Venkatamma vs Smt. Thimmakka
2023 Latest Caselaw 6780 Kant

                                               -1-
                                                             NC: 2023:KHC:34791
                                                           RSA No. 1498 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 25TH DAY OF SEPTEMBER, 2023

                                             BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1498 OF 2018 (PAR)

                   BETWEEN:

                         VENKATAMMA
                         W/O. LATE VENKATAHANUMAIAH,
                         (SINCE DEAD) LRS ALREADY ON RECORD AS A
                         APPELLANT NO.1 AND 2 AND RESPONDENT NO.9

                   1.    SRI. HANUMANTHARAYAPPA,
                         S/O. LATE VENKATAHANUMAIAH,
                         AGED ABOUT 55 YEARS,

                   2.    SRI. SANJEEVAIAH
                         S/O. LATE VENKATAHANUMAIAH,
                         AGED ABOUT 46 YEARS,

                         ALL ARE R/O. GOWRIPURA VILLAGE,
                         GULURU HOBLI, TUMAKURU TALUK,
Digitally signed
by SHARANYA T            TUMAKURU DISTRICT-585 202.
Location: HIGH                                                  ...APPELLANTS
COURT OF                        (BY SRI LEELADHAR H.P., ADVOCATE)
KARNATAKA
                   AND:

                   1.    SMT. THIMMAKKA
                         W/O. LATE HANUMANTHAIAH,
                         AGED ABOUT 70 YEARS,
                         R/AT GOWRIPURA VILLAGE,
                         GULURU HOBLI, TUMKURU TALUK,
                         TUMKURU DISTRICT-585 202.

                         KRISHNAPPA
                         SINCE DEAD BY HIS LRS.,
                              -2-
                                       NC: 2023:KHC:34791
                                     RSA No. 1498 of 2018




2.   SMT. KAMALAMMA,
     W/O. LATE KRISHNAPPA,
     AGED ABOUT 45 YEARS,

3.   SRI. RAKESH
     S/O. LATE KRISHNAPPA,
     AGED ABOUT 23 YEARS,

4.   SRI. SAGAR
     S/O. LATE KRISHNAPPA,
     AGED ABOUT 21 YEARS,

     RESPONDENTS NO.2 TO 4 ARE
     R/AT HOSABEEDI, 5TH CROSS,
     RAMANAGAR TALUK,
     RAMANAGARA DISTRICT-562 159.

5.   SRI. HANUMAIAH
     S/O. LATE HANUMANTHAIAH,
     AGED ABOUT 48 YEARS,

6.   SRI. NARANAPPA
     S/O. LATE HANUMANTHAIAH,
     AGED ABOUT 37 YEARS,

7.   SRI. SRINIVASA
     S/O. LATE HANUMANTHAIAH,
     AGED ABOUT 32 YEARS,

8.   SRI. NAGARAJU
     S/O. LATE HANUMANTHAIAH,
     AGED ABOUT 27 YEARS,

     RESPONDENT NOS.5 TO 8 ARE
     R/AT GOWRIPURA VILLAGE,
     GULURU HOBLI, TUMAKURU TALUK,
     TUMAKURU DISTRICT-585 202.

                                          ...RESPONDENTS
                                -3-
                                              NC: 2023:KHC:34791
                                            RSA No. 1498 of 2018




      THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.3.2018 PASSED IN RA
NO.98/2016 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE AND JMFC, TUMAKURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 26.9.2016
PASSED IN OS NO.615/2008 ON THE FILE OF THE II ADDL.
CIVIL JUDGE AND JMFC, TUMAKURU.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This matter is listed for admission.

I have heard the learned counsel for the appellants.

2. The suit is filed for the relief of partition on the

ground that suit schedule property originally belongs to one

Sanjeevaiah and the property belongs to the joint family and it

is an ancestral property. The defendant appeared and filed

written statement contending that father of the plaintiffs has

got executed the Registered Release Deed dated 5.5.1958 by

receiving consideration amount relinquishing all his rights of

suit property in favour of Hanumanthaiah, father of defendants

No.3 to 6 and husband of defendant No.1.

3. Having considered pleadings of the parties the Trial

Court has framed issues both in keeping the contentions of

plaintiffs and defendants, whether the plaintiffs proves that suit

NC: 2023:KHC:34791 RSA No. 1498 of 2018

schedule property is the ancestral joint family property and

whether the defendants proves that a relinquishment deed was

executed. The Trial Court having considered both oral and

documentary evidence accepted the case of the defendants and

dismissed the suit for partition in coming to the conclusion that

the relinquishment deed was executed in the year 1958 itself

and subsequently though revenue entries are not changed and

there was a mortgage in respect of the suit schedule property

and same is also got redeemed and also taken note of the

plaintiffs' father is the elder member of the family and he did

not redeem the mortgage in the joint family property and also

taken note of Section 90 of the Indian Evidence Act and also

taken note of the presumption in respect of registered

document and document is also more than 30 years old and

hence dismissed the suit.

