Karnataka High Court
Sri Suhas D vs Sri B Devaraj on 6 August, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:31214
RFA No. 1027 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 1027 OF 2017 (INJ)
BETWEEN:
SRI. SUHAS D
S/O B DEVARAJ
AGED BOUT 27 YEARS
R/AT NO.748/2-8, NELE
4TH MAIN, DWARAKANAGAR
CHANDRA LAYOUT, BANGALORE-506 072
...APPELLANT
(BY SRI. BRYEN STIENBERG, ADVOCATE FOR
SRI. JOSE SEBASTIAN, ADVOCATE)
AND:
1. SRI. B DEVARAJ
S/O LATE K T KORAGAPPA
AGED ABOUT 64 YEARS
Digitally R/AT NO.124/6, BASRUR VILLAGE
signed by
MALATESH KUNDAPURA HOBLI
KC KUNDAPURA TALUK
Location: UDUPI DISTRICT-577012
HIGH
COURT OF 2. SMT. SOWMYA
KARNATAKA
W/O OM PRAKASH
AGED ABOUT 32 YEARS
R/AT NO.3356, SANNIDI K R ROAD
BANASHANKARI 2ND STAGE
BANGALORE-560 070
-2-
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RFA No. 1027 of 2017
3. SMT. SUSHMA D
D/O B. DEVARAJ
AGED ABOUT 27 YEARS
R/AT NO.748/2-8,
NELE, 4TH MAIN, DWARAKANAGAR
CHANDRA LAYOUT,
BANGALORE-560 072
4. SMT. B. VIMALA
W/O LATE SENENA MANJAIAH
D/O LATE K T KORAGAPPA
AGED ABOUT 87 YEARS
R/AT SRI KRISHNA STORES
P O KEMMANNU,
UDUPI DISTRIC 577 010.
5. SMT. SUNITHA
W/O LATE NAGAPPA
D/O LATE K T KORAGAPPA
AGED ABOUT 79 YEARS
R/AT PRAGATHI FARM HOUSE
OLD SHEDHEBHAGI ROAD
BHADRA COLONY POST
BHADRAVATHI
SHIMOGA DISTRICT 577 117
6. SMT. SUSHEELA
W/O LATE BABURAO
D/O LATE K. T. KORAGAPPA
AGED BOUT 70 YEARS
R/AT RAVATHKERI, BASRUYR VILLAGE
KUNDAPURA TALUK 577 112,
UDUPI DISTRICT.
7. SMT. PREMA
W/O LATE MANJUNATH
-3-
NC: 2024:KHC:31214
RFA No. 1027 of 2017
D/O LATE K T KORAGAPPA
AGED ABOUT 67 YEARS
R/AT RAVATHKERI, BASRUR VILLAGE
KUNDAPURA TALUK 577 010
8. SMT. JAYANTHI BHASKAR RAO
W/O BHASKAR RAO,
D/O LATE K.T. KORAGAPPA,
AGED ABOUT 59 YEARS
R/AT NO.99, NEW NO.19
3RD MAIN ROAD, SANJEEVINI NAGAR,
MOODALAPALYA, BANGALORE-506 072.
9. SMT. HEMAVATHI RAJKUMAR
W/O LATE RAJKUMAR
D/O LATE K T KORAGAPPA
AGED ABOUT 55 YEARS
R/AT C/O MAHABALA GANIGA
KOTA POST, UDUPI DISTRICT
ALSO RESIDING AT TALLUR
FOREST DEPARTMENT QUARTERS
KUNDAPUR TALUK.
...RESPONDENTS
(BY SRI. K. G. SADASHIVAIAH, ADVOCATE FOR R6;
R1 TO R5, R7, R9 ARE SERVED & UNREPRESENTED;
VIDE ORDER DATED:27/8/19 NOTICE TO R8 IS HELD
SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED: 07.02.2017
PASSED IN OS.NO.30/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE, KUNDAPURA DISMISSING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
-4-
NC: 2024:KHC:31214
RFA No. 1027 of 2017
ORAL JUDGMENT
Heard Sri.Byren Stienberg, learned counsel for the
appellant. The unsuccessful plaintiff is the appellant in
this appeal.
2. The present appeal is filed by the plaintiff to set
aside the judgment and decree dated 07.02.2017 passed
in O.S.No.30/2013 on the file of Senior Civil Judge,
Kundapura.
