Smt Ganganarasamma vs Hanumanthaiah
2023 Latest Caselaw 933 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF JANUARY, 2023

                         BEFORE

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

               R.S.A.NO.1648/2022 (PAR)

BETWEEN:

SMT. GANGANARASAMMA
W/O. LATE GANGAHANUMAIAH
SINCE DEAD BY LR

1.   SMT. KANTHAMMA
     W/O. CHIKKEGOWDA
     D/O. LATE GANGAHANUMAIAH
     AGED ABOUT 45 YEARS
     RESIDENT OF T.BEGURU
     THYAMAGONDLU HOBLI
     NELAMANGALA TALUK
     BENGALURU RURAL DISTRICT-562 123.

2.   RAMESH
     S/O. LATE GANGAHANUMAIAH
     AGED ABOUT 50 YEARS

3.   LAKSHMINARASIMHAIAH
     S/O. LATE GANGAHANUMAIAH
     AGED ABOUT 39 YEARS

     APPELLANTS NO.2 & 3 ARE
     AGRICULTURISTS
     RESIDENTS OF VARADANAHALLI
     GULURU HOBLI
     TUMAKURU TALUK AND
     DISTRICT-572 122.                      ... APPELLANTS

        [BY SRI GANGADHARAPPA A.V., ADVOCATE]
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AND:

1.     HANUMANTHAIAH
       S/O. LATE GUNDAIAH
       AGED ABOUT 85 YEARS
       AGRICULTURIST
       RESIDENT OF KALALUGHATTA
       THYAMAGONDLU HOBLI
       NELAMANGALA TALUK
       BENGALURU RURAL DISTRICT-562 132.

2.     RAMANJANEYA
       S/O. LATE GANGAHANUMAIAH
       AGED ABOUT 62 YEARS

3.     RAJU
       S/O. LATE RAMANJANEYA
       AGED ABOUT 38 YEARS

       RESPONDENTS NO.2 AND 3
       ARE RESIDING AT
       RAMAKRISHNAPPA BUILDING
       1ST MAIN ROAD, 16TH CROSS
       MALAGALA, NAGARABHAVI 2ND STAGE
       BENGALURU-560 091.                  ... RESPONDENTS

       [BY SRI SHANKAR G., ADVOCATE FOR CAVEATOR R1]

      THIS R.S.A IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 16.08.2022
PASSED IN RA.NO.1/2020 ON THE FILE OF THE IX ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 26.11.2019
PASSED IN O.S.NO.1133/2009 ON THE FILE OF THE SENIOR
CIVIL JUDGE, NELAMANGALA.

    THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

This matter is listed for admission today. I have heard the

arguments of learned counsel for the appellants and learned

counsel for the caveator-respondent No.1

2. This appeal is filed challenging the judgment and

decree dated 16.08.2022 passed in R.A.No.1/2020 on the file of

the IX Additional District and Sessions Judge, Bengaluru Rural

District, Bengaluru and the judgment and decree dated

26.11.2019 passed in O.S.No.1133/2009 on the file of the Senior

Civil Judge, Nelamangala.

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

the Trial Court in O.S.No.1133/2009 is that earlier they had

sought for the relief of partition and separate possession and

subsequently, the plaintiffs have also sought for the relief of

declaration to declare that the partition dated 12.04.1962 is not

binding on the shares of the plaintiffs. The plaintiffs have also

sought for the declaration to declare that the release deed dated

22.04.1978 executed by the plaintiff No.2 in favour of his father

is null and void.

4. The main contention of the appellants-plaintiffs

before the Trial Court is that one late Gundaiah had two sons

namely Gangahanumaiah, who is the husband of plaintiff No.1

and father of the plaintiff Nos.2, 4 and 5 and Hanumanthaiah.

Gangahanumaiah died intestate leaving behind the plaintiffs as

his legal heirs. The suit schedule properties are the ancestral

and joint family properties of the plaintiffs and the defendant.

