Smt. Madamma vs Sri Shivanna T M
2023 Latest Caselaw 2102 Kant

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                                                     RSA No. 2177 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 31ST DAY OF MARCH, 2023

                                          BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO.2177 OF 2018 (PAR)

                   BETWEEN:

                   1.    SMT. MADAMMA
                         W/O LATE CHANNABASAVEGOWDA
                         AGED ABOUT 82 YEARS

                   2.    SMT. SHEELAMMA
                         W/O PUTTEGOWDA
                         AGED ABOUT 52 YEARS

                         BOTH ARE R/A KAPANI GOWDANA DODDI
                         YADAMARANAHALLI POST
                         UYYAMBALLI HOBLI
                         KANAKAPURA TALUK-562117
Digitally signed
by SHARANYA T
Location: HIGH
COURT OF                                                   ...APPELLANTS
KARNATAKA
                   (BY SRI. K P BHUVAN, ADVOCATE)

                   AND:

                   1.    SRI SHIVANNA T M
                         S/O LATE KULAPPA GOWDA @ MARIGOWDA
                         AGED ABOUT 57 YEARS
                         NO.3105, 8TH 'B' CROSS
                         14TH 'A' MAIN, RPC LAYOUT
                         VIJAYANAGARA 11TH STAGE
                         BANGALORE-560040
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                                RSA No. 2177 of 2018




2.   SRI KRISHNAPPA T M
     S/O LATE KULAPPA GOWDA @ MARIGOWDA
     AGED ABOUT 55 YEARS
     R/O NO.2275, 11TH CROSS
     KOTHATHI ROAD
     GANDHINAGAR
     MANDYA-571446

3.   SMT SUNANDAMMA
     W/O LATE T M ANANTHARAMU
     AGED ABOUT 43 YEARS

4.   SRI SANTHOSH
     S/O LATE T M ANANTHARAMU
     AGED ABOUT 27 YEARS

5.   SRI BAGATH
     S/O LATE T M ANANTHARAMU
     AGED ABOUT 25 YEARS

     RESPONDENTS 3 TO 5 ARE

R/O THOTAHALLI VILLAGE ACCHALU POST KANAKAPURA TALUK-562117

6. SRI BASAVARAJU T M S/O KULAPPA GOWDA @ MARIGOWDA AGED ABOUT 48 YEARS R/A THOTAHALLI VILLAGE ACHALU POST KANAKAPURATALUK RAMANAGARA-562126

7. SRI SHEKAR C/O K S VISWESWARA S/O KULLAPPA GOWDA @ MARIGOWDA AGED ABOUT 45 YEARS NO.2637/1A, 2ND CROSS

RSA No. 2177 of 2018

KOTHATHI ROAD GANDHINAGAR MANDYA-571446

8. SRI MAHESH AGED ABOUT 43 YEARS S/O KULAPPA GOWDA @ MARIGOWDA VET.DOCTOR, MANJUNATHA NILAYA 2ND MAIN ROAD, M V EXTENSION RAMAKRISHNA ROAD OPPOSITE VARUN HAIR DRESS HOSKOTE-562114

9. SRI DINESH T M S/O KULAPPA GOWDA @ MARIGOWDA AGED ABOUT 37 YEARS NO.2275, 11TH CROSS KOTHATHI ROAD GANDHINAGAR MANDYA-571446

10. SMT. GOWRAMMA W/O LATE T M SURESH AGED ABOUT 45 YEARS

11. SRI MITHIN S/O LATE T M SURESH AGED ABOUT 22 YEARS

12. MS. SHRUTHI D/O LATE T M SURESH AGED ABOUT 20 YEARS

RESPONDENTS 10 TO 12 ARE R/O THOTAHALLI VILLAGE ACHALU POST KANAKAPURA TALUK RAMANAGARA DIST-562126

RSA No. 2177 of 2018

13. SMT LAKSHMAMMA W/O THAMMAIAH D/O KULAPPA GOWDA @ MARIGOWDA AGED ABOUT 58YEARS R/O KODIHOSAHALLI VILLAGE HONGANUR POST CHANNAPATNA TALUK RAMANAGARA DISTRICT-562117

14. SMT. SARASWATHI W/O NAGEGOWDA AGED ABOUT 55 YEARS D/O KULAPPA GOWDA @ MARIGOWDA R/O PANCHEGOWDANA DODDI VILLAGE KEREGODU POST & HOBLI MANDYA DISTRICT-571446

