Karnataka High Court
Javaregowda Since Dead By Lrs vs Lakshmegowda on 13 July, 2023
Bench: Shivashankar Amarannavar
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RSA No. 653 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 653 OF 2013 (PAR)
BETWEEN:
JAVAREGOWDA SINCE DEAD BY LRS
1. HANUMAMMA
W/O LATE JAVAREGOWDA
2. HANUMANTHE GOWDA
S/O LATE JAVAREGOWDA
3. JAYAMMA
D/O LATE JAVAREGOWDA
4. MAHADEVAMMA
D/O LATE JAVAREGOWDA
5. INDIRAMMA
D/O LATE JAVAREGOWDA
Digitally signed by
LAKSHMINARAYANA ALL ARE RESIDENTS OF KODALA VILLAGE
MURTHY RAJASHRI
Location: HIGH CHINAKURALI HOBLI, PANDAVPURA TALUK.
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI V. SRINIVAS, ADVOCATE)
AND:
1. LAKSHMEGOWDA
S/O HANUMANTHEGOWDA
SINCE DECEASED BY HIS LRS
a) SRI KRISHNEGOWDA
S/O LATE LAKSHME GOWDA
AGED ABOUT 45 YEARS
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b) SHIVANNGOWDA
S/O LATE LAKSHME GOWDA
AGED ABOUT 42 YEARS
BOTH ARE RESIDING AT LAKSHMISAGARA
VILLAGE, MELUKOTE HOBLI,
PANDAVAPURA TALUK
2. KULLEGOWDA
S/O HANUMANTHEGOWDA,
SINCE DECEASED BY LRS
a) DEVARAAJU
S/O LATE KULLEGOWDA
AGED ABOUT 56 YEARS
RESIDING AT LAKSHMISAGARA VILLAGE
MELUKOTE HOBLI
PANDAVAPURA TALUK.
3. DODDA CHALUVEGOWDA
S/O HANUMANTHEGOWDA
SINCE DECEASED BY LRS
a) KEMPAMMA
W/O DODDA CHALUVEGOWDA
b) LOKESHA
S/O LATE DODDA CHALUVEGOWDA
c) MOGANNA GOWDA
S/O LATE DODDA CHALUVEGOWDA
d) YASHODA
D/O LATE DODDA CHALUVEGOWDA
W/O RAJEGOWDA
ALL ARE RESIDENTS OF LAKSHMI SAGARA
VILLAGE, PANDAVAPURA TALUK - 571 434.
...RESPONDENTS
(BY SRI SRINIVASA D.C, ADVOCATE FOR R3(A,C AND D),
R3(B) - NOTICE H/S, R1(A&B) - NOTICE H/S,
R2(A) - NOTICE H/S)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 31.01.2013 PASSED IN
R.A.NO.354/2010 ON THE FILE OF PRESIDING OFFICER, FAST
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RSA No. 653 of 2013
TRACK COURT, SRIRANGAPATNA, PARTLY ALLOWING THE
APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD
19.10.2010 PASSED IN O.S.NO.3/2010 OLD 68/95 ON THE
FILE OF CIVIL JUDGE (SR.DN.) JMFC & MACT, PANDAVAPURA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal has been filed praying to set-aside the
judgment and decree dated 31.01.2013 passed in
R.A.No.354/2010 by the Presiding Officer, Fast Tract
Court, Srirangapatna and confirm the judgment and
decree dated 19.10.2010 passed in O.S.No.3/2010 by the
Civil Judge (Sr.Dn.) and J.M.F.C, Pandavapura.
2. Heard the learned counsel for the appellants on
admission.
3. The parties will be referred to by their rankings as in
the Trial Court.
4. The appellants are the legal representatives of the
plaintiff and respondent Nos.1 to 3 are the defendant
Nos.1 to 3 in O.S.No.3/2010 (Old No.68/1995).
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5. The plaintiff filed a suit for relief of partition and
separate possession in respect of 10 items of the suit
schedule properties. The plaintiff and defendant Nos.1 to
3 are the brothers.
6. It is the case of the plaintiff that in the suit schedule
properties, some are the ancestral and some are the self
acquired properties. As the defendants attempted to
change the revenue records in their names, the plaintiff
filed a suit claiming his 1/4th share in the suit schedule
properties.
7. The defendant No.1 contended that the plaintiff has
been adopted by one Sri.Rajegowda and
Smt.Hanumamma by a deed dated 19.03.1942. They
contended that the plaintiff has not at all participated in
the Joint Family business, cultivation of the properties.
They contended that the plaintiff has not been given the
share in the partition deed dated 10.12.1975, as he has
been an adopted son and there was earlier partition deed
dated 20.09.1965. They contended that the plaintiff has
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included the properties which are not belonging to the
Joint Family and included self acquired properties of the
defendants. The plaintiff has not included house of Kodala
village and the land in Sy.No.144/2 and therefore, the suit
is not maintainable.
