Karnataka High Court
Shrimantharaya vs Hanmanthraya S/O Gurubasappa on 12 February, 2024
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RSA No. 200255 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200255 OF 2017 (PAR)
BETWEEN:
1. SHRIMANTHARAYA
S/O GURUBASAPPA,
AGE ABOUT 74 YEARS,
OCC: AGRICULTURE,
2. BHIMARAYA S/O GURUBASAPPA,
AGE ABOUT 65 YEARS,
OCC: AGRICULTURE,
BOTH R/O PATTAN VILLAGE-585101.
TQ & DIST: KALABURAGI.
...APPELLANTS
Digitally signed
by SACHIN
Location: HIGH (BY SRI. A.M.BIRADAR, ADVOCATE FOR APPELLANT NO.1;
COURT OF
KARNATAKA V/O DATED 31.05.2021, APPEAL AGAINST A-2 ABATES)
AND:
HANMANTHRAYA S/O GURUBASAPPA,
AGE ABOUT 66 YRARS, OCC: AGRI,
R/O PATTAN,
NOW AT LADCHINCHOLI,
TQ: ALAND, DIST: KALABURAGI-585302.
...RESPONDENT
(BY SRI.SANTOSH H.PATIL, ADVOCATE FOR
SRI. ASHOK B.MULAGE, ADVOCATE)
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RSA No. 200255 of 2017
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 26.04.2017,
PASSED IN RA NO.70/2013 ON THE FILE OF THE II
ADDL.SENIOR CIVIL JUDGE AT KALABURAGI, ALLOWING THE
APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, defendant Nos.1 and 2 are assailing
the judgment and decree dated 26.04.2017 in
R.A.No.70/2013 on the file of II Additional Senior Civil
Judge, Kalaburagi, setting aside the judgment and decree
dated 19.01.2013 in O.S.No.309/2009 on the file of V
Addl. Civil Judge (Jr.Dn.) and JMFC, Kalaburagi, dismissing
the suit of the plaintiff.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, plaintiff and
defendants are children of late Gurubasappa and the
plaintiff has filed suit seeking partition and separate
possession in respect of suit schedule property. The said
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suit was contested by the defendants by filing written
statement.
4. The Trial Court on the basis of the pleadings
framed the issues for its consideration.
5. In order to establish their case, plaintiff has
examined three witnesses as PW.1 to PW.3 and marked 10
documents as Ex.P.1 to Ex.P.10. Defendants have
examined three witnesses as DW.1 to DW.3 and marked
33 documents as Ex.D1 to Ex.D33.
6. The Trial Court after considering the material on
record, vide judgment and decree dated 19.01.2013,
dismissed the suit of the plaintiff. Being aggrieved by the
same, the plaintiff has preferred the appeal in
R.A.No.70/2013 before the First Appellate Court and the
appeal was resisted by the defendants. The First Appellate
Court after considering the material on record, allowed the
appeal on 26.04.2017 and set-aside the judgment and
decree in O.S.No.309/2009. Feeling aggrieved by the
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same, the defendant Nos.1 and 2 have preferred the
present second appeal.
7. I have heard learned counsel Sri A.M.Biradar,
appearing for the appellants and Sri Ashok B.Mulage,
learned counsel appearing for the respondent.
8. Sri A.M.Biradar, learned counsel appearing for
the appellants contended that the First Appellate Court has
fails to decide the issues on merits and the Trial Court has
rightly dismissed the suit based on the admission made by
PW.2 and therefore he contended that the finding recorded
by the First Appellate Court requires to be interfered with.
9. Sri Ashok B.Mulage, learned counsel appearing
for respondent sought to justify the impugned judgment
and decree passed by the First Appellate Court.
10. Heard the learned counsel appearing for the
parties and on careful examination of the finding recorded
by both the Courts below, it would indicate that there is no
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dispute with regard to relationship between the parties.
The genealogical tree of the parties reads as under :-
Gurubasapa (Died)
Srimantharaya Hanmanthraya Bhimaraya
(Son) (Son) (Son)
Appellant No.1 Respondent Appellant No.2
Defendant No.1 Plaintiff Defendant No.2
11. Taking into consideration the fact that the
schedule properties are the joint family properties of the
parties and there was no partition earlier in respect of the
properties in question and as such the finding recorded by
the First appellate Court, reversing the judgment of the
Trial Court, dismissing the suit of the plaintiff is just and
property.
12. It is also to be noted that as some of the
properties were not included before the Trial Court and
same was added before the First Appellate Court and
therefore taking in to consideration the fact that those
such properties are the joint family properties of the
parties, the judgment and decree passed by the Trial
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Court, is just and proper. However, taking into
consideration that late Gurubasappa died leaving behind
the plaintiff and the defendants, and therefore parties to
the suit are entitled for 1/3rd share in the suit schedule
properties. To that extent of sharing of the properties, the
judgment and decree of the First Appellate Court is
modified and except modification of shares, there is no
perversity in the judgment and decree of passed by the
Trial Court. I am of the view that the appellants have not
made out a case to frame substantial question of law as
required under Section 100 of Code of Civil Procedure and
also have not made out a case for interference of this
Court. Accordingly, the appeal is dismissed as devoid of
merits.
Sd/-
JUDGE
SN
