Sridhara vs Smt Laxmamma
2022 Latest Caselaw 5038 Kant

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF MARCH, 2022

                        BEFORE

          THE HON'BLE MR.JUSTICE R.NATARAJ

     REGULAR SECOND APPEAL NO.447 OF 2022 (PAR)

BETWEEN:

SRIDHARA
S/O LATE BASAPPA,
AGED ABOUT 35 YEARS,
R/AT NANDIPURA VILLAGE,
AJJAMPURA HOBLI,
TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT-577228.
                                        ...APPELLANT

(BY SRI. SACHIN B.S, ADVOCATE)

AND:

1.     SMT. LAXMAMMA
       D/O ERAPPA
       AGED ABOUT 74 YEARS,
       AGRICULTURIST,
       R/AT NANDIPURA VILLAGE,
       AJJAMPURA HOBLI,
       TARIKERE TALUK,
       CHIKKAMAGALURU DISTRICT-577228

2.     SMT. RAMAMMA @ RAMAKKA
       AGED ABOUT 72 YEARS,
       AGRICULTURIST,
       R/AT KONDAPURA VILLAGE,
       HOSADURGA TALUK,
       CHITRADURGA DISTRICT-577527.
                             2


3.   KARIYAPPA
     S/O THIMMAPPA,
     AGED ABOUT 70 YEARS,
     AGRICULTURIST

4.   RAMAPPA
     S/O THIMMAPPA,
     AGED ABOUT 66 YEARS,
     AGRICULTURIST

5.   MANJAPPA
     S/O THIMMAPPA,
     AGED ABOUT 63 YEARS,
     AGRICULTURIST,

6.   SMT. BHYRAMMA
     W/O LOKESHAPPA,
     AGED ABOUT 53 YEARS,
     AGRICULTURIST

     RESPONDENT NOS.3 TO 6 ARE
     R/O NANDIPURA VILLAGE,
     AJJAMPURA HOBLI,
     TARIKERE TALUK,
     CHIKKAMAGALURU DISTRICT-577228

     BASAPPA
     S/O PARASAPPA
     SINCE DEAD BY HIS LRS (R-7 TO R-9)

7.   SMT. GOWRAMMA,
     W/O LATE BASAPPA,
     AGED ABOUT 56 YEARS,
     AGRICULTURIST,

8.   SMT. RENUKAMMA
     D/O LATE BASAPPA,
     W/O SHIVAPPA,
     AGED ABOUT 36 YEARS,
     AGRICULTURIST,

9.   SMT. MANJULA
     D/O LATE BASAPPA,
                               3


       W/O GOPALAPPA,
       AGED ABOUT 34 YEARS,
       AGRICULTURIST

       RESPONDENT NOS.7 TO 9 ARE
       R/O NANDIPURA VILLAGE,
       AJJAMPURA HOBLI,
       TARIKERE TALUK,
       CHIKKAMAGALURU DISTRICT-577228

10 .   HANUMANTHAPPA
       S/O PARASAPPA,
       AGED ABOUT 68 YEARS,
       AGRICULTURIST,

11 .   CHANDRAPPA
       S/O PARASAPPA,
       AGED ABOUT 58 YEARS,
       AGRICULTURIST,

12 .   RAJAPPA
       S/O PARASAPPA,
       AGED ABOUT 53 YEARS,
       AGRICULTURIST,

13 .   JAYAPPA
       S/O RAMAPPA,
       AGED ABOUT 43 YEARS,
       AGRICULTURIST,

14 .   RAVI S,
       S/O RAMAPPA,
       AGED ABOUT 38 YEARS,
       AGRICULTURIST,

15 .   GANGAMMA
       W/O SIDDARAMAPPA,
       AGED ABOUT 63 YEARS,
       AGRICULTURIST

       RESPONDENTS 10 TO 15 ARE
       R/AT NANDIPURA VILLAGE,
       AJJAMPURA HOBLI,
                               4


      TARIKERE TALUK,
      CHIKKAMAGALURU DISTRICT-577228.

                                       .....RESPONDENTS

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908,
AGAINST THE JUDGMENT AND DECREE DATED 03.01.2022
PASSED IN R.A No.33/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND PRINCIPAL JMFC, TARIKERE, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
13.04.2016 PASSED IN O.S No.66/2012 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JMFC., TARIKERE.

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

                         JUDGMENT

This appeal is filed by the defendant No.5(d) in O.S.

No.66/2012 challenging the concurrent finding recorded by

the Trial Court and the First Appellate Court that the

plaintiffs are entitled to 1/3rd share in the suit schedule

properties.

