Karnataka High Court
S Rudrappa vs B.K Ramachandra on 1 February, 2023
Bench: H.P.Sandesh
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RSA No. 1086 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1086 OF 2022 (PAR/POS)
BETWEEN:
1. S.RUDRAPPA
S/O LATE SOMASHEKARAPPA
AGED ABOUT 67 YEARS
R/AT N. BELTHURU VILLAGE
ANTHARASANTHE HOBLI
H.D. KOTE TALUK
MYSURU DISTRICT-571 114
KEMPAMMA
W/O LATE KRISHNAPPA
(DEAD)
SINCE DEAD LEAVING BEHIND HER LRS
WHO ARE ALREADY ON RECORD
B.K.YESHODAMMA
Digitally signed
by SHARANYA T D/O LATE KRISHNAPPA
Location: HIGH (DEAD)
COURT OF
KARNATAKA
2. KRISHNAVENI
D/O YASHODAMMA
AGED ABOUT 62 YEARS
RESIDING AT BELTHURU VILLAGE
ANTHARASANTHE HOBLI
H.D.KOTE TALUK
MYSURU DISTRICT-571 114
...APPELLANTS
(BY SRI. RAJADITHYA SADASIVAN, ADVOCATE)
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RSA No. 1086 of 2022
AND:
1. B.K. RAMACHANDRA
S/O LATE KRISHNAPPA
AGED ABOUT 78 YEARS
RESIDING AT MAGUDILU VILLAGE
ANTHARASANTHE HOBLI
H.D. KOTE TALUK
MYSURU DISTRICT-571 114
...RESPONDENT
(SRI SANDEEP K., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 12.04.2022
PASSED IN RA.NO.57/2015 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
02.12.2014 PASSED IN O.S.NO.188/2006 ON THE FILE OF THE
CIVIL JUDGE, H.D.KOTE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. This Court heard the
matter earlier and the learned counsel for the appellants sought
time to place the citations before the Court. Accordingly, he has
filed a memo with citations today before the Court.
2. This appeal is filed challenging the judgment and
decree dated 12.04.2022 passed in R.A.No.57/2015 on the file
of the Senior Civil Judge and JMFC., H.D.Kote.
RSA No. 1086 of 2022
3. The factual matrix of the case of the plaintiff before
the Trial Court is that the suit items are ancestral and joint
family properties of himself and defendants. Hence, the plaintiff
is entitled for share in the suit schedule properties and claimed
the share on the ground that the defendants have refused to
give share in respect of the suit schedule properties.
4. In pursuance of the suit summons, the second
defendant took the contention in the written statement by
virtue of paluparikath dated 30.03.1966, the plaintiff severed
from the joint family and also contended that in addition to
paluparikath, sale deed dated 26.05.1980 was executed in
respect of item No.1 by her father. It is also contended that her
father had executed Will in respect of item No.2 and this Court
has no pecuniary jurisdiction to try the suit and the same is
also hit by the principles of partial partition and the suit is also
barred by limitation. Hence, the plaintiff is not entitled for half
share as claimed in the suit.
5. The Trial Court based on the pleadings of the
parties, framed the issues. The plaintiff in order to substantiate
his contention, he examined himself as P.W.1 and got marked
RSA No. 1086 of 2022
the documents as Exs.P1 to P8a. On the other hand, the second
defendant examined herself as D.W.1 and also examined five
more witnesses as D.Ws.2 to D.W.6 and got marked the
documents as Exs.D1 to D47.
