Karnataka High Court
Eshwarappa vs Late Mariyappa S/O Sannagirigowda on 27 November, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 1852 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO.1852 OF 2007(DEC)
BETWEEN:
ESHWARAPPA
S/O SRI MARIYAPPA
SINCE DEAD BY LEGAL REPRESENTATIVES
1(a) SMT.VASANTHAMMA
W/O LATE ESHWARAPPA
AGED ABOUT 62 YEARS
R/AT KOTE, BANAVARA
ARASIKERE TALUK
HASSAN DISTRICT -573 112
1(b) SMT.ASHA.M.E.,
D/O LATE ESHWARAPPA
W/O MOHAN RAJ
AGED ABOUT 41 YEARS
Digitally R/AT HALLADAHALLI VILLAGE
signed by R
MANJUNATHA DEVANOOR
Location: KADUR TALUK
HIGH COURT
OF CHIKKAMAGALURU DISTRICT - 577 175
KARNATAKA
1(c) SRI PUTTARAJU.M.E.,
S/O LATE ESHWARAPPA
AGED ABOUT 39 YEARS
RESIDING AT KOTE, BANAVARA
ARASIKERE TALUK
HASSAN DISTRICT - 573 112.
1(d) SMT.ASHWINI M.E.,
D/O LATE ESHWARAPPA
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RFA No. 1852 of 2007
AGED ABOUT 37 YEARS
R/AT KOTE, BANAVARA
ARASIKERE TALUK
HASSAN DISTRICT - 573 112.
1(e) SMT.YAMUNA.M.E.,
D/O LATE ESHWARAPPA
W/O SHAMANTHA.A.M.,
AGED ABOUT 26 YEARS
R/AT ABBANA GRAMA
K.HOSAKOTE HOBLI
ALUR TALUK
HASSAN DISTRICT - 573 214.
...APPELLANTS
(BY SRI R P SOMASHEKARAIAH AND
SRI M.LOKESH MURTHY, ADVOCATES FOR LEGAL
REPRESENTATIVES OF DECEASED APPELLANT)
AND:
1. LATE MARIYAPPA
S/O SANNAGIRIGOWDA
SINCE DECEASED REPRESENTED BY HIS LRS
1(a) SMT GANGAMMA
W/O MARIYAPPA
SINCE DEAD BY LEGAL REPRESENTATIVES
1(b) CHANDRAPPA
S/O LATE MARIYAPPA
AGED ABOUT 61 YEARS,
BOTH ARE RESIDING AT
MARAGONDANAHALLI VILLAGE,
JAVAGAL HOBLI,
ARASIKERE TALUK.
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RFA No. 1852 of 2007
1(c) SMT PARVATHAMMA
W/O RAMANNA
AGED ABOUT 57 YEARS,
R/AT DEVARAHALLI
MATTHIGHATTA POST,
KADURU TALUK.
1(d) SHARADHAMMA
W/O RANGASWAMY
AGED ABOUT 54 YEARS,
R/O MACHAGONDANAHALLI
CHIKKADEVANURU POST,
SAKRAYAPATTANA HOBLI,
KADURU TALUK
1(e) SMT SUNANDHAMMA
W/O PANCHAKSHARI
AGED ABOUT 47 YEARS,
C/O CHIKKANNA BUILDING,
HOUSE NO.55, KEMPEGOWDA NAGAR
(BYADARAHALLI)
VISHWANEELAMMA POST,
MAGADI ROAD,
BANGALORE- 560 091
1(f) SMT JAYAMMA
D/O MARIYAPPA
AGED ABOUT 49 YEARS,
1(g) SAROJAMMA
D/O MARIYAPPA
AGED ABOUT 52 YEARS,
BOTH ARE RESIDING AT
MARAGONDANAHALLI,
JAVAGAL HOBLI,
ARSIKERE TALUK
2. LATE NANJUNDAPPA
S/O SANNAGIRIGOWDA
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RFA No. 1852 of 2007
SINCE DECEASED REPRESENTED BY
HIS LEGAL REPRESENTATIVES
2(a) GANGAMMA @ NANJUNDAPPA
W/O LATE NANJUNDAPPA
AGED ABOUT 70 YEARS,
JAVAGAL HOBLI,
ARSIKERE TALUK.