The plaintiffs and the defendant have constituted Hindu

Undivided Joint Family. The defendant being a elder member of

the family, he has been looking after the affairs of the joint

family and the properties. The revenue records of the suit

schedule properties have been mutated in the name of the

defendant. The plaintiffs and the defendant being the members

of the joint family, they have been in joint possession and

enjoyment of the suit schedule properties. Hence, sought for

the relief of partition and separate possession.

5. The defendant, after service of notice, appeared and

filed the written statement stating that there was a partition

between Gangahanumaiah and the defendant in the year 1962

itself and in terms of the partition of the year 1962, 1 acre of

land was allotted in favour of Gangahanumaiah and since, he

was working as a school teacher, the defendant was taking care

of his mother and also properties. It is also contended that,

plaintiff No.2 has acquired 1 acre of land as per the registered

release deed dated 22.04.1978 and it is also the contention that

the Land Tribunal has granted 1 acre of land in his favour which

was allotted to the share of Gangahanumaiah and in view of the

defence taken in the written statement, the plaintiffs have

contended that the partition dated 12.04.1962 is not binding on

them. It is further contended that, earlier plaintiff No.2 had filed

a suit against his father and others claiming share in the

partition and the said suit was dismissed and hence, he

abandoned his right. It is also his case that, when the plaintiff

No.2 has executed a registered release deed dated 22.04.1978,

now he cannot contend that the partition of the year 1962 is

unequal partition and based on the right which was accrued to

Gangahanumaiah, release deed came into existence and now,

the plaintiffs cannot contend that they are entitled for the relief

of partition and separate possession.

6. The plaintiffs, in order to prove their case, examined

plaintiff No.2 as P.W.1 and plaintiff No.4 as P.W.2 and got

marked the documents as Exs.P1 to P7. On the other hand, the

defendant got examined himself as D.W.1 and got marked the

documents as Exs.D1 to D12.

7. The Trial Court, after considering both oral and

documentary evidence placed on record, answered issue Nos.1,

2, 5 and 6 as 'negative, additional issue Nos.1, 3 and 5 as

'affirmative and 4 as 'negative and recasted issue No.2 as

'affirmative' in coming to the conclusion that there was a

partition in the year 1962 itself among the brothers and parties

have also acted upon and taken note of the fact that there was

also a release deed executed in the year 1978. The Trial Court

also arrives at a conclusion that other plaintiffs had not born as

on the date of execution of those documents. Hence, they are

not entitled for the relief of partition, separate possession and

declaration.

8. Being aggrieved by the said judgment and decree of

dismissal of the suit, an appeal is filed in R.A.No.1/2020. The

appellants in the said appeal urged the ground that the Trial

Court committed an error in coming to the conclusion that

already there was a partition in the year 1962 among the

brothers and in terms of the said partition, the legal heirs of

Gangahanumaiah have acted upon the same and the Trial Court,

considering both oral and documentary evidence placed on

record, comes to the conclusion that the plaintiffs have not made

out any case. The Appellate Court also, on considering the

grounds urged in the appeal, framed the point for consideration

whether the Trial Court is justified in dismissing the suit of the

plaintiffs and answered the said point as 'affirmative' on

appreciation of both oral and documentary evidence placed on

record. Hence, the second appeal is filed by the plaintiff Nos.4

and 5 and one of the daughter, who is not a party in the Trial

Court and also the Appellate Court but, she is the legal

representative of plaintiff No.1, since the plaintiff No.1 died after

disposal of the appeal.

