Karnataka High Court
Eramma vs Kempamma on 12 September, 2023
Bench: H.P.Sandesh
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RSA No. 1511 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1511 OF 2021 (INJ)
BETWEEN:
1. ERAMMA
W/O. CHIKKABOREGOWDA,
AGED ABOUT 76 YEARS,
R/O. NEAR CORPORATION SCHOOL,
9TH MAIN, VIJAYANAGAR,
BENGALURU-560 040.
SHIVANNA DEAD BY LRS
2. SUDHA
W/O. LATE SHIVANNA,
AGED ABOUT 50 YEARS,
R/O. NO.5/1, 3RD MAIN ROAD,
6TH CROSS, KASTURBA WEST,
Digitally signed
BENGALURU-560 026.
by SHARANYA T
Location: HIGH 3. VARUN KUMAR
COURT OF S/O. LATE SHIVANNA,
KARNATAKA
AGED ABOUT 19 YEARS,
R/O. NO.5/1, 3RD MAIN ROAD,
6TH CROSS, KASTURBA WEST,
BENGALURU-560 026.
4. ARUN KUMAR
S/O. LATE SHIVANNA,
AGED ABOUT 16 YEARS,
R/O. NO.5/1, 3RD MAIN ROAD,
6TH CROSS, KASTURBA WEST,
BENGALURU-560 026.
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RSA No. 1511 of 2021
SINCE THE APPELLANT NO.4 IS MINOR,
HE IS BEEN REPRESENTED BY HIS NARURAL
GUARDIAN APPELLANT NO.2 MOTHER.
5. GANGADHAR
S/O. LATE CHIKKABOREGOWDA,
AGED ABOUT 52 YEARS,
R/O. NEAR CORPORATION SCHOOL,
9TH MAIN, VIJAYANAGAR,
BENGALURU-560 040.
...APPELLANTS
(BY SRI SYED AKBAR PASHA, ADVOCATE FOR
SRI MAHANTESH S. HOSMATH, ADVOCATE)
AND:
1. KEMPAMMA
W/O. LATE DODDEGOWDA,
AGED ABOUT 81 YEARS,
R/O. LINGAPATNA VILLAGE,
HALAGUR HOBLI,
MALAVALLI TALUK,
MANDYA DISTRICT-571 430.
2. SHIVARAJU
S/O. LATE DODDEGOWDA,
AGED ABOUT 51 YEARS,
R/O. LINGAPATNA VILLAGE,
HALAGUR HOBLI,
MALAVALLI TALUK,
MANDYA DISTRICT-571 430.
3. GANGADHAR
S/O. LATE DODDEGOWDA,
AGED ABOUT 46 YEARS,
R/O. LINGAPATNA VILLAGE,
HALAGUR HOBLI,
MALAVALLI TALUK,
MANDYA DISTRICT-571 430.
...RESPONDENTS
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RSA No. 1511 of 2021
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 09.11.2020
PASSED IN R.A.NO.4/2018 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MALAVALLI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 23.10.2017
PASSED IN O.S.NO.82/2018 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, MALAVALLI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for appellants. This matter
is listed for admission.
2. The factual matrix of the case of the plaintiff
before the Trial Court under the first instance the suit is
filed for the permanent injunction and late on amended for
declaration. The very contention of the plaintiff that one
Moogasiddegowda had two sons i.e., original defendant
Doddegowda and Chikkaboregowda. Both have divided the
joint family properties under paalupatti dated 20.03.1984
and in this partition the suit schedule properties had fallen
other share of Chikkaboregowda and the defendant
Doddegowda got other properties. The said
Chikkaboregowda got changed the khata in his name and
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he was in exclusive possession of the suit properties. He
had constructed residential house in Sy.No.163/1F by
leaving vacant site measuring 35 x 35 feet out of 4 guntas
of land.
3. It is also contention of the plaintiffs that the
defendant has requested to lease the said house on rent
basis and accordingly, Chikkaboregowda had rented the
said house to Doddegowda on monthly rent of Rs.50/-
during the year 1989 and until the death of said
CHikkaboregowda, the defendant Doddegowda used to pay
the rent regularly.
