Karnataka High Court
Sri Prashantha Gowda vs Smt Puttalakshmamma on 22 February, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
R.S.A.NO. 91 OF 2018
BETWEEN:
1 . SRI. PRASHANTHA GOWDA
S/O RAMALINGAIAH
AGED ABOUT 13 YEARS
2 . KUM. KAVYASHREE
D/O RAMALINAGAIAH
AGED ABOUT 11 YEARS
SL.NO.1 AND 2 ARE
MINORS REPRESENTED BY THEIR
MOTHER AND NATURAL GUARDIAN
SMT. SUNITHA,
W/O RAMALINGAIAH,
AGED ABOUT 34 YEARS,
R/AT AKKUR VILLAGE,
VIRUPAKSHAPURA HOBLI,
CHANNAPATNA TALUK,
RAMANAGARA DISTRICT-562 159.
... APPELLANTS
(BY SRI. H.P. LEELADHAR, ADVOCATE)
2
AND:
1 . SMT PUTTALAKSHMAMMA
W/O LATE GOVINDARAJU
D/O LATE CHIKKALINGEGOWDA
AGED ABOUT 57 YEARS
R/AT VIRUPAKSHAPURA
VILLAGE AND HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-562 159.
2 . SMT. LAKSHMAMMA
W/O LATE LINGARAJU
AGED ABOUT 42 YEARS.
3 . SRI.MOHAN
S/O LATE LINGARAJU,
AGED ABOUT 24 YEARS.
4 . KUM. CHAITRA
D/O LATE LINGARAJU,
AGED ABOUT 20 YEARS
5 . SRI. CHANDRASEKHAR
S/O LATE LINGARAJU
AGED ABOUT 18 YEARS
SL.NO.2 TO 5 ARE
RESIDING AT DOOR NO.446,
4TH CROSS, GANGONDANAHALLI,
BENGALURU CITY-560 039.
6 . SRI. NAGARAJU
S/O LATE CHIKKALINGEGOWDA
AGED ABOUT 52 YEARS
R/AT NO.14, 6TH CROSS
6TH MAIN, KENGERI UPANAGARA,
VIJAYANAGARA,
BENGALURU-560 060.
3
7 . SMT. JAYALAKSHMAMMA
W/O LATE LINGAIAH
D/O LATE CHIKKALINGEGOWDA
AGED ABOUT 44 YEARS
R/AT NO.67, 2ND CROSS
HOSA GUDDADAHALLI
MYSURU ROAD
BENGALURU CITY - 560 060.
8 . SRI. RAMALINGAIAH
S/O LATE CHIKKALINGEGOWDA
AGED ABOUT 41 YEARS
VIRUPAKSHAPURA HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-560 026.
9 . SRI. RAMEGOWDA
S/O GIRIYAPPA
AGED ABOUT 52 YEARS
R/AT AKKUR VILLAGE
VIRUPAKSHAPURA HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-560 026.
10 . SRI. ESHWARAIAH
S/O LATE MARIGOWDAM
AGED ABOUT 54 YEARS
11 . SMT. PUTTACHANDRAMMA
W/O ESHWARAIAH
AGED ABOUT 47 YEARS
SL NO.10 AND 11 ARE
R/AT AKKUR VILLAGE,
VIRUPAKSHAPURA HOBLI,
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-560 026.
12 . SRI.C. NINGEGOWDA
S/O CHANNEGOWDA
4
AGED ABOUT 57 YEARS
R/AT AKKUR VILLAGE
VIRUPAKSHAPURA HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-560 026.
13 . SRI. PUTTABHADRE GOWDA
S/O SAMANDIGOWDA
AGED ABOUT 62 YEARS
R/AT HOSAHALLI VILLAGE
VIRUPAKSHAPURA HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-560 026.
