Karnataka High Court
Sri. H. V. Basavaraj vs Smt. Nagarathna on 10 October, 2023
Bench: H.P.Sandesh
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RSA No. 1575 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1575 OF 2023 (PAR)
BETWEEN:
1. SRI H.V.BASAVARAJ
S/O LATE HANJI B. VEERABHADRAPPA,
AGED ABOUT 56 YEARS,
AGRICULTURIST,
R/O. 496/A, 5TH MAIN
2ND MAIN, 2ND STAGE,
MAHALAKSHMIPURAM
BANGALORE-560 086.
...APPELLANT
(BY SRI RAVIKUMAR N.R., ADVOCATE)
AND:
1. SMT. NAGARATHNA
D/O. LATE HANJI B. VEERABHADRAPPA
Digitally signed
by SHARANYA T W/O. D.N. PRAKASH,
Location: HIGH AGED ABOUT 62 YEARS,
COURT OF ADVOCATE, HIGH COURT,
KARNATAKA
BANGALORE,
R/AT NO.56 UPSTAIRS,
DODDABASAVANAPURA
VIRGO NAGAR
BANGALORE - 560 049.
2. SRI. SHARATH K.S.
S/O SUMANGALA SHIVAKUMARAPPA
AGED ABOUT 52 YEARS,
CLASS-1 CONTRACTOR AND LAND HOLDER
R/O NO.436, SHIVASUMA NILAYA
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RAJAJINAGAR 1ST 'N' BLOCK,
BANGALORE - 560010.
3. SRI. H.V. VIJAYAKUMAR
S/O LATE HANJI B. VEERABHADRAPPA
AGED ABOUT 84 YEARS,
R/AT SRI.LAKSHMI RESIDENCY
NO. F-07, 13TH CROSS,
MARUTHI LAYOUT,
BHUVANESHWARNAGAR,
BANGALORE - 560026.
4. LALITHAMMA
W/O LATE H.V. UMESH KUMAR
D/O LATE HANJI B. VEERABHADRAPPA
AGED ABOUT 70 YEARS,
C/O LAKSHMI RESIDENCY
NO. F-07, 13TH CROSS,
MARUTHI LAYOUT,
BHUVANESHWAR NAGAR,
BANGALORE - 560026.
5. SRI. H.V. CHANDRASHEKAR
S/O LATE HANJI B. VEERABHADRAPPA,
AGED ABOUT 79 YEARS,
R/AT NO. 249, 2ND CROSS,
3RD MAIN BEML LYOUT,
CHANDRA LAYOUT,
BANGALORE - 560040.
6. SRI. H.V. NAGARAJ
S/O LATE HANJI B.VEERABHADRAPPA
AGED ABOUT 72 YEARS,
R/AT NO.540, 3RD CROSS,
NEAR SIDDAGANGA HIGH SCHOOL
CHANDRA LAYOUT,
BANGALORE - 560040.
7. SMT. DAKSHIYINI
D/O LATE HANJI B.VEERABHADRAPPA
AGED ABOUT 70 YEARS,
R/AT 146, 4TH CROSS,
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RSA No. 1575 of 2023
5TH MAIN ROAD,
CHANDRA LAYOUT,
BANGALORE - 560040.
8. H.V. RUDRAKUMAR
S/O LATE HANJI B. VEERABHADRAPPA
AGED ABOUT 68 YEARS,
R/AT NO.87, 6TH CROSS,
4th MAIN ROAD,
RAJAJINAGAR,
BANGALORE - 10.
9. SMT. AMBIKA
D/O LATE HANJI B. VEERABHADRAPPA
AGED ABOUT 60 YEARS,
R/O SIDDESHWARAKRUPA
UPSTAIR,
G. NARAYANAPPA AND SON'S
CLOTH MERCHANT
NH-206, BHADRAVATHI
SHIVAMOGGA DISTRICT
PIN 577 301.
10. SMT. VATSALA
D/O LATE HANJI B. VEERABHADRAPPA
AGED ABOUT 58 YEARS,
W/O S.P. JAGANATH
R/AT SAVALANAGA ROAD,
L.B.S. ARCH, NEAR TARALABALU
SRIGERI HOSTEL
SHIVAMOGGA-577 201
11. SMT. NIRMALA
D/O LATE HANJI B. VEERABHADRAPPA
AGED ABOUT 54 YEARS,
R/AT NO.145, KUSHAL NILAYA,
8TH CROSS, 2ND MAIN RAOD,
JAYANAGARA
SHIVAMOGGA-577 201.
