Karnataka High Court
K.Nagabhushana S/O. K Bharamappa vs K.Kumarappa S/O. K S Rudrappa on 3 June, 2022
Bench: M.G.S. Kamal
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RSA No. 100422 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 100422 OF 2015 (DEC.)
BETWEEN:
K.NAGABHUSHANA S/O. K BHARAMAPPA
AGE: 53 YEARS, OCC: AGRICULTURE
R/O. MALAPANAGUDI VILLAGE
TQ: HOSAPETE DIST: BALLARI
...APPELLANT
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND:
1. K.KUMARAPPA S/O. K S RUDRAPPA
AGE: 52 YEARS, OCC: AGRICULTURIST
2. K HANUMANTHAPPA S/O. LATE NAGAPPA
SINCE DECEASED BY HIS LRS.
2A. KABBER LAKSHMAMMA D/O. LATE HANUMANTHAPPA
W/O. HONNURAPPA AGE: 45 YEARS, OCC. HOUSEWIFE,
R/O. UNTHAKALLU BOMMANAHAL MANDALA,
DIST. ANANTAPUR 515871.
2B. KABBER DODDA YANKAPPA S/O. LATE KABBER
HANUMANTHAPPA, AGE: 38 40 YEARS,
OCC. AGRICULTURIST, R/O. HAMPI ROAD,
OPPOSITE VVSNL SOCIETY, MALAPANAGUDI POST,
TQ. HOSAPETE, DIST. BALLARI 583239.
2C. KABBER HULUGAPPA S/O. LATE KABBER
HANUMANTHAPPA, AGE: 38 YEARS,
OCC. AGRICULTURIST, R/O. HAMPI ROAD,
OPPOSITE VVSNL SOCIETY, MALAPANAGUDI POST,
TQ. HOSAPETE, DIST. BALLARI 583239.
2D. KABBER ONKARAMMA S/O. LATE KABBER
HANUMANTHAPPA, W/O. VEERABHADRAPPA,
AGE: 42 YEARS, OCC. AGRICULTURIST,
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RSA No. 100422 of 2015
R/O. HAMPI ROAD, KERE ANGALA, MALAPANAGUDI POST
TQ. HOSAPETE, DIST. BALLARI 583239.
2E. KABBER THIPPAMMA D/O. LATE KABBER
HANUMANTHAPPA, W/O. ERAPPA,
AGE: 36 YEARS, OCC. AGRICULTURE,
R/O. ANEGUNDE, TQ. GANGAVATHI,
DIST. KOPPAL 583227
3. K BASAPPA S/O. LATE NAGAPPA
AGE: 59 YEARS, OCC: AGRICULTURIST
4. K HONNURAPPA S/O. LATE NAGAPPA
AGE: 57 YEARS, OCC: AGRICULTURIST
5. K HANUMAVVA W/O. LATE THAYAPPA
AGE: 52 YEARS, OCC: AGRICULTURIST
6. K S BHARMAPPA S/O. LATE K NAGAPPA
AGE: 88 YEARS, OCC: AGRICULTURIST
7. K HANUMANTHAPPA S/O. K S BHARMAPPA
AGE: 66 YEARS, OCC: AGRICULTURIST
8. K SHANTHAMMA W/O. LATE K PARAMESHWARAPPA
AGE: 55 YEARS, OCC: AGRICULTURIST
9. LAKSHMIDEVI D/O LATE K PARAMESHWARAPPA
AGE: 30 YEARS, OCC: AGRICULTURIST
10. NALINI D/O LATE K PARAMESHWARAPPA
AGE: 32 YEARS, OCC: AGRICULTURIST
11. KAMALA D/O. LATE K PARAMESHWARAPPA
AGE: 28 YEARS, OCC: AGRICULTURIST
ALL ARE R/O. MALAPANAGUDI VILLAGE
TQ: HOSAPETE DIST: BALLARI 583201
...RESPONDENTS
(BY SRI. SATISH M.S., ADV. FOR R1, R3 TO R5 AND
R2(A) TO R2(E) AND R6 TO R11 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 30.01.2012 PASSED IN R.A.
NO.88/2010 ON THE FILE OF THE PRESIDING OFFICER FAST TRACK
COURT III AT HOSAPETE, DISMISSING THE APPEAL AND
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RSA No. 100422 of 2015
CONFIRMING THE JUDGMENT AND DECREE DATED 06.04.2009 AND
THE DECRREE PASSED IN O.S NO.47/2008 ON THE FILE OF THE
ADDL. CIVIL JUDGE (SR. DN.) HOSPETE, PARTLY DECREEING THE
SUIT FILED FOR DECLARATION.
THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Present Regular Second Appeal is filed by the
appellant/defendant No.2 aggrieved by the judgment and order
dated 30.01.2012 passed in R.A. No.88/2010 on the file of the
Fast Track Court III at Hospet (hereinafter referred to as the
'first appellate Court') confirming the judgment and decree
dated 06.04.2009 passed in O.S. No.47/2008 on the file of the
Additional Civil Judge (Sr. Dn.), Hospet (hereinafter referred to
as the 'trial Court').
2. Parties are referred to by their original ranking
before the trial Court.
3. Brief facts of the case;
4. The plaintiffs had filed a suit in O.S. No.47/2008
before the trial Court against the defendant Nos.1 to 7 seeking
relief of declaration to declare that they are the owners in
possession of the suit properties and also to declare that decree
RSA No. 100422 of 2015
in O.S. No.128/1996 was not binding on them. The case of the
plaintiffs is that; the father of the plaintiff No.1, by name
K.S.Rudrappa and the plaintiff Nos.2 to 4 and the defendant
No.1 are the brothers. The appellant/defendant No.2 herein is
the son of the defendant No.1. The defendant Nos.3 to 7 are
the grand daughters and grand sons of the defendant No.1.
