Karnataka High Court

Smt Dyavamma vs Smt Rangamma on 19 April, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                           NC: 2024:KHC:15617
                                                         RSA No. 1761 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 19TH DAY OF APRIL, 2024

                                               BEFORE
                             THE HON'BLE MR JUSTICE M.G.S. KAMAL
                           REGULAR SECOND APPEAL NO. 1761 OF 2022
                                            (PA/DE/IN)
                   BETWEEN:

                   1.    Smt. Dyavamma,
                         W/o Late Halebeedaiah,
                         Aged about 88 years,
                         R/At Kote Beedi,
                         Shanthigrama,
                         Hassan Taluk,
                         Hassan District 573220.

                   2.    Smt Gangammma,
                         W/o Thimmappa,
                         Aged about 65 years,
                         R/At Opp Sri Ganapathi Temple
                         M G Road,
Digitally signed
by SUMA B N              Hassan Town,
Location: High           Hassan District 573201.
Court of
Karnataka                                                         ...Appellants
                   (By Sri. S P Ramesha.,Advocate)

                   AND:

                   1.    Smt. Rangamma,
                         W/o Thimmaiah,
                         Aged about 62 years
                         R/At Shanthigrama,
                         Hassan Taluk,
                         Hassan District-573220.
                                -2-
                                              NC: 2024:KHC:15617
                                          RSA No. 1761 of 2022




2.   Smt.Jayamma,
     W/o Thimmappa,
     Aged about 58 years,
     R/A Vivekanagara,
     Near Land Army Office,
     Hassan Town,
     Hassan District-573201.
                                                   ...Respondents

      This Regular Second Appeal is filed under Section 100 of
CPC praying to call for the entire records from the Courts
below and set aside the judgment and decree dated
15.12.2014 passed by the Prl.Civil Judge and JMFC, Hassan, in
O.S.No.314/2010 and also set aside the judgment and decree
dated 09.06.2022, passed by the II Addl.Senior Civil Judge and
JMFC at Hassan in R.A.No.12/2015 and consequently allow the
Regular Appeal filed by the appellants and dismiss the suit filed
by the respondents with costs in the interest of justice and
equity.

      This Regular Second Appeal coming on for Orders, this
day, the Court delivered the following :

                           JUDGMENT

This appeal is filed by the defendants being

aggrieved by the judgment and decree dated 15.12.2014,

passed in O.S.No.314/2010, on the file of Prl.Civil Judge

and J.M.F.C., Hassan ('trial Court' for short), which is

modified by the judgment and decree dated 09.06.2022,

passed in R.A.No.12/2015, on the file of II Addl.Senior

Civil Judge and J.M.F.C., Hassan.

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2. The above suit in O.S.No.314/2010 is filed by the

plaintiffs seeking 1/3rd share each in the suit schedule

properties and separate possession and mesne profits and

also for consequential relief of permanent injunction

restraining the defendants from alienating the suit

schedule properties to the third persons.

3. The case of the plaintiffs is that defendant No.1 is

the wife of late Halebeedaiah and she is the natural

mother of plaintiffs and defendant No.2. That both

plaintiffs and defendants constitute a joint Hindu family

jointly cultivating the suit schedule properties since the

said properties are their ancestral properties. That the

revenue records of these properties were in the name of

Halebeedaiah and after his demise, same have been

changed to the name of defendant No.1 since she is the

wife of late Halebeedaiah, who is the mother of plaintiffs

and defendant No.2. That defendant No.1 at the ill-advise

of defendant No.2, who is a worldly wise lady, started

making efforts to alienate the properties. Being

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constrained by the same, the plaintiffs sought for partition

and allotment of their share in the suit schedule

properties, the denial of which has resulted in they filing

the present suit.

4. The defendant Nos.1 and 2 have appeared before

the trial Court and filed their written statement disputing

the case of the plaintiffs. It is contended that the husband

of plaintiff No.2 is none other than the husband of

defendant No.2. It is contended that the suit schedule

properties were granted in favour of defendant No.1 and

they are not the ancestral properties. That the plaintiffs

who were married long ago are not entitled to their shares

as they are leading a happy marital life in their respective

matrimonial home. Hence, they sought for dismissal of

the suit.

