accordingly decreed the suit and
granted 1/4th share to the plaintiff and to defendant
Nos.1 to 3.
9. Being aggrieved, the first defendant preferred an
appeal. The Appellate Court after re-appreciation of the
evidence, concurred with the findings of the Trial Court.
10. The Appellate Court took note of the fact that in the
Form No.7 filed by the first defendant before the Land
Tribunal, the first defendant himself had stated that the
land was being cultivated right from the time of his
grandfather. It also found that the evidence on record
also indicated that from the time of the first defendant's
grandfather, rent was been paid to the Society. The
Appellate Court therefore came to the conclusion that
the finding of the Trial Court that the family members
were in cultivation of the suit property jointly could not
be in doubt and as a consequence, all the family
members of the family were entitled for a share. The
Appellate Court accordingly confirmed the decree and
dismissed the appeal.
11. It is as against this concurrent finding that the suit
property was a property being cultivated jointly by the
family members in which the plaintiff and defendant
Nos.1 to 3 had 1/4th share, the present second appeal is
filed.
12. The contention of the learned counsel for the
appellant is that the question as to whether the family
was the tenant or the first defendant was the tenant was
a question, which had to be decided exclusively by the
Land Tribunal and the Civil Court had no jurisdiction to
entertain such a plea.
13. t is to be stated here above that the question of
tenancy was not at all the subject matter of the suit.
The fact that the lands were tenanted was an undisputed
fact. The question that was raised before the Trial Court
was as to whether the family members together
cultivated the land on tenancy basis or was the land
being exclusively cultivated by the first defendant.
14. Both the Courts have taken the note of the fact
that the first defendant in very Form No.7 filed by him
stated that the lands were under cultivation right from
the time of his grandfather. This statement indicates
that even according to the plaintiff, the entire family
members of the plaintiff were cultivating in the property
and consequently, as a result of the order of the land
Tribunal, the said property would partake the character
of a joint family property.
15. Both the Courts, in my view were absolutely
justified in decreeing the suit and granting plaintiff 1/4th
share.
16. I find no question of law, much less a substantial
question of law arising for consideration in this appeal.
Consequently, the second appeal is dismissed.
Sd/-
JUDGE
KG
