Karnataka High Court
Smt Vedavathi vs Smt Bhagirathi on 1 August, 2024
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RSA No. 418 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.418 OF 2020 (PAR)
BETWEEN:
SMT. VEDAVATHI
D/O LATE SHESHAPPA NAIK V.G.,
W/O SRI. PURUSHPTHAM K K,
AGED ABOUT 42 YEARS,
RESIDING AT M.CHEMBU VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT-571201.
...APPELLANT
(BY SRI. JAGADISH BALIGA N., ADVOCATE)
AND:
1. SMT. BHAGIRATHI
D/O SHESHAPPA NAIK V.G.,
W/O SRI.V PUTHANNA,
AGED ABOUT 39 YEARS,
Digitally signed by RESIDING AT M.CHEMBU VILLAGE,
ARUNKUMAR M S MADIKERI TALUK,
Location: High
Court of Karnataka KODAGU DISTRICT - 571201.
2. SMT. THIMMAKKA
W/O LATE SHESHAPPA NAIK V.G.,
AGED ABOUT 61 YEARS,
RESIDING AT CHEMBU VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT - 571201.
...RESPONDENTS
(BY SRI. G.B. NANDISH GOWDA, ADVOCATE FOR
SRI. R.B. SADASHIVAPPA ADVOCATE FOR R1;
R2 SERVED AND UNREPRESENTED)
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RSA No. 418 of 2020
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100(1) OF CODE OF CIVIL PROCEDURE, AGAINST
THE JUDGMENT AND DECREE DATED 17.12.2019 PASSED IN
R.A.NO.46 OF 2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
& CJM, KODAGU, MADIKERI, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
31.01.2013 PASSED IN O.S.NO.106 OF 2011 ON THE FILE OF
THE ADDITIONAL CIVIL JUDGE AND JMFC, MADIKERI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is filed by the defendant No.1
challenging the judgment and decree dated
17.12.2019 passed in RA No.46/2014 on the file of the
Senior Civil Judge at Madikeri, setting aside the
judgment and decree dated 31.01.2013 passed in OS
No.106 of 2011 on the file of the Additional Civil
Judge, Madikeri, in respect of Item No.1 of the suit
schedule property and decreeing the suit of the
plaintiff in part.
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2. For the sake of convenience, the parties in
this appeal shall be referred to in terms of their status
and ranking before the trial Court.
3. The plaint averments are that, the plaintiff is
the daughter of defendant No.2 and defendant No.1 is
the sister of the plaintiff. It is the case of the plaintiff
that the father of the plaintiff was owner in possession
of two items of suit schedule property and father of
the plaintiff died on 13.12.2010 leaving behind the
plaintiff and defendants as the legal representatives to
succeed to the estate left by the father. It is further
stated in the plaint that, the plaintiff has made
request to the defendants seeking equal share in
respect of the suit schedule property and same was
not accepted by the defendants and as such, plaintiff
has field OS No.106 of 2011 seeking relief of partition
and separate possession in respect of the suit
schedule property.
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4. After service of summons, defendants
entered appearance and filed written statement
contending that the father of the plaintiff and
defendant No.1, died on 13.12.2011, however, has
taken specific contention that Item No.1 of the suit
schedule property is land bearing Sy No.155/65,
measuring 1.5 acres, of Chembu Village, Madikeri
Taluk and the said land belongs to the plaintiff and
defendant No.1 and as such, during life time of her
father, the defendant No.1 has got property as per
registered Partition Deed and accordingly, sought for
dismissal of the suit in respect of the item No.1 of the
suit schedule property and however, pleaded that,
Item No.2 of the suit schedule property is liable for
partition and plaintiff and defendant No.1 are entitled
for half share each in Item No.2 of the suit schedule
property. Accordingly, sought for dismissal of the suit.
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5. On the basis of the rival pleadings, the trial
Court has formulated the issues for its consideration.
6. In order to establish their case, plaintiff
examined himself as PW1 and produced 07 documents
as Exs.P1 to P7. On the other hand, defendants
examined two witnesses as DW1 and DW2 and
produced 03 documents as Exs.D1 to D3.
