Sri Shambaiah vs Sri Mahadevappa
2023 Latest Caselaw 6585 Kant

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                                                        NC: 2023:KHC:34168
                                                      RSA No. 1228 of 2018




                        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. 1228 OF 2018 (PAR)

                   BETWEEN:

                   1.     SRI SHAMBAIAH
                          S/O LATE MADAPPA
                          AGED ABOUT 70 YEARS

                   2.     SR. PUTTANNA
                          S/O LATE MADAPPA
                          AGED ABOUT 66 YEARS

                   3.     SRI BASAPPA
                          S/O. LATE MADAPPA,
                          SINCE DEAD BY HIS LRS

                   3(a) MALLIGAMMA
                        W/O. LATE BASAPPA
                        AGED ABOUT 45 YEARS
Digitally signed
by SHARANYA T
Location: HIGH     3(b) RAVICHANDRA
COURT OF                S/O LATE BASAPPA,
KARNATAKA
                        AGED ABOUT 28 YEARS,

                   3(c) VIKARM B.
                        S/O. LATE BASAPPA,
                        AGED ABOUT 25 YEARS,

                   4.     SRI. LINGANNA @ DIGGANNA
                          S/O. LATE. MADAPPA,
                          AGED ABOUT 60 YEARS,

                          ALL ARE RESIDING AT:
                          LALITADRIPURA VILLAGE,
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                                       NC: 2023:KHC:34168
                                     RSA No. 1228 of 2018




       MYSORE TALUK-570 028.
                                               ...APPELLANTS

              (BY SRI N. SRINIVAS, ADVOCATE)
AND:

1.   SRI MAHADEVAPPA
     S/O. LATE MADAPPA,
     AGED ABOUT 72 YEARS,
     RESIDING AT:
     DARIPURA VILLAGE,
     JAYAPURA HOBLI,
     MYSORE TALUK-570008.

2.   SMT. KATANAMMA
     W/O CHIKKANNA,
     AGED ABOUT 68 YEARS,
     RESIDING AT:
     DEVALAPURA VILLAGE,
     MYSORE TALUK-571311.

3.   THE SPECIAL LAND ACQUISITION OFFICER
     MYSORE URBAN DEVELOPMENT
     AUTHORIYT, JLB ROAD,
     MYSORE-570020.
                                         ...RESPONDENTS

     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 31.01.2018
PASSED IN R.A.NO.344/2013 ON THE FILE OF THE II
ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE
APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED
01.07.2013 PASSED IN O.S.NO.999/2006 ON THE FILE OF THE
IV ADDITIONAL SENIOR CIVIL JUDGE, MYSORE.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                                    NC: 2023:KHC:34168
                                               RSA No. 1228 of 2018




                             JUDGMENT

Heard the appellants counsel.

This matter is listed for admission.

2. The factual matrix of the case of the plaintiff before

the Trial Court that the suit schedule properties are the

ancestral properties and he is also the co-parcener. Hence, he

is entitled for share in the suit schedule properties. On the

other hand, defendant appeared and contended that the

plaintiff has duly executed relinquishment deed on 20.5.2000

relinquishing his share in the joint family property of plaintiff

and defendant and also contend that he has been adopted one

Basappa of Daripura Village and as such he has been severed

for member of the family of defendant and Trial Court has

given opportunity to both parties to substantiate their

contention.

3. Plaintiff has been examined as PW1 and got marked

the documents Exs.P1 to P6 and defendant No.4 has been

examined as DW1 and two other witnesses have also been

examined as DWs.2 and 3 and got marked the documents

Exs.D1 to D7. The Trial Court having considered the material

NC: 2023:KHC:34168 RSA No. 1228 of 2018

on record negatived the contention of the defendants with

regard to the execution of relinquishment deed as well as he

has been adopted to Basappa of Daripur Village and in coming

to the conclusion that same has not been proved and having

considered the material on record, particularly document

Exs.P1 to P6, since there was no dispute with regard to the fact

that properties are ancestral properties and the contention that

already there was a relinquishment deed has not been proved

and hence, the Trial Court considering the material on record

accepted the case of the plaintiff and granted the relief of 1/5th

share in respect of item Nos.1 and 3 of suit schedule properties

and dismissed the suit in respect of item No.2, since the same

is acquired by the MUDA and as on the date of filing of the suit,

property was not vests with the family. Being aggrieved by the

judgment and decree, plaintiff filed R.A.No.307/2013 in respect

of item No.2 is concerned and defendants filed

R.A.No.344/2013 and both the appeals are taken together.