Defendant No.4 is the daughter-in-law of the defendant No.1.
That the plaintiffs and defendant No.1 had entered into a deed
of partition on 04.05.1988 which was subsequently modified on
15.04.1989 known and called as "Hondanikeya Patra Vibhaga";
In terms of which 'A' schedule properties to the said deed of
partition were allotted to the share of the defendant No.1 in the
present suit; 'B' schedule properties to the said deed of
partition were allotted to the share of the plaintiff No.1; 'C'
schedule properties were allotted to the plaintiff No.2 and 'D'
schedule properties were allotted to the share of plaintiff No.3
and 'E' schedule properties were allotted to the share of
plaintiff No.5; That ever since the date of aforesaid partition
and the modification, the parties have been in possession and
enjoyment of their respective shares; That the above being the
factual aspect of the matter, the defendant No.2 herein who is
RSA No. 100422 of 2015
the son of the defendant No.1 had filed a suit in O.S.
No.128/1996 for partition and separate possession in respect of
all the properties against his father, the defendant No.1 and
other family members namely defendant Nos.2 to 7 without
making plaintiffs herein as parties and without disclosing the
previous partition which had taken place between the plaintiffs
and the defendant No.1. Thus obtained a collusive decree in
respect of the entire suit schedule properties. Thereafter, the
defendant No.2 initiated final decree proceedings in F.D.P.
No.9/2004 in which a surveyor was appointed as Court
Commissioner to divide the properties by metes and bounds;
that it is only when then the plaintiffs learnt about filing of the
above suit by defendant No.1 in O.S. No.128/1996 and
obtaining the collusive decree therein which is not binding on
the plaintiff. Hence, the suit.
5. Defendant Nos.1, 3 to 7 appeared and filed their
written statement supporting the case of the plaintiffs. While
defendant No.2, the son of the defendant No.1, filed written
statement in which he admitted the relationship between the
parties and he also admitted the previous partition dated
04.05.1988 and rectification on 15.04.1989. However, denied
RSA No. 100422 of 2015
rest of the plaint averments. The trial Court based on the
pleadings framed the following issues:
"1. Whether the 2nd defendant proves that suit
schedule properties referred in unregistered
partition deed dated 04.05.1988 and
subsequent unregistered rectification deed
dated 15.04.1989 fallen to the share of father
of 2nd defendant K.S.Bharmappa?
2. Whether the plaintiff proves that 2nd defendant
K.Nagabhushana without disclosing the fact of
earlier partition misrepresenting obtained
decree in O.S. 128/96 and same is not binding
on him?
3. What relief parties are entitled for?
4. What order or decree?"
6. The plaintiff No.1 examined as PW1 and marked 22
documents as Exs.P1 to P22. The defendant No.2 examined
himself as DW1 and no documents were marked.
7. On appreciation of evidence, the trial Court partly
allowed the suit by its impugned judgment and decree which
reads as under:
RSA No. 100422 of 2015
"Suit is DECREED in part. Plaintiffs declared as
owners of land bearing Sy. No.55 C/2 measuring
space Sy. No.70 A 0.20 acres, Sy. No.140
measuring 9.85 acres, house bearing No.290
situated at Malapanagudi village described in the
schedule. Except item No.6, as the same is not
divisible property as per the schedule shown in
the plaint and decree passed in O.S. 128/1996 on
the file of this Court is not binding to the shares
of plaintiffs in respect of open space 70 A
measuring 20 cents and Sy. No.140 of Kariganur
village measuring 9.85 acres, which was allotted
to the share of plaintiffs as per partition deed
Ex.P1 and 2."
8. Being aggrieved by the same, the defendant No.2
filed regular appeal in R.A. No.88/2010. Considering the
grounds urged therein, the first appellate Court framed the
following points for its consideration:
"1. Is the Trial Court not justified in holding that,
the plaintiffs are the owners of the suit lands
item No.2 to 5 bearing Sy. No.55 C/2, Sy.
No.131, Sy. No.70A and Sy. No.140 measuring
2.00, 2.34, 0.20 and 9.85 Acres respectively as
described in schedule annexed to the plaint?
RSA No. 100422 of 2015
2. Is the Trial Court not justified in holding that,
the 2nd defendant without disclosing the fact
of earlier partition obtained decree in O.S.
No.128/96 by misrepresentation?
3. Is it just and necessary to set aside the
judgment and decree passed by the Trial
Court?
4. What Order or Decree?"
9. The first appellate Court by the impugned judgment
and order confirming the judgment and decree passed by the
trial Court, dismissed the appeal filed by the
appellant/defendant No.2. It is against this judgment, the
defendant No.2 is before this Court.
10. Heard.
11. Relationship between the parties is not in dispute. It
is also not in dispute that there was a partition amongst the
plaintiffs and defendant No.1 dividing the suit schedule
properties as referred to above on 04.05.1988 which was
subjected to modification subsequently on 15.04.1989 and that
the parties have been in possession and enjoyment of the
respective shares. Such being the admitted facts, the filing of
RSA No. 100422 of 2015
the suit by the defendant No.2 in O.S. No.128/1996 solely
against his father and other members of his family without
making the plaintiffs as parties thereto in respect of the
properties which were subject matter of earlier partition was
not maintainable. Defendant No.2 could not have filed the said
suit and obtained decree in respect of the properties allotted to
the shares of plaintiffs in the earlier partition without making
them parties. The trial Court and the first appellate Court have
rightly appreciated the subject matter and passed the decree as
prayed for by the plaintiffs.
12. The appellant has not made out any grounds for
interference. In that view of the matter, no substantial question
of law would arise for consideration. The appeal is dismissed.
SD/-
JUDGE
Rsh
