Karnataka High Court
Lingaraju @ Nagaraju @ Ningaraju vs Sri C Ramesha on 12 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:5871
RSA No. 2304 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2304 OF 2011 (DEC/INJ)
BETWEEN:
1. LINGARAJU @ NAGARAJU
@ NINGARAJU
AGED ABOUT 63 YEARS,
S/O. A.CHIKKANNAIAH
R/AT.NO.550/1, 2ND CROSS,
KAMATAGERI, NAZARBAD
MYSORE.
...APPELLANT
(BY SRI ADITYA BHAR, ADVOCATE FOR
SRI. G.S. BHAT, ADVOCATE)
AND:
1. SRI C. RAMESHA
Digitally signed
by SHARANYA T S/O. A. CHIKKANNAIAH
Location: HIGH AGED ABOUT 46 YEARS,
COURT OF R/AT.NO.1577, 2ND CROSS,
KARNATAKA
SOPPANAKERI, MANDI MOHALLA
MYSORE.
2. SRI C. JAGANATH
S/O. A. CHIKKANNAIAH
AGED ABOUT 44 YEARS,
R/AT.NO.1577, 2ND CROSS,
SOPPANAKERI,
MANDI MOHALLA
MYSORE.
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RSA No. 2304 of 2011
3. SRI CHIKKANNAIAH
SINCE DEAD BY LRS
3(a) SRI BHARATHRAJ
S/O.A CHIKKANNAIAH,
AGED ABOUT 41 YEARS,
GANESH NAGAR,
M R MOHALLA
MYSORE.
3(b) SMT. VANAJAKSHI
W/O.SRI KEMPANNA
AGED ABOUT 34 YEARS,
R/AT.NO.529, 15TH MAIN,
2ND CROSS,
SARASWATHIPURA
MYSORE.
4. C. PRAKASH
SINCE DEAD BY LRs'
4(a) SMT. RADHA @ RAJESHWARI
W/O LATE SRI PRAKASH
AGED ABOUT 36 YEARS,
R/AT.D NO.1577/A,
2ND CROSS, SOPPINAKERI
MANDI MOHALLA, MYSORE.
4(b) MS. SOWMYA
D/O.LATE SRI PRAKASH
AGED ABOUT 19 YEARS,
R/AT.D NO.1577/A,
2ND CROSS, SOPPINAKERI
MANDI MOHALLA, MYSORE.
...RESPONDENTS
(BY SRI D.R. MEENAKUMARI, ADVOCATE FOR R2;
SRI G.BALAKRISHNA SHASTRY, ADVOCATE FOR R1;
SRI A.L.MARIYAPPA, ADVOCATE FOR R4[a & b];
SRI RUDRAPPA P., ADVOCATE FOR R3[a & b])
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RSA No. 2304 of 2011
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 18.7.2011 PASSED IN
R.A.NO.987/2010 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-IV, MYSORE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
5.7.2010 PASSED IN O.S.NO.1050/2005 ON THE FILE OF THE
PRL. FIRST CIVIL JUDGE, MYSORE.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellant and also the learned
counsel for the respondents.
2. The finding of the Trial Court is that the plaintiff
is entitled for 2/3rd share in a suit schedule property and
the defendant No.2 is entitled for 1/3rd share as per the
declaration executed by the defendant No.1. Being
aggrieved by the said judgment and decree, the appellant
herein has filed R.A.No.987/2010 questioning that not
considered the right conferred to the appellant in terms of
the partition document and also questioning the
declaration made by the father in favour of plaintiff Nos.1,
2 and also the defendant No.2 on 06.11.2003. The First
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Appellate Court confirmed the judgment of the Trial Court
and dismissed the appeal. Being aggrieved by the
concurrent finding, the present Regular Second Appeal is
filed before this Court.
3. The counsel appearing for the appellant would
vehemently contend that there was a deed of partition
which is marked as Ex.D8. In terms of Ex.D8, the property
is given in favour of the appellant and originally the
property belongs to Ningamma who is the wife of
defendant No.1 who subsequently passed away during the
pendency of the suit.
