Karnataka High Court
Javanappa vs Ningappa on 16 February, 2023
Bench: N S Gowda
-1-
RFA No. 1187 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
REGULAR FIRST APPEAL NO. 1187 OF 2007 (PAR)
BETWEEN:
1. JAVANAPPA,
AGED ABOUT 27 YEARS,
S/O NINGAPPA
R/AT MADAPURA VILLAGE,
TALAKAD HOBLI,
T. NARASIPURA TALUK,
MYSORE DISTRICT-570 001.
...APPELLANT
(BY SRI.P.NATARAJU, ADVOCATE FOR APPELLANT)
AND:
1. NINGAPPA
MAJOR,
S/O LATE KALUNDADA MADAPPA
Digitally
signed by
PANKAJA S
Location:
2. NINGARAJU
HIGH MAJOR,
COURT OF
KARNATAKA
3. MAHADEVAPPA,
MAJOR,
4. BASAVANNA,
MAJOR,
5. NATARAJU @ NANJUNDASWAMY,
MAJOR,
R-2 TO 5 ARE CHILDREN OF NINGAPPA,
ALL ARE R/O MADAPURA VILLAGE,
-2-
RFA No. 1187 of 2007
TALAKAD HOBLI,
T.NARASIPURA TALUK,
MYSORE DISTRICT-570 001.
6. G NANJUNDASWAMY
MAJOR,
S/O GURUMALLAPPA,
R/O DODDANAHUNDI VILLAGE,
TALAKAD HOBLI, T. NARASIPURA TALUK,
MYSORE DISTRICT-570 001.
...RESPONDENTS
(BY SRI. H C SHIVARAMU, ADVOCATE FOR R-6;
R-1 TO R-5 ARE SERVED AND UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 23.01.2007 PASSED IN
OS.NO.49/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
T.NARASIPURA, PARTLY DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Javanappa instituted a suit against his father
Ningappa and his brothers Ningaraju, Mahadeva,
Basavanna and Nataraju @ Nanjundaswamy. He had also
arrayed G.Nanjundaswamy, who had purchased item No.6
of the suit schedule property from his father.
2. The Trial Court, on consideration of the pleadings,
framed seven issues and two additional issues.
RFA No. 1187 of 2007
3. Javanappa got himself examined as PW-1 and got
twenty-one documents admitted in evidence. Ningappa--
defendant No.2 got himself examined as DW-1. The
purchaser--G.Nanjundaswamy/defendant No.6 got himself
examined as DW-2 and got four documents admitted in his
evidence.
4. The Trial Court, on consideration of the evidence
adduced before it, came to the conclusion that Javanappa
had proved that the suit properties were the ancestral
properties of Javanappa, his father and four brothers, and
that he along with his father and four brothers had an
equal share in the suit properties.
5. The Trial Court held that Ningappa--Javanappa's
father had not proved the oral partition and as a
consequence, it would have to be held that suit schedule
item No.6 was also an ancestral property, in which he had
a share.
RFA No. 1187 of 2007
6. The Trial Court thereafter proceeded to decree the
suit granting 1/6th share in the suit schedule properties to
Javanappa and to his father and five brothers. The Trial
Court also declared that alienation of item No.6 made by
Javanappa's father to G.Nanjundaswamy would not be
binding on the share of Javanappa.
7. Javanappa being aggrieved about this portion of the
decree is in appeal.
8. At the outset, it has to be stated here that the Trial
Court has actually declared that the alienation made by
Javanappa's father--Ningappa in favour of
G.Nanjundaswamy was not binding upon his share and it
has been observed in the judgment that it was open for
him to work out his remedy in respect of this property in
the final decree proceedings.
9. The Trial Court has clearly stated that the sale would
be valid only to the extent of Ningappa's share and
RFA No. 1187 of 2007
G.Nanjundaswamy could not have acquired the share of
Javanappa.
10. In my view, since the interest of Javanappa has been
clearly and categorically protected by the Trial Court by
holding that the sale would not bind his share in Item
No.6, there would be no need to entertain this appeal.
11. The appeal is accordingly dismissed.
Sd/-
JUDGE
PKS,RK
