Sri. K S Ramachandra vs Smt. Kamalamma
2023 Latest Caselaw 5721 Kant

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                                                          NC: 2023:KHC:29454
                                                         RSA No. 117 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 18TH DAY OF AUGUST, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO.117 OF 2023 (PAR)

                   BETWEEN:

                   1.    SRI K.S. RAMACHANDRA
                         AGED ABOUT 63 YEARS
                         S/O LATE H. SOMBEGOWDA
                         R/AT KUMBENAHALLI VILLAGE
                         SHRAVANABELAGOLA HOBLI
                         CHANANRAYAPATNA TALUK-523135.
                                                            ...APPELLANT

                               (BY SRI D. GANGADHARA, ADVOCATE)
                   AND:

                   1.     SMT. KAMALAMMA
                          AGED ABOUT 66 YEARS
                          W/O SRI. JAYARAMEGOWDA
                          R/AT HADAVANAHALLI VILLAGE
Digitally signed
by SHARANYA T             SANTHEBACHAHALLI HOBLI,
Location: HIGH            K.R. PETE TALUK
COURT OF                  MANDYA DISTRICT-571226.
KARNATAKA
                   2.     SMT. ANASOOYAMMA
                          AGED ABOUT 63 YEARS
                          W/O SRI SRINIVASA
                          R/AT CHALYA VILLAGE
                          SHARAVANABELAGOLA HOBLI
                          CHANNARAYAPATNA TALUK-573135.

                   3.     SMT. RUKMINI
                          AGED ABOUT 61 YEARS
                          W/O SRI RAMESHA
                          R/AT INDRANAHALLI KOPPALU
                          -2-
                                     NC: 2023:KHC:29454
                                 RSA No. 117 of 2023




     SHARAVANABELAGOLA HOBLI
     CHANNARAYAPATNA TALUK-573135.

4.   SMT. CHANDRAVATHI
     AGED ABOUT 55 YEARS
     W/O ERAJEGWODA
     R/AT BEKKA
     SHARAVANABELAGOLA HOBLI
     CHANNARAYAPATNA TALUK-573135.

5.   SMT. SAVITHA
     AGED ABOUT 51 YEARS
     W/O SRI. NARAYANA
     R/AT AKKI HEBBALUR
     VILLAGE AND HOBLI,
     K.R. PETE TALUK
     MANDYA DISTRICT-571226.

6.   SRI YOGESHA B.T.,
     S/O THAMMANAGOWDA
     DEAD BY LRS.

6(a) SRI THAMMANNAGOWDA
     AGED ABOUT 50 YEARS
     S/O MR. NANJEGOWDA
     R/AT BIKKASANDRA
     SANTHEBACHALLI HOBLI
     K.R. PETE TALUK
     MANDYA DISTRICT-571226.

7.   SMT. LAKSHMEESHA B.T.,
     AGED ABOUT 28 YEARS
     S/O SRI THAMMANNAGOWDA
     R/AT BIKKASANDRA
     SANTHEBACHALLI HOBLI
     K.R. PETE TALUK
     MANDYA DISTRICT-571226.
                                       ...RESPONDENTS

     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.11.2022
PASSED IN R.A.NO.39/2021 ON THE FILE OF THE 4TH
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                                               NC: 2023:KHC:29454
                                             RSA No. 117 of 2023




ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN
DISTRICT, CHANNARAYAPATNA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 21.08.2021
PASSED IN O.S.NO.124/2018 ON THE FILE OF THE
ADDITIONAL    SENIOR   CIVIL   JUDGE    AND    JMFC,
CHANNARAYAPATNA.

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

                           JUDGMENT

This appeal is listed for admission.

I have heard the learned counsel for the appellant.

2. The factual matrix of case of the plaintiffs before the

Trial Court that the suit schedule properties are the ancestral

and joint family properties and plaintiffs have contended that

suit schedule properties have been allotted by their father by

executing a Will dated 7.11.2012. The defendant appeared and

filed written statement contending that there was a previous

partition dated 8.8.1993 and hence, when there was already a

partition, the plaintiffs are not entitled for any share.

3. The plaintiffs in order to prove their case examined one

witness as PW1 and got marked documents Exs.P1 to P11 and

on the other hand, defendants have examined five witnesses as

DWs.1 to 5 and no documents are placed before the Trial

NC: 2023:KHC:29454 RSA No. 117 of 2023

Court. The Trial Court having considered both oral and

documentary evidence available on record negatived the

contention of the plaintiffs that there was a Will dated

7.11.2012, however, given a finding that suit schedule

properties are ancestral and joint family properties. The Trial

Court also disbelieved the contention of the defendant that

there was already a previous partition dated 8.8.1993 and

granted 1/7th share to each of the children of Sombegowda.

