Jagadish S/O Chanabasappa ... vs Smt. Girija W/O Rudragouda ...
2022 Latest Caselaw 10370 Kant

                            -1-




                                    RSA No. 100757 of 2017




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 06th DAY OF JULY, 2022

                          BEFORE
         THE HON'BLE MR JUSTICE E.S.INDIRESH
 REGULAR SECOND APPEAL NO. 100757 OF 2017 (PAR-)

BETWEEN:


1.   JAGADISH S/O CHANABASAPPA HALEMANI
     AGE: 33 YEARS, OCC: AGRICULTURE,
     R/O: CHIKKERUR, TQ: HIREKERUR
     DT: HAVERI, PIN CODE: 581125.

2.   GANESH S/O CHANABASAPPA HALEMANI,
     AGE: 31 YEARS, OCC: AGRICULTURE and BUSINESS,
     R/O: CHIKKERUR, TQ: HIREKERUR
     DT: HAVERI, PIN CODE: 581125.

3.   SMT. NEELAVVA W/O CHANABASAPPA HALEMANI,
     AGE: 58 YEARS, OCC: HOUSEHOLD,
     R/O: CHIKKERUR, TQ: HIREKERUR
     DT: HAVERI, PIN CODE: 581125.



                                                ...APPELLANTS
(BY SRI. P G MOGALI, ADVOCATE)
AND:
1.   SMT. GIRIJA W/O RUDRAGOUDA AGASEEBAGIL
     AGE: 35 YEARS, OCC: HOUSEHOLD
     R/O: DIVIGIHALI, TQ: HIREKERUR
     DT: HAVERI, P.C. NO: 581109.



                                              ...RESPONDENT
(BY SRI.AVINASH BANAKAR,ADVOCATE)
                                     -2-




                                             RSA No. 100757 of 2017


      THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 22.07.2017 PASSED IN
R.A.NO.03/2015 ON THE FILE OF THE II ADDITIONAL DISTRICT
JUDGE, HAVERI SITTING AT RANEBENNUR, ALLOWING THE APPEAL
AND   SETTING      ASIDE    THE    JUDGMENT       AND   DECREE   DATED
25.11.2014 PASSED IN O.S.NO.12/2013 ON THE FILE FO THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
HIREKERUR, DISMSISING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.

      THIS APPEAL COMING ON FOR ADMISSION THIS DAY. THE
COURT DELIVERED THE FOLLOWING.


                                JUDGMENT

This appeal is preferred by the defendants,

challenging the Judgment and Decree dated 22.07.2017 in

R.A.No.3/2015 on the file of the II Additional District

Judge, Haveri (sitting at Ranebennur) setting aside the

Judgment and Decree dated 25.11.2014 in

O.S.No.12/2013 on the file of the Senior Civil Judge &

JMFC Court, Hirekerur, dismissing the suit of the plaintiff.

2. For the sake of convenience the parties to this

revision petition are referred to as per their ranking before

the trial Court.

RSA No. 100757 of 2017

3. The plaint averments are that, the original

propositus Channabasappa died leaving behind defendant

No.3, plaintiff and defendant Nos.1 and 2. It is the case of

the plaintiffs that, she is the coparceners of the family of

the late Channabasappa and as such, she is entitled for

the share in the joint family of the plaintiff and

defendants. It is further stated that, the plaintiff made a

claim for partition in the suit schedule property which

came to be denied by the defendants and as such, the

plaintiff filed O.S.No.12/2013 on the file of the trial Court,

seeking partition and separate possession.

4. On service of notice, the defendants entered

appearance and filed detailed written statement,

contending that the suit schedule A and B properties are

not joint family properties of the plaintiff and defendants

and the father of the defendants-Channabasappa was

having hotel business and as such, purchased the suit

schedule A and B properties independently and as such,

RSA No. 100757 of 2017

the plaintiff has no right to claim the suit schedule

property.

5. Based on the pleadings on record, the trial

Court framed issues for its consideration. In order to prove

their case, the plaintiff was examined as P.W.1 and

produced 11 documents as Ex.P.1 to Ex.P.11 and

defendant has examined 02 witnesses as D.W.1 and

D.W.2 and got marked 01 document as Ex.D.1.

6. The trial Court after considering the material on

record, by its Judgment and Decree dated 25.11.2014,

dismissed the suit. Feeling aggrieved by the same, the

plaintiff has preferred R.A.No.3/2015 before the First

Appellate Court and the same was resisted by the

defendants. The First Appellate Court after appreciating

the material on record, by its Judgment and Decree dated

22.07.2017, set aside the Judgment and Decree passed by

the trial Court and decreed the suit holding that the

plaintiff is entitled for 1/4th share in the suit schedule

RSA No. 100757 of 2017

properties. Feeling aggrieved by the same, the

defendants have preferred this appeal.

