Karnataka High Court
Sri K Narayanappa vs K Jagadeshwaraiah on 15 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:15098
RSA No. 358 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.358 OF 2010 (PAR)
BETWEEN:
SRI K NARAYANAPPA
S/O LATE KAPINAPPA
AGED ABOUT 62 YEARS,
TEACHER,
R/A BEHIND SAPTHAGIRI THEATRE,
SAPTHAGIRI EXTN., SIRA TOWN,
TUMKUR DIST-572 137
...APPELLANT
(BY SRI VIJAY KRISHNA BHAT, ADVOCATE)
Digitally signed
by DEVIKA M
AND:
Location: HIGH
COURT OF
KARNATAKA 1. K JAGADESHWARAIAH
S/O LATE KAPINAPPA
AGED ABOUT 54 YEARS,
R/A NEW BUS STAND ROAD,
SIRA TOWN,
TUMKUR DIST.-572 137
DEAD BY LRS
1(A) SMT. GIRIJAMMA
AGED ABOUT 46 YEARS
W/O LATE K JAGADESHWARAIAH
-2-
NC: 2024:KHC:15098
RSA No. 358 of 2010
1(B) SRI AKSHAY S J
AGED ABOUT 20 YEARS
S/O LATE K JAGADESHWARAIAH
1(C) KUMARI AMRUTHA
AGED ABOUT 18 YEARS
D/O LATE K JAGADESHWARAIAH
ALL ARE R/AT C/O SRINIVAS
No.418, 13TH CROSS
SEETHAPPA BADAVANE
CHOLANAYAKANAHALLI
NEAR GOVERNMENT HEALTH CENTRE
R T NAGAR, BENGALURU - 560 032
2. K MAHESHWARA
S/O LATE KAPINAPPA
AGED ABOUT 50 YEARS,
R/A NEW BUS STAND ROAD, SIRA TOWN,
TUMKUR DIST.-572 137
3. SMT.SAVITHRAMMA
W/O RAJANNA
AGED ABOUT 62 YEARS,
R/O VIJAYAPURA, DEVANAHALLI TQ.,
BANGALORE DIST.
NOW R/A PANDAVAPURA
PETE BEEDHI, SRIRANGAPATNA,
MANDYA TQ. MANDYA DIST.-571 434
[SINCE DEAD, NO LRS, HENCE, DELETED V/O
DT.30.10.2018]
4. SMT.GAYATHRAMMA
W/O YADURAJ
AGED ABOUT 56 YEARS,
-3-
NC: 2024:KHC:15098
RSA No. 358 of 2010
R/O GADIKARKANE STREET,
GANJAM, SREERANGAPATNA TQ.
MANDYA DIST-571 435
...RESPONDENTS
(BY SRI N KUMAR, ADVOCATE FOR R1(A-C), R2 & R4;
V/O DT.30.10.2018, R3 IS DELETED SINCE DEAD)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD 28.10.2009 PASSED IN
R.A.NO.27/2006 ON THE FILE THE CIVIL JUDGE (SR.DN)
SIRA AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the
respective parties.
2. Before the Trial Court three suits are filed. One
K Narayanappa who is the son of Kapinappa has filed the
suit for the relief of partition in O.S.No.325/1996, other
son of Kapinappa namely K Jagadeshwaraiah has filed a
suit in O.S.No.393/1998 for the relief of permanent
injunction and also another son of Kapinappa namely K
Maheshwara had filed a suit in O.S.No.394/1998 for
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permanent injunction. The Trial Court having considered
the contention of the respective parties granted the relief
of partition in a suit filed by Narayanappa granting 31/75th
share in 'C', 'D' and 'E' suit schedule properties that is
preliminary decree and other two suits filed for the relief of
permanent injunction were dismissed. Being aggrieved by
the said judgment and decree of the Trial Court, defendant
Nos.1 and 3 have filed R.A.No.27/2006 and defendant
No.3 had field another appeal in R.A.No.29/2006. The First
Appellate Court by reassessing both oral and documentary
evidence placed on record, allowed the appeal filed by
defendant Nos.1 and 3 in part wherein modified the
judgment of the Trial Court for partition and separate
possession as 1/4th share in 'C', 'D' and 'E' suit schedule
properties and separate appeal filed in R.A.No.29/2006
filed defendant No.3 is dismissed since he had executed a
relinquishment deed earlier to filing of the suit. Now, the
present appeal is filed by the plaintiff contending that First
Appellate Court committed an error in granting 1/4th share
'C', 'D' and 'E' suit schedule properties only considering the
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fact that respondent Nos.3 and 4 are also entitled to their
share equally. This Court has framed the substantial
question of law that whether lower appellate Court erred in
holding that appellant is entitled to 1/4th share only,
considering that respondent Nos.3 and 4 also entitled to
their share equally.
3. The counsel for the appellant, now, not disputes
for granting of 1/4th share in favour of respondent Nos.3
and 4 also but he only contend that one of sister
(respondent No.3) of the appellant passed away and no
legal heirs to the said sister. Hence, it has to be modified
as 1/3rd share instead of 1/4th share. The counsel for
respondent also contend that in view of allowing of R.A.
No.27/2006 modifying the judgment and decree of the
Trial Court granting 1/4th share and same should be in
respect of item Nos. 'C', 'D' and 'E' suit schedule
properties. The counsel for the respondents would
vehemently contend that defendant No.3 had executed
relinquishment deed only in respect of 'C' suit schedule
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property not in respect of 'D' and 'E' suit schedule
properties. The said contention has been overturned by
both the Courts. The appeal is filed by defendant No.3
before the First Appellate Court in R.A.No.29/2006 also
dismissed. When such being the case, the very contention
of defendant No.3 that only he had relinquished his right
in respect of 'C' suit schedule property cannot be
accepted. The reasoning given by the Trial Court and the
First Appellate Court has attained its finality. Defendant
No.3 has not filed any second appeal before this Court
challenging the same. Hence, the question of considering
the contention raised by defendant No.3 does not arise.
4. In view of the death of one of the sister of the
appellant i.e., respondent No.3 who has left no issues,
very submission of the appellant's counsel that share
granted by the Trial Court has to be modified as 1/3rd
share and there is a force in the said contention since the
same is not disputed by the respondents' counsel. Hence,
same has to be modified as 1/3rd share in respect of item
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Nos. 'C', 'D' and 'E' suit schedule properties. Accordingly,
the substantial question of law is answered modifying the
judgment and decree of the First Appellate Court.
5. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is allowed in part.
The judgment and decree dated 28.10.2009 passed
in R.A.No.27/2006 is modified as 1/3rd share in respect of
'C', 'D' and 'E' suit schedule properties in favour of the
appellant/plaintiff, respondent No.1/defendant No.1 and
Gayathramma who is the daughter of said Kapinappa i.e.,
respondent No.4/defendant No.2(2) instead of 1/4th share.
Sd/-
JUDGE
SN
