Karnataka High Court

Prakash Channebasappa ... vs (F.M. Channabasappa Basappa ... on 28 June, 2022

Bench: E.S.Indireshpresided Byesij

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                                     RSA No. 100161 of 2018


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

           DATED THIS THE 28TH DAY OF JUNE, 2022

                          BEFORE
           THE HON'BLE MR JUSTICE E.S.INDIRESH

     REGULAR SECOND APPEAL NO. 100161 OF 2018 (PAR-)

BETWEEN:

PRAKASH CHANNEBASAPPA SARASHETTY
AGE:30 YEARS,
R/O. NATARAJ ROAD,
(BEHIND GEETANJALI LODGE),
SIRSI KASABA-581401.

                                              ...APPELLANT

(BY SRI. MADHUKESHWAR DESHPANDE, ADVOCATE)

AND:

      (F.M. CHANNABASAPPA BASAPPA SARASHETTY)
      AGE:60 YEARS, MERCHANT,
      R/O. SIRSI KASABA NATARAJ ROAD,
      DEAD APPELLANT AND RESP.NO.2 AND 3 ARE THE
      LEGAL REPRESENTATIVE OF THE DECEASED RESP.
      NO.1.

1.    SMT SHANTHA W/O. CHANNABASAPPA SARASHETTY
      AGE:64 YEARS, HOUSEHOLD,
      R/O. SIRSI KASABA
      NATARAJ ROAD.

2.    PRASHANTH @ SHIVAYOGI
      CHANNABASAPPA SARASHETTY
      AGE: 42 YEARS, MERCHANT
      R/O. SIRSI KASABA, NATARAJ ROAD.
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                                       RSA No. 100161 of 2018


3.   GIRIJA W/O. SUBHAS SARASHETTY
     AGE:61 YEARS, HOUSEHOLD,
     R/O. SIRSI KASABA
     CHOWKIMATH.

4.   JYOTHI SUBHAS SARASHETTY
     AGE:43 YEARS, HOUSEHOLD,
     R/O. SIRSI KASABA
     CHOWKIMATH.

5.   VINAYAK SUBHAS SARASHETTY
     AGE:41 YEARS, R/O. SIRSI KASABA
     CHOWKIMATH.

6.   VIJAYALAXMI SUBHAS SARASHETTY
     AGE:39 YEARS,
     R/O. SIRSI KASABA
     CHOWKIMATH.
                                            ...RESPONDENTS

(BY SRI. VISHWANATH HEGDE, ADVOCATE)

                             ---

      THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 13.11.2017 PASSED IN
R.A.NO.53/2007 ON THE FILE OF THE I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, U.K. KARWAR, SITTING AT SIRSI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 04.09.2007 PASSED IN O.S.NO.57/1999
ON THE FILE OF THE CIVIL JUDGE, SIRSI, DISMISSING THE
SUIT FILED FOR PARTITON AND SEPARATE POSSESSION.

      THIS APPEAL COMING ON FOR ADMISSION THIS DAY.
THE COURT DELIVERED THE FOLLOWING:
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                                           RSA No. 100161 of 2018


                              JUDGMENT

This Regular Second Appeal is filed by the plaintiff

challenging the judgment and decree dated 13.11.2017 passed in

R.A.No.53/2007 on the file of the I Addl. District and Sessions

Judge, U.K., Karwar, sitting at Sirsi (hereinafter referred to as 'the

First Appellate Court', for brevity) dismissing the appeal by

confirming the judgment and decree dated 04.09.2007 passed in

O.S.No.57/1999 on the file of the Senior Civil Judge, Sirsi

(hereinafter referred to as 'the trial Court', for brevity) dismissing

the suit of the plaintiff.

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. The relevant facts for adjudication of this appeal are

that, the plaintiff has filed suit seeking the relief of partition and

separate possession in respect of the suit schedule property and

also to /declare that the relinquishment deed dated 12.07.1985 is

not binding on the plaintiff. The factual matrix are that, Basappa is

the grand father of the plaintiff. Basappa had four children.

