Karnataka High Court
Sri Vasantaraddy S/O. Giriyappa ... vs Smt. Venkamma @ Lilavati W/O ... on 21 July, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 100804 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100804 OF 2022 (PAR/POS-)
BETWEEN:
1. SRI. VASANTARADDY
S/O. GIRIYAPPA NAGARALLI
AGE. 57 YEARS OCC. AGRICULTURE
R/O. ALAWANDI, TQ.DIST. KOPPAL 583 231
2. SRI. VENKARADDY
S/O GIRIYAPPA NAGARALLI
AGE. 55 YEARS OCC. AGRICULTURE
R/O. ALAWANDI TA.DIST. KOPPAL 583 231
3. SMT. SHASHIKALA
W/O. VASANTARADDY NAGARALLI
AGE. 48 YEARS OCC. HOME MAKER
R/O. ALAWANDI TA.DIST. KOPPAL 582 231
...APPELLANTS
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND:
1. SMT. VENKAMMA @ LILAVATI
W/O ASHOKRADDY MAIDUR
AGE. 48 YEARS OCC. HOME MAKER AND AGRICULTURE
R/O. NEGALUR TQ.DIST.HAVERI.581110
2. SRI HANUMARADDY
S/O. GARIYAPPA NAGARALLI
AGE. 53 YEARS OCC. AGRICULTURE
RO. ALAWANDI TA.DIST. KOPPAL 583231
3. SRI. RAMARADDY S/O. GIRIYAPPA NAGARALLI
AGE. 44 YEARS OCC. AGRICULTURE
R/O. ALAWANDI TA.DIST. KOPPAL 583231
-2-
RSA No. 100804 of 2022
4. SMT. SHIVAMMA W/O. GIRIYAPPA NAGARALLI
AGE. 77 YEARS OCC. AGRICULTURE
R/O. ALAWANDI TA.DIST. KOPPAL 583231
5. SMT. W/O. SHEKHARAGOUDA POLICE PATIL
AGE. 62 YEARS OCC. HOME MAKER,
R/O. MUDDABALLI TQ. KOPPLA 583231
6. SRI. PETREPPA S/O HANAMAPPA HALLI
AGE. 46 YEARS OCC. AGRICULTURIST,
R/O. BAIRAPUR, TQ.DIST.KOPPAL, 583231
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 08.09.2021
PASSED IN R.A.NO.36/2020 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, KOPPAL,
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT
AND DECREE DATED 30.06.2020 PASSED IN O.S. NO.60/2016
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, KOPPAL, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY.
THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
This Regular Second Appeal is filed by the defendants No.1,
2 and 7, challenging the judgment and decree dated 08.09.2021
passed in R.A.No.56/2020 on the file of the Senior Civil Judge and
RSA No. 100804 of 2022
CJM, Koppal (hereinafter referred to as 'the First Appellate Court',
for brevity), allowing the appeal in part by modifying the share of
the parties in the judgment and decree dated 30.06.2020 passed in
O.S.No.60/2016 on the file of the Addl. Senior Civil Judge and
JMFC, Koppal (hereinafter referred to as 'the trial Court', for
brevity), decreeing the suit in part.
2. For the sake of convenience, the parties to this appeal
shall be referred to in terms of their status and ranking before the
trial Court.
3. In order to decide this appeal, the relevant factual
aspects are that, the plaintiff claims to be the daughter of
Sri.Giriyappa and Shivamma (defendant No.5). Giriyappa died on
14.04.1997 leaving behind defendants No.1 to 5 and the plaintiff. It
is further stated by the plaintiff that, the suit schedule properties are
the joint family property of late Giriyappa and as such she is having
1/7th share in the suit schedule property. The plaintiff made a claim
for her share in the suit schedule property and the same was
denied by the defendants and as such plaintiff filed
O.S.No.60/2016 on the file of the trial Court seeking partition and
separate possession in respect of the suit schedule property.