6. The Trial Court after considering both oral and
documentary evidence available on record while answering
issue No.1, came to the conclusion that the plaintiff failed to
prove the fact that the suit items are ancestral and joint family
properties of himself and defendants and came to the
conclusion that already there was a partition dated 30.03.1996
and also came to the conclusion that the father had executed
the Sale Deed dated 26.05.1980 and also came to the
conclusion that defendant No.2 has proved the very execution
of the Will in respect of item No.2 by her father and other
issues are answered as 'negative' and came to the conclusion
that the suit is barred by limitation and dismissed the suit filed
by the plaintiff. Being aggrieved by the dismissal of the suit,
the plaintiff has filed an appeal in R.A.No.57/2015 contending
that the Trial Court has committed an error in dismissing the
suit in entirety and also contended that the Trial Court
erroneously came to the conclusion that the suit schedule
RSA No. 1086 of 2022
properties are not amenable for partition and also the suit is
barred by limitation and considering the grounds urged in the
appeal memo, the First Appellate Court formulated the point
that whether the Trial Court was justified in holding that item
No.1 of the suit properties was self acquired properties of
defendant No.2 by virtue of the sale deed (Ex.D1) executed by
her father in her favour and also formulated the point whether
the Trial Court was justified in holding that the item No.2 of the
suit schedule properties was separate property of daughter of
defendant No.2 namely., Krishnaveni by virtue of Will executed
by Mr.Krishnappa in her favour and also formulated the point
that whether defendant No.2 is the owner of item No.3 of the
suit schedule properties by virtue of oral Will/arrangement
made by her father Mr.Krishnappa in her favour, whether the
Trial Court was justified in holding that defendant No.3 is the
bonafide purchaser of the item No.3 of the suit properties and
whether the Trial Court was justified in holding that defendant
No.2 is the absolute owner of item No.4 of the suit properties.
7. The First Appellate Court on re-appreciation of both
oral and documentary evidence available on record confirmed
the judgment of the Trial Court in respect of all other aspects
RSA No. 1086 of 2022
except item No.3 is concerned. In respect of item No.3 is
concerned, the First Appellate Court came to the conclusion
that when the plaintiff is the legal heir of the father and when
there is no any testamentary document in favour of defendant
No.2, the plaintiff is also entitled for half share in the property
and granted the relief only in respect of item No.3 i.e., one and
a half share. Hence, the present appeal is filed by the
subsequent purchasers. In the second appeal, the subsequent
purchasers who had purchased item No.3 of the property
vehemently contends that the Trial Court failed to take note of
the fact that the plaintiff was separated from defendant No.2
long back and when the plaintiff is not in joint possession of the
property and when the Trial Court has also came to the
conclusion that he has not been in physical possession, the
Trial Court ought to have taken note of the limitation as well as
when the possession is ousted the First Appellate Court ought
not to have granted the relief in respect of item No.3 also. The
learned counsel also would submit that the First Appellate Court
failed to take note of the said fact.
8. Learned counsel appearing for the appellants in
support of his contentions he has relied upon the following
RSA No. 1086 of 2022
judgments of the Apex Court, particularly, in the case of
Krishna Pillai Rajasekharan Nair (D) by LRs. v.
Padmanabha Pillai (D) by LRs. and Ors. reported in AIR
2004 SC 1206 and in the case of Raghunath Das v. Gokal
Chand and Ors. reported in AIR 1958 SC 827, in respect of
limitation is concerned.
9. The learned counsel also brought to the notice of
this Court the principles laid in Krishna Pillai Rajasekharan
Nair's case (supra), with regard to the limitation aspect, the
Apex Court held that Article 120 of the Limitation Act, 1908
attracts. For a suit for partition the starting point of limitation is
when the right to sue accrues, that is, when the plaintiff has
notice of his entitlement to partition being denied. The learned
counsel would vehemently contend that the plaintiff has not
stated anything in the plaint when his right of share was
refused by the plaintiff. Hence, it is the duty of the plaintiff to
narrate and explain the same and the same has not been
stated. Hence, the learned counsel would contend that the
judgment is aptly applicable to the case on hand.
RSA No. 1086 of 2022
10. The learned counsel also brought to the notice of
this Court that the principles laid down in Raghunath Das's
case (supra), with regard to limitation is concerned, the period
of limitation fixed by Article 120 of the Limitation Act, 1908 is
six years from the date when the right to sue accrues. The
learned counsel also would contend that the substance of the
plaintiff's claim in both cases is for separating his share out of
the estate and for allotment and delivery to him of his share so
separated. In short such a suit is nothing but a suit for
partition or division of the moveable properties held jointly or
as tenants-in-common by the parties and there being no
specific Article applicable to such a suit it must be governed by
Article 120. The learned counsel also referring to these
judgments would contend that the very suit filed by the plaintiff
is barred by limitation and the Trial Court also considered this
aspect while dismissing the suit.
