Subhash vs Shivarayappa S/O. Basavaraj ...
2022 Latest Caselaw 8353 Kant

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                                                         RSA No. 100099 of 2014


                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 08TH DAY OF JUNE, 2022

                                               BEFORE
                                 THE HON'BLE MR JUSTICE E.S.INDIRESH
                             REGULAR SECOND APPEAL NO. 100099 OF 2014 (-)

                      BETWEEN:

                            SUBHASH
                            SINCE DECEASED BY HIS LRS
                      1.    GANGAVVA W/O. SUBHASH MALAWAD
                            AGE: 61 YEARS, OCC: HOUSEHOLD WORK
                            R/O. INGALAGI, TQ: KUNDGOL
                            DIST: DHARWAD.

                      2.    SMT.MANJULA W/O. KALLAPPA MANJARAGI
                            AGE: 32 YEARS, OCC: HOUSEHOLD WORK
                            R/O. NEERASAGAR, TQ: KALAGHATAGI
                            DIST: DHARWAD.

                      3.    SMT.SHIVAKKA W/O. MAHANTESH GURAV
                            AGE: 33 YEARS, OCC: HOUSEHOLD WORK
                            R/O. HIREMUNAVALLI,
                            TQ: KHANAPUR, DIST: BELGAUM

                      4.    SMT.NIRAMALA W/O. SHEKAPPA AMBALIKOPPA
SHIVAKUMAR
                            AGE: 31 YEARS, OCC: HOUSEHOLD WORK
HIREMATH                    R/O. REVADIHAL, TQ: HUBLI
Digitally signed by         DIST: DHARWAD.
SHIVAKUMAR
HIREMATH
Date: 2022.06.10
11:47:19 -0700        5.    SMT.NAGAVVA W/O. NAGAPPA GURAV
                            AGE: 29 YEARS, OCC: HOUSEHOLD WORK
                            R/O. HIREMUNAVALLI, TQ: KHANAPUR
                            DIST: BELGAUM.

                      6.    SMT.KALLAVVA
                            W/O. DHARMAGOUDA BHARAMAGOUDAR
                            AGE: 25 YEARS, OCC: HOUSEHOLD WORK
                            R/O. NAGARAHALLI, TQ:HUBLI
                            DIST: DHARWAD
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                                       RSA No. 100099 of 2014


7.   SRI.VITTAL S/O. SUBHASH MALAWAD
     AGE: 23 YEARS, OCC: AGRICULTURE
     R/O. INGALAGI, TQ: KUNDAGOL
     DIST: DHARWAD
                                               ...APPELLANTS
(BY SRI. RAMESH I. ZIRALI, ADVOCATE)

AND:

1.   SHIVARAYAPPA S/O. BASAVARAJ MADLI
     AGE: 30 YEARS, OCC: AGRICULTURE
     R/O. INGALAGI, TQ: KUNDAGOL 581113
     DIST: DHARWAD.

2.   CHANNAVEERAPPA S/O. BASAVARAJ MADLI
     AGE: 23 YEARS, OCC: AGRICULTURE
     R/O. INGALAGI, TQ: KUNDGOL 581113
     DIST: DHARWAD.

3.   BASAVARAJ S/O. CHANNABASAPPA MADLI
     AGE: 61 YEARS, OCC: AGRICULTURE
     R/O. INGALAGI, TQ: KUNDGOL 581 113
     DIST: DHARWAD

4.   SMT. SHANTAVVA
     W/O. BASAVANTAPPA SALIMANI
     AGE: 38 YEARS, OCC: HOUSEHOLD WORK
     R/O. SHEELWANT SOMAPUR
     TQ: SHIGGAON, NOW R/AT: INGALAGI,
     TQ: KUNDAGOL 581113, DIST: DHARWAD
                                             ...RESPONDENTS