12. SMT. GAYATHRI
D/O LATE HANJI B. VEERABHADRAPPA
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RSA No. 1575 of 2023
AGED ABOUT 52 YEARS,
R/AT KEB QUARTERS
2ND STAGE, 30TH CROSS,
D.NO.B 301, 17TH MAIN,
RAJAJINAGAR,
BANGALORE-560010.
13. SRI. D.C. SHATHAVERANNA
S/O CHANDRAPPA
AGED ABOUT 80 YEARS,
AGRICULTURIST
R/O. DORANALU,
KASABA HOBLI,
TARIKERE TALUK
CHIKKAMAGALURU DISTRICT-577 228.
14. SRI. D.G. GIRISH
S/O D.C. SHANTHVEERANNA
AGED ABOUT 65 YEARS,
AGRICULTURIST
R/AT DORANALU, KASABA HOBLI,
TARIKERE TALUK,
CHIKKAMAGALUR DISTRICT-577 228.
...RESPONDENTS
(BY SRI D.N. PRAKASH, ADVOCATE FOR C/R1;
SRI M.R.SHASHIDHAR, ADVOCATE FOR C/R8)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 03.07.2023 PASSED IN
R.A.NO.198/2022 ON THE FILE OF THE PRINCIPAL JUDGE,
(DISTRICT AND SESSIONS JUDGE, FAMILY COURT,
CHIKKAMAGALURU) DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 14.07.2020
PASSED IN O.S.NO.7/2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND PRINCIPAL JMFC, TARIKERE.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant and learned counsel for the
respondents.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that the suit schedule properties are her and
defendants Hindu joint family properties and the defendant
Nos.3 and 6 took the specific contention that the suit of the
plaintiff is hit by principle of res-judicata. It is also the case of
the plaintiff that earlier a suit was filed and the same was
withdrawn and defendant Nos.14 and 15 contend that they
have purchased the properties for value and suit schedule
properties have to be excluded from the partition by way of
equity. The defendant No.11, who is the appellant herein also
contend that there was a settlement in respect of Sy.No.62/2
measuring 2 acres, 16 guntas and the same was allotted to her
and also took the contention that item No.4 of the suit schedule
properties was allotted for the defendant No.1 and the
defendant No.1 gifted the property in favour of the appellant
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herein. The defendant No.11 also contended in the written
statement that the plaintiff has not proved the fact that the
properties stated in Para No.11 of the written statement are her
joint family properties and she is entitled for 1/4th share in the
said properties.
3. The Trial Court, having considered the material on
record, framed issues and allowed the parties to lead evidence.
Accordingly, the plaintiff examined herself as P.W.1 and got
marked the documents as Exs.P1 to P28. On the other hand,
the defendant No.6 examined himself as D.W.1 and another
witness as D.W.2 and got marked the documents as Exs.D1 to
D3.
4. The Trial Court, having considered the material on
record, granted the relief of declaration only in respect of item
Nos.3 and 4 and rejected the claim in respect of other suit
schedule properties. It is also important to note that though
defendant No.11, who is the appellant herein took the specific
contention before the Trial Court and filed the written
statement and even the Trial Court also framed issues with
regard to his contention, burden was on him to prove the issue
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Nos.4 to 6 with regard to his claim is concerned, but he did not
step into the witness box to lead evidence and not produced
any material before the Court. Hence, the Trial Court answered
issue Nos.4 to 6 against the appellant herein as 'negative'.
5. Being aggrieved by the said judgment, appeal is
filed by the defendant No.11 in R.A.No.183/2022 and the
plaintiff filed the appeal in R.A.No.198/2022 and the First
Appellate Court having reassessed the material on record,
dismissed both the appeals and hence, the defendant No.11,
who is the appellant herein has approached this Court.