4. The main contention of the defendant No.3 in
the written statement that suit schedule property fell to
the share of 2nd and 3rd defendant in a partition dated
05.03.2005. The plaintiffs have consented for such
partition. The said issue has been answered as negative by
the Trial Court and the same has been confirmed by the
First Appellate Court.
5. The counsel would vehemently contend that
both the Courts committed an error in not considering the
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said partition deed. The very approach of both the Courts
is erraneous. It is the contention that both the Courts
committed an error in not considering the Ex.D8 and
Ex.D8 is the registered partition deed between the
defendant No.1 A.Chikkannaiah and appellant and 2nd
defendant Sri.Prakash. The said document is executed by
the father of the appellant allotting the shares in the suit
schedule property. The Courts below committed serious
error of law in not considering the admissions made by the
plaintiff and witnesses in the cross-examination. In
evidence, PW1 has admitted that all the sons of late
A.Chikkannaiah are not signatory in Ex.P1. The document
Ex.P1 is a declaration letter. The plaintiff on the basis of
Ex.P1, claiming his rights. The Courts below without
considering the validity of genuineness and admission of
documents of non affixing the signatures of all children of
late A.Chikkannaiah, decreed the suit. The very approach
of both the Courts is erraneous in not considering the
Ex.D8 and committed an error in accepting Ex.P1. Hence,
this Court has to frame substantial question of law as to
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whether in the facts and circumstances of the case, the
Courts below committed error in not considering the
document Ex.D8 which is registered partition deed. Both
the Courts below not justified in accepting Ex.P1-
declaration letter that all the children of late
A.Chikkannaiah have not signed the said document.
Hence, this Court has to admit the matter and frame
substantial question of law.
6. On the other hand, the counsel appearing for
the respondents would vehemently contend that no
dispute with regard to the relationship between the parties
and also the present appellant has given an adoption and
once adoption is given, he disconnected all his right from
the natural family. The counsel also would submits that
the question of execution of partition deed does not arise
and he has no any legal right. Even to seek any relief for
the suit schedule property. The counsel also admits that
the declaration is made by the father himself in the year
2003 making provision in favour of plaintiff Nos.1 and 2
and also the defendant No.2 and the same is rightly
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accepted by the Trial Court while considering the claim of
both plaintiff as well as the defendants and question of
granting relief does not arise.
7. In reply to the arguments, the counsel for the
appellant would vehemently contend that even if partition
deed is not accepted, when the father got right in the
property and he made the provision in the year 2003 and
also for this share is concerned, the appellant is entitled
for a share in the property.
8. Having heard the appellant's counsel and also
the counsel appearing for the respondents and considering
the material on record, no dispute with regard to the
relationship between the parties. It is also not in dispute
that the appellant has given an adoption and appellant
also not disputed the fact that he has given adoption. The
counsel also would submits that one Leelavathi who is the
sister of the appellant was not party to the suit. Apart
from that the Trial Court committed an error in accepting
the document Ex.P1 and so also the First Appellate Court.
It has to be noted that the appellant mainly relies upon
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the document Ex.D8 and also prays this Court to frame
substantial question of law in respect of Ex.D8. No doubt
the said document is a registered document under which
he is claiming right, the question of considering that
document also does not arise. Both the Courts have not
considered the document of Ex.D8. Once the appellant
separated from the family, he went in adoption and also
not disputed the adoption. He is legally separated from the
family of natural father and hence the question of any
partition does not arise. Even if any registered document
is available, the same will not confer any right and
question of granting any partition in respect of family
property of natural father does not arise. Once he did not
dispute the very fact that he went in adoption and also not
disputing the adoption. Hence, the Trial Court and First
Appellate Court have not committed any error on question
of fact and also on question of law. When such being the
case, question of framing any substantial question of law
as contended by the counsel appearing for the appellant
does not arise by invoking Section 100 of CPC. Hence, I do
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not find any merit in the appeal to admit and invoke
Section 100 of CPC to frame any substantial question of
law as contended by the appellant's counsel in respect of
document Ex.D8 and also to interfere with regard to the
finding on document Ex.P1 and no perversity is found.
Hence, no ground is made out to admit and frame any
substantial question of law.
9. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
RHS