2(b) GOWRAMMA
D/O LATE NANJUNDAPPA
AGED ABOUT 50 YEARS
R/AT SINGANAHALLI
MADANAHALLI POST
JAVAGAL HOBLI
ARASIKERE TALUK
2(c) PARAMESHWARAPPA
S/O LATE NANJUNDAPPA
AGED ABOUT 48 YEARS
R/AT ARAKERE POST
JAVAGAL HOBLI
ARASIKERE TALUK
2(d) KUMARASWAMY
S/O LATE NANJUNDAPPA
AGED ABOUT 45 YEARS
R/AT ARAKERE POST
JAVAGAL HOBLI
ARASIKERE TALUK
3 GANGAPPA @ GANGADHARAPPA
S/O SANNAGIRIGOWDA
SINCE DECEASED
REPRESENTED BY HIS LEGAL REPRESENTATIVES
3(a) JAYAMMA
W/O LATE GANGAPPA
AGED ABOUT 2 YEARS
R/AT BELVALLI, JAVAGAL HOBLI
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RFA No. 1852 of 2007
KOLAGUNDA POST
ARASIKERE TALUK
4. SMT GIRIYAMMA
D/O MASTHIGOWDA
AGED ABOUT 87 YEARS,
R/O BELUVALLI, KOLAGUNDA POST,
JAVAGAL HOBLI,
ARSIKERE TALUK.
5. SRI ESHANNA
S/O NANJUNDAPPA
MANAGER,
KAUVERY GRAMEENA BANK
KODAGU NOW RESIDING AT
2ND MAIN ROAD,
YATHIENDRA NAGAR,
CONVENT, HEMAVATHI NAGAR,
HASSAN DISTRICT
...RESPONDENTS
(BY SRI N SHANKARANARAYAN BHAT, ADVOCATE FOR R8 AND
R1(F);
SRI B.S.RAVINDRA, ADVOCATE FOR R1 (A, D, G AND H);
SRI R.C.NAGARAJ, ADVOCATE FOR R2(C AND D);
R1(C), R4, R5 AND R7 ARE DELETED;
R1(B), R1(E), R2(B), R3(A), R6, R2(A) -SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 R/W ORDER 41 RULE 1 OF CIVIL PROCEDURE CODE
AGAINST THE JUDGMENT AND DECREE DATED 16.2.2005
PASSED IN O.S.NO.2/2000 ON THE FILE OF THE CIVIL JUDGE
(SR.DN) AND ADDL. CJM, ARSIKERE, DISMISSING THE SUIT
FOR DECLARATION, PARTITION AND SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RFA No. 1852 of 2007
JUDGMENT
Heard Sri R.P. Somashekaraiah and Sri M.Lokesh Murthy,
learned counsel for legal representatives of deceased appellant
and Sri N. Shankaranarayan Bhat, learned counsel for the
respondent Nos.8 and 1(f).
2. Present appeal is filed challenging the validity of
judgment and decree passed in O.S.No.2/2000 on the file of
Civil Judge (Sr.Dn) and Additional CJM., Arsikere, dated 19th
April, 2007.
3. Parties are referred to as plaintiff and defendants as per
the original ranking before the trial Court.
4. Brief facts of the case which are utmost necessary for
disposal of the appeal are as under:
Common prepositous according to the plaint averments is
one Sannagiri Gowda. He had five children namely;
Giriyamma, Thimmamma, Mariyappa, Nanjundappa and
Gangadharappa. Among them, Gangadhara died issueless.
