B S Basavaraju vs Mariyakka
2023 Latest Caselaw 939 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.1699/2019 (PAR)

BETWEEN:

1.     B.S. BASAVARAJU,
       63 YEARS,
       S/O LATE SOMASHEKARAIAH.

2.     JAYAMMA,
       59 YEARS,
       D/O LATE SOMASHEKARAIAH.

3.     VIJAYA KUMAR,
       51 YEARS,
       S/O LATE SOMASHEKARAIAH.

       ALL ARE RESIDENTS OF BENCHAGERE,
       GUBBI TALUK,
       TUMAKURU DISTRICT - 572 216.
                                             ...APPELLANTS

           (BY SRI PATEL D. KAREGOWDA, ADVOCATE)

AND:

1.     MARIYAKKA,
       65 YEARS,
       W/O SHIVALINGAIAH,
       R/AT YADAVANAHALLI,
       GUBBI TALUK,
       TUMAKURU DISTRICT - 572 216.

2.     B.S. LINGANNA,
       62 YEARS,
       S/O LATE SHIVANNA.
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3.   INDRAMMA
     59 YEARS,
     S/O LATE SHIVANNA.

4.   MANGALAMMA,
     53 YEARS,
     W/O B.C. BASAPPA.

5.   B.S. PRASAD,
     S/O LATE SHIVANNA,

     R2 TO R5 ARE R/O BENACHAGERE,
     GUBBI TALUK,
     TUMAKURU DISTRICT - 572 216.

6.   GANGAMMA,
     49 YEARS,
     D/O LATE LINGAPPA.

7.   SHASHI,
     45 YEARS,
     D/O LATE LINGAPPA.

8.   RENUKAPPA,
     42 YEARS,
     D/O LATE LINGAPPA.

     R6 TO R8 ARE R/O HALANOOR VILLAGE,
     KASABA HOBLI, GUBBI TALUK,
     TUMAKURU DISTRICT - 572 216.
                                          ...RESPONDENTS

         (BY SRI YOGESH V. KOTEMATH, ADVOCATE)

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 26.07.2019 PASSED
IN RA NO.175/2012 ON THE FILE OF THE VII ADDITIONAL
DISTRICT JUDGE, TUMAKURU DISPOSING OF THE APPEAL AND
MODIFYING THE JUDGMENT AND DECREE DATED 15.09.2012
PASSED IN OS NO.2/2008 ON THE FILE OF THE SENIOR CIVIL
JUDGE AT GUBBI.

    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. Heard the

learned counsel for the appellants and the learned counsel for

the caveator/respondent No.2 and in respect of other caveators

is concerned, other caveators have not signed the vakalath.

2. This appeal is filed challenging the judgment and

decree dated 26.07.2019, passed in R.A.No.175/2012, on the

file of the VII Additional District Judge, Tumakuru.

3. The factual matrix of the case of the plaintiffs, who

represent the branch of their mother Siddagangamma while

claiming the relief of partition of 1/3rd share in respect of the suit

schedule properties is that the said suit schedule properties

originally belongs to their maternal grandfather Sri

Channabasavaiah and on his death, the plaintiffs representing

the branch of one of three daughters have succeeded to 1/3rd

share. It is contended that Channabasavaiah acquired the suit

schedule properties under a settlement deed dated 14.10.1936

and he had no sons and had three daughters, namely

Siddagangamma, Gowramma and Nanjamma. The first

daughter is the mother of the plaintiffs and the second daughter

Gowramma is the mother of defendant Nos.1 to 3 and

Nanjamma is the mother of defendant Nos.5 to 7 and hence all

are entitled for 1/3rd share in the suit schedule properties. Item

No.5 is the house property situated at Benachagere and item

No.4 is the agricultural property situated at Nittur Amanikere.