RSA No. 100161 of 2018

Defendant No.1 and husband of defendant No.4 - Subhas

Sarashetty are the children of Basappa. It is further stated that,

Basappa had two more children apart from defendant No.1 and

husband of defendant No.4. Children of Basappa had entered into

a compromise in the year 1985 in O.S.No.26/1985 before the Civil

Judge (Sr.Dn.), Sirsi and the suit schedule property was jointly

allotted to the share of defendant No.1 and husband of defendant

No.4. It is the contention of the plaintiff that, the defendants No.1

and 2 have executed the relinquishment deed dated 12.07.1985 in

favour of defendant No.4 fraudulently without protecting the interest

of the plaintiff and therefore, the plaintiff filed O.S. No.57/1999

seeking the relief as stated in the plaint.

4. On service of notice, the defendants entered

appearance. Defendants No.1 to 3 have not filed written statement

and not contested the suit on merits. Defendants No.4 to 7 have

filed detailed written statement, admitting the relationship between

the parties. It is the specific defence of defendants No.4 to 7 that,

the disputed relinquishment deed was executed by defendants

No.1 and 2 to clear the outstanding loan in respect of the schedule

property and therefore, denied the averments made in the plaint

RSA No. 100161 of 2018

with regard to the suit schedule property. Accordingly, contesting

defendants sought for dismissal of the suit.

5. The trial Court based on the pleadings on record,

formulated the issues for its consideration. In order to establish

their case, plaintiff examined himself as PW1 and produced 11

documents and the same were marked as Exs.P1 to P11.

Defendant No.1 was examined as DW1 and got marked 10

documents as Exs.D1 to D10. The trial Court after considering

material on record, by its judgment and decree dated 04.09.2007,

dismissed the suit and being aggrieved by the same, plaintiff has

preferred R.A.No.53/2007 on the file of the First Appellate Court

and same was resisted by the contesting defendants. The First

Appellate Court by judgment and decree dated 13.11.2017,

dismissed the appeal and consequently, confirmed the judgment

and decree dated 04.09.2007 passed in O.S.No.57/1999. Feeling

aggrieved by the same the plaintiff has presented this Regular

Second Appeal.

6. Heard Sri.Madhukeshwar Deshpande, learned counsel

appearing for the appellant and Sri. Vishwanath Hegde, learned

counsel appearing for the respondent. Perused the records.

RSA No. 100161 of 2018

7. Sri.Madhukeshwar Deshpande, learned counsel

appearing for the appellant contended that, both the Courts below

have not properly appreciated the fact that the plaintiff was a minor

at the time of execution of relinquishment deed and there was no

legal necessity for defendants No.1 and 2 to execute the

relinquishment deed and therefore, he sought for interference of

this Court.

8. Sri.Vishwanath Hegde, learned counsel appearing for

the respondent No.3 / caveator argued in support of the impugned

judgment and decree of the Courts below and made available the

entire exhibits marked before the trial Court by arguing the matter

on merits. He contended that, as both the Courts below have

concurrently held against the plaintiff, this Court exercising the

jurisdiction under Section 100 of the Code of Civil Procedure

cannot interfere with the finding of fact recorded by both the Courts

below and accordingly, he sought for dismissal of the appeal.

9. In the light of the submission made by the learned

counsel appearing for the parties, it is relevant to extract the

genealogical tree to establish their relationship which reads as

under:

RSA No. 100161 of 2018

Basappa

Veerabhadrappa Chandrashekhar Channabasappa Subhas (Ori. D-1)

Shanta (Wife) (D-2) Girija (D-4)

Prakash(Plaintiff) Jyothi (D-5)

Prashant (D-3) Vinayak (D-6)

Vijayalaxmi (D-7)

10. Perusal of the genealogical tree would indicate that,

the original propositus Basappa had four children, namely

Veerabhadrappa, Chandrashekhar, Channabasappa (Defendant

No.1) and Subhash Sarashetty (husband of defendant No.4).