Nanjundappa and plaintiff's father namely Mariyappa were
remaining sons and suit properties were inherited by them. No
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shares were given to the daughters namely; Girijamma and
Thimmamma.
5. It is the contention of the plaintiff that plaintiff being one
of the sons of Mariyappa, when demanded for share in the joint
family, the defendants refused to part away with their shares in
suit properties. Therefore, the suit was necessitated.
6. Upon service of suit summons, first defendant namely;
Mariyappa, who is the father of the plaintiff, appeared and filed
written statement contending that there was a partition
between him and his brother Nanjundappa and the property
that has fallen to his share has been enjoyed by him
exclusively.
7. The children of Nanjundappa namely; Gowramma,
Parameshwarappa, Eshanna and Kumaraswamy denied the
plaint averments in toto contended that the suit claim is
impermissible in view of the fact that there was a partition
between Nanjundappa and Mariyappa soon after the death of
Sanna Girigowda. Thereafter the parties are enjoying the suit
property uninterruptedly. Therefore, when once the suit
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properties were partitioned, there cannot be scope for second
partition and sought for dismissal of the suit.
8. Learned trial Judge raised the following issues were
framed by the learned trial Judge:
1. Whether the plaintiff proves that the suit properties are
joint family properties of plaintiff and Defendants?
2. Whether the plaintiff proves that the plaintiff has 1/12th
share in suit properties?
3. Whether the Defendants prove that there was already a
partition in the family and therefore present suit is not
maintainable?
4. Whether the suit is bad for non-joinder of necessary
parties?
5. Whether the suit is not maintainable in view of pendency
of O.S. No. 105/97 filed by one of the family member?
6. Whether the defendant no.8 proves that suit item No. 25
is his self- acquired property?
7. What decree or order?
9. In order to prove the case of the plaintiff, plaintiff got
examined himself as P.W.1 and two witnesses namely;
Shankarappa and Basavaraju as P.Ws.2 and 3.
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10. On behalf of the plaintiff, as many as 36 documents were
exhibited as Exs.P.1 to P.36 comprising of RTC extracts as
Exs.P.1 to P.25, village accountant certificate as Ex.P.26,
Generalogical tree as Ex.P.27, assessment extract as Exs.P.28
to P.33, records of right as Exs.P.34 and P.35, complaint copy
as Ex.P.36.
11. As against the evidence placed by the plaintiff, on behalf
of defendants, second defendant got examined himself as
D.W.1 and five more witnesses namely; Gangappa,
Parameshwarappa, Giriyappa, Eshanna and Sunandamma as
D.Ws.2 to 6.
12. On behalf of the defendants as many as 50 documents
were exhibited as Exs.D.1 to D.50 comprising of RTC extracts
as Exs.D.1 to D.26, Bank Letter as Ex.D.27, Corporation Bank
Letter as Ex.D.28, Voters list as Ex.D.29, Banavara Police
Endorsement as Ex.D.30, Endorsement as Ex.D.31,
Endorsement as Ex.D.32, Application as Ex.D.33, Notice as
Ex.D.34, Notice Copy as Ex.D.35, Notice as Ex.D.36,
Endorsement given by police as Ex.D.37, Plaint copy in
O.S.No.93/05 as Ex.D.38, Order sheet copy as Ex.D.39, Plaint
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copy in O.S.No.105/97 as Ex.D.40, Written Statement in
O.S.No.105/97 as Ex.D.41, Judgment and decree copy in
O.S.No.105/97 as Ex.Ds.42 and 43, Grameena bank letter as
Ex.D.44, Salary Certificate as Ex.D.45, Sale Deed copy as
Ex.D.46, Loan Proposed letter as Ex.Ds.47 and 48, Deposit of
title deeds as Ex.D.49, Bank Certificate as Ex.D.50.
