Kum. Sushmitha vs Smt. Puttathayamma
2023 Latest Caselaw 5784 Kant

                                               -1-
                                                         NC: 2023:KHC:29643
                                                          RSA No. 6 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 21ST DAY OF AUGUST, 2023

                                           BEFORE
                             THE HON'BLE MR JUSTICE H.P.SANDESH
                         REGULAR SECOND APPEAL NO. 6 OF 2023 (PAR)
                   BETWEEN:

                   1.    KUM. SUSHMITHA
                         D/O. RAJU
                         AGED ABOUT 27 YEARS

                   2.    SRI. MANOJ KUMAR
                         S/O. RAJU
                         AGED ABOUT 25 YEARS

                         BOTH ARE RESIDING AT NO.3
                         BYALALU, CHUNCHANAKUPPE POST
                         TAVAREKERE HOBLI
                         BENGALURU SOUTH TALUK
                         BENGALURU - 562 130.
                                                                 ...APPELLANTS

                                (BY SRI SARAVANA S., ADVOCATE)
Digitally signed   AND:
by SHARANYA T
Location: HIGH     1.    SMT. PUTTATHAYAMMA
COURT OF
KARNATAKA                W/O. SHIVANNA
                         AGED ABOUT 74 YEARS

                   2.    SRI RAJU S.
                         S/O. SHIVANNA
                         AGED ABOUT 55 YEARS

                   3.    SRI CHANNABASAVAIAH
                         S/O. SHIVANNA
                         AGED ABOUT 52 YEARS

                   4.    SRI SATISH
                         S/O. SHIVANNA
                         AGED ABOUT 50 YEARS
                               -2-
                                            NC: 2023:KHC:29643
                                             RSA No. 6 of 2023




5.   SMT. SUJATHA
     D/O. SHIVANNA
     AGED ABOUT 48 YEARS

6.   SRI. LOKESH
     S/O. SHIVANNA
     AGED ABOUT 50 YEARS

7.   SMT. OBAMBIKE
     W/O. SATISH
     AGED ABOUT 42 YEARS

     ALL ARE RESIDING AT
     YAREHALI VILLAGE
     KOOTHAGAL HOBLI
     RAMANAGARA TALUK
     RAMANAGARA - 562 159.
                                               ...RESPONDENTS

     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 14.09.2022
PASSED IN RA.NO.25/2020 ON THE FILE OF THE         III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 16.12.2019 PASSED IN O.S.NO.352/2018
ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JDUGE AND
JMFC, RAMANAGARA.

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


                          JUDGMENT

Heard the appellants counsel. This appeal is listed for

admission.

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

the Trial Court seeking the relief of declaration of 2/3rd share

NC: 2023:KHC:29643 RSA No. 6 of 2023

out of 1/5th share of their father in the suit schedule property

and for mesne profits and contend that Shivanna S/o

Rajegowda @ Rachegowda are the propositous of the family.

Defendant No.1 is widow of Shivanna, defendants No.2 to 6 are

children of defendant No.1 and Shivanna. The plaintiffs are the

children of defendant No.2. The defendant No.7 is the wife of

defendant No.4. Late Shivanna during his life time owned suit

schedule properties which are Hindu undivided joint family

properties. 'A' schedule property was granted in favour of

Shivanna during his life time by the Land Grant Committee. 'B'

schedule property is the ancestral property of Shivanna which

was acquired by him under the partition effected after the

death of his father Rajegowda. 'C' schedule property is the

house property, which is the family property of Shivanna and

'D' schedule property is the house property constructed out of

the joint family funds in the name of defendant No.7.

3. It is contended that suit schedule properties are the

ancestral properties of father of family of the plaintiffs. The

defendants though served did not appear and contest the

matter. The plaintiffs have examined one of the witness as PW1

and produced documents Exs.P1 to P7. The Trial Court having

NC: 2023:KHC:29643 RSA No. 6 of 2023

considered both oral and documentary evidence comes to the

conclusion that the plaintiffs have not proved the fact that the

suit schedule properties are ancestral properties and also not

proved that they are the joint owners and in joint possession

and except the documents of genealogical tree, RTC extract,

Certified Copies of mutation register extract and copies of the

tax demand register extract and tax paid receipts, no

documents are placed before the Court to show that the

properties are ancestral properties and hence, the Trial Court

has answered all the issues as negative.

4. Being aggrieved by the order of the Trial Court, an

appeal is filed in R.A.No.25/2020. The First Appellate Court also

having considered the grounds urged in the appeal formulated

the points, whether the plaintiffs are entitled for a share as

sought in the plaint and whether Trial Court has committed an

error in dismissing the suit. The First Appellate Court also on

re-appreciation of both oral and documentary evidence comes

to the conclusion that no material is placed in order to prove

the fact that properties are ancestral properties and on re-

appreciation of both oral and documentary evidence, the First

Appellate Court comes to the conclusion that PW1 in her

NC: 2023:KHC:29643 RSA No. 6 of 2023

affidavit filed in view of oral evidence has deposed that her

grand-father Shivanna died very long ago, as on the date of

examination she was aged about 23 years, nowhere in the

plaint or in her evidence, the date of death of Shivanna is also

mentioned, whether he died before plaintiffs were born or after

the birth of the plaintiffs, is also not mentioned. Without the

said particulars, the contention of the plaintiffs that they are

entitled for partition of the suit properties based on notional

partition cannot be considered at all. The First Appellate Court

also taken note of the principles laid down in the case of

(2016) 4 SCC 68 (Uttam Vs. Saughag Singh) and in the

absence of any material before the Court that the properties

are ancestral properties, the First Appellate Court also on

appreciation comes to the conclusion that no material is placed

before the Court to grant the relief and dismissed the appeal.

Hence, the present second appeal is filed before the Court.

5. The counsel appearing for the appellants would

vehemently contend that both the Courts have committed an

error and ought to have granted the relief of partition and even

the defendants have not contested the matter. The evidence of

PW1 and the documents Ex.P17 are remained unrebutted and

NC: 2023:KHC:29643 RSA No. 6 of 2023

hence, the Court has to admit the appeal and frame the

substantive question of law.

6. The said contention cannot be accepted for the reason

that, in order to prove the factum of the suit schedule

properties are ancestral properties, no materials have placed

except the tax paid receipt, genealogical tree and in the

absence of documentary proof that properties are ancestral

properties, the Court cannot grant any order of partition and

also the fact that defendants No.2 who is the father of the

plaintiffs is also not in dispute and in order to show the material

that there is an existence of three generation to constitute the

ancestral property, no such material is also placed before the

Court. The fact that father is alive also is not in dispute. When

such being the case, the Trial Court and the First Appellate

Court are not committed any error in coming to the conclusion

that the plaintiffs have not proved that the suit schedule

properties are the ancestral and joint family properties of

plaintiffs and defendants and hence, I do not find any merit to

invoke Section 100 of CPC to admit the appeal and to frame the

substantive question of law.

NC: 2023:KHC:29643 RSA No. 6 of 2023

7. In view of the discussions made above, I pass the

following:

ORDER

Appeal is dismissed.

Sd/-

JUDGE

AP