Basavarajappa vs Amruthesh
2023 Latest Caselaw 7147 Kant

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                                                            NC: 2023:KHC:36792
                                                        RSA No. 964 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. 964 OF 2023
                  BETWEEN:

                  BASAVARAJAPPA
                  S/O LATE PARAMESHWARAPPA
                  AGED ABOUT 63 YEARS,
                  OCC: AGRICULTURIST
                  R/O BAVIKERE VILLAGE,
                  LAKKAVALLI HOBALI,
                  TARIKERE TALUK,
                  CHIKKAMAGALURU DISTRICT - 577 128.
                                                                  ...APPELLANT
                  (BY SRI. M.R. HIREMATHAD, ADVOCATE)

                  AND:

                  1.    AMRUTHESH
                        S/O BASAVARAJAPPA
                        AGED ABOUT 33 YEARS,
Digitally signed by     OCC: AGRICULTURIST,
ARUN KUMAR M S
                        R/O BAVIKERE VILLAGE,
Location: High          LAKKAVALLI HOBLI,
Court of Karnataka
                        TARIKERE TALUK,
                        CHIKKAMAGALUR DISTRICT - 577 128.

                  2.    SMT. SHWETHA
                        D/O BASAVARAJAPPA
                        AGED ABOUT 29 YEARS
                        EXCISE SUB-INSPECTOR,
                        R/O TARIKER TALUK,
                        CHIKKAMAGALUR DISTRICT - 577 128.
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                                             NC: 2023:KHC:36792
                                           RSA No. 964 of 2023




3.   SMT. SHARADAMMA
     W/O SHANKARAPPA
     AGED ABOUT 61 YEARS
     OCC: HOUSE WIFE,
     R/O KENCHENAHALLI VILLAGE,
     MAVIKERE POST,
     BHADRAVATHI TALUK,
     CHIKKAMAGALURU DISTRICT - 577 245.

                                                ...RESPONDENTS
(BY SRI. RAVI H.K., ADVOCATE FOR R1 AND R2)

      THIS REGULAR SECOND APPEAL IS               FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST
THE JUDGMENT AND DECREE DATED 06TH MARCH, 2023
PASSED IN REGULAR APPEAL NO.196 OF 2022 ON THE FILE OF
THE PRINCIPAL JUDGE,          FAMILY COURT (DISTRICT AND
SESSIONS     JUDGE),    CHIKKAMAGALURU        DISMISSING     THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 04TH AUGUST, 2022 PASSED IN ORIGINAL SUIT NO.42
OF 2017 ON THE FILE OF THE SENIOR             CIVIL JUDGE AND
PRINCIPAL JMFC, TARIKERE.

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

This appeal is listed for admission. I have heard learned

counsel for the appellant.

2. The factual matrix of the case of plaintiffs is that the

plaintiffs are the children of the defendant No.2, have filed suit

NC: 2023:KHC:36792 RSA No. 964 of 2023

for relief of partition and separate possession claiming one-

fourth share in the suit schedule properties and the defendant

No.1 is the Aunt of plaintiffs. The Court, taking note of the fact

that, earlier there was a partition between the defendants 1

and 2, considered the material on record and granted relief of

partition of one-third share in respect of item Nos.3 to 5 of the

suit schedule properties and dismissed the suit in respect of

item Nos.1 and 2 of the suit schedule properties, since the

same are were allotted to the defendant No.1. Being aggrieved

by the judgment and decree passed by the Trial Court in

Original Suit No.42 of 2017, an appeal is filed in Regular

Appeal No.196 of 2022 before the First Appellate Court by the

defendant No.2. The First Appellate Court, having reassessed

the material available on record and also the grounds urged in

the appeal, formulated the following points for consideration:

"1) Whether the trial Court committed error in holding that the item No.3 to 5 of the schedule are the ancestral properties and in that plaintiffs entitled 1/3rd share each?

2) Whether impugned judgment needs interference by this Court?

3) What order ?"