9. Learned counsel appearing for the appellants-

plaintiffs would vehemently contend that both the Courts

committed an error and not justified in dismissing the suit on the

ground that plaintiff No.2 executed a deed of relinquishment

relinquishing his right in the suit schedule properties, inspite of

the fact that the appellants-plaintiffs are not parties to the said

document. It is also contended that, both the Courts are not

justified in dismissing the suit and not properly considered the

evidence, more particularly the admission made by the

defendant during the course of his cross-examination, wherein

he has categorically admitted that, till the death of their father,

himself, his parents and brother lived together jointly in the

same house and enjoyed the properties as the members of the

family. The Trial Court, ought to have granted the relief as

sought and failed to take note of the recitals of the documents

which have been produced by the defendant which clearly

establishes that the defendant has managed to get an exparte

and illegal order from the Land Tribunal confirming registration

of the occupancy right in respect of the family properties and

those are the points which have to be considered in this second

appeal. Hence, the learned counsel for the appellants-plaintiffs

prayed this Court to admit the appeal and frame substantial

question of law.

10. Per contra, learned counsel for the defendant would

vehemently contend that there is no dispute with regard to the

partition deed of the year 1962 is a registered document. The

counsel also would vehemently contend that, in pursuance of the

said partition deed, in the document at Ex.D2 i.e., release deed,

particularly a reference is made that there was partition in the

year 1962 among the brothers of the plaintiffs' father and also

the defendant. The counsel also vehemently contend that, in the

document at Ex.D3 i.e., partition deed, reason was also assigned

for giving 1 acre of land in favour of the plaintiffs' father and it is

also mentioned that the defendant was taking care of his mother

and also the properties and the father of the plaintiffs was

working as a school teacher in different places. The contents of

the document at Ex.D3 were also taken note by the Trial Court

while appreciating the material on record and now, the plaintiffs

cannot contend that the earlier partition was inequitable, when

they have acted upon in terms of the document of partition deed

dated 12.04.1962 and release deed was also executed in terms

of Ex.D2 and all these aspects have been considered by the Trial

Court and the Trial Court has also taken note of the fact that the

plaintiff No.2 had executed a release deed in favour of his father

Gangahanumaiah. Apart from that, the plaintiff No.2 had also

filed a suit in O.S.No.231/1980 against the father and others and

the same was dismissed for non-prosecution and hence, he

abandoned his right in respect of the suit schedule properties

and not filed any application for restoration of the earlier suit for

partition and hence, now he cannot contend that both the Courts

have committed an error. The counsel would vehemently

contend that there is no merit in this second appeal to frame

substantial question of law and nothing is there to decide in the

matter. Hence, prayed this Court to dismiss the second appeal.

11. Having heard the respective counsel and also on

perusal of the material on record, at the first instance, when the

original suit in O.S.No.1133/2009 was filed for partition and

separate possession, the defendant appeared and filed the

written statement stating that there was a partition between the

brothers in the year 1962 and subsequently, relinquishment

deed was also executed. It is contended by the plaintiffs that,

partition dated 12.04.1962 is not binding on them and the

counsel also would vehemently contend that, mere dismissal of

the earlier suit for the relief of partition will not take away the

right of other appellants, particularly the appellants, who are

before this Court. Though it is contended that the earlier

partition of the year 1962 is not binding on them, the same is a

registered document which came into existence on 12.04.1962

between the father of the plaintiffs, who is the husband of the

plaintiff No.1 and the defendant. The Trial Court also taken note

of recitals of the document of Ex.D3 i.e., partition deed dated

12.04.1962 and the reasons assigned for giving 1 acre of land in

favour of the father of the plaintiff Nos.2, 4 and 5. Further,

when the P.Ws.1 and 2 were also cross-examined with regard to

the partition deed dated 12.04.1962, they have given evasive

answer that they are not aware of the same.

12. In Para No.12 of the judgment in O.S.No.1133/2009,

the Trial Court has taken note of the recitals of the document at

Ex.D3 and in terms of the recitals of the document at Ex.D3, it is

clear that, Gangahanumaiah was working as a school teacher

and he used to work in different places and the Trial Court has

also taken note of the manner in which answer was given by

P.Ws.1 and 2 and the document at Ex.D2-release deed which is

executed by plaintiff No.2 in favour of his father

Gangahanumaiah.