13. On conclusion of recording of evidence, the learned trial
Judge heard the parties in detail. On cumulative consideration
of the oral and documentary evidence on record, dismissed the
suit of the plaintiff that holding that there is a previous partition
between Nanjundappa and Mariyappa, whereby the properties
held by the common prepositous Sanna Girigowda, was divided
between Mariayappa and Nanjundappa and they are possessing
their respective shares.
14. Aggrieved by the same, plaintiff has preferred the present
appeal on the following grounds:
"The learned judge erred in dismissing the suit of the
appellant herein declaration, partition and possession of
the plaint schedule properties.
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The learned judge erred in dismissing the suit although
when there is an admission of relationship between
appellant and the respondents herein.
The learned judge erred in dismissing the suit by applying
the principle of resjudicata in this case. When an appeal
No R.A.16/2004 is pending against the judgment and
decree in O.S. No. 105/97.
The learned judge did not take into consideration the fact
that although the appellant is one of the defendant in
O.S.No.105/97 but he is not claiming any decree nor
declaration in respect of the properties which is the
subject matter in that suit.
The learned Judge erred in holding that the appellant
herein is not entitled the relief by applying the judgment
in ILR 1994 Kar 387, ILR 1985 Kar 3062, ILR 1999 Kar
613 in SAR 2003(Civil 817).
The learned judge erred in not taking into consideration
the fact that the appellant herein is away from the family
and the other members of the joint family are holding the
properties of the appellant on his behalf.
The judgment and decree of the learned is opposed to
law, facts and circumstances of the case."
15. Sri R.P. Somashekaraiah, learned counsel appearing for
the appellant, reiterating the grounds urged in the appeal
memorandum contended that the previous partition is not
established by the defendants and learned trial Judge misread
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the material evidence on record and wrongly dismissed the suit
of the plaintiff resulting in miscarriage of justice and sought for
allowing the appeal.
16. He further contended that only one of the item of the suit
properties was divided between Mariyappa and Nanjundappa in
Sy.No.21/1 of Kelagina Hosahalli village, for the sake of
convenience; but actual partition has not taken place and
family possessed about 68 of the properties and alleged
partition is inequitable which is said to have taken place
between Mariyappa and Nanjundappa. Therefore, plaintiff
being the grandson of Sanna Girigowda is entitled to maintain
the suit and sought for allowing the appeal.
17. Per contra, Sri Shankara Narayan Bhat contended that
the previous partition is admitted by the plaintiff who was the
third defendant in another suit in O.S.No.105/1997. Therefore,
he could not have filed a suit in the year 2002 stating that
there is no partition in the joint family properties between
Mariyappa and Nanjundappa and sought for dismissal of the
appeal.
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18. He further pointed out that the contentions urged on
behalf of the appellant is per se incorrect which has been
rightly appreciated by the learned trial Judge in the impugned
judgment and sought for dismissal of the appeal.
19. In view of the rival contentions of the parties, following
points would arise for consideration:
1) Whether the plaintiff has successfully established that
there was no partition between his father, Mariyappa
and Nanjundappa in the properties of Sannagiri Gowda
and after the death of Sannagiri Gowda, whereby the
plaintiff being the son of Marigowda is entitled for his
share in the suit property?
2) Whether the impugned judgment is suffering from
legal infirmity and perversity and thus calls for
interference?
3) What order?
20. In the case on hand, Eshwarappa is the plaintiff who is
one of the sons of Mariyappa. Mariyappa was the first
defendant and after his death, his other children have been
impleaded as parties in the suit.
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21. Second defendant is Nanjundappa, third defendant is
Gangappa, fourth defendant is Chandrappa, fifth defendant is
Jayamma and sixth defendant is Giriyamma, seventh defendant
is Sarojamma and eighth defendant is Eshanna. Admittedly,
Nanjundappa is the uncle of the plaintiff and others are cousins
of the plaintiff.
22. According to the plaintiff, there is no partition in the joint
family properties left behind by Sanna Girigowda. Sanna
Girigowda died intestate, is not in dispute. Plaintiff has another
uncle by name Gangadhara who died issueless. He has got
aunt by name Girijamma and Thimmamma and they have not
been impleaded as parties in the suit.