4. The defendants appeared and filed the written

statement contending that the plaintiffs are not entitled for any

share as contended. It is contended that late Channabasavaiah,

his first daughter Siddagangamma and Nanjanna relinquished

their right in favor of defendant No.4 vide document dated

15.02.1997 and they have perfected their title to the suit

properties by adverse possession since they are in possession to

the knowledge of the plaintiffs and also other defendants. The

Trial Court has framed the issues based on the pleadings of the

plaintiffs and the defendants. The plaintiffs examined plaintiff

No.5 as P.W.1 and two witnesses as P.W.2 and P.W.3 and got

marked the documents at Exs.P.1 to 7. On the other hand,

defendant No.1 examined himself as D.W.1 and also examined

three witnesses as D.W.2 to D.W.4 and relied upon the

document at Exs.D.1 to 22. When the dispute was arisen

between the parties with regard to execution of the settlement

deed, the document was referred to the handwriting expert and

report was received that the signatures found on the settlement

deed are the signatures of the parties who have signed the

vakalath. The Trial Court after considering both oral and

documentary evidence placed on record, answered all the issues

as negative and the contention of the defendants has not been

accepted and comes to the conclusion that the plaintiffs are

entitled for the relief of partition and separate possession of their

1/3rd share and the suit was decreed in respect of all the suit

schedule properties. The same has been challenged by the

defendants in R.A.No.175/2012.

5. The main contention of the defendant/appellant in

the appeal is that there was a settlement deed dated 15.02.1997

and in terms of the said settlement deed, the defendants

became the owners of the properties. The Appellate Court on

re-appreciation of both oral and documentary evidence placed on

record, formulated the points with regard to whether the Trial

Court was correct in decreeing the suit granting 1/3rd share in

respect of the suit schedule properties. The First Appellate Court

comes to the conclusion that the Trial Court has not committed

any error, but the plaintiffs are not entitled for relief with regard

to the house property, which is described as item No.5 of the

suit schedule property. Hence, the second appeal is filed before

this Court.

6. The learned counsel for the appellants would

vehemently contend that both the Courts have committed an

error in not considering the document Ex.D.1 relinquishment

deed dated 15.02.1997 only on the ground that the same is not

a registered document. It is contended that the Trial Court has

committed an error in shifting the onus of burden of proof

directly on the defendants and the judgment and decree passed

by the First Appellate Court is not correct confirming the

judgment of the Trial Court. The First Appellate Court has

committed an error in rejecting I.A.Nos.4 and 5 filed by the

defendants filed for amendment of the cause title. Hence, this

Court has to invoke Section 100 of CPC and admit the appeal

and frame substantial question of law.

7. The learned counsel for the caveator/respondent

No.2 would contend that it is not in dispute with regard to the

relationship of the parties is concerned. The learned counsel

submits that Channabasavaiah was having three daughters is

also not in dispute. The plaintiffs and the defendants are the

legal heirs of three daughters of Channabasavaiah. The learned

counsel would contend that though they claim that there was a

settlement deed dated 15.02.1997, the same was not registered.

The Appellate Court on re-appreciation of the material available

on record not only comes to the conclusion that the document

was not registered and even the parties have not acted upon the

said document. The learned counsel would contend that the

alleged settlement deed, according to the defendants, is

executed by plaintiff No.2 and 5 and not by the daughters of

Channabasavaiah and hence the finding given by the Trial Court

and the First Appellate Court not suffers from any perversity and

the same is based on the question of law since the document of

settlement deed was not registered.

8. Having heard the respective learned counsel and also

on perusal of the material available on record, it is not in dispute

that there was a settlement deed dated 14.10.1936 between the

brothers Basavaiah and Channabasavaiah. It is also not in

dispute that the original propositus is Veerappa.

Channabasavaiah was having three daughters and he was not

having any male issues is also not in dispute. I have already

pointed out that there is no dispute with regard to the

relationship between the parties that the plaintiffs and the

defendants are the children of Siddagangamma, Gowramma and

Nanjamma. The only contention of the defendants is that there

was a settlement deed dated 15.02.1997 and it is not in dispute

that the settlement deed was not a registered document and

allegedly it was executed by plaintiff Nos.2 and 5 and not by the

original daughters of Channabasavaiah. No doubt, when the

same was disputed, the document was referred to the

handwriting expert and the same is confirmed, but the fact is

that when the settlement deed dated 15.02.1997 is put forth by

the defendants, admittedly, the same is not a registered

document and the same will not convey any right in favour of

the proponders of the settlement deed.

