Shri Swamy H S vs Shri. Ramachandra
2022 Latest Caselaw 3924 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 8TH DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

             R.S.A. NO. 141 OF 2018 (PAR)

BETWEEN:

1.   SHRI SWAMY H.S.
     S/O LATE SHRI SUBBANNA SHETTY,
     AGED ABOUT 49 YEARS,
     RESIDING AT NO.1014, 4TH CROSS,
     2ND MAIN, VIDYARANYAPURAM,
     MYSURU-570001.

2.   SMT. GOWRAMMA
     W/O SHRI PUTTAPPA,
     AGED ABOUT 62 YEARS,
     RESIDING AT THIRUMALAPURA VILLAGE,
     BYLUKUPPE POST, PERIYAPATNA TALUK,
     MYSURU DISTRICT-570001.

3.   SMT. SAROJAMMA
     W/O SHRI GOVINDA SHETTY
     AGED ABOUT 59 YEARS
     RESIDING AT THAMMADIHALLI,
     PERIYAPATNA TALUK,
     MYSURU DISTRICT-570001.

4.   SMT. RANGAMMA
     W/O LATE SHRI SUBBANNA SHETTY
     AGED ABOUT 90 YEARS
     RESIDING AT HANDITHAVALLI
     KELLURU POST, RAVANDUR HOBLI
     PERIYAPATNA TALUK
     MYSURU DISTRICT-570001

5.   SHRI SUBRAMANYA
     S/O LATE SUBBANNA SHETTY
                           2



     AGED ABOUT 59 YEARS
     C/O SHRI NAGANNA
     BYLUKUPPE POST
     PERIYAPATNA TALUK
     MYSURU DISTRICT-570001.

SHRI RAJANNA
S/O LATE SHRI SUBBANNA SHETTY
SINCE DECEASED BY LRS .

6.   SMT. VARALAKSHMI
     W/O LATE SHRI RAJANNA
     AGED ABOUT 51 YEARS,
     RESIDING AT HANDITHAVALLI,
     KELLURU POST, RAVANDUR HOBLI,
     PERIYAPATNA TALUK,
     MYSURU DISTRICT-570001.

7.   SMT. H.R. DIVYA
     W/O SHRI RAVI
     AGED ABOUT 30 YEARS
     RESIDING AT VADDAMBALU VILLAGE
     HANAGODU HOBLI, HUNSURU TALUK
     MYSURU DISTRICT-570001.

8.   SHRI DEEPAK KUMAR
     S/O LATE SHRI RAJANNA
     AGED ABOUT 28 YEARS
     RESIDING AT HANDITHAVALLI,
     KELLURU POST, RAVANDUR HOBLI,
     PERIYAPATNA TALUK,
     MYSURU DISTRICT-570001.

9.   SHRI NAGENDRA
     S/O LATE SHRI RAJANNA
     AGED ABOUT 25 YEARS
     RESIDING AT HANDITHAVALLI
     KELLURU POST, REVANDUR HOBLI
     PERIYAPATNA TALUK,
     MYSURU DISTRICT-570001.
                                      ...APPELLANTS
(BY SRI. C. SADASHIVA, ADVOCATE)
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AND:

1.      SHRI. RAMACHANDRA
        S/O LATE SHRI SUBBANNA SHETTY
        AGED ABOUT 69 YEARS
        RESIDING AT NO.566,
        20TH CROSS, VIDYARANYAPURAM,
        MYSURU-570001.

2.      SMT. SHAKUNTHALA
        W/O LATE SHRI RANGAIAH
        AGED ABOUT 61 YEARS
        RESIDING AT NARAYANARAO
        AGRAHARA EXTENSION,
        NANJANGUD TOWN,
        MYSURU DISTRICT-570001.

