Karnataka High Court
Sri Ashwathappa vs Sri Narasimha Murthy on 18 August, 2023
Bench: H.P.Sandesh
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RSA No. 1840 of 2017
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. 1840 OF 2017 (PAR)
BETWEEN:
1. SRI ASHWATHAPPA
S/O. LATE AVULAPPA,
AGED ABOUT 71 YEARS,
R/AT DEVARAGUDIPALLI VILLAGE,
MALLASANDRA POST,
BAGEPALLI TALUK-561 207
CHICKBALlAPUR DISTRICT.
...APPELLANT
(BY SRI N.S.BHAT, ADVOCATE)
AND:
1. SRI NARASIMHA MURTHY
S/O. AVULAPPA,
Digitally signed AGED ABOUT 52 YEARS
by SHARANYA T R/AT KONDAMVARIPALLI VILLAGE,
Location: HIGH KASABA HOBLI,
COURT OF BAGEPALLI TALUK-561 207,
KARNATAKA
CHICKBALLAPUR DISTRICT.
2. SRI NARAYANAPPA A.,
S/O. AVULAPPA
SINCE DEAD BY L.R.
SMT.NAGAMANI G.A.,
W/O. LATE NARAYANAPPA,
SINCE DEAD BY LRS,
a) SRI NARESH BABU,
S/O. LATE NARAYANAPPA,
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AGED ABOUT 33 YEARS,
BUSINESSMAN,
R/AT KONDAMVARIPALLI VILLAGE,
MALLASANDRA POST, KASABA HOBLI,
BAGEPALLI TALUK-561 207,
CHICKBALLAPUR DISTRICT.
b) SMT. NANDINI @ NANDINI K.N.
D/O. LATE NARAYANAPPA,
W/O. MURALI MOHAN,
AGED ABOUT 31 YEARS,
HOUSE KEEPING , GANDHI NAGAR,
SIDLAGHATTA TOWN-562 105.
c) SRI NAVEEN K.N.,
S/O. LATE NARAYANAPPA,
AGED ABOUT 32 YEARS
R/AT KONDAMVARIPALLI VILLAGE,
MALLASANDRA POST, KASABA HOBLI,
BAGEPALLI TALUK-561 207,
CHICKBALLAPUR DISTRICT.
3. SRI ADINARAYANAPPA
@ ADINARAYANASWAMY
S/O.LATE AVULAPPA
AGED ABOUT 60 YEARS,
R/O. DOOR NO.15, B-20,
BEML NAGAR, MYSORE-570 001.
4. SMT. ANNAYAMMA
W/O. RAMAPPA N.,
D/O. LATE AVULAPPA,
AGED ABOUT 52 YEARS
HOUSE KEEPING,
R/O. NO.2/29, 4TH MAIN,
MARUTHI LAYOUT,
GURAPPANAPALYA,
BENGALURU-560 020.
...RESPONDENTS
(BY SRI P.M.SIDDAMALLAPPA, ADVOCATE FOR R1, R2[a - c];
SRI ABHINAY Y.T., ADVOCATE FOR R3; R4 SERVED)
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RSA No. 1840 of 2017
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 12.07.2017 PASSED IN
R.A.NO.180/2015 ON THE FILE OF THE 1ST ADDL. SENIOR
CIVIL JUDGE AND JMFC, CHICKBALLAPUR, PARTLY ALLOWING
THE APPEAL AND PARTLY SETTING ASIDE THE JUDGMENT AND
DECREE DATED 3.8.2015 PASSED IN O.S.NO.206/2011 ON THE
FILE OF THE CIVIL JUDGE AND JMFC, BAGEPALLI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant and learned counsel for the
respondents.
2. This appeal is filed challenging the judgment and
decree dated 12.07.2017 passed in R.A.No.180/2015 on the file
of the Ist Addl. Senior Civil Judge and JMFC, Chickballapur,
partly allowing the appeal and partly setting aside the
judgment and decree dated 3.8.2015 passed in
O.S.No.206/2011 on the file of the Civil Judge and JMFC,
Bagepalli
3. The factual matrix of the case of the plaintiff before
the Trial Court is that the plaintiff and defendants constituted
Hindu Joint Family and the defendant No.1 is the kartha of the
said family. The suit properties are the ancestral joint family
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properties of the plaintiff and defendants, who are the sons and
daughter of one Avalappa, who died on 20.01.2002 leaving
behind them and their mother Akkulamma and she also died on
28.01.2008. After the death of Avalappa, the defendant No.1
not managed the properties properly and he has neglected in
the improvement of properties. Due to his negligence, the joint
family has suffered from loss of income. Due to differences
among the plaintiff and defendants, it has become difficult for
the plaintiff to continue as the member of joint family. The
plaintiff demanded for partition of his 1/5th share in the suit
schedule properties and the defendant did not come forward to
partition the properties. Hence, legal notice was issued and
reply was given that on 24.04.1999, unregistered partition was
effected between them and refused to give any share. Hence,
the suit is filed.