Perusal of the record would indicate that, there was partition

between the children of Basappa as per Ex.P11, wherein

compromise decree was executed, among the children of Basappa

in O.S.No.26/1985. The schedule property was allotted in favour of

RSA No. 100161 of 2018

defendant No.1 and the husband of defendant No.4 - Girija. The

relevant paragraph in the compromise decree reads as under:

"ªÁ¢ ¥Àw æ ªÁ¢ÃgÀ ªÀÄ£Év£À ÀPÉÌ EzÀÝ ¸Á®ªÀ£ÀÄß 3-4£ÉÃ ¥Àw æ ªÀ¢ÃgÀÄ ZÀÄPÁÛ ªÀiÁqÀvPÀ ÀÌzÀÄÝ. D §UÉÎ VÃvÁAd° ¯ÁqÀÓ ªÀÄvÀÄÛ ¨sÁrUÉUÉ PÉÆlÖ CAUÀr ªÀÄ½UÉU¼ À À ¨Á§ÄÛ §gÀvPÀ ÀÌ HvÀ£ à ÀßöªÀ£ÀÄß ¸ÀA¥ÀÆtðªÁV ¸À¢æ ¸Á®zÀ SÁvÉUÉ ªÀiÁqÀvPÀ ÀÌzÀÄÝ."

11. I have also examined the relinquishment deed

produced by the defendant at Ex.D2. Recitals in the

relinquishment deed envisages that defendants No.1 and 2

released their interest in respect of the suit schedule property on

behalf of their children, namely plaintiff and defendant No.3.

Recitals in the relinquishment deed produced at Ex.D2 reads as

under:

"E£ÀÄß ªÀÄÄAzÉ ¸Àzg À À D¹ÛUÀ¼À ¸ÀªÀÄäA¢ü EgÀÄªÀ J¯Áè ¸ÁzÀPÀ ¨sÁzÀPU À ½ À UÀÆ ¤ÃªÉÃ ºÀPÀÄÌzÁgÀgV À gÀÄwÛÃj. C®èzÃÉ ¸Àzg À À D¹ÛU¼ À À ¸ÀªÀÄäA¢ü EgÀÄªÀ AiÀiÁªÀvÀÄÛ KtÂ zÉÃtÂU½ À UÉ ¤ÃªÉÃ dªÁ§zÁgÀgÁVzÀÄÝ D ¸ÀªÀÄäA¢ü £ÀªÀÄUÉÃ£ÀÆ ºÀPÄÀ Ì AiÀiÁ dªÁ§zÁj EgÀÄªÀ¢¯Áè C®èzÃÉ E£ÀÄß ªÀÄÄAzÉ £ÁªÀÅ ªÀiÁr §gÀÄwÛgÄÀ ªÀ ªÀåªÀºÁgÀPÁÌU° À ºÁ ¸ÉÆvÀÄU Û ½ À UÁUÀ° ¤ªÀÄäzÃÉ £ÀÆ ºÀPÄÀ Ì AiÀiÁ C¢üPÁgÀ G½¢gÀÄªÀ¢¯Áè. £ÁªÀÅ F »AzÉ ªÀiÁrPÉÆAr §AzÀ ªÀåªÀºÁgÀzÀ ¸ÀªÀÄäA¢ü EgÀÄªÀ AiÀiÁªÀvÀÄÛ ¸Á® ¤ÃªÉÃ vÀÄA©PÉÆAqÀÄ §gÀvPÀ ÀÌ¢ÝgÀÄvÀz Û É JAvÀ £ÀªÄÀ ä DvÀä¸A À vÉÆÃµÀ¢AzÀ AiÀiÁ CPÀÌ® ºÀÄ±Áj¬ÄAzÀ®Æ §gÉ¬Ä¹PÉÆlÖ ºÀPÄÀ Ì vÁåUÀ ¥ÀvªÀæ ÁVgÀÄvÀz Û .É "

12. Perusal of the Ex.P11 and Ex.D2 would establish the

fact that defendants No.1 and 2 have parted with the schedule

property to clear the outstanding loan and the same has been

RSA No. 100161 of 2018

established by the defendants in their evidence both oral and

documentary. The trial Court has properly appreciated the same

and rightly dismissed the suit of the plaintiff. Though the learned

counsel appearing for the appellant argued that there was no legal

necessarily, however the recital in Ex.D2 is self-explanatory and

plaintiff has not adduced independent witness to prove that the

relinquishment deed was executed to deprive his legitimate

interest. Therefore, I do not find any acceptable ground to