11. Learned counsel appearing for the appellants in
support of his contentions he has also relied upon the judgment
of the Apex Court in the case of Sopan Sukhdeo Sable and
Ors. v. Assistant Charity Commissioner and Ors. reported
in AIR 2004 SC 1801, and brought to the notice of this Court
RSA No. 1086 of 2022
with regard to omitting of pleading with regard to refusal of
share by the defendant and brought to the notice of this Court
paragraph No.20, wherein, distinction is made with regard to
'material facts' and 'particulars'. The words 'material facts'
show that the facts necessary to formulate a complete cause of
action must be stated. Omission of a single material fact leads
to an incomplete cause of action and the statement or plaint
becomes bad.
12. Learned counsel appearing for the appellants in
support of his contentions he has also relied upon the judgment
of the Apex Court in the case of Jagannath Amin v.
Seetharama (Dead) by Lrs. and Ors. reported in (2007)1
SCC 694, and brought to the notice of this Court with regard to
valuing of the suit under Section 35(2) and Section 7(2)(d) of
the Karnataka Court Fees and Suit Valuation Act, 1955 and the
learned counsel would contend that once the Court came to the
conclusion that the plaintiff is not in actual possession of the
property, the general principle of law is that in the case of co-
owners, the possession of one is in law possession of all, unless
ouster or exclusion is proved. To continue to be in joint
possession in law, it is not necessary that the plaintiff should be
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RSA No. 1086 of 2022
in actual possession of the whole or part of the property.
Equally it is not necessary that he should be getting a share or
some income from the property. So long as his right to a share
and the nature of the property as joint is not disputed the law
presumes that he is in joint possession unless he is excluded
from such possession. The learned counsel relying upon this
judgment would contend that in the cross-examination, it is
elicited that he is separated from the last 20 years and the
same has not been considered by the First Appellate Court.
13. Learned counsel appearing for the appellants in
support of his contentions he has also relied upon the judgment
of this Court in the case of Nanjamma v. Akkayamma and
Ors. reported in AIR 2008 Kant 102, and also brought to the
notice of this Court that while this Court dealing with the
matter with regard to the payment of Court Fee is concerned,
held that Section 35(2) is with regard to the payment of Court
Fee in a suit for partition and separate possession and brought
to the notice of this Court in paragraph No.16(iv), wherein, it is
stated that the question of Court treating the suit as one falling
under Section 35(1) of the Act and directing the plaintiff to pay
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RSA No. 1086 of 2022
the Court-Fee under Section 35(1) of Act does not arise. But it
is a matter of trial with regard to the possession is concerned.
14. Learned counsel appearing for the appellants in
support of his contentions he has also relied upon the judgment
of this Court in the case of Tukaram v. Sambhaji and Ors.
reported in ILR 1998 Kar 681, wherein also with regard to the
proviso of Order II Rule 2 and the learned counsel would
contend that there cannot be any partial partition and other
properties are not included. Hence, the question of granting
share in respect of item No.1 of the property cannot be
accepted. Even the learned counsel referring to this judgment
also contends that the subsequent purchaser even cannot plead
for equity if any petition is filed for final decree proceedings.
Under the circumstances, this Court has to take note of the
circumstances of the case and protect the interest of the
subsequent purchasers, who is the appellants before this Court.