3. Brief facts of the case for disposal of the appeal
are as under:
4. A suit came to be filed in OS No.30/2013 for
relief of partition contending that the plaintiff and
defendant Nos.1 to 3 constitute a joint family and they are
the coparceners and suit properties are ancestral
properties. It is further contended that the property was
earlier purchased by Smt. Rukku Hengsu from her
husband Sri.Manjappa. The properties so purchased by
Smt. Rukku Hengsu is by spending the family income of
Sri.Manjappa, the husband of Smt. Rukku Hengsu.
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Thereafter, Smt. Rukku Hengsu settled the properties in
the name of Sri.K.T.Koragappa, her only son under the
settlement deed dated 24.08.1948. Sri.K.T.Koragappa,
had one son and six daughters, they are the defendant
Nos.1,4 to 9 in the present case.
5. It is also contended by the plaintiff that
Sri.K.T.Koragappa died on 01.07.1991 and his wife
Smt.Kamalakshi died on 06.08.1992. Thereafter,
defendant Nos.6 and 7 filed OS No.149/1997 against
defendant No.1, which came to be dismissed for non-
prosecution.
6. Subsequently, another suit in OS No.46/2005
was filed by the defendant No.7 for partition and separate
possession and the said suit came to be decreed, wherein
the plaintiff was not notified. The plaintiff therein filed the
final decree proceedings in FDP No.9/2012 and
subsequently defendant Nos.4 to 9 got their names
entered in the revenue records.
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7. Thereafter, without having the knowledge of OS
No.46/2005 and also the FDP proceedings, since the
revenue entries were mutated, the suit properties being
the ancestral properties, plaintiff lead the claim.
8. Further, it is contended that the marriage of all
children of Sri.K.T.Koragappa was performed in between
1951 and 1984 and the plaintiff was born before the death
of Sri.K.T.Koragappa and therefore, he also to be treated
as coparcener along with Sri.K.T.Koragappa and therefore
he is having right to seek for the partition.
9. After the receipt of the suit summons,
defendant No.1 appeared before the court and filed
detailed written statement, admitting the claim of the
plaintiff, in so far as entitlement of the shares over the
suit property but denied that defendant No.1 has colluded
with other defendants, namely defendant Nos.6 and 7 and
got filed OS No.46/2005.
10. The defendant Nos.2 and 3 filed separate
written statement, wherein they admitted the claim of
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plaintiff and also prayed for decreeing of the suit, in other
words, all these defendants sailed along with the plaintiff.
11. It is defendant No.6 who has filed written
statement denying the plaint averments in toto and also
contended that the property in the hands of
Sri.K.T.Koragappa became the absolute property of
Sri.K.T.Koragappa and thereafter, the question of plaintiff
having any share in the suit of the coparcener could not
arise and therefore sought for dismissal of the suit.
12. Learned Trial Judge, after raising necessary
issues, had dismissed the suit of the plaintiff, by holding
issue Nos.1 to 4 in negative.
13. Being aggrieved by the same, the plaintiff is
before this court only on the following grounds.
14. Sri.Byren Stienberg, learned counsel for the
appellant, reiterated the grounds urged in the appeal
memorandum, contended that the plaintiff is to be treated
as coparcener along with the Sri.K.T.Koragappa and
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therefore decree passed in O.S.No.46/2005 culminated in
the final decree proceedings in FDP No.9/2012 does not
bind the share of the plaintiff and therefore suit of the
plaintiff needs to be decreed, for that purpose, he sought
for admitting the appeal for further consideration.
15. Learned counsel for contesting respondent
Sri.K.G.Sadashivaiah remained absent.
16. In the light of the arguments put forth on
behalf of the appellant, this court perused the materials
on record meticulously. On such perusal of the materials
on records, the relationship of the plaintiff is admitted by
the defendant. However, it has been specifically
contended that the question of the plaintiff being treated
as coparcener along with Sri.K.T.Koragappa is denied by
the contesting respondent No.6.
17. Learned Trial Judge has taken into
consideration the material available on record and
specifically has held that the property showing in Ex.P.2
was purchased by Smt.Rukku Hengsu, who in turn had
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settled the property in favor of Sri.K.T.Koragappa vide
registered settlement deed.
18. Therefore, it becomes absolute property of
Sri.K.T.Koragappa. The plaintiff is claiming that he is
coparcener along with Sri.K.T.Koragappa cannot be
countenanced in law. When such a right is not available to
the plaintiff, his suit for partition is not maintainable .
19. Accordingly, the following:
ORDER
Appeal grounds are meritless. Accordingly, the
admission is declined.
This appeal is hereby dismissed.
Sd/-
(V SRISHANANDA)
JUDGE
AKV_List No.: 1 Sl No.: 47_CT:SK