3.      SHRI S.K. SATISH KUMAR
        S/O SHRI N.R. KRISHNA SWAMY
        RESIDING AT SINDHUVALLI VILLAGE
        JAYAPURA HOBLI,
        MYSURU TALUK
        MYSURU DISTRICT-570001.
                                            ...RESPONDENTS


        THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL   PROCEDURE,   1908   AGAINST   THE   JUDGMENT   AND
DECREE DATED 03.10.2017 PASSED IN R.A.NO.33/2016 ON
THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE., MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 23.01.2016 PASSED IN OS.NO. 492/2006
ON THE FILE OF THE PRINCIPAL JUDGE, SMALL CAUSES AND
SENIOR CIVIL JUDGE, MYSURU.


        THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                        JUDGMENT

This appeal is filed by the unsuccessful plaintiffs in

O.S. No.492/2006 challenging the concurrent judgment

and decree of both the Courts by which the suit filed by

the plaintiffs for partition and separate possession was

dismissed.

2. The parties shall henceforth be referred to as

they were arrayed before the Trial Court.

3. Initially the plaintiffs No.1 to 3 filed O.S.

No.492/2006 against the defendants No.1 to 3 for partition

and separate possession of suit Item No.1. The plaintiffs

claimed that they and the defendants No.3 and 4 are the

children of one Mr.Subbanna Shetty and defendant No.1

(Smt. Rangamma) and that the suit property was an

ancestral property and that each one of them were entitled

to 1/6th share. The plaintiff No.1 claimed that he served

the Indian Army between 24.04.1988 and 01.12.1991 and

later served in the Department of Police. He alleged that

defendants No.1, 3 and 4 had sold the suit property to the

husband of defendant No.2 during 1989-90. He claimed

that the said property was sold without his consent and

knowledge, and therefore, filed a suit for partition and

separate possession of his share in the suit property.

4. The defendants No.1, 3 and 4 filed their

written statement contending that the defendant No.2 had

obtained their signatures on a document representing it to

be a mortgage of the suit property. Hence, they prayed

that the suit be decreed.

5. The defendant No.2 filed his written statement

contending that the suit property was not the ancestral

property as it was gifted to him by his maternal

grandfather in the year 1947 when he was a one year old

child. He claimed that the defendant No.2 was in

possession through his parents and that no one was

entitled to a share in the suit property. He claimed that he

sold the suit property in accordance with law and the other

defendants (defendants No.1, 3 and 4) had subscribed

their signature to the sale deed as consenting witness. He,

therefore, prayed to dismiss the suit.

6. The defendant No.5 contended that her

husband had purchased the suit property in terms of the

sale deed dated 06.05.1989 and that after the death of her

husband, she succeeded to the said property and

thereafter sold it to defendant No.3 in terms of a sale deed

dated 10.06.2006. She alleged that the plaintiffs in

collision with the defendants No.1, 3 and 4 had filed the

suit to deprive her of the property.

7. Likewise, defendant No.6 filed the written

statement reiterating the contentions urged by defendant

No.5 and claimed that she was in possession of the said

property. She also contended that Item No.2 of the suit

schedule was gifted to her by Ramashetty in terms of a gift

deed dated 02.06.1947 and that there was no property

which matched the description of Item No.3 since his

father had purchased the same in terms of a sale deed

dated 16.12.1981.

8. Based on these rival contentions, the Trial

Court framed the following issues :

i. Whether the Plaintiffs prove that suit property is the ancestral property of themselves and defendants No.1 to 4?

ii. Whether the Plaintiffs further prove that they are entitled for partition and separate possession of their 1/6th share each in suit property?

iii. Whether the 2nd Defendant proves that the suit property was gifted by his maternal grandfather in his favour during the year 1947?

iv. Whether the 5th Defendant proves that suit is bad for non-joinder of necessary parties? v. Whether the 5th and 6th Defendant prove that suit property is not the ancestral property of Plaintiffs and Defendants No.1 to 4?

vi. Whether the suit is barred by limitation? vii. Whether the Plaintiffs are entitled for the reliefs as claimed?

viii. What Order or Decree?

Addl. Issues framed on 15.12.2009 :

i. Whether 6th Defendant proves that Item No.2 belongs to Ramashetty, said Ramashetty donated the Item No.2 of Plaint schedule property suit through a Registered Gift Deed dated 02.06.1947 in favour of daughter Rangamma and her son

Ramachandra further proves that the father of 6th Defendant purchased the said property from Rangamma and by her sons?

ii. Whether 6th Defendant proves that there is no vacant site as alleged in the Plaint schedule Item No.2?