4. In pursuance of the suit summons, the defendant
No.2 filed the written statement and admitted the entire
averments of the plaint. The defendant No.1 denied the
averments of the plaint specifically. The defendant No.3
adopted the said written statement. The defendant No.1
contend that there was a partition between the members of the
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family and they have divided the properties. He also contend
that the said partition has not been acted upon but, the
defendants are in their separate possession and enjoyment of
the same as stated in the partition.
5. The Trial Court, having considered the pleadings of
the parties, framed issues keeping in mind both the averments
of the plaint and the written statement of the defendants and
arrived at the conclusion that the defendants failed to prove the
oral partition dated 24.04.1999 and declared that the plaintiff is
entitled for partition and separate possession of 1/5th share in
the suit schedule properties.
6. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed before the First Appellate Court in
R.A.No.180/2005. The First Appellate Court also considering
the grounds urged in the appeal memo and on hearing the
parties, formulated the points whether the Trial Court has erred
in rejecting the partition dated 24.04.1999 and erred in
considering the material available on record. The First Appellate
Court also, on re-appreciation of both oral and documentary
evidence placed on record, dismissed the appeal and modified
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the share that the plaintiff, defendant Nos.1, 3 and legal
representatives of deceased defendant No.2 are jointly entitled
to 6/25th share each and defendant No.4 is entitled for 1/25th
share in all the suit schedule properties. Being aggrieved by
the judgment and decree of the Trial Court and the First
Appellate Court, the present appeal is filed by the defendant
No.1.
7. Learned counsel for the appellant would contend
that both the Courts committed an error in granting the relief of
partition, though already there was a partition among the
family members and they are cultivating the said properties. It
is also contended that there was an unregistered partition deed
dated 24.04.1999 and inspite of it, the same is not considered
by the Trial Court and the parties have acted upon. The learned
counsel also would vehemently contend that both the Courts
committed an error in considering the material on record and
suit schedule item No.10 of the property was mortgaged by the
plaintiff in favour of third person and during the life time of
Avalappa, there was a partition and put the parties in their
separate possession and the very document clearly disclose
that already there was a partition in terms of Ex.D3 and both
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the Courts ought not to have decreed the suit. Hence, it
requires interference of this Court. The learned counsel also
would vehemently contend that, the absence of cross-appeal,
the First Appellate Court is not justified in modifying the
allotment of share by partly setting side the judgment and
decree of the Trial Court and the very approach of both the
Courts is erroneous and this Court has to frame substantial
question of law by admitting the appeal.
8. Learned counsel for the respondents would contend
that the Trial Court and the First Appellate Court considered
both oral and documentary evidence placed on record in proper
perspective and the First Appellate Court rightly modified the
allotment of share as granted by the Trial Court, including the
defendant Nos.1, 3, 4 and legal representatives of deceased
respondent No.2. Hence, it does not require any interference
of this Court.
9. Having heard the learned counsel for the appellant
and the learned counsel for the respondents and also on
perusal of the material available on record, there is no dispute
with regard to the relationship between the parties and also no
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dispute with regard to the fact that the propositus of the family
i.e., Avalappa was no more as on the date of filing the suit.
The appellant is seeking the relief of partition contending that
suit schedule properties are ancestral properties and the Trial
Court answered point No.1 as 'affirmative', in coming to the
conclusion that the suit schedule properties are the ancestral
joint family properties of plaintiff and defendants. However,
the only contention of learned counsel for the appellant before
this Court and also before the First Appellate Court is that there
was oral partition deed dated 24.04.1999 and that too, the
same has taken place during the life time of deceased Avalappa
and the same has not been considered even though document
is marked as Ex.D3 and both the Courts committed an error.