4. Being aggrieved by the judgment and decree of the

Trial Court, an appeal is filed in R.A.No.98/2016 and the First

Appellate Court formulated the points, whether the material on

record were considered by the Trial Court or not, whether the

plaintiffs are entitled for partition in respect of the suit schedule

property and whether the Trial Court has committed an error in

NC: 2023:KHC:34791 RSA No. 1498 of 2018

relying upon the document executed on 5.5.1958 i.e.

relinquishment deed and the First Appellate Court having

reassessed both oral and documentary evidence available on

record confirmed the judgment of the Trial Court and hence,

the second appeal is filed before this Court.

5. The main contention urged by counsel appearing for

the appellants that there is no dispute with regard to the

relationship between the parties and also no dispute with

regard to the property originally belongs to one Sanjeevaiah.

The counsel would vehemently contend that the relinquishment

deed of the year 1958 which is marked as Ex.D1 has not been

proved by examining any of the witnesses and the plaintiffs

have disputed the document and both the Courts also failed to

take note of the evidence of PW1. He clearly demonstrate that

defendants have not disputed the relationship and the very

conclusion arrived by the Trial Court and First Appellate Court

that the document is a registered document and there is a

presumption and the same has not been rebutted and hence,

the very approach of both the Courts are erroneous and also

failed to take note of the reasoning given by the father of the

plaintiffs No.2 to 4 and also the husband of plaintiff No.1 and

NC: 2023:KHC:34791 RSA No. 1498 of 2018

ought not to have dismissed the suit when the property is an

ancestral property.

6. Having heard the appellants counsel and also on

perusal of the material it is not in dispute that the property is

an ancestral and joint family property and no dispute regarding

relationship. It is the specific contention of the defendants

before the Trial Court that father and husband of the plaintiffs

had executed the relinquishment deed in the year 1958 and

counsel also vehemently contend that from the date of

registration of the relinquishment deed, no documents are

changed in the revenue records and hence the very contention

that relinquishment deed was executed cannot be accepted.

The Trial Court in paragraph No.8 both in respect of issue Nos.1

and 2 considered both oral and documentary evidence and also

taken note of the recital of document Ex.D1 relinquishment

deed dated 5.5.1958 and also having considered the reason

given by father of the plaintiffs and husband in the

relinquishment deed it is clearly mentioned that in order to

repay the loan which was raised by him for his marriage he had

relinquished his right by receiving the consideration and also

taken note of the document Exs.D2 to D5 which are the tax

NC: 2023:KHC:34791 RSA No. 1498 of 2018

paid receipts in respect of the suit schedule property and also

taken note of the contention that defendant No.1 by colluding

with the revenue authorities got changed the Khatha of the suit

property in his name, but plaintiffs in order to prove the said

contention relied upon Ex.D2 which is the M.R.No.141/1998-99

and also taken note of that there was a mortgage in favour of

one Smt.Fathimunnisa and subsequently husband of defendant

No.1 got redeemed the said mortgage. All these reasons are

given by the Trial Court while considering issue Nos.1 and 2

and also taken note that there was a presumption of registered

document and the same is 30 years' old document and the First

Appellate Court also taken note of both oral and documentary

evidence on re-appreciation of both material in paragraphs

No.17, 18, 19 and 20 and reassessed the evidence available on

record and also taken note of Section 90 of Indian Evidence Act

as well as subsequent conduct of the parties and suit was filed

in the year 2008 and prior to that mutation was also changed in

the year 1998-99 itself and also taken note of redeeming of the

mortgage by father of defendant No.1 and no doubt there is

force in the contention of the appellants' counsel that revenue

entries are not made from 1958 onwards subsequent to the

NC: 2023:KHC:34791 RSA No. 1498 of 2018

relinquishment deed. But the fact that document was registered

in the year 1958 and the document is of more than 30 years

old is also not in dispute and suit was filed in the year 2008,

almost after 50 years, question of examining the attesting

witness does not arise, as contended by the appellants counsel

and having reassessed the material available on record, both

the Trial Court and the First Appellate Court given anxious

consideration and given fact finding with regard to the

document is concerned and drawn the presumption as well as

the other evidence available on record and changing of revenue

document is only a Ministerial Act. Hence, I do not find any

force in the contention of the appellants counsel to admit and

frame any substantive question of law by invoking Section 100

of CPC.

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

ORDER Second appeal is dismissed.

Sd/-

JUDGE AP