Karnataka High Court
Venkateshappa vs Lakshmaiah on 8 August, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:27913
RSA No. 999 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 999 OF 2023 (PAR)
BETWEEN:
1. VENKATESHAPPA
BY HIS LRS
S/O LATE YERRAPPA
a) SMT. HEMAVATHI
AGED ABOUT 33 YEARS,
D/O. LATE VENKATESHAPPA,
R/O. SRINIVASAPURA TOWN,
SRINIVASAPURA TALUK-563 135.
b) SRI. PRAKASH
AGED ABOUT 31 YEARS,
S/O. LATE VENKATESHAPPA,
R/O. KARAHALLI ROAD,
NEAR IYAPPA TEMPLE,
Digitally signed
by SHARANYA T BANGARPET-563 114.
Location: HIGH
COURT OF c) SMT. RATHNAMMA
KARNATAKA
AGED ABOUT 60 YEARS,
W/O. LATE VENKATESHAPPA,
R/O. BANGARPET TALUK-563 114.
...APPELLANTS
(BY SRI MANOHAR N., ADVOCATE)
AND:
1. LAKSHMAIAH
BY HIS LRS.,
S/O. LATE YERRAPPA,
-2-
NC: 2023:KHC:27913
RSA No. 999 of 2023
a) SMT. KALAVATHI,
AGED ABOUT 53 YEARS,
W/O. LATE LAKSHMAIAH,
D/O. LATE CHINNAKKA,
R/O. KAMMASANDRA VILLAGE AND POST,
BETHAMANGALA HOBLI,
BANGARPET TALUK-563 121.
b) SMT. SHOBHA
AGED ABOUT 35 YEARS,
D/O. LATE LAKSHMAIAH,
R/O. PERAKUPPAM,
AMBUR TALUK,
VELLORE DISTRICT,
T.N. -602 001.
c) SRI. L. SUBRAMANI
AGED ABOUT 32 YEARS,
S/O. LATE LAKSHMAIAH,
R/O. KAMMASANDRA VILLAGE AND POST,
BETHAMANGALA HOBLI,
BANGARPET TALUK-563 121.
2. SRI. NARAYANAPPA
S/O. LATE YERRAPA,
AGED ABOUT 49 YEARS,
R/O. KAMMASANDRA VILLAGE AND POST,
BETHAMANGALA HOBLI,
BANGARPET TALUK-563 121.
3. SMT. CHINNAKKA
BY HER LRS.,
D/O. YERRAPPA,
a) KALAVATHI ,
AGED ABOUT 46 YEARS,
W/O. LATE LAKSHMAIAH,
D/O. LATE CHINNAKKA,
R/O. KAMMASANDRA VILLAGE,
5TH CROSS,
KGF TALUK-563 121.
-3-
NC: 2023:KHC:27913
RSA No. 999 of 2023
b) CHITHRA
AGED ABOUT 40 YEARS,
D/O. LATE CHINNAKKA,
R/O. VITHANAKUPPAM VILLAGE,
GUDIYATHAM TALUK,
VELLORE -632 602.
c) AKHILANDESHWARI
AGED ABOUT 38 YEARS,
D/O. LATE CHINNAKKA,
R/O. VITHANAKKUPPAM VILLAGE,
GUDIYATHAM TALUK,
VELLORE-632 602.
d) RAADHA
AGED ABOUT 36 YEARS,
D/O. LATE CHINNAKKA,
R/O. VITHANAKKUPPAM VILLAGE,
GUDIYATHAM TALUK,
VELLORE-632 602.
4. SMT. PUSHPA
AGED ABOUT 33 YEARS,
W/O. AMARNATH,
D/O. LATE RAMAKKA,
D/O. YERRAPPA,
R/O. GOLLAHALLI VILLAGE,
HEBBANI POST,
MULBAGAL TALUK-563 131.
5. SRI. CHANDRA BABU
AGED ABOUT 34 YEARS,
S/O. NARASHIMLU,
D/O. LATE RAMAKKA,
R/O. GOLLAHALLI VILLAGE,
HEBBANI POST,
MULBAGAL TALUK-563 131.
6. VISHALAKSHMI
AGED ABOUT 31 YEARS,
W/O. SUBRAMANI,
D/O. LATE RAMAKKA,
-4-
NC: 2023:KHC:27913
RSA No. 999 of 2023
R/O. GOLLAHALLI VILLAGE,
HEBBANI POST,
MULBAGAL TALUK-563 131.
7. SMT. ALYMELAMMA
AGED ABOUT 65 YEARS,
W/O.LATE ADEPPA,
R/O. KAMMASANDRA VILLAGE,
BETHAMANGALA HOBLI,
BANGARPET-563 121.
8. SRI. SRINIVASA
AGED ABOUT 42 YEARS,
S/O. LATE ADEPPA,
R/O. KAMMASANDRA VILLAGE,
BETHAMANGALA HOBLI,
BANGARPET-563 121.
9. MANGAMMA
AGED ABOUT 52 YEARS,
W/O. NARASIMHAPPA,
D/O. YERRAPPA,
R/O. K. N. EMMANATHA VILLAGE,
MOTAKAPALLI POST,
MULBAGAL TALUK-563 136.
...RESPONDENTS
(BY SRI. NOOR UL HUSSAIN, ADVOCATE FOR C/R R1[a - c]
R2, R3 [b - c], R4 TO R9)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 13.04.2023
PASSED IN R.A.NO.156/2022 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, KGF,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 13.07.2022 PASSED IN O.S.NO.340/2013
ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC,
K.G.F.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-5-
NC: 2023:KHC:27913
RSA No. 999 of 2023
JUDGMENT
This matter is listed for admission.
