Shri Tirakappa S/O Shivappa ... vs Sri.Mallappa S/O Basavanneppa ...
2022 Latest Caselaw 4187 Kant

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                                       RSA No. 101003 of 2015


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

          DATED THIS THE 11TH DAY OF MARCH, 2022

                           BEFORE
         THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
     REGULAR SECOND APPEAL NO. 101003 OF 2015 (PAR-)
BETWEEN:

      SHRI TIRAKAPPA S/O SHIVAPPA HOSALLI
      AGE:62 YEARS, OCC:AGRL
      R/O:HOMBARADI
      TQ:DIST:HAVERI

                                                 ...APPELLANT
(BY SRI. SABEEL AHAMED, ADV.
SRI. A.S. PATIL, ADVOCATE)

AND:

1.    SRI.MALLAPPA S/O BASAVANNEPPA HOSALLI
      AGE:80 YEARS, OCC:AGRL
      R/O:HOMBARADI
      TQDIST:HAVERI-581110

2.    VEERAPPA S/O BASAVANEPPA HOSALLI
      AGE:82 YEARS, OCC:AGRL
      R/O:HOMBARADI
      TQ AND DIST:HAVERI-581110

                                             ...RESPONDENT'S
(BY SRI. SURESH N KINI FOR R1, R2, ADVOCATE)

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE CPC, AGAINST
JUDGMENT AND DECREE DATED 28.08.2015 PASSED IN R.A. NO.78/2013,
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, HAVERI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 23.08.2013 AND THE DECREE PASSED IN O.S NO.165/2010 ON THE
FILE OF THE CIVIL JUDGE, HAVERI, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
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                                       RSA No. 101003 of 2015


                           JUDGMENT

Though the matter is listed for admission, with the

consent of learned counsel for the parties, the matter is

taken for final hearing.

2. The concurrent findings of the Courts below has

been challenged by defendant No.2 assailing the judgment

and decree dated 28.10.2015 in RA No.78/2013 on the file

of Prl. Senior Civil Judge, Haveri, confirming the judgment

and decree dated 23.08.2013 in OS No.165/2010 on the

file of the Additional Civil Judge, Haveri at Haveri.

3. The parties here are referred to as per the

ranking before the trial Court.

4. Heard the learned counsel for the parties and

perused the materials on record.

5. The plaintiff filed a suit for partition and separate

possession of his 1/4th share in the suit schedule property

which is an agricultural land bearing No. RS.No.19/2

measuring 3 acres 20 guntas, situated at Hombaradi

RSA No. 101003 of 2015

village in Haveri taluk. It is the contention of the plaintiff,

that the suit property was originally purchased by the

father of the plaintiff-Basavanneppa and his uncle by

name Doddappa and in view of the partition between

Basavanneppa and Doddappa on 01.09.1959, the

plaintiff's father and said Doddappa are having half share

in the suit schedule property. It is the further contention

of the plaintiff, that the plaintiff's father is entitled for ½

share and his uncle Doddappa is entitled for ½ share and

the uncle of the plaintiff Doddappa has executed a Will in

favour of his half share to defendant No.2 and thus,

sought for 1/4th share in the suit schedule property.

6. Defendant Nos.1 and 2 though entered

appearance did not choose to file their written statement.

7. Defendant No.2 filed his written statement

denying the plaint averments and contended that the suit

of the plaintiff is not maintainable. Defendant No.2

contended that there was no partition effected in the joint

RSA No. 101003 of 2015

family of the plaintiff and the defendant in respect of the

movable or immovable properties and also contended that

he was the adopted son of Doddappa and the said

Doddappa has executed a Will in his favour. It is further

contended that the mutation entry effected in the revenue

records are in collusion with the plaintiff and defendant

No.1 and as such, would contend that no right has been

accrued in favour of the plaintiff in view of the mutation

entry.

8. On the basis of the pleadings of the parties, the

trial Court framed the following:

ISSUES

1. Whether the plaintiff proves that the plaintiff is entitled for 1/4th share in the suit schedule property?

2. Whether the defendants prove that the suit is bad for non joinder of necessary parties?

3. Whether the plaintiff is entitled for the relief sought for in the plaint?

RSA No. 101003 of 2015

property as shown in the plaint?

4. What order or decree?

Additional Issue No.1

1. Whether the defendants prove that the suit is bad for non-joinder of necessary parties?

9. In order to substantiate the claim of the plaintiff,

plaintiff examined himself as PW.1 and got marked

documents as Exs.P1 to P6. On the other hand, defendant

examined himself as DW1 and got marked documents at

Exs.D1 to D6.

10. The trial Court considering the pleadings,

evidence and materials on record held that the plaintiff is

entitled for 1/4th share in the suit schedule property and

decreed the suit of the plaintiff.

11. Aggrieved by the judgment and decree of the

trial Court, defendant No.2 preferred appeal contending

that the granting of share to the extent of 1/4th to the

RSA No. 101003 of 2015

plaintiff is not just and proper as the suit property as

contended by the plaintiff that it is a joint family property

is not proved by the plaintiff in accordance with law. It is

further contended that granting of 1/4th share in favour of

the plaintiff has led to miscarriage of justice and sought to

allow the appeal.

12. The Lower Appellate Court on re-appreciation of

the material on record held that the plaintiff is entitled to

1/4th share in view of the purchase made by the father of

the plaintiff and said Doddappa. Both the Courts below

looking into the materials and evidence on record has held

that the plaintiff has proved that he is entitled for 1/4th

share in the suit schedule property.

13. A perusal of the judgment and decree and Ex.P1,

Exs.P3 to P6 mutation entries shows the name of the

father of plaintiff and the name of Doddappa has been

entered in the revenue records.

RSA No. 101003 of 2015

14. A careful perusal of Ex.P3 depicts that as per

"Apsat Vatney" dated 01.09.1959 the father of the plaintiff

Basavanneppa and Doddappa have got partitioned the

property and have been allotted ½ share each in the said

property. Ex.P4 is the certified copy of the M.E.No.2476

dated 11.04.1963. A careful perusal of the exhibits

produced by the plaintiff more particularly, Exs.P3 and P4

clearly establishes the fact that the suit property has fallen

to the share of the plaintiff and defendant No.1 to the

extent of ¼ share each by excluding ½ share of the

defendant No.2.

15. The trial Court and the Lower Appellate Court on

facts considering Exs.P1 to P6, Exs.D1 to D6 and the

evidence of PW1 and DW1 has rightly come to the

conclusion that the plaintiff is entitled for ¼ share in the

suit schedule property. The concurrent finding of facts of

the Courts below being challenged in this appeal, this

Court is of the opinion that no substantial question of law

arises for consideration in this appeal.

RSA No. 101003 of 2015

14. In the result, this Court pass the following:

ORDER

i) The appeal filed by defendant No.2 is devoid of

merits and hereby dismissed.

ii) No order as to costs.

Sd/-

JUDGE

VMB