Kumar Sharan @ Sharanappa vs Kum. Anil
2023 Latest Caselaw 3232 Kant

                                                -1-
                                                       NC: 2023:KHC-K:971
                                                       RSA No. 200027 of 2023




                                IN THE HIGH COURT OF KARNATAKA,

                                       KALABURAGI BENCH

                             DATED THIS THE 14TH DAY OF JUNE, 2023

                                              BEFORE

                          THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA

                          REGULAR SECOND APPEAL NO. 200027 OF 2023
                                            (PAR/POS)
                      BETWEEN:
                         KUMAR SHARAN @ SHARANAPPA
                         S/O SHANMUKAPPA HORPET,
                         AGE. 126 YEARS, OCC. AGRICULTURE,
                         R/O TAMBA TQ INDI,
                         DIST: VIJAYAPURA-586209.
                                                            ...APPELLANT

                      (BY SRI. MANVENDRA REDDY, ADVOCATE)

                      AND:
                         KUM. ANIL S/O SHANMUKAPPA HORPET,
                         AGE: 19 YEARS, OCC STUDENT,
                         R/O TAMBA VILLAGE OF INDI,
                         TQ NOW RESIDING AT JAMBAGI VILLAGE,
Digitally signed by      TQ AND DIST: VIJAYAPURA-586101.
RAMESH
MATHAPATI                                                       ...RESPONDENT
Location: HIGH
COURT OF              (BY SRI. SACHIN M. MAHAJAN, ADVOCATE)
KARNATAKA

                           THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
                      AGAINST THE JUDGMENT AND DECREE DATED 08.08.2022
                      PASSED IN R.A. NO.24/2021 ON THE FILE OF THE SENIOR
                      CIVIL JUDGE AND JMFC, AT INDI, DISMISSING THE APPEAL
                      AND    CONFIRMING THE JUDGMENT AND DECREE DATED
                      04.09.2021 PASSED IN O.S. NO.256/2015 ON THE FILE OF THE
                      ADDITIONAL CIVIL JUDGE AND JMFC, AT INDI.

                          THIS APPEAL, COMING ON ADMISSION, THIS DAY, THE
                      COURT DELIVERED THE FOLLOWING:
                                -2-
                                       NC: 2023:KHC-K:971
                                       RSA No. 200027 of 2023




                         JUDGMENT

1. Anil, the son of Siddavva through Shanmukappa

instituted a suit against Sharan, who was the son of

Shanmukappa through his second wife Laxmibai.

2. Anil contended that the suit properties were joint

family properties and he was entitled to a share. He also

contended that the suit properties and other properties

which were situate at Tamba Village were the ancestral

properties of the plaintiff and the defendant and the family

of the plaintiff and defendant were enjoying the properties

including Block No.306 which has been purchased out of

the income from the ancestral properties jointly.

3. He specifically contended that his grandfather

Irasiddappa had effected a partition of the family

properties including the suit properties amongst himself,

his sons and his grandsons (i.e., the plaintiff and the

defendant) in the year 2003 and in the said partition, the

suit properties had been received jointly by them i.e., Anil

NC: 2023:KHC-K:971 RSA No. 200027 of 2023

and Sharan. It was also stated that the other properties

were allotted to his grandfather and the other sons of his

grandfather. He stated that this partition was given effect

to vide mutation entry in M.E.No.3266 on 03.05.2003 and

ever since, the names of the plaintiff and defendant were

reflected in the record of rights as joint owners and they

were in joint possession. He, therefore, contended that he

was entitled to half a share in the suit properties.

4. Sharan entered appearance and contested the suit.

5. Sharan did not dispute the relationship between the

parties and he also did not dispute that the suit properties

were the joint family properties. He, however, contended

that there was no real partition that had taken place

between himself and Anil and the members of the family

had not got an equal share in all the properties. It was

stated that if half a share was allotted to Anil irreparable

loss would be caused to other members of the family.