15. SRI THAMANNA GOWDA FATHER NAME NOT KNOWN AGED ABOUT 72 YEARS

16. SMT. LAKSHMI D/O THAMMANNA GOWDA AGED ABOUT 42 YEARS

RESPONDENTS 15 & 16 ARE R/A SWAREKAI DODDI VILLAGE SATHANUR HOBLI & POST KANAKAPURA TALUK RAMANAGARA DISTRICT-562126 ...RESPONDENTS (BY SRI B S NAGARAJ, ADVOCATE FOR R2, 3, R5 & R6; R4, 14, 15, 16 ARE SERVED;

V/O DT.12.02.2021 NOTICE TO R10 IS H/W; V/O DT.25.09.2021, NOTICE TO R11 & R12 IS H/S; V/O DT.13.03.2023, SERVICE OF NOTICE IS H/S IN R/O R1, 7, 8, 9 & 13)

RSA No. 2177 of 2018

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.08.2018 PASSED IN R.A.NO.31/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, SITTING AT KANAKAPURA AND ETC.

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

JUDG MENT

This matter is listed for admission. Heard the learned

counsel appearing for the appellants and the learned

counsel appearing for respondent Nos.2, 3, 5 and 6.

2. This appeal is filed challenging the judgment

and decree dated 13.02.2019 passed in R.A.No.100/2016

on the file of the Senior Civil Judge and CJM,

Chamarajanagar.

3. The factual matrix of the case of the plaintiffs

before the Trial Court is that the suit schedule properties

are the ancestral and joint family properties. It is

contended that one Basavegowda had three sons namely,

Channabasavegowda who is the father of plaintiff No.2 and

RSA No. 2177 of 2018

husband of plaintiff No.1, Kullappa Gowda @ Marigowda

and Muniveregowda and there was no partition hence,

they are entitled for the share in respect of the share of

Channabasavegowda. The defendants appeared and filed

the written statement contending that the suit is bad for

non-joinder of necessary parties and it is further

contended that suit item No.5 is the self acquired property

of Kullappa Gowda @ Marigowda and the defendants have

also took the specific defence that there was already a

partition among the members of joint family and

consequent upon the partition, each members of the joint

family have sold their respective property and when there

was already a partition, the question of granting a share

does not arise.

4. Based on the pleadings of the parties, Trial

Court framed the issues and also allowed the parties to

lead their evidence. In order to prove the case of the

plaintiffs, plaintiff No.2 examined herself as PW1 and also

examined four witnesses as PW2 to PW5 and got marked

RSA No. 2177 of 2018

the documents at Ex.P1 to P54. On the other hand, third

defendant examined himself as DW1 and also examined

five witnesses as DW2 to DW6 and got marked the

documents at Ex.D1 to D5. The Trial Court after

considering both oral and documentary evidence placed on

record comes to the conclusion that the suit schedule

properties are the joint family properties and already there

was a partition among the members of the joint family and

dismissed the suit of the plaintiffs.

5. Being aggrieved by the judgment and decree of

the Trial Court, an appeal was preferred before the First

Appellate Court. The First Appellate Court also on re-

appreciation of material available on record comes to the

conclusion that the Trial Court has not committed any

error in dismissing the suit of the plaintiffs and confirmed

the judgment and decree of the Trial Court and dismissed

the appeal. Hence, the present appeal is filed before this

Court.

RSA No. 2177 of 2018

6. The learned counsel for the appellants would

vehemently contend that no document is placed before the

Court with regard to the partition as alleged by the

defendants and revenue documents are changed except

relying upon the documents of sale deeds and the counsel

vehemently contend that those sale deeds are created and

forged one and father and husband of the respective

plaintiffs never executed any sale deeds. The counsel

further contends that the Trial Court failed to take note of

both oral and documentary evidence placed on record and

erroneously dismissed the suit.The First Appellate Court

also not properly re-appreciated the material available on

record hence, both the Courts have wrongly comes to the

conclusion that the alleged sale deeds are more than 30

years old and purchasers are in possession and enjoyment

of the suit schedule properties since long period and also

there was a partition among the members of the joint

family of Channabasavegowda and he had sold the

properties to different persons and even though the

burden is on the defendants to prove that already the

RSA No. 2177 of 2018

properties were sold by Channabasavegowda, no

document is placed before the Court and also burden is

not discharged by the defendants. Hence, this Court has

to admit the appeal and to frame the substantial question

of law.

