Karnataka High Court
Sri Muni Raju vs Sri Siddesh @ Siddappa on 17 June, 2022
Bench: Ravi V Hosmani
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RSA No. 642 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 642 OF 2021 (PAR)
BETWEEN:
SRI MUNI RAJU
S/O ANJINAPPA
AGED ABOUT 35 YEARS
R/A KADASONNAPPANAHALLI VILLAGE
BIDARAHALLI HOBLI
BANGALORE EAST TALUK-532 149.
...APPELLANT
[BY SRI LAKSHMIKANTH P., ADVOCATE (PH)]
AND:
1. SRI SIDDESH @ SIDDAPPA
S/O ANJINAPPA
AGED ABOUT 44 YEARS
R/A KADASONNAPPANAHALLI VILLAGE
BIDARAHALLI HOBLI
BANGALORE EAST TALUK-562 149.
2. SMT. MANJAMMA
Digitally signed by
VEENA KUMARI B W/O DEVAPPA
Location: High D/O ANJINAPPA
Court of Karnataka
AGED ABOUT 47 YEARS
R/AT CHIKKAKONDRAHALLI VILLAGE
CHINTAMANI TALUK-563 125.
3. SRI ANJINAPPA
S/O LATE MUNISHAMAPPA
AGED ABOUT 77 YEARS
R/A KADASONNAPPANAHALLI VILLAGE
BIDARAHALLI HOBLI
BANGALORE EAST TALUK-562 149.
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RSA No. 642 of 2021
4. SMT. SIDDAMMA
W/O NAGARAJAPPA
D/O ANJINAPPA
AGED ABOUT 52 YEARS
R/A KADASONNAPPANAHALLI VILLAGE
BIDARAHALLI HOBLI
BANGALORE EAST TALUK-562 149.
...RESPONDENTS
THIS RSA FILED UNDER SEC.100 OF CPC., 1908 AGAINST THE
JUDGMENT AND DECREE DATED 10.01.2020 PASSED IN
R.A.NO.123/2018 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, CHIKKABALLAPURA, SITTING AT
CHINTAMANI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DATED 22.06.2017 PASSED IN O.S.NO.53/2013 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., SIDLAGHATTA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 10.01.2020
passed in R.A.No.123/2018 passed by II Addl. District &
Sessions Judge, Chikkaballapur, sitting at Chintamani, and
judgment and decree dated 22.06.2017 passed in
O.S.No.53/2013 by Senior Civil Judge & JMFC.,
Sidlaghatta, this appeal is filed.
RSA No. 642 of 2021
2. Appellant herein was defendant no.4 in original
suit and appellant no.2 in first appeal. While respondent
no.1 herein was defendants no.3 in suit and appellant no.1
in first appeal. Respondent no.2 herein was plaintiff in suit
and respondent no.1 in first appeal. Respondents no.3 and
4 herein were defendants no.1 and 2 in suit and
respondents no.2 and 3 in first appeal. For sake of
convenience parties shall be hereinafter referred to as per
their ranks in original suit.
3. Plaintiff filed O.S.no.53/2003 against defendant
seeking for relief of partition of her legitimate share in
lands bearing Sy.no.9/2 measuring 02 acres 22 guntas,
Sy.no.10/2 measuring 15 guntas 08 annas and Sy.no.2/3
measuring 2 acres 33 guntas situated at Obalapura village,
(item no.1) and land bearing Sy.no.24 measuring 1 acre
out of 02 acres of Sundrahalli village (item no.2)
hereinafter referred to as 'suit properties'.
4. It was contended that suit properties were
ancestral joint family properties of plaintiff and
RSA No. 642 of 2021
defendants. It was stated that plaintiff and defendants
no.2 to 4 were children of defendant no.1, who was karta
of joint family and suit properties were standing in his
name. As he denied granting plaintiff's share in suit
properties, she was constrained to file suit for partition.
5. Despite service of suit summons, defendant no.4
did not enter appearance and he was placed ex-parte.
Though remaining defendants entered appearance, only
defendant no.1 filed written statement. He admitted
relationship and stated that plaintiff and defendants were
in joint possession and enjoyment of suit properties, but
denied plaintiff demanding partition. He contended that
there was no cause of action to file suit, but sought
allotment of 1/5th share in suit properties for himself.
6. Based on pleadings, trial Court framed following
issues:
1. Whether plaintiff proves that there is a
cause of action to file this suit for
partition?
RSA No. 642 of 2021
2. Whether plaintiff is entitled for her
legitimate share in the plaint schedule
properties?
3. Whether defendant no.1 is entitled for
his legitimate share in the plaint schedule
properties?
4. What order or decree?
7. In support of her case, plaintiff examined herself as
PW.1 and got marked exhibits P1 to P.6. Defendants did not
chose to adduce either oral or documentary evidence.
8. On consideration, trial Court answered issues no.1
to 3 in affirmative and issue no.4 by decreeing suit holding
plaintiff and defendant no.1 entitled for 1/5th share each in suit
properties.
9. Aggrieved by judgment and decree of trial court,
defendants no.3 and 4 filed R.A.no.123/2018 before first
appellate Court on several grounds. It was contended that trial
Court erred in not granting opportunity to defendants to
contest suit. It was also contended that trial Court had failed to
properly consider pleadings, without applying judicial mind and
drawing inference against possession, decreed suit. It was also
contended that proper issues were not framed and judgment
RSA No. 642 of 2021
was based on assumptions and presumptions, hence perverse
and capricious etc.
10. Based on contentions, first appellate Court framed
following points for consideration:
1. Whether plaintiff shows that the suit
properties are ancestral and coparcenary
properties?
