Karnataka High Court
Chamundigowda vs Smt. Chowdamma on 4 September, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:31798
RSA No. 383 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.383 OF 2020 (PAR)
BETWEEN:
1. CHAMUNDIGOWDA
S/O LATE KEMPEGOWDA
AGED ABOUT 64 YEARS,
2. KRISHNEGOWDA
S/O LATE KEMPEGOWDA
AGED ABOUT 62 YEARS
BOTH ARE R/O GUTTAL
JAYALAKSHMI TALKIES
MANDYA CITY-571401
...APPELLANTS
Digitally signed
(BY SRI. RAJA L.,ADVOCATE)
by SHARANYA T
AND:
Location: HIGH
COURT OF
KARNATAKA 1. SMT. CHOWDAMMA
W/O LATE BOREGOWDA AND
D/O LATE KEMPEGOWDA
AGED ABOUT 68 YEARS
2. G K NAGAMMA
D/O LATE KEMPEGOWDA
AGED ABOUT 62 YEARS
3. SMT. ASHWINI
W/O G K NAGARAJU
-2-
NC: 2023:KHC:31798
RSA No. 383 of 2020
AGED ABOUT 31 YEARS
R1 TO R3 ARE R/O NO.529,
GUTTAL, ARAKESHWARA NAGAR
MANDYA CITY - 571 401
4. SMT. SUVRNAMMA
W/O PUTTASWAMY AND
D/O LATE KEMPEGOWDA
AGED ABOUT 60 YEARS,
R/O MOTHAHALLI VILLAGE,
KOTHAHALLI HOBLI,
MANDYA TALUK-577401
G K KEMPAIAH
SINCE DEAD BY HIS LRS
5. SMT. SUDHA
W/O G K KEMPAIAH
AGED ABOUT 65 YEARS,
6. KARTHIK
S/O G K KEMPAIAH
AGED ABOUT 40 YEARS
7. KEERTHI
S/O G K KEMPAIAH
AGED ABOUT 35 YEARS
R5 TO R7 ARE R/O 6TH CROSS,
THAVARAEGERE
MANDYA CITY-571401
8. NAGARAJU
S/O PUTTASWAMY
AGED ABOUT 50 YEARS
9. LOKESH
S/O LATE MARIYAPPA
-3-
NC: 2023:KHC:31798
RSA No. 383 of 2020
AGED ABOUT 38 YEARS,
PETTY SHOP OWNER
BOTH R8 AND 9 ARE R/O GUTHALU
OPP JAYALAKSHMI TALKIES
MANDYA CITY-571401
...RESPONDENTS
(BY SRI DILEEP N, ADVOCATE FOR R1 TO R4;
R5, R6 AND R9 ARE SERVED;
R7 NOTICE H/S V/O DT.21.08.2023;
R8 NOTICE D/W V/O DT.12.04.2022)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 03.09.2019
PASSED IN R.A.NO.9/2014 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, MANDYA AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the
learned counsel appearing for the respective parties.
2. The factual matrix of the case of the plaintiffs is
that the suit is filed for the relief of partition claiming 1/7th
legitimate share in the suit schedule properties by metes
and bounds contending that the property belongs to the
joint family and the defendants No.1 to 3 took the defence
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RSA No. 383 of 2020
in the written statement that already there is a partition in
the year 1982 and the same is a oral partition and in order
to substantiate the same, no material is placed before the
Court and hence, the Trial Court not believed the
contention of the defendants and decreed the suit. Being
aggrieved by the order of the Trial Court, an appeal was
preferred before the First Appellate Court and the First
Appellate Court also considering both oral and
documentary evidence placed on record comes to the
conclusion that there are no material to establish that
earlier there was a partition.
3. The very contention of appellant No.1 herein
before the First Appellate Court that he had incurred debts
for the legal necessity of the family but in the absence of
material on record, the same is also not accepted by the
First Appellate Court and the First Appellate Court also
taken note of the admission given by DW1 in the cross-
examination that his father died just 20 days after his
retirement and they were all residing together at that time
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RSA No. 383 of 2020
and plaintiff No.2 being the physically challenged lady was
spinster and at the time of death of his father, brothers of
the plaintiffs were unmarried. It is also admitted that
plaintiff No.1 returned to her matrimonial house as she
lost her husband just after 2 to 3 years of the marriage.
This evidence of DW1 has been pointed out by the Trial
Court when it clearly reveals the fact that at the time of
death of their father, the plaintiffs and the defendants
No.1 to 3 were residing together and the brothers of the
plaintiffs were unmarried and then the question of oral
partition allotting shares as contended in the written
statement by defendant Nos.2 and 3 does not arise. The
First Appellate Court also on re-appreciation of both oral
and documentary evidence placed on record comes to the
conclusion that in order to substantiate the contention of
the defendants No.1 to 3 that already there was a
partition, no materials are produced before the Court and
hence, dismissed the appeal. Being aggrieved by the
judgment and decree of Trial Court as well as First
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RSA No. 383 of 2020
Appellate Court, the present appeal is filed before this
Court.
4. The learned counsel appearing for the
appellants would vehemently contend that both the Courts
have committed an error in appreciating the material on
record and not considered the documents of Ex.D1 to D3
on the ground that the same does not prove the oral
partition and hence, this Court has to frame the
substantial questions of law with regard to that whether
the suit schedule properties are the ancestral and joint
family properties of the plaintiffs and defendants No.1 to 3
as on the date of filing of the suit.
5. The counsel for the respondents would
vehemently contend that both the Courts have taken note
of the fact that there is no material with regard to prior
partition as contended by the defendants and both the
Courts have rightly come to the conclusion that no
material is placed before the Court to show that already
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RSA No. 383 of 2020
there was a partition and hence, it does not require any
interference by this Court.
6. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record, it discloses that the suit is filed for the relief of
partition and the plaintiffs have categorically pleaded that
the suit schedule properties are the joint family properties
and though the defendants No.1 to 3 took the defence that
there was a oral partition in the year 1982, in order to
substantiate that there was a oral partition and the parties
have acted upon, no material is placed and also taken note
of the admission given by DW1 with regard to the
contention of oral partition wherein he categorically
admitted that they are in joint possession and when the
father passed away, there was no marriage of any family
members and the said contention of the appellant not
believed, hence, ordered for partition on the ground that
the properties are ancestral and joint family properties and
the plaintiffs were also entitled for the share in the
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RSA No. 383 of 2020
property. Thus, both the Courts taken note of the fact that
in the cross-examination of DW1 he deposed that when
father passed away, all of them were residing together and
all were unmarried and no dispute that properties are
ancestral properties. Hence, I do not find any error
committed by both the Courts in granting a share in the
suit schedule properties as claimed by the plaintiffs. Thus,
the appellants have not made out any grounds to admit
the appeal and to frame substantial questions of law
invoking Section 100 of CPC.
7. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SN