7. I have heard Sri. P.G.Mogali, learned counsel

for the appellant and Sri. Avinash Banakar, learned

counsel for the sole respondent.

8. Learned counsel appearing for the appellant

argued that, the finding recorded by the First Appellate

Court reversing the Judgment of the trial Court is without

any basis which requires to be interfered in this appeal. It

is the principal contention of the appellant that the title of

the Ex.D.1 itself indicates that the same was recorded

prior to the partition and no property had been given to

the defendant Nos.1 and 2 under the said document and

the said aspect has not been considered by both the

Courts below and accordingly, sought for interference of

this Court. The appellant has filed application under Order

41 Rule 27 of Code of Civil Procedure, and sought to

produce certain documents namely sale deed dated

16.03.2009 in respect of the suit schedule property, loan

RSA No. 100757 of 2017

sanction letter dated 08.03.2012 and letter dated

04.06.2011, license issued by the Gram Panchayat,

Chikkerur and argued that, the suit schedule property

belongs to the defendant Nos.1 and 2 and accordingly,

sought for interference of this Court.

9. Per contra, learned counsel appearing for the

respondent has justified the impugned Judgment and

Decree passed by the First Appellate Court.

10. A perusal of the record would indicate that, the

plaintiff filed a suit seeking partition and separate

possession in respect of the suit schedule property. In

order to understand the relationship between the parties,

it is relevant to extract the Genealogical Tree which reads

as under :

Channabasappa - Neelawwa (Def. No.3) (Dead)

Girija (plff.) Jagadish (Def.No.1) Ganesha (Def.No.2)

RSA No. 100757 of 2017

11. A perusal of the above would indicate that,

plaintiff and defendant Nos.1 & 2 are the children of late

Channabasappa and defendant No.3. It is not in dispute

that the father of the plaintiff and defendant Nos.1 & 2

died in the road traffic accident and pursuant to the

compensation awarded by the Motor Accident Claims

Tribunal, the defendants purchased suit schedule 'C'

property. A perusal of the evidence of D.W.1 and D.W.2

fortified the case that the defendant Nos.1 and 2 had

purchased the suit schedule property out of the

compensation awarded by the Tribunal. It has also come

in the evidence that plaint Schedule A and B properties are

belonging to late Channabasappa and both the parties

have admitted that the said Channabasappa was having

hotel business and he had purchased the schedule

properties, as per Ex.P.3 to Ex.P.8.

12. Taking into consideration that the schedule

properties are to be construed as the joint family

properties after the demise of the father of the plaintiff

RSA No. 100757 of 2017

and defendant Nos.1 and 2, I am of the view that the First

Appellate Court has rightly re-appreciated the entire

material on record and after applying Section 8 of Hindu

Succession Act, held that the plaintiff being the class-I heir

of the deceased Channabasappa, has rightly decreed the

suit holding that the plaintiff is entitled for 1/4th share in

all the suit schedule A to C properties.

13. I have also given my anxious consideration to

I.A.No.1/2022 filed by the appellant and the 03 documents

referred to in the said application could not be accepted to

deny the legitimate share to the plaintiff. These

documents cannot be accepted to say that the propertyin

question are the self acquired property of the defendant

Nos.1 and 2 as there was no partition in the joint family

property of late Channabasappa and therefore, these

documents shall not enure to the benefit of the defendant

Nos.1 and 2. Even during evidence of defendants, these

documents have not been produced and that apart even if

it is marked before the trial Court, the defendants have

RSA No. 100757 of 2017

not proved that, the properties mentioned in the

aforementioned documents are the self acquired property

and not the ancestral property of late Channabasappa and

his children and therefore, I do not find merit in the

submission made by the learned counsel appearing for the

appellant on I.A.No.1/2022. Accordingly, the same is

rejected.

14. In that view of the matter, for the reasons

stated above, the defendants have not made out a case

for formulation of substantial question of law as required

under Section 100 of Code of Civil Procedure. Accordingly,

the appeal is dismissed at the stage of admission as the

First Appellate Court, after re-appreciating the entire

material on record as required under Order 41 Rule 31 of

Code of Civil Procedure, as well as following the law

declared by the Apex Court in the case of Santosh Hazari

Vs. Purushottam Tiwari (deceased) by L.Rs. reported

in (2001) 3 SCC 179, arrived at a conclusion that the

trial Court fails to consider that after the death of the

- 10 -

RSA No. 100757 of 2017

Channabasappa, the suit property devolved among the

children of Channabasappa and in that view of the matter,

the finding recorded by the trial Court on Ex.D.1 is

incorrect and the First Appellate court after re-appreciating

the material on record, has rightly decreed the suit and

therefore, I do not find any perversity in the Judgment and

Decree passed by the First Appellate Court. Resultantly,

the suit is decreed and the appeal fails.

Sd/-

JUDGE

SVH