2. The parties will henceforth be referred to as

they were arrayed before the Court of the Additional Civil

Judge and JMFC., Tarikere (henceforth referred to as the

'Trial Court'). The appellant herein was defendant No.5(d)

while respondent Nos.1 and 2 were plaintiff Nos.1 and 2

and respondent Nos.3 to 15 were defendant Nos.1 to 4,

5(a) to 5(c) and 6 to 11 before the Trial Court.

3. The suit in O.S. No.66/2012 was filed for

partition and separate possession of 1/3rd share in the suit

schedule properties. The plaintiffs claimed that Sri Baaliyal

Thimmappa was the original propositus of the joint family

which comprised of himself and his son Sri. Ramappa. The

said Ramappa had three sons, namely, Sri. Kariyappa, Sri.

Basappa and Sri. Parasappa, who are no more. The first

son - Sri. Kariyappa had a son by name Sri. Thimmappa

while Sri. Basappa had a daughter by name

Smt.Chandramma and Sri. Parasappa had six sons,

namely, Sri. Rudrappa/Ramappa, Sri. Siddaramappa, Sri.

Basappa, Sri. Hanumanthappa, Sri. Chandrappa and Sri.

Rajappa. Of the above persons, Sri. Thimmappa, son of

Sri. Kariyappa, had four sons i.e., defendant Nos.1 to 3

and the husband of defendant No.4. The plaintiffs are the

daughters of the deceased Smt. Chandramma while

defendant Nos.5 to 8 are the sons and Defendant Nos.9

and 10 are the grandsons and defendant No.11 is the

daughter-in-law of Sri Parasappa. The plaintiffs claimed

that Sri Baaliyal Thimmappa and his son, Sri Ramappa,

possessed the suit schedule properties and after the death

of Sri Ramappa, his three sons were in joint possession

and enjoyment of the suit properties and the revenue

records continued in the name of the great grandfather of

the plaintiffs. The plaintiffs alleged that their mother, Smt.

Chandramma, demanded the share of her father but the

same was postponed unduly. However, she died but the

defendants did not partition the suit properties. In the

meanwhile, Sri Ramappa, the father of the defendant

Nos.9 and 10, had obtained an illegal mutation in his name

on the basis of inheritance. The plaintiffs alleged that their

claim for partition was not considered by the defendants

and therefore, they filed the suit for partition.

4. The defendant Nos.1 to 4 conceded to the

averments of the plaint. They raised a counter claim

demanding 1/12th share each in the suit schedule

properties.

5. The defendant Nos.5 to 11 filed their written

statement and denied the averments of the plaint and

claimed that the suit properties were still held by the joint

family and that the plaintiffs were not entitled for any

share in the suit schedule properties. They also denied

their relationship with the plaintiffs and claimed that the

genealogy furnished by the plaintiffs was false. They

further claimed that there was an oral partition between

Sri Thimmappa, Sri Basappa and Sri Ramappa and that

they were in possession of their respective shares.

Thereafter there was an oral partition amongst Sri

Ramappa and sons of Sri Parasappa, namely, Sri Basappa,

Sri Hanumanthappa, Sri Chandrappa and Sri Rajappa and

claimed that the said persons had applied for transfer of

khata. They alleged that the suit properties were all in

separate possession of the defendants and therefore, the

plaintiffs' suit for partition was highly belated.

6. Based on these rival contentions, the Trial

Court framed the following Issues:

"1. Whether the plaintiffs prove that, the suit schedule property is ancestral joint family property of themselves and defendants?

2. Whether the defendant No.1 to 4 proves that they entitled 1/12th share each in the suit schedule properties?

3. Whether the defendant No.5 proves that, there was already partition between Ramappa, Basappa, Hanumathappa, Chandrappa and Rajappa and therefore the plaintiffs have not entitled any relief claimed in plaint?

4. Whether the defendant No.5 proves that the suit of the plaintiffs is barred by law of limitation?

5. Whether the defendant No.5 proves that, the suit of the plaintiffs is not valued properly for the purpose of court fee and jurisdiction?

6. Whether the plaintiffs are entitled for 1/3rd share in the suit schedule properties?

7. What Order or Decree?"

7. The plaintiff No.1 was examined as PW.1 and

she marked documents as Exs.P1 to P15. The defendant

No.1 was examined as DW.1 and defendant No.6 was

examined as DW.2 but they did not mark any documentary

evidence.

8. The Trial Court held that the suit schedule

properties were the ancestral joint family properties of

both the plaintiffs and defendants. This was evident from

the oral evidence of DW.2. It held that the defendant

Nos.5 to 11 had not furnished any cogent evidence or

documentary evidence to establish that defendant Nos.1 to

4 had no share in the suit schedule properties. The Trial

Court noticed the evidence of PW.1 and DW.2 and held

that the defendant Nos.1 to 4 had 1/12th share each in the

suit schedule properties. It further held that the claim of

the defendant Nos.5 to 11 that there was a partition

between the plaintiffs and defendants or amongst Sri

Ramappa and sons of Sri Parasappa, namely, Sri Basappa,

Sri Hanumanthappa, Sri Chandrappa and Sri Rajappa was

not proved. It also held that there was no partition

amongst the three sons of Sri Ramappa and hence, held

that all the three sons of Sri Ramappa were entitled to an

undivided 1/3rd share in the suit schedule properties. It

further held that the plaintiffs being daughters of Smt.