Being aggrieved by the said judgment and decree, appeal is

filed in R.A.No.39/2021. In the said appeal, the grounds urged

before the Appellate Court is that the plaintiffs failed to prove

that properties are joint family properties and also when the

contention was taken that defendant has proved that there was

a partition between himself and his father on 8.8.1993 as per

Ex.P1 and whether the same was acted upon and whether the

Trial Court has committed an error in not considering the same

and also whether the judgment and decree of the Trial Court

requires interference. The First Appellate Court on re-

appreciation of both oral and documentary evidence comes to

the conclusion that the suit schedule properties are joint family

properties and Trial Court has not committed any error.

NC: 2023:KHC:29454 RSA No. 117 of 2023

4. With regard to the other grounds urged in the appeal,

the First Appellate Court comes to the conclusion that

defendant has not proved the partition dated 8.8.1993 in terms

of Ex.D11 and the Trial Court also not accepted the same, as

the document is not registered document and the Appellate

Court also negatived the same in not accepting the document

Ex.D11 and comes to the conclusion that the Trial Court has

not committed any error in appreciating both oral and

documentary evidence.

5. The counsel appearing for the appellant in his

argument vehemently contend that both the Courts have

committed an error in not considering the document dated

8.8.1993 which was effected in view of the family arrangement

within the family of the appellant in respect of the schedule

property. The counsel also vehemently contend that the very

finding given by both the Courts is contrary to the family

arrangements and both the Court wrongly appreciated the

claim of the respondents which is opposed to the documentary

evidence. The share of the property was given long back which

is house property i.e. between the appellant's father and his

brother Sri.H.Siddegowda and Sri.H.Siddegowda's share is

NC: 2023:KHC:29454 RSA No. 117 of 2023

included in the schedule item Nos.8 and 9 and both the Courts

committed an error and hence this Court has to frame

substantive question of law.

6. Having considered the material on record, it is the

claim of the plaintiffs that property belongs to their father

Sri.Sombegowda and plaintiffs are the children of said

Sombegowda and plaintiffs and defendant constituted Hindu

undivided joint family. The very contention of the defendant in

the written statement that they have admitted the relationship

between the plaintiffs and defendant. But the specific defence is

taken that already the schedule properties were divided in the

partition and hence suit is not maintainable.

7. It is the contention that in terms of the partition, item

Nos.2, 3 and 5 to 7 allotted to his share and remaining

schedule properties allotted to the share of his father and in

terms of the partition i.e. family arrangement, they have been

in separate possession and enjoyment. The defendant has

invested his hard earned money and improved the properties

and also spent huge money for marriage of his sisters and he

NC: 2023:KHC:29454 RSA No. 117 of 2023

only cleared the loans and due to enmity, they have filed the

suit.

8. The Trial Court having considered both oral and

documentary evidence contended that though there was a

partition in terms of the partition deed dated 8.8.1993, the

Trial Court having considered the document is not a registered

document and no evidentiary value to the document at Ex.D11

and the same is not accepted on the ground that same is

admissible and no any value can be attached to the said

document. The First Appellate Court also on re-appreciation of

both oral and documentary evidence, having considered the

grounds urged in the appeal, particularly the document Ex.D11,

same has been discussed. Considering the document Ex.D11

and also comes to the conclusion that the plaintiffs are not

parties to the said document and the defendant and his father

alone are parties to the said document. Even assuming a

moment that Ex.D11 was executed between defendant and his

father, the question is whether the said partition deed was

acted upon or not. There is no any inaction of the document

that parties have acted upon and no such documents also

placed before the Court and hence, comes to the conclusion

NC: 2023:KHC:29454 RSA No. 117 of 2023

that Ex.D11 is not acted upon and also taken note of the

contents of document Ex.D11 of the joint family properties of

the plaintiffs and defendant and hence they are equally entitled

for the share.

9. Having taken note of the material on record, no

dispute with regard to the relationship between the parties and

the same is admitted and only contention of the defendant that

there was a partition between him and his father and the said

document is not a registered document and the same is also

not admissible in evidence and apart from that when no

registered document to the effect that there was a partition

among his family, the same cannot be given any value to the

said document and the same is inadmissible in evidence and

when such being the case, I do not find any ground to admit

the appeal and to frame any substantive question of law.

10. The counsel appearing for the appellant filed an

application and produce some additional documents before this

Court contending that item Nos.8 and 9 of the properties which

have been included in the suit belongs to the brothers of the

said Sombegowda and no such pleading was taken in the

NC: 2023:KHC:29454 RSA No. 117 of 2023

written statement before the Trial Court and for the first time in

the second appeal produced those documents and even not

made any efforts in the First Appellate Court also to produce

such documents and when there is no pleading and also no

material is placed before the Court to that effect, in a second

appeal in the absence of any pleading and any such contention,

the question of considering the same in a second appeal does

not arise. Hence, I do not find any ground to entertain such an

application filed belatedly before this Court, in the absence of

any pleadings before the Trial Court as well as the First

Appellate Court and question of both the Courts committed an

error in not considering the material on record, does not arise

in a second appeal and hence, I do not find any ground to

consider the same.

11. In view of the discussions made above, I pass the following:

ORDER

Appeal is dismissed.

Sd/-

JUDGE AP