13 It is also important to note that, while executing the

release deed, the plaintiff No.2 has made reference of earlier

partition deed dated 12.04.1962 in the said document and now,

the plaintiffs cannot contend that the same is not binding on

them. Hence, it is clear that, it was within the knowledge of the

plaintiffs and when the plaintiff No.2 has made reference of the

earlier document of partition deed, he cannot blow hot and cold

that it was not binding on them and all these materials are taken

note by the Trial Court while answering issues involved between

the parties, particularly, while answering additional issues as

'affirmative'. The First Appellate Court also taken note of the

grounds which have been urged in the appeal and also the

material available on record and while answering point No.1,

particularly taken note of the documents at Exs.P1, P2 and P3

i.e., genealogy tree and RTC Extracts relating to item Nos.1 and

2 of the suit schedule properties standing in the name of the

defendant.

14. It has also emerged during the course of the

evidence that other plaintiffs were not born at the time when the

document of partition deed came into existence in the year 1962

and the document of release deed which was executed by the

plaintiff No.2 in the year 1978 and the document of Ex.D2 was

also admitted during the course of cross-examination. Having

taken note of the subsequent document of release deed of the

year 1978 at Ex.D2 which is subsequent to the document of

partition in the year 1962, the same confirms the earlier

partition among the brothers. Further, in Para No.23 of the

judgment, the Appellate Court also taken note of the recitals of

the document at Ex.D3 and other documents i.e., Exs.D2, D4

and D7 which substantiates the fact that already there was a

partition effected between the defendant and his brother

Gangahanumaiah. No doubt, Gangahanumaiah got allotted the

property from the Land Tribunal, the learned counsel for the

defendant would vehemently contend that, as owner of the land,

he cannot get the property allotted in his favour like a tenant

and no doubt, 1 acre of land was earlier given to the father of

the plaintiffs, subsequently, release deed was also executed.

Learned counsel appearing for the respondent No.1-defendant

also brought to notice of this Court that, when the property was

sold in favour of Rangamma, the said Rangamma also filed writ

petition before this Court questioning the grant and the writ

petition was also dismissed.

15. It is also important to note that, in the cross-

examination, the plaintiffs have categorically admitted that the

said grant made in favour of the defendant was not challenged.

It is also important to note that the Civil Court cannot decide the

issue with regard to the grant made in favour of the defendant

and the same ought to have been questioned by the plaintiffs.

However, learned counsel appearing for the appellants-plaintiffs

would vehemently contend that, after filing of the written

statement, the plaintiffs came to know about the same and even

after coming to know about the grant made in favour of the

respondent No.1 i.e., the defendant by the Land Tribunal, the

same has not been challenged. When such being the material

on record, I do not find any error committed by the Trial Court

as well as the First Appellate Court in re-appreciation of the

evidence available on record and the finding is given based on

the registered partition deed of the year 1962 and there was a

partition between the defendant and also the father of the

plaintiffs and subsequently, they have acted upon the same.

When the defendant claims right in respect of the grant made in

his favour which has attained finality and the same was not

questioned by the plaintiffs even after coming to know about the

grant made in favour of the defendant, now they cannot contend

that both the Courts committed an error in dismissing the suit

and the very contention that both the Courts committed an error

in accepting the case of the defendant that the plaintiff No.2 has

executed a relinquishment deed, inspite of the fact that the

appellants-plaintiffs are not parties to the said document and the

document at Ex.D2 was considered with regard to the execution

of release deed recognizing the earlier partition among the

brothers. Hence, both the Courts have taken note of the fact

that other plaintiffs were not born when the document came into

existence and therefore, they were not having any right in

respect of the suit schedule properties. Therefore, the very

contention that suit schedule properties are joint family

properties and the same was managed by the defendant cannot

be accepted since, already there was a partition between the

defendant and his brother Gangahanumaiah. Hence, I do not

find any substantive question of law to frame in this second

appeal by invoking Section 100 of CPC and to admit the appeal.

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

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

ST