6. Learned counsel for the appellant would vehemently
contend that when specific defence was taken that item Nos.3
and 4 are allotted in favour of the appellant and decree is also
granted only in respect of item Nos.3 and 4, the Trial Court
failed to take note of the pleading and also the contention of
the defendant No.11 and committed an error. The learned
counsel also would vehemently contend that the appellant
could not place the material before the Court, particularly the
document of gift deed in respect of item No.4 which was
allotted in favour of his mother and the mother in turn
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executed gift deed in favour of the appellant. Hence, an
opportunity has to be given to the appellant herein by this
Court to prove the same by remanding the matter. The learned
counsel also would vehemently contend that this Court may
grant an opportunity to file an application under Order 41, Rule
27 of C.P.C to produce additional evidence.
7. Learned counsel for the Caveator-respondent No.8
would vehemently contend that the Trial Court while
considering the material on record, particularly in Para No.19,
taken note of the contention in respect of item No.3 and also
observed that defendant No.11 though took the specific
contention, in order to substantiate that item No.3 has fallen to
his share in the family settlement, not produced any document
nor examined any witness in this behalf and the Trial Court also
taken note of the fact that item No.4 of the suit schedule
properties has fallen to the share of his mother in Para No.20 of
the judgment and discussed with regard to the same and
observed that, in order to prove the factum that property was
allotted to his mother and in turn, the mother executed the gift
deed, nothing is produced on record and answered the said
issue as 'negative'. Learned counsel also would vehemently
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contend that even before the First Appellate Court also, the
appellant has not produced any document and also not filed
any application seeking production of document and now in the
second appeal, the appellant cannot seek for an order of
remand and also for production of additional documents.
8. Having heard the learned counsel for the appellant
and learned counsel for the Caveator-respondent No.8 and also
on perusal of the material available on record and having
considered the pleadings of the parties, the Trial Court has
rightly framed the issues and fixed the burden on the appellant
in respect of issue Nos.4 to 6 is concerned, since he has
contended that item Nos.3 and 4 are allotted to his mother and
mother also executed gift deed in his favour but, he did not
place any material to substantiate his contention and when the
issue is framed with regard to the contentions raised by him,
burden is on him to prove that by virtue of family partition, suit
Sy.No.62/2 was allotted in his favour and also in respect of
item No.4 of the suit schedule properties, the same was
allotted to his mother and his mother in turn gifted the
property to the defendant No.11 and also claimed the share in
respect of 1/4th share in the written statement properties in
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Para No.11 that he is also entitled for the same and in order to
substantiate the same, no material is placed and also not even
entered into the witness box to substantiate his contention and
even if he was unable to place the document before the Trial
Court in O.S.No.7/2014 and when the regular appeal was filed
in 2022 after lapse of 2 years though the judgment in the suit
was delivered in the year 2020, even before the First Appellate
Court also, the appellant-defendant No.11 not taken any steps
to produce the document by filing an application under Order
41, Rule 27 of C.P.C. seeking permission to produce additional
document and no document is placed before the Court to
substantiate his contention and to adduce evidence.
9. Learned counsel for the Caveator-respondent No.8
also brought to notice of this Court that the very appellant in
O.S.No.10/2012 which was filed earlier contended that item
Nos.3 and 4 of the suit schedule properties are joint family
properties which is also observed in Para No.27 of the
judgment of the First Appellate Court while considering issue
Nos.4 to 6 with regard to item Nos.3 and 4 and comes to the
conclusion that there is no illegality in the finding of the Trial
Court and the plaintiff had succeeded in proving that item
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Nos.3 and 4 were the joint family properties and the pleading
was taken note by the First Appellate Court while dismissing
the appeal filed by the appellant. When these are the materials
considered by the Trial Court and the First Appellate Court and
when the appellant failed to place any material before the
Court, the contention of the appellant-defendant No.11 in the
written statement remains as contention and the appellant
failed to prove the fact that item Nos.3 and 4 were allotted in
his favour, even though the burden is on him to prove the
same. Hence, in the second appeal, he cannot seek for filing
an application to produce additional evidence and for remand.
Even though the suit was filed in 2014, the parties are still
agitating before this Court in 2023 and now in 2023, he cannot
seek for remanding the matter when an opportunity was given
to the appellant to place the material before the Court. Hence,
no grounds are made out to admit and frame the substantial
question of law, since the appellant has not placed any material
and even not stepped into the witness box to lead any evidence
to prove his case. This Court can invoke Section 100 of C.P.C.,
if any perversity is found in the judgment of the Trial Court and
the First Appellate Court and no such interference is warranted
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in the case on hand, since the appellant not adduced evidence
either before the Trial Court or before the First Appellate Court.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
ST
