Karnataka High Court
Chandrashekhar And Anr vs Dattappa And Ors on 8 February, 2024
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 08TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.200172 OF 2020 (PAR)
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REGULAR SECOND APPEAL NO. 200171 OF 2020
IN R.S.A NO.200172 OF 2020
BETWEEN:
1. CHANDRASHEKHAR
S/O DHARAMARAO ISREE
AGE: 52 YEARS
OCC: AGRICULTURE,
R/O HAVANOOR VILLAGE,
AFZALPUR TALUK,
KALABURAGI DISTRICT.
Digitally signed
by SACHIN
Location:
HIGH COURT
2. NINGANNA
OF
KARNATAKA
S/O CHANDRASHEKHAR
AGE: 30 YEARS
OCC: AGRICULTURE
R/O HAVANOOR VILLAGE,
AFZALPUR TALUK,
KALABURAGI DISTRICT.
...APPELLANTS
(BY SRI. GURUBASAVA C. NAYAK, ADVOCATE FOR
SRI. RAMCHANDRA K., ADVOCATE)
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AND
DATTAPPA
S/O DHARAMRAO ISREE
SINCE DECEASED THROUGH LR'S.
1. BASAMMA @ VIJAYALAXMI
W/O VIJAYA KUMAR PATIL
AGE: 36 YEARS,
HADGIL HARUTI VILLAGE,
KALABURAGI TALUK AND DISTRICT.
NOW R/AT PLOT NO.117, BHATT BUILDING,
BEHIND CENTRAL BUS STAND,
CIB COLONY,
KALABURAGI-585 102.
2. AMBIKADEVI
W/O CHANABASAVAGOUDA PATIL
AGE: 30 YEARS,
OCC: HOUSEHOLD,
R/O SHAKAVADI VILLAGE,
RAICHUR TALUK AND DISTRICT.
NOW R/AT PLOT NO.117 BHATT BUILDING,
BEHIND CENTRAL BUS STAND,
CIB COLONY,
KALABURAGI-585 102.
3. GANGUBAI
W/O VEERANNA ANKALGI
AGE: 28 YEARS,
OCC: HOUSEHOLD,
R/O KAVALAGI VILLAGE,
ALAND TALUK,
KALABURAGI DISTRICT.
NOW R/AT PLOT NO.117 BHATT BUILDING,
BEHIND CENTRAL BUS STAND,
CIB COLONY,
KALABURAGI -585 102.
...RESPONDENTS
(BY SRI. SHARANABASAPPA K. BABSHETTY, ADVOCATE)
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THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST THE
JUDGEMENT AND DECREE DATED 30TH JUNE, 2020 PASSED IN
REGULAR APPEAL NO.101 OF 2018 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KALABURAGI,
DISMISSING THE APPEAL AND CONFIRMING THE ORDER
DATED 09TH AUGUST, 2018, PASSED IN F.D.P. NO.3 OF 2017
ON THE FILE OF THE SENIOR CIVIL JUDGE, AFZALPUR.
IN R.S.A NO.200171 OF 2020
BETWEEN:
1. CHANDRASHEKHAR
S/O DHARAMARAO ISREE
AGE: 55 YEARS
OCC: AGRICULTURE,
R/O HAVANOOR VILLAGE,
AFZALPUR TALUK,
KALABURAGI DISTRICT.
2. NINGANNA
S/O CHANDRASHEKHAR
AGE: 35 YEARS
OCC: AGRICULTURE
R/O HAVANOOR VILLAGE,
AFZALPUR TALUK,
KALABURAGI DISTRICT.
...APPELLANTS
(BY SRI. GURUBASAVA C. NAYAK, ADVOCATE FOR
SRI. RAMCHANDRA K, ADVOCATE)
AND
DATTAPPA
S/O DHARAMRAO ISREE
SINCE DECEASED THROUGH LR'S.
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RSA NO.200172 OF 2020
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1. BASAMMA @ VIJAYALAXMI
W/O VIJAYA KUMAR PATIL
AGE: 37 YEARS,
HADGIL HARUTI VILLAGE,
KALABURAGI TALUK AND DISTRICT.
NOW R/AT PLOT NO.117, BHATT BUILDING BEHIND
CENTRAL BUS STAND,
CIB COLONY,
KALABURAGI-585 102.
2. AMBIKADEVI
W/O CHANABASAVAGOUDA PATIL
AGE: 33 YEARS,
OCC: HOUSEHOLD,
R/O SHAKAVADI VILLAGE,
RAICHUR TALUK AND DISTRICT.
NOW R/AT PLOT NO.117 BHATT BUILDING BEHIND,
CENTRAL BUS STAND,
CIB COLONY,
KALABURAGI-585 102.
3. GANGUBAI
W/O VEERANNA ANKALGI
AGE: 28 YEARS,
OCC: HOUSEHOLD,
R/O KAVALAGI VILLAGE,
ALAND TALUK,
KALABURAGI DISTRICT.
NOW R/AT PLOT NO.117 BHATT BUILDING BEHIND,
CENTRAL BUS STAND, CIB COLONY,
KALABURAGI -585 102.
...RESPONDENTS
(BY SRI. SHARANABASAPPA K. BABSHETTY, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST THE
JUDGEMENT AND DECREE DATED 30TH JUNE, 2020 PASSED IN
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REGULAR APPEAL NO.41 OF 2017 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KALABURAGI,
DISMISSING THE APPEAL AND MODIFYING THE JUDGEMENT
AND DECREE DATED 22ND APRIL, 2017, PASSED IN ORIGINAL
SUIT NO.132 OF 2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE, AFZALPUR.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Regular Second Appeal No.200172 of 2020 is filed
challenging the judgment and decree dated 30th June,
2020 passed in Regular Appeal No.101 of 2018 on the file
of the I Additional District and Sessions Judge, Kalaburagi
(for short, hereinafter referred to as 'First Appellate
Court'), dismissing the appeal and confirming the order
dated 09th August, 2018 passed in F.D.P. No.3 of 2017 on
the file of the Senior Civil Judge, Afzalpur (for short,
hereinafter referred to as 'Trial Court'), wherein the Final
Decree Proceedings filed by the respondents herein is
allowed.
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2. Regular Second Appeal No.200171 of 2020 is filed
challenging the judgment and decree dated 30th June,
2020 passed in Regular Appeal No.41 of 2017 on the file of
the First Appellate Court, dismissing the appeal and
modifying the judgment and decree dated 22nd April, 2017
passed in Original Suit No. 132 of 2012 on the file of the
Senior Civil Judge and JMFC., Afzalpur, wherein the suit
filed by the respondents herein came to be decreed in-
part.
3. 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.
4. The plaint averments are that, the deceased
Dattappa (original plaintiff) and the defendant No.1 are
the children of Darmarao Ishree and Smt. Ambwwa. It is
stated in the plaint that the schedule properties are the
joint family properties of the parties. Defendants 3 to 5
are the daughters of the plaintiff. Defendant No.2 is the
son of defendant No.1. It is the case of the plaintiff that
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the plaintiff made a request for partition in the suit
schedule properties and same was denied by the
defendant No.1 and as such, the plaintiff has filed suit in
Original Suit No.132 of 2012 before the Trial Court,
seeking relief of partition and separate possession in
respect of the suit schedule properties.
5. After service of summons, the defendants entered
appearance and the defendant No.1 has filed detailed
written statement and took-up a specific contention that the
son of the defendant No.1 was given in adoption to the
plaintiff and therefore, the suit is liable to be dismissed as
the adopted son of the plaintiff has not been made as party
in the suit. Defendants 3 to 5 filed separate written
statement and made a claim for their share in the suit
schedule properties.
6. On the basis of the rival pleadings, the Trial
Court has formulated issues for its consideration.
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7. In order to establish the case, the plaintiff
himself was examined as PW-1 and got marked 37
documents as Exhibits P1 to P37. On the other hand,
defendants examined 6 witnesses as DW-1 to DW-6 and
got marked 32 documents as Exhibits D1 to D32.
8. The Trial Court, after considering the material on
record, by its judgment and decree dated 22nd April, 2017
decreed the suit of the plaintiff in-part holding that the
plaintiff is entitled for half share in the suit schedule
properties. Being aggrieved by the same, the defendant
No.1 preferred Regular Appeal No.41 of 2017 on the file of
First Appellate Court. The said appeal was resisted by the
legal representatives of the plaintiff. The First Appellate
Court, after re-appreciating the facts on record, by its
judgment and decree dated 30th June, 2020, dismissed the
appeal and modified the judgment and decree dated 22nd
April, 2017 passed by the Trial Court in Original Suit
No.132 of 2012. Being aggrieved by the same, the
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defendants preferred Regular Second Appeal No.200171 of
2020 under Section 100 of the Civil Procedure Code.
9. In respect of Regular Second Appeal No.200172
of 2022, the legal representatives of the plaintiff have filed
F.D.P. No.3 of 2017 and the said proceeding was resisted
by the defendants. The Trial Court, by its judgment and
decree dated 09th August, 2018 accepted the Final Decree
Proceedings and divided the property. Being aggrieved by
the same, defendants filed Regular Appeal No.101 of 2018
before the First Appellate Court and the First Appellate
Court, by its judgment and decree dated 30th June, 2020,
dismissed the appeal. Being aggrieved by the same,
defendants have filed Regular Second Appeal No.200172
of 2020. Hence, these two appeals.
10. Heard Sri. Gurubasava C. Nayak, learned
counsel on behalf of Sri. Ramachandra K., appearing for
appellants and Sri. Sharanabasappa K. Babshetty, learned
counsel appearing for respondents.
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11. Sri. Gurubasava C. Nayak, learned counsel
appearing for the appellant/defendants submit that the
finding recorded by both the courts below is contrary to
law and contended that the Trial Court has not properly
framed issues particularly the Trial Court ought to have
framed issue that whether the plaintiff has adopted the
son of the defendant No.1? He also contended that, it is
the duty of the plaintiff to establish and make out a case
that the suit schedule properties are the joint family
properties and as the plaintiff fails to prove the same, the
Trial Court ought to have dismissed the suit. He further
contended that the Trial Court in Final Decree proceedings,
straight away accepted the report of the Commissioner
and division of the property has been made without
affording fair opportunity for enquiry and therefore, he
sought for interference of this Court.
12. Per contra, Sri. Sharanabasappa K. Babshetty
learned counsel appearing for respondents sought to
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justify the judgment and decree passed by the Courts
below.
13. Heard the learned counsel appearing for both
the parties and perused the material on record. In order
to ascertain the relationship between the parties, it is not
disputed by the parties. The Genealogical Tree of the
parties reads as under:
Dharmarao
Dattappa Chandrashekhar
Ninganna
14. On careful examination of the finding recorded by
both the Court below, Dharmarao had two children namely
Dattappa(original plaintiff) and Chandrashekar (defendant
No.1). It is not in dispute that the schedule properties are
the ancestral properties of the parties. The grievance of
the defendant No.1 is that his son Dharmaraya was given
in adoption to the plaintiff and therefore, in order to defeat
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the right of the adopted son and to give share to only the
daughters, the plaintiff has filed suit. In that view of the
matter, unless the adoption is proved in a manner known
to law in a separate proceedings, the contention of the
defendant No.1 cannot be accepted. In that view of the
matter, both the Courts below have rightly held that the
plaintiff is entitled for half share in the suit schedule
properties. In Final Decree Proceedings, in order to make
equitable share to the parties, the Trial Court has
appointed the Commissioner to divide the property and
the Trial Court has examined the report submitted by the
Court Commissioner and accordingly, properties were
equally divided and allotted amongst the plaintiff and
defendants. Taking into account the finding the recorded
by both the Courts below, I am of the view that no
interference is called for in these appeals as the same are
devoid of merits.
15. Therefore, I do not find material irregularities or
perversity in the judgment and decree passed by the
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Courts below and accordingly, the Regular Second Appeals
are liable to be dismissed. Since, the appellant/defendants
have not made out grounds for formulation of substantial
question of law as required under Section 100 of Code of
Civil Procedure, appeals are liable to be dismissed at the
stage of Admission itself. Accordingly, Regular Second
Appeals are dismissed.
Sd/-
JUDGE
ARK