NC: 2023:KHC-K:971 RSA No. 200027 of 2023

6. It was also stated that all the family members were

cultivating the family properties jointly and all the

properties were not included and that all the family

members were also not made parties to the suit and

therefore, the suit was liable to be dismissed.

7. The Trial Court, on consideration of the pleadings and

the oral evidence, came to the conclusion that since

Sharan admitted that the suit properties had been allotted

to him and Anil by their grandfather in the partition

effected in the year 2003, the claim of Anil to be granted

half a share could not be denied. It, therefore, proceeded

to decree the suit and granted Anil half a share in the suit

properties.

8. Being aggrieved, Sharan preferred a regular appeal.

9. In appeal, the Appellate Court, after re-appreciating

the evidence and taking into consideration the oral

evidence, in which Sharan had admitted that they were in

joint possession pursuant to the partition effected in the

NC: 2023:KHC-K:971 RSA No. 200027 of 2023

year 2003, held that it could not be disputed that they

were jointly cultivating the suit properties by virtue of the

partition and therefore, the Trial Court was justified in

decreeing the suit.

10. Being aggrieved by these concurring judgments, the

present second appeal has been preferred.

11. Sri Manvendra Reddy, learned counsel for the

appellant/defendant strenuously contended that the suit

for partition could not be entertained in the absence of

sisters of Anil and sisters of Sharan and their respective

mothers. He contended that the entire frame of the suit

was improper and therefore, the judgments and decrees of

both the Courts could not be sustained.

12. Sri Sachin M.Mahajan, learned counsel for the

respondent/plaintiff, on the other hand, supported the

judgments and decrees of both the Courts and contended

that since Sharan did not dispute the fact that the suit

properties were allotted to Sharan and Anil by their

NC: 2023:KHC-K:971 RSA No. 200027 of 2023

grandfather in the partition effected in the year 2003, the

share of Anil to the extent of half a share could not be

denied.

13. As stated above, it was the specific case of Anil that

in the year 2003, his grandfather Irasiddappa had effected

a partition between himself, his sons (their father and

their uncles) and his grandsons (i.e., Anil and Sharan) and

in the said partition, the suit properties were allotted to

Anil and Sharan and the same was evidenced from the fact

that a mutation entry was also effected in M.E.No.3266.

This claim of Anil was not specifically denied in the written

statement filed by Sharan. Sharan, in fact, during the

course of his cross-examination, as noticed by the

Appellate Court, admitted that there was indeed a partition

effected by his grandfather in the year 2003 and in the

said partition, both Sharan and Anil had been allotted the

suit properties.

14. In my view, since it was the admitted case of both

the parties that in a partition effected in the year 2003,

NC: 2023:KHC-K:971 RSA No. 200027 of 2023

the suit properties had been allotted to them, each of

them would definitely be entitled to lay a claim for

partition. The fact that there was a partition cannot be in

dispute since both the Courts have held that the partition

was given effect to vide mutation entry M.E.No.3266 and

this was, in fact, the admitted position of both parties.

15. In the light of the fact that the suit properties were

standing jointly in the name of Anil and Sharan right from

the year 2003, it will have to be held that the suit

properties were allotted to them jointly and Anil was

entitled to seek for a partition of the said properties and

claim half a share.

16. It is to be stated here that Sharan in fact had sought

to implead the other members of the family and the said

application was dismissed by the Appellate Court. It

appears that this order has not been challenged and

therefore, the argument that all the members were not

made parties which rendered the suit untenable would fail.

NC: 2023:KHC-K:971 RSA No. 200027 of 2023

17. In the light of the above, both the Courts were

justified in coming to the conclusion that Anil was entitled

to half a share in the suit properties and therefore, the

judgments and decrees of both the Courts cannot be found

fault with. Thus, I find no question of law, muchless the

substantial question of law arising for consideration in this

appeal and the same is accordingly dismissed.

Sd/-

JUDGE

PKS