9. The Trial Court in paragraph No.16 of the judgment

discussed with regard to the claim of the plaintiffs and also

discussed in paragraph No.17 with regard to the evidence of the

witnesses and also taken note of the evidence of the defendants

and the contention of the defendants also taken note of in

paragraph No.21. In paragraph No.22 discussed with regard to

the document of Ex.D.1 and also discussed with regard to the

evidence of P.W.1. When the document is not registered and

based on the said document, the defendants cannot claim any

right in respect of the suit schedule properties. The Trial Court

also taken note of the RTC extracts which are standing in the

name of the parties. When the parties have admitted the

relationship and also properties originally belong to

Channabasavaiah and he was having three daughters and when

there is no any legal document between them, rightly comes to

the conclusion that the legal heirs of Siddagangamma,

Gowramma and Nanjamma are entitled to 1/3rd share in respect

of suit schedule properties.

10. The First Appellate Court having considered the

grounds urged in the appeal and on re-appreciation of the

evidence comes to the conclusion that there is no dispute with

regard to the relationship between the parties is concerned and

also taken note of that the settlement deed is not a registered

document and also discussed that whether the Trial Court has

committed an error in granting 1/3rd share in respect of suit

schedule properties. The Appellate Court also taken note of that

the plaintiffs and the defendants represent the branches of the

daughters of Channabasavaiah and in paragraph No.17 taken

note of the relationship between the parties and also taken note

of the document of Ex.D.1 and noticed that only plaintiff Nos.2

and 5 being the sons of Siddagangamma have relinquished their

interest and taken note of the principles laid down in the

judgment with regard to the settlement deed which requires

compulsory registration and comes to the conclusion that the

said document does not confer any right. The Appellate Court

taken note of that when Ex.D.1 is relied upon, based on the

document Ex.D.1, it is the contention that plaintiff Nos.2 and 5

have taken two properties in lieu of their share in the suit

schedule properties, but the defendants have not produced any

document to show that plaintiff Nos.2 and 5 got mutated the

revenue records in respect of said properties on the basis of

Ex.D.1 and comes to the conclusion that defendant No.1 has not

shown that Ex.D.1 have been acted upon. For that reason also

not accepted the contention of the defendant.

11. Having considered the material available on record,

there is no dispute with regard to relationship between the

parties is concerned. The plaintiffs and the defendants are

representing the branches of their mother, who are the

daughters of Channabasavaiah and no legal document with

regard to the settlement arrived between the parties and apart

from that, the parties have not acted upon in terms of Ex.D.1

and Ex.D.1 also not confers any right and the same is not a legal

document. When such being the case, the Trial Court has

applied its mind while considering the material on record and the

Appellate Court while considering item No.5 house property

comes to the conclusion that the plaintiffs have not placed any

material to show that the house property is amenable for

partition and the Appellate Court modified the judgment of the

Trial Court in respect of item No.5 and declared that they are

entitled for 1/3rd share by metes and bounds in respect of item

Nos.1 to 4. Having taken note of the material on record, both

the Trial Court and the Appellate Court have not passed any

perverse order ignoring the material on record and the reasons

are also given. The learned counsel for the appellants contend

that substantial question of law arises and admittedly, the

document Ex.D.1 is an unregistered document and the same

does not confer any right and hence no substantial question of

law arises for consideration as contended by the learned counsel

for the appellants. Hence, I do not find any merit in the appeal

to admit the appeal and frame substantial question of law.

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

following:

ORDER

The appeal is dismissed.

Consequently, the pending I.A., stands dismissed.

Sd/-

JUDGE

MD