7. The trial Court, after considering the
material on record, by its judgment and decree dated
31.01.2013 decreed the suit of the plaintiff in part
holding that, the plaintiff is entitled for 1/3rd share in
Item No.2 of the suit schedule property, however,
rejected the claim made by the plaintiff regarding
Item No.1 of the suit schedule property and being
aggrieved by the same, plaintiff has preferred Regular
Appeal in RA No.46 of 2014 on the file of First
Appellate Court. The said appeal was resisted by the
respondent therein. The First Appellate Court, after re-
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appreciating the facts on record, by its judgment and
decree dated 17.12.2019 allowed the appeal and as
such set aside the judgment and decree passed by the
trial Court in OS No.106 of 2011 with regard to item
No.1 of the suit schedule property and held that, the
plaintiff/defendants are entitled for 1/3rd share each in
the suit schedule property. Being aggrieved by the
judgment and decree passed by the Court below the
defendant No.1 has preferred this Regular Second
Appeal under Section 100 of CPC.
8. I have heard Sri. Jagadish Baliga .N.,
learned counsel for the appellant and Sri. G.B.
Nandish Gowda, learned counsel appearing on behalf
of Sri. R.B. Sadashivappa, for the respondent.
9. Sri. Jagaidsh Baliga .N., learned counsel for
the appellant submitted that, the finding recorded by
the First Appellate Court, with regard to allotment of
share in respect of the Item No.1 of the suit schedule
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property is per-se illegal as the Item No.1 of the suit
schedule property was granted to the grandfather of
the appellant and the respondent No.1 and further,
the appellant alone is entitled for share in item No.1 of
the suit schedule property as there was Partition Deed
effected in respect of the same, and therefore, he
contended that, the finding recorded by the First
Appellate Court with regard to Item No.1 of the suit
schedule property requires to be interfered with in this
appeal.
10. Sri. G.B.Nandish Gowda, learned counsel
appearing for the respondent sought to justify the
allotment of share made in favour of plaintiff and
defendants and further argued that, as the plaintiff
and defendant No.1 are the children of Sheshappa
Naik and therefore, he contended that, all the parties
to the suit are entitled for 1/3rd share in the suit
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schedule property. Accordingly, sought for dismissal of
the appeal.
11. Having heard the learned counsel appearing
for the parties, I have carefully examined the finding
recorded by both the courts below. Perusal of the
Genealogical Tree would indicate that there is no
dispute with regard to the relationship between the
parties. Genealogical Tree reproduced as under:
Guddappa Naik
Sheshappa Naik
Thimmakka (wife)(D2)
Bhagirathi Vedavathi
(Plaintiff) (1st Defendant)
12. Perusal of the Genealogical Tree would
indicate that, plaintiff and defendant No.1 are the
children of deceased Sheshappa Naik and defendant
No.2. It is also not in dispute that both the items of
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the suit schedule properties are coparcenary property
of plaintiff, defendant No.1 and defendant No.2. In
that view of the matter, the finding recorded by the
Trial Court that the plaintiff is entitled for 1/3rd share
in Item No.2 of the suit schedule property only and
not in Item No.1 of the suit schedule property is
incorrect as the parties to the suit constitute joint
family and as the properties are joint family
properties, plaintiff and defendants are entitled for
1/3rd share each in the suit schedule properties and
therefore, the finding recorded by the First Appellate
Court is just and proper by interfering with the
erroneous judgment and decree passed by the Trial
Court in respect of the Item No.1 of the suit schedule
property. Therefore, I do not find material illegality or
perversity in the judgment and decree passed by the
First Appellate Court and accordingly, the Regular
Second Appeal is liable to be dismissed. Since, the
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defendant/appellant has not made out a ground for
formulation of substantial question of law as required
under Section 100 of Code of Civil Procedure, appeal
is liable to be dismissed at the Admission stage itself
and accordingly, appeal is dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SB