4. It is also the contention of the plaintiffs that 1st
plaintiff is the wife of CHikkabaoregowda and the plaintiff
Nos.2 and 3 are the sons and said Chikkaboregowda was
died on 12.11.1991 and after his death also, the plaintiffs
have continued the joint family status and katha of the
properties have been changed into her name with the
consent of all the joint family members.
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5. It is further contended that the defendant is a
stranger to suit schedule properties and he was never in
possession and enjoyment of suit schedule properties
except the residential house on rent basis. After the death
of Chikkaboregowda, the defendant was not paying any
rent to the plaintiffs with respect to the house leased to
him and on 20.05.1998 the defendant trespassed over the
suit schedule trees in the suit schedule property but the
same was resisted by the plaintiffs.
6. It is also the contention of the plaintiffs that the
defendants are alleging that the husband of the plaintiff
No.1 and father of plaintiff Nos.2 and 3 i.e.,
Chikkaboregowda had executed a registered sale deed
dated 09.031970. The said Chikkaboregowda is drunkard,
vagabond and he was not looking after the family and
taking undue advantage of the same, the defendant had
created the sale deed with respect to the land in
Sy.No.No.163/1F measuring 4 guntas though there was
any legal necessity for the joint family. There are many
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valuable trees are standing in the suit schedule properties
and the defendant is attempting to cut and remove the
same. Hence, the plaintiffs have filed the suit.
7. The defendant No.3 has appeared and filed
written statement and denied the all the plaint averments
except the relationship of plaintiffs and defendants and
totally denied the averments made in the plaint with
regard to the fact that he was a tenant and instead of it is
contended that after the death of Moogasiddegowda, his
three sons have orally got divided the properties prior to
1970 and enjoying their respective shares and
Chikkaboregowda and his family were permanently
residing at Bengaluru and they never lived at Lingapatna
village and after the death of said Chikkaboregowda, the
plaintiffs are residing at Bengaluru. During the life time of
the Chikkaboregowda, he sold the land in Sy.No.163/1F
measuring 4 guntas i.e., item No.5 of suit schedule
properties of the suit schedule properties through
registered sale deed dated 09.031970 in favour of the
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defendant and also sold suit item No.s.1 and 2 through the
registered sale deed dated 15.01.1973 in favour of
Doddegowda i.e., the defendant and prior to said sale, the
said property was mortgaged by Chikkaboregowda in
favour of the Channappa and on 22.04.1974 the said
mortgage was redeemed by the defendant and contend
that the plaintiffs have no right, title or interest over the
suit schedule properties. Hence, prayed the Court to
dismiss the suit.
8. The Trial Court having considered the pleadings
and earlier only issues are framed with regard to the
alleged interference and also with regard to the lawful
possession as on the date of filing of suit. Subsequently
additional issues are also framed as whether the plaintiffs
are the absolute owners and they are in possession and
entitle for the relief. The Trial Court has given an
opportunity to both the parties and they have led the
evidence, the Trial Court having considered both oral and
documentary evidence placed on record particularly
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considered the document of sale deed as well as lease
deed and demand register extract and also the partition
deed which is marked as Ex.P6 comes to conclusion that
the plaintiffs have not produced any document with regard
to the that they are the owners of the suit schedule
properties and also not produced any documents showing
that they are in possession of the suit schedule properties
and also taken note of the admission given by P.W.1 in her
cross-examination that she is in possession of the suit
schedule properties. Hence, dismissed the suit.
9. Being aggrieved by the judgment and decree of
the Trial Court, an appeal is filed before the First Appellate
Court in R.A.No.4/2018 and the First Appellate Court on
re-appreciation of both oral and documentary evidence
placed on record and also the grounds urged in the appeal,
formulated the point whether the Trial Court committed an
error and illegality by not properly appreciating the
evidence on record and whether the judgment and decree
of the Trial Court requires interference.
