Smt. Anjinamma vs Smt. Obamma
2023 Latest Caselaw 128 Kant

                            1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 3RD DAY OF JANUARY, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH


                 R.S.A.NO.1016/2019 (PAR)


BETWEEN

SMT. ANJINAMMA
W/O MUNIYAPPA
AGED ABOUT 54 YEARS
R/AT KALKERE VILLAGE
K R PURAM HOBLI
BENGALURU EAST TALUK

                                              ...APPELLANT

(BY SRI B S RAGHUPRASAD, ADVOCATE)

AND

1.    SMT. OBAMMA
      W/O LATE MUNISHAMAPPA @ RAMAIAH
      AGED ABOUT 75 YEARS
      R/AT KALKERE VILLAGE
      K R PURAM HOBLI
      BANGALORE EAST TALUK

      [AS PER MEMO FILED BY ADVOCATE FOR APPELLANT,
      RESPONDENT NO.1 DIED ON 19.03.2014 AND
      HER LRS ARE ALREADY ON RECORD]
                            2



2.    SMT JAYALAKSHMAMMA
      W/O RAMESH
      D/O LATE MUNISHAMAPPA @ RAMA
      AGED ABOUT 43 YEARS
      R/A SUBBAIAHNAPALYA
      K R PURAM HOBLI
      BANGALORE EAST TALUK-560036

3.    SMT KAMALAMMA
      W/O MANJUNATH
      D/O LATE MUNISHAMAPPA @ RAMA
      AGED ABOUT 39 YERS
      R/A YERAPPANAHALLI
      BIDARHALLI HOBLI
      BANGALORE EAST TALUK-560036

4.    M MUNIYAPPA @ CHIKKAPAIAH
      SINCE DEAD BY LRS

(a)   SHASHIKALA
      D/O LATE MUNIYAPPA @ CHIKKAPAIAH,
      AGED ABOUT 43 YEARS

(b)   PADMA
      D/O LATE MUNIYAPPA @ CHIKKAPAIAH
      AGED ABOUT 40 YEARS

(c)   NAGARATHNA
      D/O LATE MUNIYAPPA @ CHIKKAPAIAH
      AGED ABOUT 37 YEARS

(d)   BASAVARAJU
      S/O LATE MUNIYAPPA @ CHIKKAPAIAH
      AGED ABOUT 34 YEARS

(e)   HEMANTH
      S/O LATE MUNIYAPPA @ CHIKKAPAIAH
      AGED ABOUT 33 YEARS
                             3




     RESPONDENTS NO.4(a) TO (e) ARE
     R/A YERAPPANAHALLI
     BIDARAHALLI HOBLI
     BANGALORE EAST TALUK-560036


5.   KRISHNAPPA
     S/O LATE MUNISHAMAPPA @ RAMAIAH
     AGED ABOUT 53 YEARS
     R/A YERAPPANAHALLI
     BIDARAHALLI HOBLI
     BANGALORE EAST TALUK-560036

                                        ... RESPONDENTS


     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC

AGAINST THE JUDGMENT AND DECREE DATED 08.02.2019

PASSED IN R.A.NO.38/2015 ON THE FILE OF THE I ADDITIONAL

DISTRICT   AND   SESSIONS   JUDGE,    BENGALURU   RURAL

DISTRICT, BENGALURU AND THE JUDGMENT AND DECREE

DATED 21.02.2015 PASSED IN O.S.NO.1178/2005 ON THE FILE

OF THE PRINCIPAL SENIOR CIVIL JUDGE, BANGALORE RURAL

DISTRICT, BENGALURU AND ETC.



     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:
                                     4



                         JUDGMENT

This matter is listed for admission. Heard the learned

counsel appearing for the appellant.

2. This appeal is filed challenging the judgment and

decree dated 08.02.2019 passed in R.A.No.38/2015 on the file of

the I Additional District and Sessions Judge, Bengaluru Rural

District, Bengaluru and the judgment and decree dated

21.02.2015 passed in O.S.No.1178/2005 on the file of the

Principal Senior Civil Judge, Bangalore Rural District, Bengaluru.

3. The appellant is the plaintiff before the Trial Court

and appellant in the First Appellate Court who had filed the suit

seeking the relief of partition claiming that defendant No.1

alienated the property in the year 1979 in favour of defendant

No.4 and the said fact comes to light in the year 2005 and

hence, the suit is filed within the time and the alienation made

by defendant No.1 without the consent of the appellant herein in

respect of the suit schedule property is not binding and a share

has to be allotted in favour of the plaintiff. The Trial Court after

considering the oral and documentary evidence of both the

parties, dismissed the suit. Being aggrieved by the judgment

and decree passed in O.S.No.1178/2005, an appeal is filed

wherein also main contention was urged that even though DW1

was admitted in the cross-examination that it was an ancestral

property, the Trial Court as well as First Appellate Court not

considered the same and passed the perverse judgment and

decree. Hence, the present appeal is filed.

4. The learned counsel appearing for the appellant in

this appeal again reiterated the grounds urged before the First

Appellate Court that inspite of admission given by DW1, same

has not been considered and also he has raised the substantive

question of law in the appeal that the Courts below not justified

in holding that the suit schedule property is not ancestral and

joint family property and the First Appellate Court also

committed an error in not re-appreciating the material on

record. Hence, it requires interference.

5. Having heard the learned counsel appearing for the

appellant and also on perusal of the material on record, the Trial

Court after considering the pleadings of both the parties, framed

the issues with regard to whether the suit schedule property is

the ancestral and joint family property of the plaintiff and

defendant Nos.1 to 3 and also whether the sale deed executed

by defendant No.1 in favour of defendant No.4 dated 29.10.1979

is not binding on her in respect of her share and whether

defendants No.4 and 5 prove that suit is bad for non-joinder of

all the family properties and the Trial Court after considering

both the oral and documentary evidence answered all the issues

as negative in coming to the conclusion that the no material is

placed before the Court to show that the suit schedule property

is the ancestral and joint family property and comes to the

conclusion considering the documentary evidence that the

plaintiff has not proved that the suit schedule property is the

ancestral and joint family property or otherwise documentary

evidence prevails over the contention of the plaintiff. The First

Appellate Court also while considering the grounds urged in the

appeal formulated the point with regard to whether the Trial

Court has committed an error in coming to the conclusion that

the suit schedule property is not the ancestral and joint family

property and answered Point Nos.1 and 2 as negative in coming

to the conclusion that the judgment and decree of the Trial Court

not warrants interference.

6. The main contention of the learned counsel

appearing for the appellant that both the Courts have committed

an error in not considering the material on record particularly,

the admission given by DW1 that it is the ancestral and joint

family property. The said contention cannot be accepted in the

absence of the documentary evidence. The Trial Court as well as

the First Appellate Court on appreciation of the evidence comes

to the conclusion that no material is placed before the Court to

show that the suit schedule property is the ancestral and joint

family property and considered the documentary evidence and

oral evidence of PW1 and in order to prove the factum of claim

of the plaintiff that the suit schedule property is the ancestral

and joint family property, nothing is substantiated in her oral

and documentary evidence. When such being the material on

record and when Trial Court as well as First Appellate Court also

appreciated the same in proper perspective, there is no

substantive question of law to consider the appeal to invoke

Section 100 of CPC and admit the same. Hence, I do not find

any merit in the appeal to admit the same by framing

substantive question of law.

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

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN