Karnataka High Court
Mr M Rajarama Shetty vs Smt Gulabi Alias Nalinakshi on 1 February, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
-1-
NC: 2024:KHC:4366-DB
RFA No. 1513 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 1513 OF 2021 (PAR)
BETWEEN:
1. MR. M. RAJARAMA SHETTY,
S/O LATE M. BOOBA SHETTY,
AGED ABOUT 65 YEARS,
FLAT NO.103, VANI APARTMENTS,
KODIYALGUTTU, WEST SIDE FRONT,
KODIYAL BAIL, MANGALORE - 575 003.
2. MR. M. RAVIRAJ SHETTY,
S/O LATE M. BOOBA SHETTY,
AGED ABOUT 61 YEARS,
1-105/18(21), LALBAHADUR SHASTRI NAGAR,
Digitally signed MAROLIKULSHEKHAR, MANGALORE - 575 005.
by SHARADA
VANI B 3. SMT. USHA NAVNEETH SHETTY,
Location: HIGH D/O LATE M. BOOBA SHETTY,
COURT OF AGED ABOUT 56 YEARS,
KARNATAKA
KADRI KAMBALA, BEJAI, MANGALORE - 575 004.
4. SMT. ASHA AVINASH HEGDE,
D/O LATE M. BOOBA SHETTY,
W/O AVINASH HEGDE,
AGED ABOUT 52 YEARS,
"BRAHMARI", 8-1-52D1, 8-1-52D2,
LALA LAJPATH ROY ROAD,
OPP SHARADA KALYANA MANTAP,UDUPI - 576 101.
...APPELLANTS
(BY SRI. CHANDRANATH ARIGA K, ADVOCATE)
-2-
NC: 2024:KHC:4366-DB
RFA No. 1513 of 2021
AND:
1. SMT. GULABI ALIAS NALINAKSHI,
D/O LATE MANJAKKE,
W/O LATE NARAYANA BHANDARY,
AGED ABOUT 89 YEARS,
ADHUR GUTTU DODDAMANE HOUSE,
ADHUR VILLAGE, KASARAGOD TALUK.
2. SMT. MYNAVATHI ALIAS MYNA R.K. SHETTY,
D/O LATE NARAYANA BHANDARY AND
SMT GULABI ALIAS NALINAKSHI,
W/O LATE RADHAKRISHNA SHETTY,
AGED ABOUT 67 YEARS,
DOOR NO.302, I WING,
SAI RADHA PRIDE, BRAHMAGIRI,
UDUPI TALUK AND DISTRICT.
3. SMT. GEETHA P. SHETTY,
D/O LATE NARAYANA BHANDARY AND
SMT. GULABI ALIAS NALINAKSHI,
W/O K. PRABHAKARA SHETTY,
AGED ABOUT 63 YEARS,
VIJAYA BANK LAYOUT,
M.S.R.S NAGAR, BILEKAHALLI,
BENGALURU.
4. SMT. SHASHIKALA T. SHETTY,
D/O LATE NARAYANA BHANDARY AND
SMT. GULABI ALIAS NALINAKSHI,
W/O S. TARANATHA SHETTY,
AGED ABOUT 61 YEARS,
SHRUTHI NILAYA, DARBE - 574 202,
PUTTUR TALUK, D.K.
5. SRI. PRAKASH BHANDARY,
D/O LATE NARAYANA BHANDARY AND
SMT. GULABI ALIAS NALINAKSHI
AGED ABOUT 59 YEARS,
ADHUR GUTTU DODDAMANE HOUSE,
ADHUR VILLAGE, KASARAGOD TALUK,
KERALA STATE.
-3-
NC: 2024:KHC:4366-DB
RFA No. 1513 of 2021
6. SMT. MEENA B SHETTY,
D/O LATE NARAYANA BHANDARY AND
SMT. GULABI ALIAS NALINAKSHI,
W/O K BABU SHETTY,
AGED ABOUT 56 YEARS,
B C ROAD OF B MUDA VILLAGE,
BANTWAL TALUK, D.K.
7. SMT. SHANTHA U ALVA,
D/O LATE NARAYANA BHANDARY AND
SMT. GULABI ALIAS NALINAKSHI,
W/O UMANATHA ALVA,
SRINATH PARK YASHASWI NAGAR THANE,
MAHARASTHRA STATE.
1 TO 7 ARE REPRESENTED BY THEIR
GPA HOLDER K. PRABHAKARA SHETTY,
AGED ABOUT 69 YEARS,
S/O LATE JAGANNATHA SHETTY,
VIJAYA BANK LAYOUT, MSRS NAGAR,
BILEKAHALLI, BANGALORE.
...RESPONDENTS
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 19.06.2020 PASSED IN
OS.NO. 9/2017 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND CJM., MANGALURU, DISMISSING THE SUIT
FOR PARTITION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
KRISHNA S. DIXIT. J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the defendants seeks to call in
question a judgment & decree, whereby the partition suit
in O.S.No.9/2017 has been dismissed on the ground that
in an earlier partition suit in O.S.No.101/1967, decreed on
NC: 2024:KHC:4366-DB
8.7.1975, a partition has taken place, in terms of FDP
No.13/1999 wherein, a final decree has been drawn on
30.9.2002 in accord with the Division Report submitted by
the Court Commissioner.
2. Learned counsel for the appellants despite
vehement submission was not in a position to demonstrate
any prima facie error of law or mistake of fact from the
records. It hardly needs to be stated that the suit property
figured in the earlier partition decree and therefore, the
same operates as res judicata.
3. The above apart, the suit was for a decree of
partial partition which generally is not maintainable, as
rightly held by learned Judge of the Court below. We
hasten to add that ordinarily, the first appeal lies both on
law & facts and therefore, Courts adopt a lenient approach
in treating such appeals. However, this is not to say that
regardless of arguable point, the first appeal should be
admitted as a matter of course.
4. The subject property was tenanted as on
1.3.1974 and we are told that occupancy was granted to
NC: 2024:KHC:4366-DB
the tenant by the Land Tribunal u/s 48A of the Karnataka
Land Reforms Act, 1961. Such a grant of occupancy would
enure to the benefit of the joint family as defined u/s
2(17). Occupancy rights also constitute the property that
was subject matter of earlier partition. This aspect of the
matter could have been more elaborately dealt with by the
Court below, may be true. However, that per se would not
make the impugned decree otherwise unsustainable and
therefore, cannot be voided.
In the above circumstances, this appeal fails with
usual costs.
Registry to send a copy of this judgment to the
Respondents by way of Speed Post immediately.
Sd/-
JUDGE
Sd/-
JUDGE
ABK