NC: 2023:KHC:36792 RSA No. 964 of 2023

3. The First Appellate Court also considered the material

on record and noticed with regard to property, which is allotted

to the share of defendant No.2 in a partition, which had been

taken place earlier and plaintiffs are the son and daughter of

the defendant No.2, comes to the conclusion that the plaintiffs

are entitled for one-third share in item Nos.3 to 5 and

concurred the finding of the Trial Court. Hence, this second

appeal is filed by the defendant No.2.

4. Learned counsel for the appellant vehemently

contends that, both the Courts below have failed to take note of

Exhibits D1 to D21 and committed an error in answering the

issue Nos.1 and 2 as partly affirmative and Additional issues 1

to 4 as affirmative and comes to the conclusion that the

plaintiffs are entitled for share in the property. The First

Appellate Court also failed to take note of the pleadings of the

appellant in Paragraphs 12 and 13 of the written statement,

wherein, he specifically pleaded that, he had incurred expenses

for the Education of the plaintiffs and both of them become

Panchayat Development Officer and Excise Sub-Inspector and

working. The Counsel also would vehemently contend that,

since the plaintiffs are not looking after the appellant and they

NC: 2023:KHC:36792 RSA No. 964 of 2023

have not provided any basic necessities to the appellant, the

appellant has preferred application before the Assistant

Commissioner at Tarikere under Welfare of the Parents and

Senior Citizen Act. The Assistant Commissioner, Tarikere

passed an order against the plaintiffs to pay a sum of

Rs.6,000/- per month to the appellant and against the said

order, they have filed appeal and not taking care of the

appellant and hence, this Court has to frame substantive

question of law that both the Courts below have committed an

error in granting one-third share in item Nos.3 to 5 of the suit

schedule property and not taken note of the liabilities of the

appellant.

5. Having heard the learned counsel for the appellant and

on perusal of the material on record, it is not in dispute that the

suit schedule properties belong to the family of the appellant

and plaintiffs and also earlier there was a partition between the

appellant and his sister in respect of family properties. Item

Nos.1 and 2 are allotted in favour of the defendant No.1 and

the Trial Court also taken note of the parties are entitled for

share in item Nos.3 to 5. The learned counsel for the appellant

also contended that, in respect of one of the item of the

NC: 2023:KHC:36792 RSA No. 964 of 2023

properties, one more Regular Second Appeal is pending in view

of some other person is in occupation. The said submission

cannot be accepted since the Trial Court granted a relief of one-

third share in favour of plaintiffs and while allotting share also

not committed any error and also comes to the conclusion that

the properties belong to the family and same are entitled for

partition. On humanitarian ground, the plaintiffs are not taking

care of the father cannot be looked into in this second appeal.

Though the appellant in written statement at paragraphs 12

and 13 contended that he has to repay the loan, which is

received to that effect, he did not specifically pleaded with

regard to availment of loan and also to the extent of the liability

of the appellant and when specific plea is not taken with regard

to liability, the question of considering the same in second

appeal does not arise. No material is placed before the Trial

Court and the First appellate Court in order to substantiate his

contention, which has been raised before this Court. Hence, I

do not find any error committed by the Trial Court and First

appellate Court in considering both material on record and

taken note of both the question of fact and question of law and

passed a judgment. Hence, question of invoking Section 100 of

NC: 2023:KHC:36792 RSA No. 964 of 2023

the Code of Civil Procedure does not arise and also I do not find

any perversity in the judgment and decree passed by the Trial

Court and First Appellate Court. The other contention of the

appellant that the respondents 1 and 2 herein have not paid the

amount granted to the tune of Rs.6,000/- to him, he can seek

for an order to enforce the said order. In view of the discussion

made above, I pass the following:

ORDER

Regular Second Appeal is dismissed.

In view of dismissal of the appeal, the documents which

are produced in IA.2 of 2023 does not survive for consideration.

Accordingly, IA.2 of 2023 stands disposed of.

Sd/-

JUDGE

ARK