15. Having heard the learned counsel appearing for the
appellants and the principles laid down in the judgments, this
Court has to analyze the material available on record. No
doubt, the plaintiff in O.S.No.188/2006 sought for the relief of
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RSA No. 1086 of 2022
partition in respect of different items of the suit schedule
properties. The Trial Court totally rejected the claim of the
plaintiff and the same has been questioned before the First
Appellate Court. The First Appellate Court only considering the
material on record in respect of item No.3 i.e., the land situated
at Mysuru District, H.D.Kote Taluk, Antharasanthe Hobli,
N.Belthuru Grama, Sy.No.51, Hissa No.3A (51/3A) measuring 1
acre 28 guntas granted the relief of partition to the extent of
half share of the plaintiff. It is not in dispute that these
appellants have purchased the property from defendant No.2
and also the learned counsel appearing for the appellants also
not disputes the fact that the property belongs to the father
and he died intestate. The main contention of the learned
counsel is that the suit is barred by limitation and also the
interest of the subsequent purchasers has not been protected
by the First Appellate Court and also the plaintiff was not in
possession as on the date of filing the suit and he has been
separated from the joint family from long back. Having taken
note of the said contention of the learned counsel for the
appellants, it is not in dispute that there was an earlier partition
on 30.06.1996 and also it is not in dispute that in terms of the
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RSA No. 1086 of 2022
partition, the father had sold the property on 26.05.1980 in
favour of the second defendant herein. But the fact is that
father did not execute any testamentary document in favour of
either the plaintiff or in favour of the second defendant in
respect of the property sold in favour of the appellants. When
the father died intestate, the plaintiff is also entitled for a
share. But the fact is that when there was already a partition
among the family member and the father was alive, question of
claiming the share does not arise. Merely because they have
been separated from the family cannot take away the right of
the plaintiff and the right accrues only after the death of the
father when there is no any testamentary document. The other
contention of the learned counsel for the appellants that there
is no pleading with regard to the omission i.e., refusal of his
share.
16. It is important to note that in the pleading also
there is no specific pleading that on what date his share was
refused. But it is the claim that he made a request on several
occasions but the share was refused. In the cross-examination
of the witness also, nothing is elicited with regard to the
specific date of refusal of share. When such being the case, the
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RSA No. 1086 of 2022
very contention of the learned counsel that the limitation
attracts in claiming of share, cannot be accepted. No doubt,
the principles laid down in the judgments referred supra, the
Apex Court held that the limitation starts from the date of
accruing of right. But there is no specific material before the
Court with regard to the date of refusal. Hence, the very
contention of the learned counsel for the appellants cannot be
accepted.
17. The other contention of the learned counsel for the
appellants is with regard to the possession is concerned. This
Court already pointed out with regard to the fact that already
there was a partition in respect of the other properties and
rightly held by the Trial Court as well as the First Appellate
Court that there was a partition. But in respect of the property
which has been left by the father there was no any partition at
all. Hence, when the father was enjoying the property during
his life time and after the death of the father, defendant No.2 is
also one of the co-owner. When such being the case, the very
principles laid down in the judgment referred by the learned
counsel for the appellants is very clear that in a case of co-
owner is in possession of the property, if any one of the co-
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RSA No. 1086 of 2022
owner is in possession of the property, the same is in
possession of all. Here is a case of the plaintiff that subsequent
to the death of the father, defendant No.2 refused to give
share. After refusal of the share only sought for an order of
partition in respect of the property left by the father. Hence,
the very contention that the plaintiff has been ousted from the
joint possession of the property also, cannot be accepted.
18. The third contention is that the appellants have
purchased the property from defendant No.2. When defendant
No.2 is not having any exclusive right to sell the property and
the plaintiff is not a party to the said sale deed, the plaintiff
cannot be made as binding on the sale made by defendant
No.2. When such being the case, the very title of the
appellants is defective title. Hence, the very contention of the
learned counsel for the appellants is that even the appellants
cannot plead the equity cannot be a ground to reverse the
finding of the First Appellate Court. The First Appellate Court
having taken note of the entitlement of the plaintiff in the
property left by the father and father died intestate, share has
been allotted in favour of the appellants in that appeal. Hence,
I do not find any force in the contention of the learned counsel
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RSA No. 1086 of 2022
for the appellants that even the appellants cannot plead equity
cannot be a ground to defeat the legitimate share of the
plaintiff. Hence, I do not find any ground to admit the second
appeal and to invoke Section 100 of CPC., to frame the
substantial question of law.
19. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the appeal, I.As, if any do not
survive for consideration, the same stand disposed of.
Sd/-
JUDGE
CP