Addl Issues framed on 28.05.2010 :

i. Whether 6th Defendant proves that either the Plaintiffs or the other Defendants are not having any locus standi to claim any share in and upon the suit schedule properties?

9. The plaintiff was examined as P.W.1, who

marked documents as Exs.P-1 to 7. The defendants No.1

and 2 were examined as D.Ws.1 and 2 and they marked

documents as Exs.D-1 to D-20.

10. Later, the plaintiffs included suit item Nos.2

and 3 and the defendants No.1, 3 and 4 were transposed

as plaintiffs No.4, 5 and 6 respectively. Hence, the

defendants No.1, 3 and 4 shall be referred as plaintiffs

No.4, 5 and 6.

11. The Trial Court considered the oral and

documentary evidence and held that the plaintiffs No.1 to

3, 5 and 6 and the defendant No.1 (Sri. Ramachandra)

were the children of plaintiff No.4 and Late Subbanna

Shetty. Plaintiff No.4, wife of Subbanna Shetty was the

daughter of Late Bale Rama Shetty and Smt.

Thimmamma. It held that Bale Rama Shetty was the

maternal grandfather of the plaintiffs No.1 to 3, 5 and 6

and the defendant No.1. It held that therefore they were

not the family members or co-parceners of Late Bale Rama

Shetty. It further noted that said Late Bale Rama Shetty

had executed a gift deed dated 25.03.1947 in respect of

Item No.1 of the suit property in favour of the defendant

No.1 who was then a minor. He, however, created a life

interest over the said property in favour of his daughter,

namely, the plaintiff No.4 and her husband Subbanna

Shetty. The Trial Court, therefore, held that the defendant

No.1 was the full and absolute owner of the suit property

in terms of the gift deed dated 25.03.1947 and that the

plaintiff No.4 and Subbanna Shetty were merely guardians

of defendant No.1, who was then a minor aged one year.

The Trial Court also noticed that the site No.57/2 which

was the suit Item No.3 was sold in favour of the father of

defendant No.3 (Sri. N.K.Krishnaswamy) in terms of a sale

deed dated 16.12.1981. Likewise, Item No.2 was sold by

the defendant No.1 along with plaintiffs No.4 to 6 in favour

of the father of defendant No.3 on 06.09.1989. Therefore,

the Trial Court held that plaintiffs had not made out any

case to establish their undivided right, title and interest in

the said properties and hence, dismissed the suit.

12. An appeal preferred by the plaintiffs before the

First Appellate Court also met with the same fate.

13. Being aggrieved by the aforesaid judgment and

decree, the present appeal is filed.

14. The learned counsel for plaintiffs submitted

that the gift deed categorically mentioned that it was not

only in favour of the defendant No.1, but also in favour of

his mother (plaintiff No.4) and Subbanna Shetty, and

therefore, the plaintiffs were entitled to a share in the said

property.

15. The Trial Court and First Appellate Court have

noticed that by the gift deed dated 25.03.1947 the suit

property was absolutely conveyed in favour of defendant

No.1 and that life interest was created in favour of plaintiff

No.4 and her husband. If that be so, the plaintiffs do not

have any right over the said property and cannot enforce it

by way of a suit for partition. Insofar as the other two

Items are concerned, the plaintiffs are signatories to the

sale deeds executed in favour of the father of defendant

No.3, and therefore, they had no subsisting right, title or

interest to sue for partition in respect of those properties.

The Trial Court and the First Appellate Court have

appreciated the evidence of the parties in great detail and

have recorded a finding of fact that plaintiffs are not

entitled to any share in the suit properties. Even

otherwise, the conduct of the plaintiffs and the defendants

No.1, 3 and 4 in conspiring to file a suit for partition after

the land was sold in the year 1989 gives an impression

that the plaintiffs have ganged up to cause hardship to the

defendants No.2 and 3.

In that view of the matter, there is no merit in this

appeal and hence, the appeal is dismissed.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

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