2. Whether plaintiff proves that she is entitled
for 1/5th share in the suit properties?
3. Whether the present appellants were not
given proper opportunity to defend the suit?
4. Whether the judgment and decree of the
trial court is arbitrary, perverse, calling for
interference by this court?
5. What order or decree?
11. On re-appreciation, first appellate Court, answered
points no.1 to 3 in affirmative, point no.4 in negative and point
no.5 by dismissing appeal.
12. Against concurrent findings, only defendant no.4
has preferred this second appeal.
13. Sri Lakshmikanth P., learned counsel for appellant
contended that impugned judgment and decree passed by trial
RSA No. 642 of 2021
Court and first appellate Court was contrary to law as well as
oral and documentary evidence. It was submitted that lands
bearing Sy.no.10/2, 2/3 of item no.1 and Sy.no.24 of item no.2
of suit properties were purchased by plaintiff and his brother -
defendant no.3, out of their hard earnings. However, out of
love and affection towards their father, they were registered in
his name. Thereafter appellant performed marriage of plaintiff
- his sister by spending huge amount and after marriage, she
was happily residing with her family. He submitted that she did
not have any right to claim partition and without properly
appreciating said facts, evidenced by contents of Exs.P.2 to 5,
trial Court erroneously decreed suit.
14. He further submitted that after entering appearance
in suit, elders of locality constituted panchayat to settle dispute
between plaintiff and defendants and assured parties that it
was not necessary for them to contest suit before Court. Hence,
he remained absent, but realised about impugned decree only
after receipt of notice in final decree proceedings. Despite being
appraised of these facts and circumstances, first appellate
Court failed to interfere and grant opportunity to appellant. He
RSA No. 642 of 2021
submitted that following substantial questions of law arose for
consideration:
1. Whether the judgment and decree passed by
the Courts below are illegal and liable to be set
aside for having passed without considering the
materials and evidence placed on record and
without assigning valid reasons for its
conclusion?
2. Whether the Courts below have erred in not
considering the fact that the suit schedule
properties are not joint family properties and
there is no cause of action for preferring the
suit?
3. Whether the Courts below failed to frame
proper issues to determine the lis between the
parties?
15. Heard learned counsel, perused impugned judgment
and decree and record.
16. From above submission, it is not in dispute that
plaintiff and defendants no.2 to 4 were children of defendant
no.1. It is also not in dispute that suit properties were standing
in the name of defendant no.1. It is also admitted by appellant
that suit summons was served on him and that he had entered
appearance in suit. It is not in dispute that no written
statement was filed by him. Only defendant no.1 had filed
written statement admitting suit properties were joint family
RSA No. 642 of 2021
properties of plaintiff and defendants. While, plaintiff claims
that upon approaching defendants demanding partition, same
was refused. Demand for partition was denied by defendant
no.1 to contend that suit was filed without cause of action, but
defendant no.1 also sought for grant of 1/5th share in suit
properties. Other defendants neither filed written statement nor
contested suit. None of defendants led oral/documentary
evidence.
17. On consideration of oral evidence of plaintiff as PW.1
and documentary evidence i.e., genealogical tree-Ex.P.1,
record of rights of suit lands - Exs.P2 to P.5 and mutation
extract as Ex.P.6 and contention of defendant no.1, trial Court
held that plaintiff's claim for partition was supported by claim of
defendant no.1 for partition and assertion that suit properties
were joint family properties was unrebutted. Therefore, it
decreed plaintiff's suit.
18. In appeal filed by defendants no.3 and 4, except
making bald assertions, they did not make out any case for
interference insofar as lack of opportunity to contest suit. With
regard to their claim that some of suit properties were self-
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RSA No. 642 of 2021
acquired properties, no evidence was sought to be produced.
First appellate Court on thorough examination of oral and
documentary evidence, concluded that defendant no.1 had
obtained some properties through partition and other
properties were purchased thereafter in his name. In absence
of specific evidence to establish that these were not purchased
out of joint family income, they would be deemed to be joint
family properties. On said conclusion, first appellate Court
dismissed appeal.
19. It is settled law issuance of prior legal notice or
formal demand for partition is not mandatory for filing suit for
partition. In instant case, plaintiff has asserted that her oral
demand for partition was not met by defendants and suit was
filed on said cause of action. Except defendant no.1, other
defendants did not file written statements denying such
demand. Even though defendant no.1 denied demand being
made to him, he himself sought for grant of 1/5th share to him.
Therefore, on vague denial, it cannot be held that there was no
cause of action for filing suit.
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RSA No. 642 of 2021
20. Insofar as contention about some of suit properties
being self-acquired, it is settled law that suit properties
standing in name of Karta would be presumed to be joint family
properties, especially, as defendant no.1 admitted that some of
suit properties were acquired by him in partition and remaining
were acquired thereafter. No case of any of suit properties
being self-acquired was set-up by him. In view of above
evidence, preliminary burden about existence of joint family
properties is discharged.
21. Hon'ble Apex Court in case of Adiveppa and other
Vs. Bheemappa and another reported in (2017) 9 SCC 586
has held that burden lies upon person claiming any of
properties as his self-acquired to establish same. In case on
hand, defendants no.3 & 4 did not file written statement.
Though they joined in filing first appeal, they failed to place any
evidence even in appeal to establish their claim. Under such
circumstances, both Courts would be justified in holding that all
suit properties were joint family properties and plaintiff was
entitled for partition of her 1/5th share. Hence, no substantial
question of law as contended arises for consideration.
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RSA No. 642 of 2021
In the result, I pass following:
ORDER
Appeal is dismissed.
No order as to costs.
Sd/-
JUDGE