4. The First Appellate Court having considered the

grounds urged in both the appeals formulated the point since

other two IAs. are also filed in I.A.Nos.7 and 8 under Order 41

Rule 27 of CPC to place the palupatti dated 10.4.1999 and the

NC: 2023:KHC:34168 RSA No. 1228 of 2018

documents which are necessary to decide the issue involved

between the parties and also taken note of the contention that

item No.2 of the suit schedule properties was acquired by

defendants No.1 to 6 and also having considered the grounds

urged in the appeal that whether the plaintiff executed the

relinquishment deed in favour of the defendants also,

considered and formulated the point. All the points are

answered as negative except point No.4 in coming to the

conclusion that lower Court was justified in holding that

defendants have failed to prove the relinquishment by the

plaintiff and dismissed the appeal. Being aggrieved of the

concurrent finding, the present second appeal is filed.

5. The main contention of the counsel appearing for

the appellant that even though an application is filed to place

the palupatti and also sought for an order to produce additional

evidence, the First Appellate Court committed an error in

dismissing both IAs.No.7 and 8 and apart from that Appellate

Court also committed an error in coming to the conclusion that

relinquishment has not been proved and hence, it requires to

admit and frame substantive question of law.

NC: 2023:KHC:34168 RSA No. 1228 of 2018

6. Having heard the appellant's counsel and also on

perusal of material, it is claimed by the plaintiff before the Trial

Court that suit schedule properties are ancestral properties and

hence he is entitled for a share in the property and the same is

not disputed, but only defence was taken in the written

statement that already he had executed a relinquishment deed

and Trial Court also framed an issue with regard to the

contention of the defendants which has been taken and also

other contention was taken that the plaintiff was taken as

adopted son by one Basappa and having considered the

material on record, the Trial Court answered both issues as

negative since the same has not been proved and document is

also a relinquishment deed is not a registered document and

original also not placed before the Court. However, an attempt

is made in the First Appellate Court to produce the same and

also an other attempt is made to take the plea that there was a

palupatti and the same was not pleaded before the Trial Court

and having taken note of the said fact, the First Appellate Court

rejected the said application and framed point No.2 with regard

to the additional evidence as well as the contention to

incorporate that there was a palupatti dated 10.4.1999 and

NC: 2023:KHC:34168 RSA No. 1228 of 2018

same has not been accepted since in the absence of pleading

before the Trial Court and the same cannot be considered and

also the document of the relinquishment deed is also not placed

before the Trial Court and rightly comes to the conclusion that

no substantive ground is made out to allow I.A.Nos.7 and 8 and

the same are also not required to decide the appeal and hence

rejected the same.

7. On perusal of both oral and documentary evidence

available on record though took the contention of execution of

relinquishment deed and the same is not placed before the Trial

Court and only an attempt is made to place the same before

the Appellate Court and also the said document is not a

registered document. When such being the case, when the

parties admit that suit schedule properties are the ancestral

properties and only contention that the plaintiff had executed a

relinquishment deed and the same was also not proved by

placing the document and no doubt two witnesses were

examined as DWs.2 and 3 and their evidence also not inspire

the confidence regarding the other contention that the plaintiff

has been taken as adopted son of one Basappa and the same is

also not substantiated and the same is not proved by leading

NC: 2023:KHC:34168 RSA No. 1228 of 2018

cogent evidence and hence, I do not find any error committed

by the First Appellate Court in considering the grounds urged in

the appeal and also the documents which ought to have been

placed before the Appellate Court also not required to decide

the germane issue involved between the parties and admittedly

the relinquishment deed is not a registered document and the

same is not a admissible document and hence, I do not find

any ground to admit and frame any substantive question law by

invoking Section100 of CPC and only Court can exercise the

power under Section 100 of CPC, if any perversity is found in

finding of the Trial Court as well as the First Appellate Court in

considering both oral and documentary evidence and hence no

ground is made out .

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

following:

ORDER

Second appeal is dismissed.

Sd/-

JUDGE

AP