Chandramma are entitled for 1/3rd share in the suit

schedule properties and defendant Nos.1 to 4, who are

sons and daughter-in-law of Sri Thimmappa, are entitled

for 1/12th share in the suit schedule properties and

accordingly, decreed the suit.

9. Being aggrieved by the aforesaid Judgment

and Decree, the legal heirs of Sri Parasappa, namely,

defendant Nos.5(a) to (d) and 6 to 11 filed Regular Appeal

No.33/2016.

10. The First Appellate Court secured the records

of the Trial Court, heard the learned counsel for the parties

and framed the following points for consideration:

"1. Whether the Trial Court is justified in affirming issue Nos.1, 2 and 6 and Issue No.3 to 5 in Negative holding that the plaintiffs have proved that the suit properties are ancestral and joint family properties of plaintiffs and defendants and defendants have failed to prove that there was already partition in the family and the suit of the

plaintiffs was barred by limitation and hence the plaintiffs are entitled for any share in the plaint schedule properties and therefore the plaintiffs are entitled for partition and separate possession as sought for in the plaint?

2. Whether the Judgment and Decree of the Trial Court warrants interference by the instant court?

3. To what order or decree?"

11. The First Appellate Court held that though the

defendant Nos.5 to 11 denied their relationship with the

plaintiffs, PW.1 in her examination-in-chief spoke about

the relationship and in the course of her cross-

examination, nothing was denied. DWs.1 and 2 admitted

their relationship with the plaintiffs in very categorical

terms. Therefore, the First Appellate Court held that the

plaintiffs had established their relationship with the

defendants and that the suit properties were possessed by

Sri Baaliyal Thimmappa and his son, Sri Ramappa, and

were therefore, the ancestral properties of the plaintiffs

and defendants. It also held that there was no proof

regarding partition between three sons of Sri Ramappa,

namely, Thimmappa, Sri Kariyappa, Sri Basappa and Sri

Parasappa and therefore, dismissed the appeal.

12. Being aggrieved by the aforesaid Judgment

and Decree, the defendant No.5(d) has preferred this

Regular Second Appeal.

13. The learned counsel for defendant No.5(d)

submitted that the plaintiffs were bound to prove their

relationship and mere production of a family tree would

not suffice. He claimed that the plaintiffs had not proved

their relationship with the defendants and therefore, both

the Courts committed an error in casting burden on the

defendants to disprove the relationship pleaded by the

plaintiffs. He also submitted that the revenue documents

stood testimony to the fact that the defendants had

partitioned the suit schedule properties and therefore, the

suit was not only not maintainable but also highly belated.

14. I have considered the contentions of the

learned counsel for defendant No.5(d) and perused the

records.

15. The fact that the record of rights of the suit

properties till the year 1993-94 reflected the name of Sri

Baaliyal Thimmappa makes it clear that the suit properties

were all ancestral properties. The said Baaliyal Thimappa

had a son named Sri Ramappa who had three sons,

namely, Sri Kariyappa, Sri Basappa and Sri Prasappa and

the plaintiffs are the granddaughters of one of them,

namely, Sri. Basappa. The defendant Nos.1 to 3 and the

husband of defendant No.4 are the grandsons of Sri

Kariyappa while the defendant Nos.5 to 8 and the husband

of defendant No.11 are the sons of Sri Parasappa while

defendant Nos.9 and 10 are the grandsons of Sri

Parasappa. The defendant Nos.1 to 4 did not dispute the

relationship of the plaintiffs with the defendants. DWs.1

and 2 also admitted about the relationship of the plaintiffs.

If that be so, the plaintiffs had established that they were

the granddaughters of Sri Basappa. Since the defendant

Nos.1 to 4 conceded to the claim of the plaintiffs and as

the defendant Nos.5 to 8 did not prove the partition of the

properties, the plaintiffs were entitled to claim their share

in the suit schedule properties and the Trial Court and the

First Appellate Court have rightly held that the plaintiffs

are entitled to 1/3rd share in the suit properties. There is

no error in the Judgment and Decree of the Trial Court,

which has been confirmed by the First Appellate Court.

Therefore, this Second Appeal lacks merit and same is

dismissed.

The pending interlocutory application stands

disposed off.

Sd/-

JUDGE

sma