Heard the appellants counsel and also the counsel
appearing for the respondents.
2. The factual matrix of the case of the plaintiffs in
O.S.No.340/2013 that suit schedule properties are ancestral
joint family properties of plaintiffs and defendants and it is the
contention of the defendants before the Trial Court that already
there was a partition among the members of the family and
hence they are not entitled for the relief.
3. The plaintiffs in order to prove their case examined the
plaintiff No.1(c) as PW1 and got examined two witnesses as
PWs.2 and 3 and also got marked the documents Exs.P1 to P5
and confronted Exs.P6 and P7 to DW2. On the other hand
defendant No.1 has examined as DW1 and got marked
documents Exs.D1 to D90. After his demise defendant No.1(b)
is examined as DW2 and adopted Exs.D1 to D90 and got
examined two witnesses as DW3 and DW4. The Trial Court
having considered both oral and documentary evidence
answered issue No.1 as partly in the affirmative and the
NC: 2023:KHC:27913
RSA No. 999 of 2023
contention of the defendant that already there was a partition
is not accepted and the same is answered as negative and
hence comes to the conclusion that the plaintiffs are entitled for
a share and also considered the right of defendants, also
granting 1/7th share each in respect of item Nos.1 and 2 of suit
schedule properties. Being aggrieved by the judgment and
decree of the Trial Court an appeal is filed in R.A.No.156/2022.
The First Appellate Court having considered the grounds urged
in the appeal memo formulated the points, whether the Trial
Court committed an error in coming to the conclusion that
properties are the joint family properties of plaintiffs and
defendants and whether the Trial Court has committed an error
in decreeing the suit and whether the judgment and decree of
the Trial Court is perverse, capricious and call for interference.
The First Appellate Court also on re-appreciation of both oral
and documentary evidence, confirmed the judgment and
decree of the Trial Court and comes to the conclusion that the
Trial Court has not committed any error in appreciating both
oral and documentary evidence.
4. The counsel appearing for the appellants in his
arguments would vehemently contend that both the Courts
NC: 2023:KHC:27913
RSA No. 999 of 2023
have committed an error and finding recorded by the Trial
Court is perverse and also the conclusion of both the Courts
that defendants are not established the genuineness of the
partition and parties have not acted upon, is erroneous. The
material evidence placed on record has not properly
appreciated in a proper perspective based on both oral and
documentary evidence and hence granting of 1/7th share is
erroneous.
5. The counsel for the respondents would submit that the
Trial Court having considered the relationship between the
parties and also considering the document particularly the
document Ex.D7 which discloses that MR No.9/05-06 dated
23.6.2006, the defendant No.1 got it transferred the property
on the basis of Pavathi varasu and the same is not mutated on
the basis of Ex.D2 and Ex.D3 and therefore the sale deed
executed by defendant No.1 in favour of defendant No.5 at
Ex.D17 is not binding on the plaintiffs.
6. Both Courts also considered the material on record and
also taken note of the judgment of the Apex Court in the case
of Vineeta Sharma Vs. Rakesh Sharma reported in (2020)
NC: 2023:KHC:27913
RSA No. 999 of 2023
9 SCC 1, the oral partition is not acted upon and the same
does not confer any right and not committed any error.
7. Having heard the appellants counsel and also the
counsel appearing for the respondents and also having perused
the material on record, it is the specific case of the defendants
in the written statement that already there was a partition and
the same was taken place in the year 1998 and parties have
acted upon and in order to substantiate that, in terms of the
partition parties have acted upon, no material is placed before
the Court and Trial Court even considered the admission given
by DW2 in paragraph No.28 of the judgment that the property
belongs to Smt.Venkatamma and still the RTCs. are also
standing in the name of Smt.Venkatalakshmamma and also the
Trial Court in paragraph No.34 considering both the evidence of
DWs.1, 2 and 3 and also the plaintiffs' evidence and also taken
note of the sale deed executed in favour of defendant No.5 by
defendant No.1, the brothers of defendants have also
challenged the mutation changed in the name of defendant
No.5 before the Assistant Commissioner's Court and the same
was dismissed as per Ex.D33.
NC: 2023:KHC:27913
RSA No. 999 of 2023
8. Having considered the material on record comes to the
conclusion that there was no partition and though defendant
No.1 contend that there was a partition, the same has not been
proved and parties also not acted upon and even while selling
the property by defendant No.1, he got transferred the
property in the year 2006 as Pavathi Varasu and not based on
the alleged partition which the appellants have contended and
both the Courts have given anxious consideration to the
material available on record both oral and documentary
evidence and also the First Appellate Court on re-appreciation
of both oral and documentary evidence particularly in
paragraphs No.32, 33, 34 and 35 taken note of, even contents
of the document Ex.D17 and also taken note of the admission
given by DW2, wherein comes to the conclusion that hatched a
plan by one or the other to knock off the suit item Nos.1 and 2
properties to defeat the legitimate rights of the other family
members and hence, much importance cannot be attached to
Ex.D2 and D3 and comes to the conclusion that the Trial Court
has not committed any error and not passed any perverse
order. Both Courts have applied its judicious mind and also
considered both oral and documentary evidence available on
- 10 -
NC: 2023:KHC:27913
RSA No. 999 of 2023
record and when such being the case, the very contention of
the appellants counsel that this Court has to frame the
substantial question of law that both the Courts comes to the
conclusion that defendants have not established the
genuineness of the partition and acted upon and the same has
not been considered, cannot be a substantial question of law as
contended by the appellants counsel and both the Courts have
not ignored the material available on record. When such being
the case, I do not find any grounds to invoke Section 100 of
CPC to admit the appeal and to frame the substantial questions
of law.
9. In view of the discussions made above, I pass the
following:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
AP