10. Having perused the order of the Trial Court, while
answering issue No.2 i.e., whether the defendants proves that
there was an oral partition dated 24.04.1999, the Trial Court in
detail discussed both oral and documentary evidence placed on
record and also taken note of the admission given by D.W.1
himself in Para No.23, wherein he clearly admitted that till
today, all of them are in joint possession and enjoyment of the
suit properties and having taken note of the said fact, the Trial
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Court comes to the conclusion that case of the plaintiff is
probable, since the very admission clearly establishes the case
of the plaintiff. The Trial Court also taken note of the fact that
in the very pleading in Para No.11 of the written statement, the
defendant No.1 categorically admitted that though the said
partition had taken place, the same was not acted upon. On
perusal of the same, it is evident that there is a categorical
pleading by the defendant No.1 that said partition was not
acted upon and hence, now the counsel for the appellant
cannot contend that parties have acted upon in terms of the
partition. The said partition relied upon by the defendants
dated 24.04.1999 is not a registered document and in order to
prove the factum of earlier partition, no material is placed
before the Court .
11. When there is an admission on the part of the
D.W.1 itself that till date, all of them are in joint possession and
enjoyment of the suit schedule properties and also when there
is an admission that parties have not acted upon in terms of
the said partition, the Trial Court comes to the conclusion that
even though defence of partition was putforth by the defendant
No.1, the same was not proved. The First Appellate Court also
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on re-appreciation of both oral and documentary evidence
placed on record, taking note of the averments of the written
statement and also the admission given by D.W.1, discussed
with regard to the partition in Para No.16 and particularly, in
Para No.19 that there is no dispute that Avalappa passed away
in the year 2002 leaving behind the daughter, sons and his
wife. Though the defendant No.1 contends that there was a
partition, however, he categorically admitted in the evidence
and pleaded in the written statement that parties have not
acted upon. The First Appellate Court also having considered
the material on record, comes to the conclusion that no
evidence to show that suit schedule properties were divided
among the members of the family in terms of the unregistered
partition deed dated 24.04.1999.
12. Having perused the admission as well as the very
pleading, wherein D.W.1 himself categorically admitted that
though partition had taken place, the same was not acted
upon, I do not find any error committed by the Trial Court and
also the First Appellate Court in considering the material on
record. It is the specific case of the plaintiff also that suit
schedule properties are the ancestral and joint family
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properties and no dispute with regard to the fact that
properties are joint family properties and the only defence of
the defendant No.1 is that there was a partition and the
defendant No.2 also supported the case of the plaintiff. But, in
order to substantiate the contention of the defendant No.1, no
material is placed and hence, the Trial Court and the First
Appellate Court has taken note of the admission and pleading
of the D.W.1. Hence, I do not find any error committed by the
Trial Court in granting the relief of 1/5th share in the suit
schedule properties.
13. No doubt, the First Appellate Court modified the
same, the same ought not to have been modified since, there is
no dispute with regard to the fact that father was not alive and
there is no need to once again add the share considering the
right of the father since, as on the date of filing the suit, the
father was no more. Hence, the modification of the order
passed by the First Appellate Court is not sustainable and all
the parties are entitled to equal share i.e., 1/5th share in all the
suit schedule properties, since the share of the parties is also
enlarged on account of death of the father.
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14. The learned counsel for the appellant has also filed
an application in I.A.No.1/2017 for production of additional
documents in the second appeal contending that these
documents also establishes the fact that there was a partition.
No doubt, the first document is dated 04.08.2008, that is a
document of release deed and there is no reference in the said
document with regard to the earlier partition and another
document is dated 22.09.2011 i.e., with regard to leasing out
the premises and house list which stands in the name of
A. Narayanappa and all these documents will not come to the
aid of the appellant to come to an other conclusion that already
there was a partition since, there was a clear admission on the
part of the D.W.1 himself that all are in joint possession and
enjoyment of the suit schedule properties. Apart from that,
there is a clear admission on the part of the D.W.1 himself in
the pleading that the parties have not acted upon the said
partition. Hence, the question of considering the additional
documents also does not arise and in view of unequivocal
admission, the additional documents will not twilt the result.
Therefore, I do not find any ground to invoke Section 100 of
CPC to admit the appeal and frame substantial question of law.
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15. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed. Consequent, I.A. filed under
Order 41, Rule 27 of CPC is also dismissed.
Sd/-
JUDGE
ST