(BY MS. DEEPA J, FOR SRI. MRUTYUNJAY TATA BANGI,
ADVOCATE FOR R1 & R2; R4 - NOTICE HELD SUFFICIENT;
R3 - APPEAL ABATED VIDE C/O DATED 31.03.2022)
                            ---

      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
04.09.2013 PASSED IN R.A.NO.48/2011 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE & JMFC, HUBLI, DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT AND DECREE DATED
29.03.2011 PASSED IN O.S.NO.52/2009 ON THE FILE OF THE CIVIL
JUDGE AND JMFC, KUNDAGOL, DECREEING THE SUIT FILED FOR
PARTITION AND POSSESSION.
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                                              RSA No. 100099 of 2014


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

                              JUDGMENT

This Regular Second Appeal is filed by the legal

representatives of the defendant No.3, challenging the judgment

and decree dated 04.09.2013 in R.A.No.48/2011 on the file of the

Principal Senior Civil Judge and JMFC, Hubballi (hereinafter

referred to as 'the First Appellate Court', for brevity), confirming the

judgment and decree dated 29.03.2011 in O.S.No.52/2009 on the

file of the Civil Judge and JMFC, Kundagol (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

are referred to as per their ranking before the trial Court.

3. The relevant facts for adjudication of this appeal are

that, the plaintiffs are the sons of the first defendant and one

Smt.Shantavva (Eravva). The said Shantavva, mother of the

plaintiffs died long ago. Plaintiffs and defendant No.1 continue to

be the members of the joint family. It is the case of the plaintiffs

that, plaintiffs are entitled for 1/3rd share each in the suit schedule

properties and the same was denied by defendants and

RSA No. 100099 of 2014

accordingly, the plaintiffs have filed O.S.No.52/2009 on the file of

the trial Court seeking relief of partition and separate possession in

respect of the suit schedule property. It is the specific case of the

plaintiffs that second defendant is a stranger to the joint family of

plaintiffs and first defendant and third defendant, taking the

advantage of the relationship of second defendant and first

defendant, have changed the Khata of the scheduled properties in

their names and thereafter the plaintiffs came to know about the

same. Hence the plaintiffs have filed suit stated above.

4. After service of notice, defendants entered appearance

and filed written statement. It is the specific case of defendants

that plaintiffs are the children of first defendant and the second

defendant is the step mother of plaintiffs. The mother of the

plaintiffs - Eravva died on account of illness and thereafter, the first

defendant married the second defendant on 12.06.1990 at Ulavi

Channabasaveshwara Temple, Ulavi, Joida Taluka, to take care of

the minor children, namely plaintiffs. It is the case of the first

defendant that, the first defendant had purchased the land bearing

Survey No.125/2A measuring 2 acres 27 guntas at Ingalagi with

the financial help rendered by the maternal family of the second

RSA No. 100099 of 2014

defendant under a registered sale deed dated 25.05.1992 and

therefore, the defendants denied the right of the plaintiffs in respect

of the said property as the first defendant relinquished his rights in

favour of the second defendant in respect of the said property. It is

further averred in the written statement that the first defendant has

constructed a house by incurring expenses and as such, the

second defendant was informed to sell the aforementioned

property and pursuant to the same, a registered sale deed dated

23.03.2009 was executed by the second defendant in favour of the

third defendant. Therefore, it is the case of the defendants that the

aforementioned property was the self-acquired property of

defendants No.1 and 2 and therefore, sought for dismissal of the

plaint.

5. Defendant No.3 has filed written statement contending

that he has purchased the property in question and objections were

called with regard to the same. Since no objections were received,

sale deed was executed, and further, pursuant to the sale deed, he

is in possession of the suit schedule property and as such, sought

for dismissal of the suit.

RSA No. 100099 of 2014

6. The trial Court based on the pleadings on record

formulated the issues for its consideration.

