Siddamma vs Smt.Gangamma
2023 Latest Caselaw 6433 Kant

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                                                          NC: 2023:KHC:32755
                                                         RSA No. 894 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 11TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                   REGULAR SECOND APPEAL NO. 894 OF 2022 (PAR/DEC)

                   BETWEEN:

                   1.    SIDDAMMA
                         S/O LATE ESHWARAPPA
                         AGED ABOUT 62 YEARS,
                         OCC: AGIRCCULTURE,
                         R/AT NARASIPURA VILLAGE,
                         HOSADURGA TALUK
                         CHITRADURGA DISTRICT-577501.

                   2.    LAXMIDEVAMMA
                         D/O LATE ESHWARAPPA
                         AGED ABOUT 42 YEARS,
                         OCC: AGRICULTURE
                         R/AT THANIGEKALLU VILLAGE,
                         MADADAKERE HOBLI,
                         HOSADURGA TALUK
Digitally signed
by SHARANYA T            CHITRADURGA DISTRICT-577 501.
Location: HIGH
COURT OF           3.    VEENA
KARNATAKA
                         D/O LATE ESHWARAPPA
                         C/O RAJAPPA
                         AGED ABOUT 40 YEARS,
                         OCC: AGRICULTURE,
                         R/AT MASANIHALLI VILLAGE,
                         HOSADURGA TALUK
                         CHITRADURGA DISTRICT-577501.
                                                               ...APPELLANTS

                           (BY SRI PRAVEEN KUMAR RAIKOTE, ADVOCATE)
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                                          NC: 2023:KHC:32755
                                        RSA No. 894 of 2022




AND:

1.    SMT.GANGAMMA
      W/O RAMAPPA
      AGED ABOUT 57 YEARS,
      R/AT BENEKANAHALLI VILLAGE,
      MADADAKERE HOBLI,
      HOSADURGA TALUK-577501.

2.    SHIVANNA
      S/O RAMANNA
      AGED ABOUT 80 YEARS,
      AGRICULTURSIT,
      R/O. NARASIPURA VILLAGE,
      MADADAKERE HOBLI,
      HOSADURGA TALUK-577501.

3.    T.NAVEEN KUMAR
      S/O G.THIMAPPA,
      AGED ABOUT 40 YEARS,
      DEVIGERE VILLAGE,
      KASABA HOBLI,
      HOSADURGA TALUK-577501.
                                             ...RESPONDENTS

       THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 11.04.2022 PASSED IN
R.A.NO.33/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND    JMFC,   HOADURGA,   DISMISSING     THE   APPEAL   AND
CONFIRMING      THE   JUDGEMENT     AND    DECREE     DATED
15.05.2020 PASSED IN O.S.NO.138/2012 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JMFC, HOSADURGA.


       THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                             NC: 2023:KHC:32755
                                            RSA No. 894 of 2022




                          JUDGMENT

Heard the appellants counsel.

This matter is listed for admission.

2. The suit is filed by the plaintiffs in O.S.No.138/2012

for the relief of partition and declaration. The very case of the

plaintiffs that suit schedule properties are ancestral and joint

family properties. Though defendants contended earlier that it

is a self acquired property and the said issue was deleted and

defendants No.1 to 3 filed their written statement contending

that already there was a prior partition and hence the Court

also framed relevant issues and Trial Court considered issue

No.1 and additional issue No.1 and the same is the crux of the

matter with regard to, whether the property is the ancestral

property and whether already there was a partition in the

family. There is no dispute with regard to the fact that suit

schedule properties are ancestral properties, but defendants

No.1 to 3 took specific contention that already there was a

partition and in terms of the partition parties are also acted

upon and the Trial Court while considering the material

available on record in paragraph No.17 extracted the admission

given by PW1 wherein she has categorically admitted that her

NC: 2023:KHC:32755 RSA No. 894 of 2022

husband got 3 acres 7 guntas in re-survey No.16/2 and also

Khatha was changed in favour of her husband and

subsequently after the death of her husband, she had sold the

property and went and settled in her parents house and this

fact is also taken note of by the Trial Court while answering

issue No.1 as well as additional issue No.1 and dismissed the

suit in coming to the conclusion that already there was partition

and parties have acted upon. Being aggrieved by the judgment

and decree, R.A.No.33/2020 is filed before the First Appellate

Court and the First Appellate Court also having considered the

grounds urged in the appeal in paragraph No.10 formulated the

points in paragraph No.12, whether the suit schedule properties

are ancestral and joint family properties, whether plaintiffs are

entitled for partition, whether judgment and decree of the Trial

Court requires interference.

3. The First Appellate Court having considered both

oral and documentary evidence, answered point Nos.1 to 3 as

negative in coming to the conclusion that already there was a

partition and parties have acted upon and also the property

was sold which was allotted in favour of husband of the

appellant and dismissed the appeal.

NC: 2023:KHC:32755 RSA No. 894 of 2022

4. The counsel appearing for the appellants would

vehemently contend that both the Courts failed to consider the

material available on record and the finding of the Trial Court is

perverse and the very conclusion of both the Courts that

already there was a partition is erroneous and hence, this Court

has to frame the substantive question of law, whether both the

Courts were error in looking into the unregistered document, it

was not compulsorily registerable and both the Courts were

right in dismissing the suit for partition on the ground that it is

the plaintiffs to prove that there is a partition in the family and

the when the burden is on the defendants.

5. Having heard the appellants counsel and also on

perusal of the material available on record, no doubt the

plaintiffs /appellants have pleaded in the plaint that suit

schedule properties are ancestral properties and no partition in

the family and defendants appeared and filed written statement

contending that already there was a partition and properties

were also allotted in favour of the husband of the plaintiff and

he got it transferred the Khatha and subsequently she also sold

the property and documentary evidence is also very clear with

regard to the sale of the property and also taken note of

NC: 2023:KHC:32755 RSA No. 894 of 2022

admission on the part of PW1 in the cross-examination,

particularly in paragraph No.17 extracted the very admission

wherein categorically admitted that there was a partition and

Khatha was also transferred in the name of her husband

immediately after the partition and thereafter she has sold the

property after the death of her husband and all these materials

were also taken note of by the Trial Court as well as by the

First Appellate Court. I do not find any ground to come to a

conclusion that the judgment of the Trial Court and also the

First Appellate Court amounts to perversity and no doubt the

First Appellate Court has not passed a detailed order, but when

the material available before the Court itself is sufficient

including the pleading as well as the admission and also the

documents which have been placed before the Court and the

same is also considered by the First Appellate Court in

paragraph Nos.17 and 18 and rightly comes to the conclusion

that there is no existence of joint family since already there

was a partition and hence, I do not find any ground to admit

the appeal and frame the substantive question of law as

contended by the counsel for the appellants.

NC: 2023:KHC:32755 RSA No. 894 of 2022

6. In view of the discussions made above, I pass the

following:

ORDER

Second appeal is dismissed.

Sd/-

JUDGE

AP