Shakrappa S/O Mallappa Hoogar vs Shobha @ Savitri And Ors
2022 Latest Caselaw 9200 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 21ST DAY OF JUNE 2022

                        BEFORE

 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

             RSA No.200099/2022 (PAR/POS)


BETWEEN:

SHANKRAPPA
S/O MALLAPPA HOOGAR
AGE 45 YEARS, OCC. AGRI, AND
TEACHER IN PRIMARY SCHOOL,
R/O NAVALI VILLAGE,
TQ LINGASUGUR,
DIST RAICHUR-584122.
                                        ...APPELLANT

(BY SMT.HEMA L KULAKARNI, ADVOCATE)

AND:

1.     SHOBHA @ SAVITRI
       W/O ANDANEPPA HOOGAR,
       AGE. 45 YEARS, OCC. HOUSEHOLD,
       R/O BEVOOR VILLAGE,
       TQ & DIST BAGALKOT-587101

2.     BASAVARAJ S/O MALLAPPA HOOGAR
       AGE. 43 YEARS, OCC. AGRI,
       R/O NAVALI VILLAGE,
       TQ LINGASUGUR,
       DIST RAICHUR-584122
                            2



3.   SANGAMMA
     W/O MALLAPPA HOOGAR
     AGE. 74 YEARS, OCC. AGRI,
     R/O NAVALI VILLAGE,
     TQ LINGASUGUR,
     DIST RAICHUR-584122

4.   RENUKA @ LALITA
     W/O AMARAPPA HOOGAR
     AGE. 49 YEARS, OCC. AGRI,
     R/O HOSUR (HANUMAGUDDA) VILLAGE,
     TQ. LINGASUGUR,
     DIST RAICHUR-584122

5.   GUNDAMMA @ AMARAMMA
     W/O HANUMANTA HOOGAR
     AGE. 47 YEARS, OCC. AGRI,
     R/O KUNTAOJI VILLAGE,
     TQ MUDDEBIHAL,
     DIST VIJAYAPURA-586101.
                                    ... RESPONDENTS


     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 R/W ORDER 42 RULE 1 OF CPC, PRAYING TO
ALLOW THE APPEAL THEREBY SETTING ASIDE THE
JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL
JUDGE AND JMFC LINGASUGUR IN R.A.NO.12/2018 DATED
15.09.2021    DISMISSED   THE    APPEAL    THEREBY
CONFIRMING THE JUDGMENT AND DECREE PASSED BY
ADDL.   CIVIL   JUDGE   &  JMFC,  LINGASUGUR    IN
O.S.NO.92/2015 DATED 01.06.2018 AND TO DISMISS THE
SUIT OF THE PLAINTIFF.

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

This regular second appeal is filed by the

defendant No.1 challenging the judgment and decree

dated 01.06.2018 passed in O.S.No.92/2015, on the

file of the Addl. Civil Judge, Lingsugur, wherein the

suit filed by the plaintiff for partition came to be

decreed and the appeal filed by the present appellant

along with others in R.A.No.12/2018 on the file of the

Senior Civil Judge and JMFC, Lingasugur, came to be

dismissed vide judgment dated 15.09.2021.

2. For the sake of convenience, the parties

herein are referred with the original ranks occupied by

them before the Tribunal.

3. The brief facts leading to the case are that

the plaintiff has filed a suit for partition and separate

possession and according to plaintiff the suit schedule

properties are ancestral joint family properties. That

plaintiff is the sister of defendant Nos.1 and 2 and

defendant Nos.4 and 5 are her sisters, while

defendant No.3 is her mother. She claims that when

she demanded her share, the same was rejected.

Hence, she claimed that she filed a suit for partition.

4. The defendants have contested the matter

by filing written statement, which is adopted by

defendant Nos.2 and 5, wherein it is asserted that suit

schedule properties were granted to Mallappa i.e.

father of plaintiff by way of Inam land and marriage of

the plaintiff has taken place in the year 1994. At the

time of marriage, Rs.50,000/- was spent and she was

also given 15 tola gold to the plaintiff. It is further

asserted that after the demise of Mallappa, the

property was divided among the defendant Nos.1 and

2. The plaintiff and defendant Nos.3 to 5 have not at

all objected the division and partition has took place

prior to 2005. Hence, they disputed the claim and

sought for dismissal of the suit.

5. After appreciating the oral and

documentary evidence, the trial Court has come to a

conclusion that the suit schedule properties are joint

family properties and plaintiff is having 1/6 th share in

the suit schedule 'A' properties and accordingly

allotted her 1/6th share. However, the claim of plaintiff

regarding 'B' schedule properties came to be rejected.

The said judgment and decree came to be confirmed

by the First Appellate Court in R.A.No.12/2018.

6. Heard the arguments and perused the

records.

7. There is no serious dispute of the fact that

the suit schedule A properties are ancestral joint

family properties. The main contention of the

defendants is that with the consent of plaintiff and

defendant Nos.3 to 5 in the year 2004, there was an

oral partition between the plaintiff and defendant

No.1, but no convincing evidence is forthcoming to

show that the plaintiff has consented for this oral

partition. Except, bald assertion, no material evidence

is placed to substantiate the contention. On the

contrary, in the plaint it is asserted that plaintiff has

not challenged the alleged oral partition. When

plaintiff was not party to the partition and when it is

not within her knowledge, the question of she

challenging the same does not arise at all. Though it

is asserted that partition has taken place in the year

2004, but no specific date has been mentioned by the

defendant Nos.1 and 2 as regards the date of

partition. Even the concerned mutation entry is also

not produced to show that there was any partition

between the defendant Nos.1 and 2 and the same is

consented by plaintiff and other co-sharers. The trial

Court has appreciated this oral and documentary

evidence in detail and held that the alleged oral

partition is not binding on the share of plaintiff and

has rightly allotted 1/6th share to the plaintiff.

8. The said judgment and decree is

challenged before the First Appellate Court and the

First Appellate Court has elaborately discussed all

these aspects once again and held that the plaintiff is

entitled for 1/6th share and after cogent reasonings

dismissed the appeal by confirming the judgment and

decree passed by the trial Court.

9. It is important to note here that regarding

oral partition, no convincing evidence is lead and both

the Courts below consistently have held that oral

partition is not established. No evidence is placed to

over come the finding of the trial Court as well as the

First Appellate Court. The judgment and decree

passed by the trial Court does not suffer from any

illegality or infirmity so as to call for any interference.

No substantial question of law is involved and the

concurrent findings of both the Courts below are well

reasoned. Hence, the appeal is devoid of any merits

and does not survive for consideration.

10. Accordingly, I proceed to pass the

following;

ORDER The appeal is dismissed.

In view of the disposal of appeal, IA.No.2/2022 does not survive for consideration.

Sd/-

JUDGE

msr