G N Prasad vs Smt. Sujatha
2023 Latest Caselaw 7112 Kant

                                                 -1-
                                                          NC: 2023:KHC:36724
                                                       RSA No. 2492 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 9TH DAY OF OCTOBER, 2023

                                            BEFORE
                             THE HON'BLE MR JUSTICE H.P.SANDESH
                        REGULAR SECOND APPEAL NO.2492 OF 2018 (PAR)
                   BETWEEN:

                   1.    G. N. PRASAD
                         S/O. LATE NANJUNDAPPA
                         AGED ABOUT 62 YEARS,
                         R/AT GOWDANAKATTE VILLAGE,
                         KASABA HOBLI, TIPTUR TALUK
                         TIPTUR TALUK
                         TIPTUR-572 217.
                                                                 ...APPELLANT

                                 (BY SRI BHANU H.M., ADVOCATE)
                   AND:

                   1.    SMT. SUJATHA
                         W/O. SOMASHEKAR
                         AGED ABOUT 60 YEARS,
                         R/AT HAVENAHALLI
Digitally signed         VILLAGE, KASABA HOBLI
by SHARANYA T
Location: HIGH
                         TIPTUR TALUK-572 201.
COURT OF
KARNATAKA          2.    SMT. SIDDAGANGA
                         W/O. NATARAJ
                         AGED ABOUT 58 YEARS,
                         R/AT HAVENAHALLI
                         VILLAGE, KASABA HOBLI
                         TIPTUR TALUK-572 201.
                                                             ...RESPONDENTS

                         THIS RSA IS FILED UNDER SECTION 100 AND ORDER XLII,
                   RULE 1 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED
                   31.08.2018 PASSED IN R.A.NO.63/2017 ON THE FILE OF THE
                   SENIOR CIVIL JUDGE AND JMFC, TIPTUR, PARTLY ALLOWING THE
                   APPEAL AND SETTING ASIDE/MODIFYING THE JUDGMENT AND
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                                               NC: 2023:KHC:36724
                                             RSA No. 2492 of 2018




DECREE DATED 28.08.2017 PASSED IN O.S.NO.504/2012 ON THE
FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, COURT, TIPTUR.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This matter is listed for admission.

Heard the appellant's counsel.

2. This appeal is filed against the concurrent finding of

the Trial Court. The Trial Court granted the relief of partition of

1/3rd share in the schedule 'A' and 'B' property by metes and

bounds in coming to the conclusion considering the evidence of

D.W.-1 admission that, father passed away on 13.6.2006 and

mother also passed away on 11.1.2013 subsequent to filing of

the suit and also D.W.-1 admitted that suit properties are

ancestral and Joint Hindu family properties and also mode of

acquisition of properties by his father and hence granted the

share.

3. Being aggrieved by the judgment and decree of the

Trial Court an appeal is filed in R.A.No.63/2017. The First

Appellate Court having considered the material on record and

also the grounds urged in the appeal, modified the judgment of

the Trial Court by partly allowing the appeal in coming to the

NC: 2023:KHC:36724 RSA No. 2492 of 2018

conclusion that plaintiffs are entitled for 1/3 share of the 'A'

schedule property and dismissed the same. The same has not

been challenged by the respondents/plaintiffs before this Court.

4. The present appeal is filed by defendant. The

contention of the appellant that both the Courts committed an

error in granting the decree in favour of the plaintiffs and as on

the date of filing of the suit, father of the plaintiffs was not alive

and ought not to have granted the relief. The said contention

cannot be accepted and fact that only after the amendment

father passed away is not in dispute. Mother also passed away

subsequent to filing of the suit. The very contention that as on

the date of filing of the suit father was not alive cannot be a

ground to reject the claim of the plaintiffs.

5. Hence, I do not find any merit in the appeal to

frame any substantial questions of law. Hence, no ground is

made out to admit and invoke Section 100 of CPC.

Hence, second appeal is dismissed.

Sd/-

JUDGE AP