Vasudeva J Kundar vs Jayashree K R
2023 Latest Caselaw 6580 Kant

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                                                         NC: 2023:KHC:33805
                                                       RSA No. 1729 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 19TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1729 OF 2021 (PAR)

                   BETWEEN:

                   1.    VASUDEVA J. KUNDAR
                         AGED ABOUT 73 YEARS
                         S/O. LATE JABBA POOJARY
                         R/AT D.NO. 21-2
                         MADHWANAGARA
                         MOODABETTU
                         UDUPI TALUK
                         UDUPI DISTRICT-574 105.
                                                               ...APPELLANT

                              (BY SRI V.R.PRASANNA, ADVOCATE FOR
                            SRI LINGARAJ M., ADVOCATE [THROUGH VC])

                   AND:

Digitally signed   1.    JAYASHREE K.R.
by SHARANYA T
Location: HIGH
                         AGED ABOUT 40 YEARS
COURT OF                 D/O. LATE RAGHAVENDRA BHAT
KARNATAKA
                         R/AT "SUPRABHATHA"
                         PRABHAKAR LAYOUT
                         KUKKUNJE, SHIVALLI VILLGE
                         UDUPI TALUK
                         UDUPI DISTRICT-576 104.

                   2.    SRIHARSHA K.R.
                         AGED ABOUT 38 YEARS
                         S/O. LATE RAGHAVENDRA BHAT
                         SALES MANAGER
                         H.D.F.C BANK, INDORE
                         MANDYA PRADESH-451 010.
                                -2-
                                          NC: 2023:KHC:33805
                                        RSA No. 1729 of 2021




3.   RATGNA R. BHAT
     AGED ABOUT 74 YEARS
     W/O. LATE RAGHAVENDRA BHAT
     R/AT SRI HARIKRUPA
     SHANKARANARAYANA
     KUNDAPURA TALUK
     UDUPI DISTRICT-576 201.

4.   SHRINIDHI K.R.
     AGED ABOUT 42 YEARS
     D/O. LATE RAGHAVENDRA BHAT
     R/AT SRI HARIKURPA
     SHANKARANARAYANA
     KUNDAPURA TALUK
     UDUPI DSITRICT-576 201.

5.   VINESH V. KUNDER
     AGED ABOUT 41 YEARS
     S/O. VASUDEVA KUNDAR
     R/AT D.NO.21/2
     MADHAWANAGARA
     MOODABETU, UDUPI TALUK
     UDUPI DISTRICT-574 105.
                                             ...RESPONDENTS

      THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.09.2020
PASSED IN R.A.NO.45/2015 AND 48/2015 ON THE FILE OF THE
PRL. SENIOR CIVIL JUDGE AND JMFC, UDUPI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 23.07.2015 PASSED IN O.S.NO.14/2010 ON THE FILE
OF THE II ADDL. CIVIL JUDGE AND JMFC, UDUPI.

     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.

NC: 2023:KHC:33805 RSA No. 1729 of 2021

2. The factual matrix of the case of the plaintiffs in

O.S.No.14/2010 is that suit schedule property is an ancestral

property and the plaintiffs and defendant No.2 being the

children of defendant No.1 have got right by birth and the

plaintiffs are also entitled for 1/4th share in the suit schedule

property and in order to substantiate the contention, the

plaintiffs have relied upon the documents of Exs.P1 to P11 and

the Trial Court having considered the document of partition

deed dated 23.05.1969 and also recitals of document Ex.P11-

partition deed dated 27.10.2003, comes to the conclusion that

share is allotted in favour of the father out of the coparcenery

property and hence, the plaintiffs are entitled for 1/4th share

and not accepted the contention of the defendants that the

same is a separate property of the father. Hence, he sold the

property by executing the general power of attorney in favour

of defendant Nos.2 and 4 and in turn, the defendant No.4 sold

the property.

3. Being aggrieved by the judgment and decree of the

Trial Court, an appeal is filed before the First Appellate Court in

R.A.No.48/2015 and the First Appellate Court, on re-

appreciation of both oral and documentary evidence placed on

NC: 2023:KHC:33805 RSA No. 1729 of 2021

record, comes to the conclusion that property is an ancestral

property as contended by the plaintiffs and even the recitals of

the document is extracted in Para No.23 of the judgment of the

First Appellate Court and also taken note of the document of

Ex.P1, registered partition deed dated 23.05.1969, wherein

Gopalakrishna Bhat and the deceased defendant No.1 had

entered into partition deed along with the other property and

the suit schedule property and confirmed the judgment of the

Trial Court. Hence, the present second appeal is filed before

this Court.

4. The learned counsel for the appellant would

vehemently contend that both the Courts have failed to take

note of the document of Ex.P11, wherein a share is allotted in

favour of the defendant No.1 and the same is a separate

property of the plaintiffs and other defendants were not having

any share in the suit schedule property and the very approach

of the Trial Court is erroneous. Hence, this Court has to admit

the appeal and frame substantial question of law.

5. Having heard the learned counsel for the appellant

and also on perusal of the reasoning of the Trial Court, the Trial

NC: 2023:KHC:33805 RSA No. 1729 of 2021

Court, in order to answer the issues which have been framed,

in detail discussed in Para Nos.12 and 13 of the judgment with

regard to flow of title of the parties and also taken note of the

documents of Exs.P1 and P11 and considered the recitals and

also the fact that plaint schedule property allotted to defendant

No.1 is on behalf of his family and not in his individual capacity

and not accepted the contention of the defendants. The First

Appellate Court also on re-appreciation of both oral and

documentary evidence placed on record, in detail discussed

with regard to the document of Ex.P1 and P11 and also the

nature of property involved and taken note of the fact that in

an undisputed document i.e., Ex.P1-registered partition deed

dated 23.05.1969, the property was partitioned between

Gopalakrishna Bhat and the deceased defendant No.1 and they

entered into partition deed including the other properties.

6. Having considered the same, the First Appellate

Court also taken note of the fact that the appellant-defendant

No.3, who has been examined as D.W.1 admitted in the cross-

examination that suit schedule property was acquired by

defendant No.1 through ancestors and confirmed the judgment

and decree. Having considered the material on record, the

NC: 2023:KHC:33805 RSA No. 1729 of 2021

reasoning of the Trial Court, the document of Ex.P1 and P11

and also the recitals of those documents, it is clear that it is an

ancestral property and also there is an admission on the part of

D.W.1, who is the appellant herein that the property is an

ancestral property. Hence, I do not find any error committed

by the Trial Court in granting the relief of partition and the First

Appellate Court also on re-appreciation of both oral and

documentary evidence placed on record, given anxious

consideration to the material on record and no perversity is

found in the judgment of the Trial Court and the First Appellate

Court and no ground is made out to frame any substantial

question of law.

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

following:

ORDER The appeal is dismissed.

In view of dismissal of appeal, I.A.Nos.1/2023 and 2/2023 do not survive for consideration and the same stand disposed of.

Sd/-

JUDGE ST