7. In order to establish their case, plaintiffs have

examined two witnesses PWs.1 and 2 and produced 16 documents

and the same were marked as Exs.P1 to P16. Defendants have

examined 6 witnesses as DWs.1 to 6 and produced 28 documents

and the same were marked as Ex.D1 to D28. The trial Court after

considering the material on record by its judgment and decree

dated 29.03.2011, decreed the suit in part and being aggrieved by

the same, defendants have preferred R.A.No.48/2011 before the

First Appellate Court and the same was resisted by the plaintiffs.

8. The first Appellate Court after considering the material

on record, by its judgment and decree dated 04.09.2013, dismissed

the appeal, consequently, confirmed the judgment and decree

passed in O.S.No.52/2009. Feeling aggrieved by the same, the

legal representatives of defendant No.3 have preferred this Regular

Second Appeal.

9. I have heard Sri. Ramesh I. Zirali, learned counsel

appearing for the appellants and Ms. Deepa J, learned counsel

appearing for the respondents.

RSA No. 100099 of 2014

10. Learned counsel appearing for the appellants

contended that, both the Courts below have not considered the fact

that the subject matter of item No.1 in the suit schedule property

belonged to the second defendant and the said property was given

to the second defendant for her maintenance and therefore, he

contended that the finding recorded by both the Courts below

requires to be interfered in this appeal.

11. Per contra, learned counsel appearing for the

respondents sought to justify the impugned judgment and decree.

12. Heard the learned counsel appearing for the parties

and perused the original records.

13. Having heard the learned counsel appearing for the

parties, it is not in dispute that the first defendant is the father of

plaintiffs through his first wife - Shantavva (Eravva). The first

defendant married the second defendant after the death of his first

wife - Shantavva (Eravva). The trial Court considering the fact that

the suit scheduled properties are the joint family properties of

defendant No.1, arrived at a conclusion that plaintiffs are entitled

for 1/3rd share each in items No.1 to 5 of the property in question.

In this regard, I have carefully considered the finding recorded by

RSA No. 100099 of 2014

the trial Court on issues No.1 and 2, wherein the trial Court after

considering the material on record, has arrived at a conclusion that

defendants have failed to prove that the suit schedule properties (i),

(iii) to (v) were acquired by the first defendant without the aid of

joint family properties.

14. Perusal of the evidence of PW1 and DW1 would

indicate that, on account of the income derived from the nucleus of

the joint family of the first defendant and plaintiffs, remaining

properties were purchased by the defendant No.1 and in that view

of the matter, the trial Court rightly come to the conclusion that the

plaintiffs are entitled for the share of 1/3rd each in the suit schedule

properties, consequently, holding that the sale deed executed by

the second defendant in favour of the third defendant dated

23.03.2009 (Ex. D11) is not binding on the plaintiff.

15. In this regard, I have carefully considered the re-

appreciation of the evidence by the First Appellate Court. The First

Appellate Court having considered the evidentiary value in the suit,

had come to a conclusion that the suit scheduled properties are the

joint family properties of defendant No.1. In this regard, the points

No.2 to 4 framed for determination were examined in detail

RSA No. 100099 of 2014

wherein, the First Appellate Court has rightly come to the

conclusion that the transfer of the land by the first defendant in

favour of the second defendant towards right of maintenance itself

is illegal, as the said property was accrued to the joint family

property as the same was acquired as per the income derived from

the joint family properties of the first defendant and the plaintiff.

The First Appellate Court with cogent reasons, after re-appreciating

the material on record, rightly concluded and confirmed the

judgment and decree passed by the trial Court and in my opinion,

the said conclusion cannot be disturbed in this appeal as there is

no illegality or perversity in the impugned judgment and decree

passed by the Courts below.

16. In view of the fact that the appellants have not made

out a case for framing of substantial question of law, as required

under Section 100 of CPC, accordingly appeal is to be dismissed at

the stage of admission.

Hence the appeal is dismissed.

Sd/-

JUDGE gab