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10. The First Appellate Court also, on reconsidering
the material available on record, though there was delay,
delay was condoned and point Nos.2 and 3 were answered
together in 'negative' taking note of the admitted facts and
also taken note of the admission as well as the documents
which have been produced. The First Appellate Court also
comes to the conclusion that plaintiffs have not disputed
the sale deeds at Exs.D1 and D2 in the name of
Doddegowda nor placed any material to rebut the oral
partition in the family prior to 1970 and so also the
allotment of item Nos.1, 2, 3 and 5 to the husband of
P.W.1-Chikkaboregowda. But, their only contention is
that, Chikkaboregowda is a drunkard, vagabond and was
not looking after the family and the same was not
accepted by both the Courts and dismissed the appeal.
Hence, the present second appeal is filed before this
Court.
11. The main contention of the learned counsel for
the appellants before this Court is that both the Courts
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have mainly relied upon the document of Exs.D1 and D2
since, the same is executed including their undivided share
in respect of item Nos.1 to 3 of the suit schedule
properties without their knowledge and consent and both
the Courts have ignored the settled principle of law that
one of the coparcener without the consent of the other
coparcener cannot sell the ancestral property and the very
approach of both the Courts is erroneous and hence, this
Court has to frame substantial question of law whether
both the Courts are justified in presuming that the
partition had taken place between Chikkaboregowda and
Doddaboregowda in the year 1970 merely because
Chikkaboregowda had executed sale deeds at Exs.D1 and
D2 in favour of Doddegowda though the defendant
miserably failed to prove the partition of plea set up by
him and whether both the Courts are justified in holding
that sale deeds at Exs.D1 and D2 executed by
Chikkaboregowda are valid. Hence, it requires
interference.
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12. Having heard the learned counsel for the
appellants and also on perusal of the material on record,
the very contention of the plaintiffs is that there was a
partition in the year 1984 and as a result of partition, the
property has fallen to the share of the husband of the
plaintiff No.1 and the father of plaintiff Nos.2 and 3, who
have become the absolute owners. On the other hand, it
is the contention of the defendants that there was partition
prior to 1970 and the defendant No.1 had purchased the
property from the husband of the plaintiff No.1 and father
of the plaintiff Nos.2 and 3 and those sale deeds are
executed in the year 1970 and 1973 and subsequent to
the sale deed, defendant No.1 herself got redeemed the
mortgage in the year 1974.
13. The Trial Court as well as the First Appellate
Court taken note of the material available on record and
also considered the fact that there is no dispute with
regard to the relationship between the parties and the only
dispute is with regard to the fact that there was partition
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in the year 1984 in terms of the averments of the plaint.
On the other hand, the defendants contend that there was
partition prior to 1970 and consequent upon partition, sale
deeds were executed and no dispute with regard to the
execution of sale deeds of the year 1970 and 1973 and
also no dispute with regard to redemption of mortgage in
the year 1974. The only contention of the plaintiffs is that
the husband of the plaintiff No.1 was drunkard and
vagabond and he was not taking care of the family and the
sale deeds were made in the year 1970 and 1973 and the
same were not challenged and suit was filed in 1998
claiming that there was partition in 1984 and when the
documentary evidence discloses that properties were sold
by the husband of plaintiff No.1 and father of the plaintiff
Nos.2 and 3 in the year 1970 and 1973, the very
contention that partition has taken place in the year 1984
cannot be accepted and both the Courts have not accepted
the fact that there was partition in the year 1984. Having
considered the documentary evidence, both the Courts
comes to the conclusion that partition had taken place in
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the year 1970 and the same was sold by the father of the
plaintiff Nos.2 and 3 and husband of plaintiff No.1 in 1970
and 1973 and also taken note of the admission given by
P.W.1 that they are not in possession. Hence, suit for
declaration and possession is dismissed considering the
material on record. Therefore, I do not find any ground to
admit the appeal and frame any substantial question of
law.
In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
RHS, ST
