Karnataka High Court
Sri V Muniyappa vs Smt. Pillamma @ Lakshmamma on 3 October, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:35638
RSA No. 705 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.705 OF 2021 (PAR)
BETWEEN:
1. SRI V. MUNIYAPPA
S/O LATE VENKATARAMANAPA @ GANTLAPPA,
AGED ABOUT 67 YEARS,
R/AT DIMBACHAMANAHALLI,
KASABA HOBLI, SHILENGERE POST,
KOLAR TALUK-563 101.
...APPELLANT
(BY SRI SURESH BABU B.N., ADVOCATE)
AND:
1. SMT. PILLAMMA @ LAKSHMAMMA
W/O VENKATESHAPPA,
D/O LATE VENKATARAMANAPPA @ GANTLAPPA,
Digitally signed AGED ABOUT 90 YEARS,
by SHARANYA T R/AT THIPPASANDRA VILLAGE,
Location: HIGH HUTHUR HOBLI,
COURT OF KOLAR TALUK-563 101.
KARNATAKA
2. SRI M. PRASANNA
S/O V. MUNIYAPPA,
AGED ABOUT 39 YEARS,
R/AT DIMBACHAMANAHALLI,
KASABA HOBLI, SHILENGERE POST,
KOLAR TALUK-563 101.
3. SRI M. MAHESH
S/O V. MUNIYAPPA,
AGED ABOUT 34 YEARS,
R/AT DIMBACHAMANAHALLI,
-2-
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RSA No. 705 of 2021
KASABA HOBLI, SHILENGERE POST,
KOLAR TALUK-563 101.
4. SRI M. ANAD
S/O V. MUNIYAPPA,
AGED ABOUT 27 YEARS,
R/AT DIMBACHAMANAHALLI,
KASABA HOBLI, SHILENGERE POST,
KOLAR TALUK-563 101.
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 23.12.2020 PASSED IN
RA.NO.13/2020 ON THE FILE OF THE I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, KOLAR, PARTLY ALLOWING THE
APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED
13.11.2019 PASSED IN OS.NO.295/2016 ON THE FILE OF THE
C/C I ADDITIONAL SENIOR CIVIL JUDGE AND CJM., AT
KOLAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission.
I have heard the learned counsel for the appellant.
2. This appeal is against the concurrent finding of the
Trial Court and the First Appellate Court. The suit is filed by the
sister of appellant claiming 1/2 share in the suit schedule
properties and she has claimed the share in respect of all the
items of the suit schedule properties and Trial Court comes to
the conclusion that she is entitled for share in the property i.e.
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item Nos.2 to 7 of 'A' schedule property and not entitled for any
share in item Nos.1 and 8 to 16 of 'A' schedule property and so
also item Nos.1 and 2 of 'B' schedule property and decreed the
suit partly by granting 3/4th share. The First Appellate Court
having re-appreciated the material available on record
concurred the judgment of the Trial Court and only modified
with regard to 1/2 share instead of 3/4th share granted by the
Trial Court in coming to the conclusion that brother and sister
are entitled for 1/2 share each in the property i.e. item Nos.2
to 7. Being aggrieved of the said judgment and decree, the
second appeal is filed before this Court.
3. The main contention of the counsel before this
Court that both the Courts failed to consider the material on
record in a proper perspective and committed an error in
allocating share to the plaintiff in item Nos.2 to 7 of the 'A'
schedule property by ignoring the fact that same are developed
by defendant No.1 and has invested his huge hard earned
money and make them as fertile and ignored the fact that
defendant No.1 being the sole male heir of the property
succeeded to item Nos.2 to 7 of the schedule property. It is
also the contention that the plaintiff got married in the year
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1973 and after her marriage she had severed from the joint
family and suit for partition is also time barred. Both the Courts
failed to take note of this aspect and committed an error and
hence, this Court has to frame substantial question of law that
both the Courts have committed an error in granting the relief
and even though the same is barred by limitation and relied
upon the evidence of PW1 who is not having any knowledge of
the facts of the case and hence, this Court has to interfere with
the same.
4. Having heard the appellant's counsel and also on
perusal of the material available on record, the Trial Court while
considering the material on record particularly granted the
relief in respect of item Nos.2 to 7 coming to the conclusion
that the plaintiff is entitled for a share only in these properties
and not entitled for item Nos.1, 8 to 16 of 'A' schedule and item
Nos.1 and 2 of 'B' schedule property. The First Appellate Court
also having reassessed the evidence available on record taking
into note of nature of the property and also PW1 categorically
admitted in her cross examination that item Nos.2 to 7 of 'A'
Schedule property are the properties standing in the name of
defendant No.1 and also admitted that he does not know item
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Nos.10 to 16 of 'A' schedule property standing in whose name
and defendant No.1 also produced certain documents to show
that he had borrowed the loan from the bank for the purpose of
purchasing of properties and having re-assessed the material
available on record comes to the conclusion that she is entitled
for a share only in respect of item Nos.2 to 7 of 'A' schedule
property and concurred the finding and only modified the share
as 1/2 share instead of 3/4th share and Trial Court committed
an error in granting 3/4th share instead of 1/2 share. When
such being the material available on record and the very
contention urged by the appellant before this Court that he had
invested the money for improvement and made the same as
fertile land and marriage was solemnized in the year 1973 and
suit is barred by limitation, the very contention that suit is
barred by limitation cannot be accepted in case of suit for
partition and the possession is also a joint possession and when
there was no any severance between the parties. When such
being the case, I do not find any error committed by the Trial
Court as well as the First Appellate Court on the question of
raising issue of limitation in second appeal does not arise as
contended by the appellant's counsel and both the Courts have
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taken note of the nature of the property and entitlement of the
share in the property particularly only allotted in respect of
item Nos.2 to 7 of 'A' schedule property and Appellate Court
also analysed the evidence available on record and confirmed
the same and hence, I do not find any ground to admit and
frame any substantial question of law as contended by the
appellant's counsel in this second appeal and no perversity is
also found in the judgment of the Trial Court and the First
Appellate Court to invoke Section 100 of CPC.
5. In view of the discussions made above, I pass the
following:
ORDER
Second appeal is dismissed.
Sd/-
JUDGE
AP