RSA No. 100804 of 2022
4. After service of notice, defendants entered appearance
and defendant No.4 filed detailed written statement denying the
averments made in the plaint. The trial Court based on the
pleadings on record formulated the issues for its consideration. In
order to establish her case, plaintiff was examined herself as PW.1
and got marked 20 documents as Exs.P1 to P20. On the other
hand, defendants examined two witnesses as DW1 and DW 2 and
got marked 11 documents as Exs. D1 to D11.
5. The trial Court after considering the material on record
by its judgment and decree dated 30.06.2020, decreed the suit in
part holding that the plaintiff is entitled to 1/35th share in the suit
schedule property. Feeling aggrieved by the same, the plaintiff has
preferred R.A.No.36/2020 before the First Appellate Court and the
same was resisted by the defendants. The First Appellate Court
after considering the material on record, by its judgment and
decree dated 08.09.2021, allowed the appeal in part and as such,
modified the share of the plaintiff. Feeling aggrieved by the same,
defendants No.1, 2 and 7 have preferred this Regular Second
Appeal.
RSA No. 100804 of 2022
6. I have heard Sri.Hanumanthareddy Sahukar, learned
counsel appearing for the appellants and perused the judgment
and decree passed by both the Courts below.
7. Sri. Hanumanthareddy Sahukar, learned counsel
appearing for the appellants contended that, the finding recorded
by both the Courts below considering the entire suit schedule
properties as joint family properties is incorrect in view of the earlier
partition executed between the members of the joint family of
plaintiff and defendants and the same was mentioned in the
mutation entry and the record of rights and the said aspect has not
been considered by both the Courts below and as such, he sought
for interference in the impugned Judgment and Decree.
8. In the light of the submission made by learned counsel
appearing for the appellants, I have carefully considered the
findings recorded by both the Courts below.
9. In order to understand the relationship between the
parties, it is necessary to produce the genealogical tree of the
parties, which reads as under:
RSA No. 100804 of 2022
Giriyappa S/o. Ramaraddy Nagaralli (died)
(Died on 14-4-1997)
Shivamma (Wife)
(Deft.5)
Jayamma Venkaraddy Venkamma
(Deft.6) (Deft.2) (Lilavati)
(Plntif.)
Vasantraddy Hanamaraddy Ramaraddy
(Deft.1) (Deft.3) (Deft.4)
10. Perusal of the pedigree of the plaintiff and defendants
would indicate that, plaintiff and defendants No.1 to 4 and 6 are the
children of Giriyappa and Shivamma (defendant No.5). Giriyappa
died on 14.04.1997. It is not in dispute that the schedule property
stands in the name of Giriyappa at the time of his death. The only
question to be answered in this appeal is whether there is
existence of the partition between the parties on 21.04.2010 as per
M.R.No.10/2009-10 as urged by the learned counsel for the
appellants. On perusal of the finding recorded by both the Courts
below, it is the case of the plaintiff that the suit schedule properties
are the joint family properties of her father Giriyappa. The
defendants have not taken plea with regard to the earlier partition
said to have been held on 21.04.2010 nor produced the partition
RSA No. 100804 of 2022
dated 21.04.2010 before the trial Court. No independent witness
was examined to prove the factum of partition effected on
21.04.2010 between the parties. If at all such partition was
effected between the plaintiff and defendants, the right of the
plaintiff ought to have been mentioned in the said partition dated
21.04.2010. In the absence of non-production of the relevant
documents to prove the partition dated 21.04.2010 by the
defendants, the finding recorded by the First Appellate Court taking
into consideration the share of the parties in terms of Section 8 of
the Hindu Succession Act, is just and proper and there is no
perversity or illegality in the impugned judgment and decree
passed by the First Appellate Court modifying the share of the
parties. Therefore, the appellant herein has not made out a case
for formulation of substantial question of law as required under
Section 100 of Code of Civil Procedure. The appeal fails and
accordingly dismissed at the stage of admission. In view of
disposal of the main appeal, all pending IAs. Do not survive for
consideration.
Sd/-
JUDGE
gab