7. Per contra, the learned counsel for the

respondent Nos.2, 3, 5 and 6 vehemently contend that the

Trial Court has considered the material available on record

in a proper perspective observing that subsequent to the

partition, the father and husband of respective plaintiffs

has sold the properties in terms of Ex.D4 to D9 and also

taken note that the redemption suit was also filed by the

father and husband of the respective plaintiffs in

O.S.No.137/1971 that is subsequent to the partition and

all these materials are considered by both the Courts while

dismissing the suit of the plaintiffs and also relied upon

Section 90 of the Indian Evidence Act for having sold the

properties by the father and husband of the respective

plaintiffs and hence, both the Courts have not committed

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RSA No. 2177 of 2018

any error in dismissing the suit and the appeal filed by the

plaintiffs/appellants. Thus, there is no grounds to admit

the appeal and to frame the substantial question of law.

8. Having heard the respective counsel and also

on perusal of the material available on record, it discloses

that the Trial Court has given the finding that the suit

schedule properties are the ancestral and joint family

properties and already there was a partition and

consequent upon the partition, sale deeds were executed

in favour of different persons. The Trial Court while

answering Issue No.4 taken note of the material available

on record particularly, the sale deeds and also taken note

that the father and husband of the respective plaintiffs had

sold the property and other brothers were also sold their

property in favour of the perspective purchasers and also

taken note that the said sale deeds are more than 30

years old and Section 90 of the Indian Evidence Act is

applicable. If Section 90 of the Indian Evidence Act is

applied, it has to be presumed that the documents of 30

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RSA No. 2177 of 2018

years old are proved. The Trial Court in paragraph 20 held

that plaintiff No.2 is 75 years old as on the date of the suit

i.e., in the year 2005 and the sale deeds were also

executed in the year 1967 onwards for a period of five

years and apart from that the Trial Court also taken note

that the defendants have placed the certified copy of the

judgment and decreed passed in 137/1971 and observed

that there was a partition among Muniveregowda,

Channabasavegowda, Kullappa Gowda @ Marigowda in

Sy.No.112/2 and Channabasavegowda has 12 guntas in

Sy.No.112/2B, Kullappa Gowda has 9 guntas in

Sy.No.112/2C. This shows that this witness has deposed

false in support of the plaintiffs and hence, his chief

evidence cannot be relied upon. Trial Court also taken

note of the answer elicited from the mouth of PW5 wherein

PW5 categorically admitted that there was a partition

among the members of the joint family.

9. The First Appellate Court also on re-

appreciation of both oral and documentary evidence

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RSA No. 2177 of 2018

placed on record in paragraph 25 held that the suit was

filed by Channabasavegowda in O.S.No.137/1971 seeking

the relief of redemption of mortgage in his favour as it was

mortgaged to him by Kullappagowda and others and

thereafter he could not able to get the land in the said

suit. In paragraph 26, the First Appellate Court taken note

of the admission given by PW5 with regard to the partition

wherein he admits that there was partition effected in the

year 1945 and subsequent to the partition, properties

were sold in favour of the different persons and not only in

favour of his brother and also in favour of other persons

i.e., in respect of Sy.No.151/2 measuring 21 guntas in

favour of Sadashivaiah, in Sy.No.92 measuring 20 guntas

to one Patel Kalaningegowda and also sold the land, house

and backyard to his brother Kullappagowda and further

sold the land bearing Sy.No.33/2 to one Veerabhadraiah.

These are the documents taken note by both the Courts in

coming to the conclusion that the suit schedule properties

are the joint family properties and already there was a

partition among the members of the joint family members.

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RSA No. 2177 of 2018

10. The very contention of the learned counsel for

the appellants that the very sale deeds are disputed and

burden is on the defendants to prove that already there

was sale deeds and the said Channabasavegowda only

sold the properties. It has to be noted that according to

the defendants, partition was taken place in the year 1945

and the father and husband of the respective plaintiffs

only filed the suit for redemption in O.S.No.137/1971 after

several years and sold some of the properties which were

allotted to him. When such being the case, it discloses that

the sales were made in the year 1967 onwards for a

period of five years and the suit was filed in the year 2005

disputing the very sale made by the father and husband of

the respective plaintiffs after long period. All these

materials are taken note by both the Courts while

considering the matter of the plaintiffs and dismissed the

suit and appeal filed by the plaintiffs/appellants. Hence, I

do not find any error committed by both the Courts while

appreciating both oral and documentary evidence placed

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RSA No. 2177 of 2018

on record. The regular second appeal can be entertained

only when both the Courts have committed an error in

considering the material available on record and when it

amounts to perversity, then this Court can invoke Section

100 of CPC but no such circumstances warranted in the

matter. Hence, I do not find any grounds to admit the

appeal and to frame the substantial question of law

invoking Section 100 of CPC.

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

the following:

ORDER

The appeal is dismissed.

In view of dismissal of the main appeal,

I.A. if any, does not survive for consideration

and the same stands disposed of.

Sd/-

JUDGE

SN