8. Defendant Nos.2 and 3 contended that the plaintiff
has been adopted as contended by defendant No.1. They
also contended that the plaintiff is in possession of the
house of Kodala village and 26 guntas of land in
Sy.No.24/2. They contended that during the life time of
Sri.Hanmunathe Gowda, there was a division of the family
properties and a document came to be executed on
20.05.1964 and on that basis they got prepared the record
on 10.12.1975. Defendant No.1 set up the plaintiff to file
a suit as defendant Nos.2 and 3 refused to sell their
properties to him. Defendant Nos.2 and 3 denied that the
plaintiff is having 1/4th share in the suit schedule
properties. They contended that half portion in item No.1
was given to defendant No.1 and Western half to
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defendant No.3, item No.2 belongs to defendant No.1 and
item No.3 was constructed by defendant No.2 on the
vacant site purchased by him in the year 1967. Item No.4
was divided as per the documents executed by their
mother on 03.11.1979, item No.5 is the self acquired
property of defendant No.3, item Nos.6 and 7 belongs to
defendant No.1 and item No.8 does not belong to any of
the defendants, item No.9 is the self acquired property of
defendant No.1, item No.10 was divided equally among
the defendants. The defendants are living separately and
enjoying their separate shares from the year 1964 and
they improved the properties allotted to their shares. With
this, they prayed to dismiss the suit.
9. The Trial Court after appreciating the evidence on
record has negatived the contention of the defendants that
the plaintiff is an adopted son of Sri.Rajegowda and
Smt.Hanumamma. The Trial Court held that the plaintiff is
entitled to a share in item Nos.1 to 7 and 9 and 10 and
dismissed the suit in respect of item No.8. The Trial Court
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held that the defendants failed to prove that item Nos.5,
6, 7, 9 and 10 are their self acquired properties.
Aggrieved by the said findings of the Trial Court, the
defendant Nos.1 and 2 and legal representatives of
defendant No.3 filed an appeal in R.A.No.354/2010 on the
file of Fast Track Court, Srirangapatna. The First Appellate
Court has allowed the appeal in part and held that the
plaintiff is entitled to 1/4th share in item Nos.4, 6, 7 and
10 of the suit schedule properties and reversed the
findings of the Trial Court and dismissed the suit in respect
of item Nos.1 to 3, 5, 8 and 9. It also declared that item
No.5 is the self acquired property of defendant No.3.
Aggrieved by the judgment and decree of the First
Appellate Court, the plaintiff has filed this second appeal.
10. The First Appellate Court has held that the plaintiff
has not produced any document pertaining to item
Nos.1 to 3 of the suit schedule properties.
11. Learned counsel for the appellants has filed
I.A.No.1/2023 seeking production of two documents
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contending that they pertains to item Nos.1 and 2. Among
the said documents, document No.1 pertains to the house
property bearing No.266/174 in the name of
Sri.Hanumanthe Gowda, S/o Sri.Muduge Gowda. The said
document does not pertain to item No.1 of the suit
schedule properties. Item No.1 of the suit schedule
properties bears Khata No.290/174. Therefore, the said
documents sought to be produced in this appeal does not
pertain to item No.1 of the suit schedule properties. The
second document sought to be produced is one photocopy
of the extract of tax demand register in respect of the
property bearing No.221-131 standing in the name of
Sri.Mudugana Lakshme Gowda, S/o Sri.Hanumanthe
Gowda. The said document is not admissible in evidence
as it is a photocopy. Even though the said document
pertains to item No.2, but it is standing in the name of one
Sri.Mudugana Lakshme Gowda S/o Sri.Hanumanthe
Gowda. Therefore, the said document cannot be
considered as an additional evidence, since it is a
photocopy and it is also not standing in the name of any of
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the parties to the suit. Hence, I.A.No.1/2023 deserves to
be dismissed. Even in this appeal, the appellants have not
produced any other document pertaining to item No.3 of
the suit schedule properties.
12. Learned counsel places reliance on Ex.D5 - building
licence issued in respect of item No.3 in the name of
defendant No.2. The plaintiff has not produced any
extract of tax demand register pertaining to item No.3 of
the suit schedule properties to show that the said
properties belongs to Joint Family.
13. Considering the said aspect, the First Appellate Court
rightly held that the plaintiff has not produced any
document regarding item Nos.1 to 3 of the suit schedule
properties. The First Appellate Court has held that item
No.5 is the self acquired property of defendant No.3.
Defendant No.3 purchased item No.5 under the sale deed
dated 23.06.1962 as per Ex.D4 and he is enjoying it
separately. Even the plaintiff has purchased two
properties under the sale deeds Exs.D2 and D3 and he is
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enjoying the same separately, but he has not included
those properties purchased under Exs.D2 and D3 in the
suit. Therefore, the plaintiff is estopped from contending
that item No.5 purchased by defendant No.3 under Ex.P4
is the Joint Family Property.
14. The First Appellate Court considering the said aspect
has held that there is no blending of properties purchased
by the plaintiff and defendant Nos.2 and 3. Therefore, the
First Appellate Court has rightly held that item No.3 of the
suit schedule properties is the self acquired property of
defendant No.3. The First Appellate Court has also held
that the plaintiff has not produced any R.T.C or Mutation
regarding item No.9 of the suit schedule properties and
dismissed the claim of the plaintiff seeking share in it.
Item No.9 is stated to be an agricultural land bearing
Sy.No.56 of Thonnuru village. In the description of the
property, extent of said property is not mentioned. The
plaintiff has not produced any R.T.C in respect of item
No.9 of the suit schedule properties. Therefore, the First
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Appellate Court has rightly rejected the claim of the
plaintiff seeking share in item No.9 of the suit schedule
properties.
15. Considering al these aspects, no substantial question
of law arises for consideration. Hence, the appeal is
dismissed.
Sd/-
JUDGE
GH
