Karnataka High Court
Smt Renukamma vs Smt Siddagangamma on 27 November, 2023
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RSA No. 772 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 772 OF 2023 (PAR)
BETWEEN:
SMT RENUKAMMA
W/O LATE SIDDALINGAPPA
AGED ABOUT 48 YEARS,
R/AT KEMPAPURA VILLAGE
KUDUR HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT-562159
...APPELLANT
(BY SRI. SAGAR B B, ADVOCATE)
AND:
1. SMT SIDDAGANGAMMA
D/O RUDRAIAH @ H B RUDRAIAH
Digitally W/O MAHADEVAIAH
signed by
CHAITHRA AGED ABOUT 65 YEARS
A
Location: 2. SRI H R KUMAR
HIGH
COURT OF S/O RUDRAIAH @ H B RUDRAIAH
KARNATAKA AGED ABOUT 58 YEARS
3. SRI H R BHADRESH
S/O RUDRAIAH @ H B RUDRAIAH
AGED ABOUT 56 YEARS
4. SMT NETHRAVATHI @ RATHNAMMA
W/O RENUKAPPA
AGED ABOUT 54 YEARS
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RSA No. 772 of 2023
5. SRI H R MURTHY
S/O RUDRAIAH @ H B RUDRAIAH
AGED ABOUT 50 YEARS
6. SMT THAYAMMA @ SHIVALINGAMMA
D/O RUDRAIAH
AGED ABOUT 48 YEARS
RESPONDENT NO.1 TO 6 ARE
R/O HAROKYATHANAHALLI VILLAGE,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK
7. SRI C MUDDURAJU
S/O LATE CHIKKANAPPA
AGED ABOUT 60 YEARS,
R/AT NO.162, 1ST MAIN ROAD
KARNATAKA LAYOUT,
BURUBARAHALLI, BANGALORE-560086
...RESPONDENTS
(BY SRI. OMKARA MURTHY G, ADVOCATE FOR C/R2, R3 & R5)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 23.01.2023
PASSED IN RA.NO.100/2022 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
30.07.2022 PASSED IN OS.NO.246/2013 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE, JMFC, NELAMANGALA.
THIS APPEAL, COMING ON FOR PART HEARD IN
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 772 of 2023
JUDGMENT
The captioned second appeal is filed by unsuccessful
plaintiff who has questioned the judgment and decree
rendered by the appellate Court in R.A.No.100/2022,
wherein appellate Court has allowed the appeal and
plaintiff's suit seeking relief of partition is dismissed.
2. For the sake of brevity, the parties are referred
to as per their rank before the trial Court.
3. The family tree is as under:
Rudraiah
Aged about 65 years
|
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| | | | | | |
Shivarudraiah Siddalingappa H.R.Kumar H.R.Badresh Kum.H.R.Shivalingamma H.R.Murthy Siddalingamma
Dead Dead 26 Years 24 Years @ Mayamma 22 Years
|
K.V.Renukamma
(Plaintiff)
4. The plaintiff claims to be widow of one
Siddalingappa. She has filed the present suit by
contending that suit schedule properties are joint family
ancestral properties and that her husband had legitimate
share in the suit schedule properties who constitute
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undivided Joint Hindu Family along with defendant Nos.1
to 7. The plaintiff alleged that defendant No.1 who his her
father-in-law acquired item Nos.1 to 3 by way of
inheritance and from the income generated in item Nos.1
to 3, he has purchased item Nos.4 and 5. The present suit
is filed alleging that defendant Nos.1, 3, 4 and 6 have
partitioned the suit schedule properties under registered
partition deed dated 04.04.2006 without allotting any
share and hence, the present suit.
5. On receipt of summons, the defendants
tendered appearance, filed written statement and stoutly
denied the entire averments made in the plaint. The
defendants contended that the present suit for partition is
not maintainable in view of withdrawal of the suit filed by
plaintiff in O.S.No.7/1995. The defendants claimed that in
the said suit, plaintiff received her legitimate share in
terms of money to the extent of Rs.80,000/- and having
received Rs.80,000/-, plaintiff has unconditionally
withdrew her partition suit filed in O.S.No.7/1995. The
plaintiff as a counter to the pleadings found in the written
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statement got the plaint amended and contended that
though earlier suit was dismissed as settled out of Court,
the defendants have not honoured the settlement and no
money is paid to her under the earlier compromise.
6. The plaintiff and defendants to substantiate
their respective claim have let in oral and documentary
evidence.
7. The trial Court while examining Ex.P-61, order
sheet maintained in O.S.No.7/1995 and memo filed by
plaintiff withdrawing earlier suit for partition, was of the
view that the said memo does not satisfy the ingredients
of Order XXIII Rule 1 of CPC and therefore, proceeded to
decree the suit by recording a finding that right to seek
partition being a recurring cause of action, plaintiff is
entitled to seek her legitimate share in the suit schedule
properties dehors dismissal of the earlier partition suit.
