Karnataka High Court
Sri Krishnamoorthy vs P Jayashree Bhat on 2 March, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH 2022
BEFORE
THE HON'BLE MR.JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.960/2021 (PAR)
BETWEEN:
1. SRI.KRISHNAMOORTHY,
S/O LATE BHASKAR BHAT,
AGED ABOUT 57 YEARS,
2. KUM. KIRAN,
S/O SRI KRISHNAMOORTHY,
AGED ABOUT 29 YEARS,
3. KUM. PAVAN
S/O SRI KRISHNAMOORTHY
AGED ABOUT 24 YEARS,
4. SMT. MALATHI,
AGED ABOUT 45 YEARS,
W/O SRIPATHY BHAT
R/AT NANDA GOKULA
NO.76, BADAGABETTU VILLAGE
UDUPI TALUK.
APPELLANTS NO.1 TO 3 ALL
ARE R/AT NO.5/22 "RAVI KIRAN"
NEAR JODURASTHE, ALEVOOR VILLAGE
AND POST,
UDUPI TALUK-574 118
...APPELLANTS
(BY SMT. D. KAVITHA, ADVOCATE FOR
SRI. SRINIVAS R. ADVOCATE)
2
AND:
P.JAYASHREE BHAT,
D/O LATE VASANTHI BHAT,
AGED ABOUT 63 YEARS,
R/AT NO.5, SRI DEVI APARTMENT,
NEAR FIRE STATION, AJJARKAD,
UDUPI-576 101.
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE
DATED 10.03.2021 PASSED IN R.A. NO.10/2019 ON THE FILE
OF THE PRINCIPAL DISTRICT JUDGE, UDUPI DISTRICT, UDUPI,
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND
DECREE DATED 01.12.2018 PASSED IN O.S. NO.67/2003 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, UDUPI.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant Nos.2 to 5 in
O.S No.67/2003 on the file of the Principal Senior Civil
Judge, Udupi, (henceforth referred to as the 'Trial Court')
challenging the concurrent finding recorded by both the
Trial Court and the Court of the Principal District Judge,
Udupi District, Udupi (henceforth referred to as the 'First
Appellate Court') in R.A. No.10/2019 that the plaintiff No.2
is entitled to a share in the suit schedule 'A' property.
2. The plaint discloses that the plaintiff No.1 and
Sri. Bhaskar Bhat were the children of Sri Narayana Bhat
and Smt. Krishna Bai @ Krishnaveniamma. The defendant
No.1 is the wife of the deceased Bhaskar Bhat and
defendant Nos.2 and 3 are their children. Defendant Nos.4
and 5 are the children of defendant No.3.
3. After the death of Sri Narayana Bhat, his wife,
Smt.Krishnaveniamma, had filed suit in O.S. No.340/1943
before the District Munsiff, Udupi, against Sri Krishna Bhat
for partition and separate possession claiming 1/4th share
in the suit schedule properties. The said suit was decreed
on 09.03.1946 by which it was held that
Smt.Krishnaveniamma and Sri Bhaskar Bhat were entitled
to 1/4th share in the plaint 'A' schedule property.
Subsequently, R.A. No.624/1948 was filed which was
disposed of on 30.08.1948. The plaint 'A' schedule
property is one of the items that was allotted to the share
of Smt.Krishnaveniamma and Sri Bhaskar Bhat as per the
judgment and decree in O.S No.340/1943. It is stated
that Sri Bhaskar Bhat was suffering from leprosy and had
no income and Smt. Krishnaveniamma was a widow at an
young age and she toiled hard to bring up her two
children, namely, Smt.Vasanthi Bhat and Sri Bhaskar Bhat,
by working as a cook in a hotel. Smt.Vasanthi Bhat also
lost her husband at a very young age and therefore,
started residing with her mother - Smt.Krishnaveniamma.
The plaintiffs were looked after by the deceased
Smt.Krishnaveniamma. After the promulgation of the
Karnataka Land Reforms Act, 1961, major portion of the
properties that were allotted to Smt. Krishnaveniamma
were lost in view of occupancy rights granted in favour of
the tenants and what remained with her was only the
plaint 'A' schedule property. Smt.Krishnaveniamma had
constructed a house in the plaint 'A' schedule property and
had leased it out to one Sri Srinivasa Upadhyaya.
Smt.Krishnaveniamma filed a suit in O.S. No.206/1984
before the Court of Principal Munsiff, Udupi, against Sri
Srinivasa Upadhya for eviction and recovery of possession.
She started residing in the said property along with her
son - Sri Bhaskar Bhat. The defendant No.1 was residing
with her children in her parents' house at Bailoor of Udupi
Taluk and she had deserted her husband, Sri Bhaskar
Bhat, since he was suffering from leprosy. Therefore, Sri
Bhaskar Bhat was being looked after by Smt.Vasanthi Bhat
as well as her mother Smt.Krishnaveniamma. Later, Sri
Bhaskar Bhat died intestate leaving behind his mother,
Smt. Krishnaveniamma and defendant Nos.1 to 3 as his
legal heirs.
4. After the death of Smt.Krishnaveniamma, the
plaintiff No.1 filed a suit for partition and separate
possession of her share in the suit schedule 'A' and 'B'
properties as the daughter of Sri Narayana Bhat. After
the death of the plaintiff No.1, plaintiff No.2 was brought
on record as her only legal representative. The Trial Court
partly decreed the suit and declared that the plaintiff No.2
is entitled to 1/4th share in the suit schedule 'A' property.
and the defendants are entitled to 3/4th share in the suit
schedule 'A' property. The suit of the plaintiffs in respect of
the suit schedule 'B' property was dismissed. This was
however modified by the First Appellate Court in R.A.
No.10/2019 and it declared that the plaintiff No.2 is
entitled to 13/24th share in the suit schedule 'A' property
while the defendants together were entitled to 11/24th
share in the suit schedule 'A' property.
5. Being aggrieved by the aforesaid Judgments
and Decrees, the defendant Nos.2 to 5 have filed this
Regular Second Appeal.
6. The learned counsel for the appellants
submitted that Sri Bhaskar Bhat was under the care and
control of the defendant No.1 and therefore, the question
of the plaintiffs being entitled to any share in the suit
properties did not arise.
7. The fact that the suit schedule 'A' property was
allotted to the share of Sri Narayana Bhat and
Smt.Krishnaveniamma is not in dispute. It is also not in
dispute that the suit schedule 'A' property was allotted not
only to the share of Sri Narayana Bhat but also to Smt.
Krishnaveniamma. The plaintiff No.1 being the daughter of
Sri Narayana Bhat was entitled to an undivided share in
the suit schedule 'A' property along with the legal
representatives of Sri Bhaskar Bhat. The Trial Court as
well as the First Appellate Court have considered the same
in great detail and have declared the right of the plaintiffs
in the suit schedule 'A' property. There is no infirmity in
the judgment passed by the First Appellate Court. As no
substantial question of law arises for consideration in this
appeal, the same is dismissed.
In view of dismissal of the appeal, the pending
interlocutory application does not survive for consideration
and the same stands disposed off.
Sd/-
JUDGE
sma