23. Admittedly, there were two daughters of Sanna
Girigowda, namely; Girijamma and Thimmamma.
24. The main thrust of the argument of the counsel for the
appellant is, there is no partition in the family. However, on
record material is available that a suit came to be filed by the
sisters of plaintiff in O.S.No.105/1997 on the file of Civil Judge
(Sr.Dn), Arasikere, where the plaintiff was the third defendant.
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In the said suit, written statement came to be filed by the third
defendant along with his brother by name Chandrappa. The
said written statement is marked as Ex.P.41.
25. In paragraph 9 of Ex.P.41 written statement, there is a
clear and categorical admission made by the plaintiff that the
properties with regard to Kelagina Hosahalli village, in
Sy.No.21/1, was divided between Mariayappa and Nanjundappa
and there was an adjustment with regard to the property that
has fallen to the share of his father and uncle in exchanging the
shares in respect of the property. To explain such an
admission, learned counsel for the appellant Sri R.P.
Somashekaraiah has contended that the partition was only with
regard to Sy.No.21/1 of Kelagina Hosahalli village and
remaining properties are intact. Therefore, suit for partition
maintainable which has not been properly appreciated by the
learned trial Judge in the impugned judgment.
26. On close perusal of the evidence of the plaintiff and his
witnesses, no such averments made in the plaint nor in the oral
testimony of P.W.1 himself. On the contrary, P.W.1 has
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maintained that there is no partition in the family is his oral
evidence.
27. In Ex.D.41 written statement filed in the earlier suit
where the sisters of the plaintiff has sought for share in respect
of the suit properties. As such, the oral testimony of the
plaintiff that there is no partition in respect of the properties
left behind Sanna Girigowda cannot be countenanced in law.
28. It is settled principles of law that a party to a proceeding
cannot approbate and reprobate with regard to his stand before
Court of law. Whenever an admission is made by a party
before the Court of law in a collateral proceedings, or in an
earlier proceedings, same would bind the said party in the
subsequent proceedings as well.
29. In the case on hand, at an undisputed point of time,
where Nanjndappa and his children are not parties in
O.S.No.105/1997, if the plaintiff has admitted that there was a
partition between his father Mariyappa and Nanjundappa to
oppose the claim of plaintiffs in that suit, it should not lie now
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in the mouth of the plaintiff that there was no partition, only to
suit convenience in seeking the partition of the properties.
30. Under such circumstances, learned trial Judge has rightly
come to the conclusion that there cannot be a second suit for
partition, in view of the fact that the partition has already taken
place and properties left behind by Sanna Girigowda has been
divided between the father of the plaintiff namely; Mariyappa
and his uncle Nanjunappa.
31. If at all, if anybody else have got the right to question the
said partition, it is Girijamma and Thimmamma who are the
aunts of the plaintiff, they have not questioned such a partition.
32. Further, Mariyappa in his life time, did not challenge the
said partition. Under such circumstances, plaintiff being the
son of Mariyappa cannot maintain a separate and independent
suit for partition in view of the earlier partition that has been
taken place and admitted by the plaintiff.
33. In view of the foregoing discussion, even after revisiting
the material evidence, this Court does not find any legal
infirmity or perversity in recording a finding that plaintiff has
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failed to make out a case that there was no partition and he is
entitled for the share by the trial Court is just and proper.
Accordingly, point Nos.1 and 2 are answered in the
Negative.
34. Regarding Point No.3 : In view of findings on point
Nos.1 and 2, this Court pass the following order:
ORDER
Appeal is meritless and is hereby dismissed.
No order as to costs.
Further, dismissal of the present appeal shall not affect
the rights of the appellant, if any, in respect of the properties
said to have been left behind by Mariyappa only against other
heirs of Mariyappa.
Sd/-
JUDGE
MR
