Karnataka High Court
J. Honnappa vs K. Srinivas on 5 December, 2023
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NC: 2023:KHC:43842
RSA No. 2033 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 2033 OF 2016 (PAR)
BETWEEN:
1. J HONNAPPA,
S/O K. THIMMAIAH,
AGED ABOUT 57 YEARS,
R/AT NO.3522, 1ST CROSS,
TILAK NAGAR, MYSURU
2. VASUDEV,
S/O K THIMMAIAH
AGED ABOUT 65 YEARS
3. GURUDATH,
S/O K THIMMAIAH,
AGED ABOUT 55 YEARS
APPELLANTS NO.2 AND 3
ARE RESIDING AT
NO.3623, 2ND CROSS,
UMAR KHAYAM ROAD,
TILAK NAGAR, MYSURU - 01.
Digitally signed
...APPELLANTS
by PAVITHRA N (BY SRI: AKARSH KUMAR GOWDA, ADVOCATE)
Location: high
court of
karnataka AND:
K. SRINIVAS,
S/O LATE KEMPAIAH,
AGED ABOUT 60 YEARS,
R/AT NO. 586, 2ND CROSS,
MAHARASTRA ROAD,
NAZARBAD MOHALLA,
MYSURU - 570 101.
...RESPONDENT
(BY SRI: SANATH KUMARA .K.M., ADVOCATE)
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NC: 2023:KHC:43842
RSA No. 2033 of 2016
THIS RSA IS FILED U/S. 100 OF CPC., 1908 AGAINST THE
JUDGMENT & DECREE DTD:05.08.2016 PASSED IN R.A.NO.324/2014
ON THE FILE OF THE III ADDL. DISTRICT JUDGE, MYSURU
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DTD: 21.09.2013 PASSED IN OS.1584/2010 ON THE FILE
OF THE IST ADDL. FIRST CIVIL JUDGE, AND JMFC, MYSORE.
THIS RSA, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by defendant
Nos.1 to 3 assailing the concurrent judgment of the Courts
below, wherein the plaintiff's suit seeking the relief of
partition and separate possession is decreed by both the
Courts.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
3. The family tree produced by the appellants is as
under;
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FAMILY GENEALOGY
KARINA THIMMAIAH
THIMMAIAH DASAPPA KEMPAIAH
KEMPAIAH THIMMAIAH
SRINIVAS
(PLAINTIFF)
HONNAPPA VASUDEV GURUDUTT
(DEF.NO.1) (DEF.NO.2) (DEF.NO.3)
4. Facts leading to the case are as under:
The plaintiff who represents the branch of Thimmaiah
has instituted the present suit by contending that the suit
schedule property is joint family ancestral property and
that the plaintiff's branch who are claiming through
Thimmaiah, who is the elder son of one Karina Thimmaiah
are entitled for half share in the suit schedule property.
The plaintiff has contended that the suit schedule property
is the joint family ancestral property and they constitute
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hindu undivided family along with the defendants. The
present suit is filed alleging that the defendants have not
come forward to effect partition by metes and bounds.
5. Defendant No.1 on receipt of summons,
tendered appearance and filed written statement denying
the entire claim made by the plaintiff. Defendant No.1 on
the contrary contended that the plaintiff is not having any
share in the suit schedule property. Defendant No.1
claimed that only defendants are entitled for the share in
the suit schedule property. Defendant No.1 also contended
that the suit is bad for non-joinder of necessary parties.
6. The trial Court having examined the pleadings,
the oral and the documentary evidence and taking note of
Ex.P5 held that the plaintiff has succeeded in
substantiating that the suit property is the joint family
property of the plaintiff and the defendants. While
examining Ex.P5, the trial Court held that plaintiff's father
Thimmaiah along with his two brothers mortgaged the suit
property on 04.01.1961. Referring to this document, the
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trial Court was of the view that the suit property is the
joint family ancestral property of the plaintiff and the
defendants. Having taken cognizance of the fact that the
second son namely Dasapa of propositor Sri Karina
Thimmaiah died issueless, the trial Court decreed the suit
granting 1/2 share.
7. Feeling aggrieved by the judgment of the trial
Court, defendant Nos.1 to 3 preferred an appeal before
the lower Appellate Court. The Appellate Court has
independently assessed the entire evidence on record.
Referring to Ex.P5, the Appellate Court was also of the
view that plaintiff's father Thimmaiah was also party to the
said document, which clearly establishes that the suit
property is the joint family ancestral property.
Consequently, appeal is dismissed.
8. Heard learned counsel appearing for the
defendants/appellants and learned counsel appearing for
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the plaintiff/respondent. Perused the concurrent findings
of the Courts below.
9. The defendants strangely for the first time
before this Court are disputing plaintiff's relationship with
their family. However, on examining the written
statement, this Court finds that there is no serious
challenge with regard to plaintiff's relationship with the
propositor Karina Thimmiah. However, during trial, the
defendants have tried to dispute plaintiff's relationship.
The trial Court has taken note of the evidence let in by
defendant No.1. The trial Court at para No.13 has rightly
observed that DW-1 has not disputed that the propositor
Karina Thimmiah had three sons. However, when further
suggestion was made that his three sons names are
K.Thimmaiah, Kempaiah and Dasappa, DW-1 has
conveniently pleaded his ignorance. Referring to these
details, the trial Court while taking cognizance of Ex.P5
was justified in holding that the suit property is joint
family ancestral property. In the absence of any rebuttal
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evidence to deny plaintiff's share in the suit schedule
property, both the Courts were justified in granting half
share to the plaintiff by recording categorical finding that
the suit property is the ancestral property of the plaintiff
and the defendants. The concurrent finding recorded by
both the Courts would not warrant any interference at the
hands of this Court.
10. The additional document which is now sought to
be produced is not at all relevant. The Death Certificate of
plaintiff's father has no bearing on the lis between the
parties. If the defendants never seriously disputed
plaintiff's relationship and if no issue was framed before
the trial Court, the defendants cannot be permitted to
raise any plea with regard to plaintiff's relationship for the
first time in the second appeal. No substantial question of
law would arise for consideration. The regular second
appeal is devoid of merits and accordingly, stands
dismissed.
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In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
PN