8. Feeling aggrieved by the judgment and decree
of the trial Court, the defendants preferred appeal in
R.A.No.100/2022. The appellate Court as a final fact
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finding authority has independently assessed the entire
evidence on record. The appellate Court having taken
cognizance of Ex.P-61 however was not inclined to affirm
the reasons and findings recorded by the trial Court on
Ex.P-61. The appellate Court referring to Ex.P-61 was of
the view that plaintiff has withdrawn the earlier suit by
receiving Rs.80,000/- and if the memo and withdrawal of
earlier suit is not seriously contested and disputed by
plaintiff, appellate Court was of the view that the earlier
withdrawal of O.S.No.7/1995 bars plaintiff from instituting
fresh suit for partition. The appellate Court also found
that plaintiff is guilty of laches in not questioning the
withdrawal of suit in O.S.No.7/1995. The appellate Court
found that plaintiff has withdrawn O.S.No.7/1995 in 1995,
while the present suit is filed in 2013. The appellate Court
held that there is enormous delay in filing the present suit
and therefore, that would negate all her contentions
relating to fraud committed by the defendants in
O.S.No.7/1995. On these set of reasonings, appellate
Court has allowed the appeal and suit is dismissed.
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9. Heard learned counsel appearing for the
plaintiff and learned counsel appearing for the defendants.
10. Though both the Courts have not culled out the
contents of memo which is part of Ex.P-61, I deem it fit to
cull out Ex.P-61 which reads as under:
"16.02.95
Plaintiff by Sri.SCB.
Defendant by Sri: -
Sri.S.Channabasavaiah, Advocate for Plaintiff has
filed an advance application U/s 151 of CPC along
with affidavit. Prays for Advance the case from
6.4.95 to 16.2.95 the reasons stated in the
accompanying affidavit. The same is put up.
Sd/-
Sd/-
P Present, D1 and D2
Present.
Heard Advanced.
SCB submits that the suit
may be dismissed. As she
has received her share of
Rs.80,000/- and hence
prays for dismissal.
ORDER
Suit filed by P is dismissed
as settled out of the Court.
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Sd/-
16/2"
11. The learned Judge taking cognizance of memo
filed by plaintiff in O.S.No.7/1995, which is identified and
signed by the counsel on record has permitted plaintiff to
withdraw suit and same clearly demonstrates that plaintiff
has voluntarily withdrawn earlier suit reporting that matter
as amicably settled out of Court and she has received a
sum of Rs.80,000/-. On examining the order sheet dated
16.02.1995 in O.S.No.7/1995, this Court is more than
satisfied that plaintiff has endorsed before the Judge that
she has received Rs.80,000/- and therefore, she intends to
withdraw the suit. Her signature is found on the order
sheet which is also signed by the counsel appearing for
plaintiff.
12. If these documents are taken into
consideration, then the findings recorded by the trial Court
that relief to seek partition is a recurring cause of action is
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patently erroneous. Though the dismissal of partition suit
on earlier occasion will not bar a joint family member from
filing a fresh suit, under principle that right to seek
partition is a recurring cause of action, this principle is not
applicable to the present case on hand. If plaintiff has
accepted Rs.80,000/- and withdrawn her suit in 1995, the
same amounts to severance in the family. Though a
feeble attempt is made by the plaintiff that defendants
have not honoured and have not paid Rs.80,000/- as
agreed under the memo, also cannot be acceded to. The
memo filed by the plaintiff clearly indicates that she has
received Rs.80,000/- and then withdrew partition suit.
The payment of Rs.80,000/- by the defendants is
acknowledged by the plaintiff before the Judge before
whom the partition suit in O.S.No.7/1995 was pending.
The Judge on verification and satisfaction has accepted the
statement and has dismissed the suit indicating that
plaintiff has received her legitimate share in terms of
money.
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13. If these significant details are looked into, the
suit filed after 18 years seeking partition by suppressing
the earlier litigation only leads to an inference that plaintiff
by suppressing the earlier settlement in O.S.No.7/1995
has filed the suit. Though plaintiff after defendants
tendering written statement has amended the plaint, the
same would not come to her aid. If earlier suit is
withdrawn reporting settlement, the plaintiff could not
have maintained the second suit in 2013.
14. The findings of the trial Court that the memo
filed by the plaintiff does not satisfy the ingredients of
Order XXIII Rule 1 is perverse and contrary to law laid
down by the Apex Court in the case of Mahalaxmi
Cooperative Housing Society Limited and Others vs.
Ashabhai Atmaram Patel (Dead) Through LRs. and
Others1. The Apex Court while dealing with Order XXIII
Rule 3 found that settlement under Order XXIII or
abandonment of claim by the plaintiff are obviously in two
(2013) 4 SCC 404
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parts. The settlement can be by way of lawful agreement
or under the second part, is in regard to satisfaction of
plaintiff's claim wholly or in part in respect of subject
matter of the suit.
15. In the light of the law laid down by the Apex
Court, even a memo filed by the plaintiff withdrawing her
claim in lieu of settlement and receipt of money also
satisfy the ingredients of Order XXIII Rule 1 and therefore,
there is a bar to maintain a second suit. The law laid
down by the Apex Court in the judgment cited supra is
squarely applicable to the present case on hand.
16. No substantial question of law arises for
consideration. The second appeal is devoid of merits and
accordingly, stands dismissed.
The pending interlocutory application, if any, does
not survive for consideration and stands disposed of.
Sd/-
JUDGE