5. Based on the pleadings, the trial Court hs framed

the following issues for consideration.

"1. Whether the plaintiffs prove that they and the defendants are the members of Hindu Undivided

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Family and the suit properties are their ancestral properties?

2. If so, whether the plaintiffs further proves that they have got 1/3rd share in the suit schedule properties?

3. Whether the defendant No.1 proves that the suit schedule properties are self-acquired properties?

4. Whether the plaintiff proves that the 1st defendant is illegally attempting to sell the suit properties?

5. Whether the plaintiffs are entitled for mesne profits? If so, at that rate?

6. Whether the plaintiffs are entitled for the reliefs sought in the plaint?

7. What order or decree?"

6. The plaintiffs examined two witnesses as PWs.1

and 2 and 29 documents were produced and got marked

from Exs.P-1 to P-29. On behalf of the defendants, one

witness was got examined as DW-1 and 53 documents

were got produced and marked as Exs.D-1 to D-53.

7. On appreciation of the pleadings and evidence, the

trial Court answered issue Nos.1, 2, 5 and 6 partly in

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affirmative and issue Nos.3 and 4 in the negative and

consequently partly decreed the suit as under :

" ORDER

Suit filed by the plaintiffs is hereby partly decreed with cost.

Consequently, it is declared that plaintiffs are entitled to get 1/4th share each in the item No.3 & 4 of the suit schedule properties along with separate possession.

The relief sought for by the plaintiffs in connection with item No.1, 2 & 5 properties is hereby rejected.

The relief of mesne profit to be considered in detail at the time of final decree proceedings in connection with the item No.3 & 4 properties.

The equitable relief of permanent injunction sought for by the plaintiffs hereby dismissed.

Draw preliminary decree accordingly."

8. Being aggrieved by the same, the defendants

preferred regular appeal in R.A.No.12/2015. The plaintiffs

also filed Cross-objections (Cross-Appeal) in the said

Regular Appeal. Considering the grounds urged in the

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memorandum of appeal, the First Appellate Court framed

the following points for its consideration.

" 1. Whether the trial Court was justified in holding that item No.3 of the plaint schedule properties is ancestral property?

2. Whether IA.No.2 filed by the appellants under section 107 R/w Order 14 Rule 5 of C.P.C., is deserves to be allowed ?

3. Whether judgment and decree of the trial Court with respect to item No.3 calls for interference ?"

9. In the Cross-objections, the First Appellate Court

framed the following points for its consideration.

" 4. Whether the trial Court was justified in recording findings that in Ex.P-14 there is a restriction even for the partition of suit item No.1 and 2 without prior permission of the Government and as such plaintiff cannot claim partition of these properties?

5. Whether the trial Court was justified in dismissing the suit of the plaintiffs holding that plaintiffs have failed to prove that suit item No.5 is ancestral property?

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6. Whether the judgment and decree of the trial Court with respect to item No.1 and 2 calls for interference?

7. Whether the judgment and decree of trial Court in dismissing the suit of the plaintiffs with respect to item No.5 calls for interference by this Court?

8. What order or decree?"

10. On appreciation of the pleadings and evidence,

the first Appellate Court answered point Nos.1, 5 and 6 in

the affirmative and point Nos.2, 3, 4 and 7 in the negative

and consequently, dismissed the Appeal filed by the

defendants and partly allowed the Cross-appeal filed by

the plaintiffs as under :

ORDER

The appeal filed by the appellants/defendants under Order 41 Rule 1 of C.P.C. is hereby dismissed.

Cross Appeal filed by the plaintiffs/respondents under Order 41 Rule 22 of C.P.C., is hereby allowed in part with respect to item No.1 and 2.

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Cross Appeal filed by the plaintiff/respondents with respect to item No.5 is dismissed. Judgment and decree of the trial Court in dismissing the suit of the plaintiffs with respect to item No.1 and 2 is hereby set aside.

The judgment and decree of the trial Court with respect to item No.3 to 5 is hereby confirmed. The plaintiffs/respondents are entitled to 1/4th share each in suit item No.1 to 4. Defendants/appellants are also entitled for 1/4th share each in item No.1 to 4.