Shekarappa Kusanuru vs Hanumanthappa
2023 Latest Caselaw 5355 Kant

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                                                       NC: 2023:KHC:27792
                                                      RSA No. 708 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 7TH DAY OF AUGUST, 2023

                                          BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO.708 OF 2023 (PAR)

                   BETWEEN:

                         SHEKARAPPA KUSANURU
                         S/O SANNAPPA
                         DEAD BY LRS

                   1.    SRI VIJAYA,
                         S/O SHEKARAPPA,
                         AGED ABOUT 52 YEARS,
                   2.    SMT. SUVARNA
                         D/O SHEKARAPPA,
                         AGED ABOUT 50 YEARS,

Digitally signed   3.    SRI RAJA
by SHARANYA T            S/O SHEKARAPPA,
Location: HIGH           AGED ABOUT 48 YEARS,
COURT OF
KARNATAKA
                   4.    SRI YALLAPPA
                         S/O SHEKARAPPA,
                         AGED ABOUT 46 YEARS,

                   5.    SMT. GEETA
                         D/O SHEKARAPPA,
                         AGED ABOUT 44 YEARS,

                   6.    SRI SANNAPA
                         S/O SHEKARAPAP,
                         AGED ABOUTT 42 YEARS,
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                                    NC: 2023:KHC:27792
                                  RSA No. 708 of 2023




7.   SRI SURESH
     S/O SHEKARAPPA,
     AGED ABUOT 40 YEARS,

     ALL ARE R/AT SHAKUNAVALLI VILLAGE,
     JADE HOBLI,
     SORABA TALUK-577419


                                          ...APPELLANTS
(BY SRI RAMESHA H E, ADVOCATE)

AND:

HANUMANTHAPPA
S/O SANNAPPA,
AGED ABOUT 78 YEARS,
R/O KONAKKOPPA VILLAGE,
HANAGAL TALUK,
HAVERI-581104.
                                       ...RESPONDENT

       THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 06.01.2023
PASSED IN RA No.17/2021 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, SORABA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 25.02.2021 PASSED IN O.S. No.8/1991 ON THE
FILE OF THE CIVIL JUDGE AND JMFC, SORABA AND ETC.

       THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                                               NC: 2023:KHC:27792
                                           RSA No. 708 of 2023




                         JUDGMENT

This matter is listed for admission. Heard the

learned counsel appearing for the appellants.

2. The counsel for the appellants would contend

that both the Courts have committed an error in granting

the relief of partition that is granting of half share in

respect of the suit schedule properties. The counsel would

vehemently contend that there is no material before the

Court to show that the suit schedule properties are the

ancestral properties and item Nos.2, 3, 5 and 7 are the

self acquired properties of late Channegowda as the

plaintiffs and defendant Nos.3 and 4 were married long

back and they have no right over the suit schedule

properties. The suit is also barred by limitation. The

counsel also would vehemently contend that both the

Courts have committed an error in putting the burden on

the appellants to prove the case instead on the

respondent. The counsel would vehemently contend that

this Court has to frame the substantial question of law that

NC: 2023:KHC:27792 RSA No. 708 of 2023

both the Courts have committed an error in granting equal

share to the plaintiff and defendants by holding that they

were entitled to half share and the First Appellate Court

not considered the material facts and it requires

interference.

3. Having heard the learned counsel for the

appellants and also on perusal of the material on record

particularly, though the witness denied the relationship, in

the cross-examination he admitted regarding the

relationship of the parties and apart from that both the

Courts have taken note of the fact that in the written

statement they have not denied that suit schedule

properties are not the ancestral properties. In paragraph

25 of the order, the First Appellate Court taken note of the

fact that defendant No.1(d) has categorically admitted that

his father has inherited the suit schedule properties from

his ancestors and they are the ancestral properties. The

Trial Court also taken note of the fact that the plaintiff

being the brother of the deceased defendant is entitled for

NC: 2023:KHC:27792 RSA No. 708 of 2023

definite share in the suit schedule properties. It is also the

case of the plaintiff that he himself and deceased

defendant has only inherited the ancestral properties of

the family and in the cross-examination of DW1, he has

not disputed and admitted that the daughters of Sannappa

Kusanuru by name Yellamma and Basavva are no more.

Having taken note of the admission that the properties are

ancestral properties and considering the documents

particularly, Ex.P3 to 8 - RTCs and Ex.P9 - Index of land

and Ex.P10 - copy of RR and considering the both oral and

documentary evidence placed on record both the Courts

have granted the relief of partition that is half share each

to the plaintiff and defendant No.1(a) to (g) in the suit

schedule properties. Now the appellants cannot contend

that the properties are not the ancestral properties and

the same has not been proved. Having considered both

oral and documentary evidence placed on record

particularly Ex.P3 to P10, both the Courts came to the

conclusion that the plaintiff has established the

relationship between the plaintiff and his deceased brother

NC: 2023:KHC:27792 RSA No. 708 of 2023

and also taken note of the admission given by defendant

No.1(d). When such being the case, the very contention of

the appellants that both the Courts have committed an

error in not considering the material on record cannot be

accepted and there are no substantial questions of law to

frame the same and both the Courts have rightly comes to

the conclusion that the plaintiff and the defendants are

entitled for half share in respect of the suit schedule

properties. Hence, the appellants have not made out any

grounds to invoke Section 100 of CPC to admit the appeal

and to frame substantial question of law. Accordingly, the

appeal is dismissed.

Sd/-

JUDGE

SN