... RESPONDENTS
(BY SRI. S.B. HALLI, ADVOCATE FOR R1 & R6 TO R8;
SRI. SHASHI KUMAR R., ADVOCATE FOR R9 & R12;
R2 TO R5, R10, R11 & R13 - SERVED & UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 09.10.2017 PASSED IN R.A.NO.42/2015 ON
THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS
JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
02.05.2015 PASSED IN O.S.NO.8/2013 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, CHANNAPATNA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
03.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
5
JUDGMENT
This appeal is filed by the plaintiffs aggrieved by the
judgment and decree dated 02.05.2015 passed in
O.S.No.08/2013 on the file of Senior Civil Judge and
JMFC, Channapatna (Trial Court) which is confirmed by
the judgment and Order dated 09.10.2017 passed in
R.A.No.42/2015 on the file of I Additional District and
Session Judge, Ramanagara (First Appellate Court).
2. The above suit is filed by the appellants/plaintiffs
represented by their mother and natural guardian
Smt.Sunitha for reliefs of declaration, partition and
separate possession contending inter-alia;
(a) that they are the children of Ramalingaiah, the
defendant No.8 and that the suit schedule
properties originally belonged to their great
grandfather Doddabettegowda who had four sons
namely (1) Chikkalingamma, (2) Bettegowda, (3)
Chikkalingegowda and (4) Kalamma.
(b) The second son of the Doddabettegowda
namely aforesaid Chikkalingegowda had six children
namely:
(1) Jayamma, who is no more.
(2) Puttalakshmamma, who is the defendant No.1.
(3) Lingaraju, who died leaving behind his wife
Lakshmamma and children Mohan, Chaitra and
respectively.
(4) Nagaraju, who is the defendant No.6.
(5) Jayalakshmamma who is defendant No.7.
(6) Ramalingaiah who is the defendant No.8 and he
is the father of the plaintiffs.
(c) That the great grandfather of the plaintiffs
namely Doddbettagowda was having immovable
properties bearing ;
(1) Sy.No.195/3 measuring 14 guntas,
(2) Sy.No.197/4 measuring 27 guntas including karab
land,
(3) Sy.No.197/5 measuring 27 guntas including karab
land,
(4) property bearing Khaneshumari No.159 measuring
east to west 40 feet and north to south 40 feet and
(5) property bearing khaneshumari No.160 measuring
east to west 20 feet and North to south 20 feet.
All situated at Akkur Village, Virupakshapura Hobli,
Channapatna Taluk, Ramanagara District (Suit Schedule
Properties).
(d) That land in Sy.No.195/3 measuring 14 guntas
is an ancestral property standing in the name of
Doddabettegowda from the year 1968-69. The said
land was sold to Puttabadregowda, the defendant
No.13 in the present suit by Chikkalingegowda.
Land bearing Sy.No.197/4 measuring 26 guntas
was originally standing in the name of one
Lingegowda son of Ningegowda. Subsequently, the
grandfather of the plaintiffs Doddabettegowda
obtained the said land and khatha was made in his
name to an extent of 13 guntas. Similarly, land in
Sy.No.195/7 totally measuring 27 guntas was
standing in the name of Doddabettegowda which
was mortgaged to Puttabadregowda and later
transferred in the name of Chikkelingegowda the
grand father of the plaintiffs.
(e) The property bearing Khaneshumari No.160 and
161 wrongly shown as Khaneshumari No.162, was
standing in the name of Chikkalingegowda the
grand father of the plaintiffs. The property in
Khanesumari No.160 is still in the occupation of the
plaintiffs. The portion of property in Khanesumari
Nos.160 and 161 were sold to Ningegowda and
remaining portion was acquired by the Public Works
Department for formation of road and for the Office
of Panchayat. In lieu of the said acquisition
property in K.S.No.159 was handed over to the
families of the plaintiffs and defendants.
(f) That the father of the plaintiffs was puppet in
the hands of his brothers and sisters who in
collusion filed a suit in O.S.No.45/1992 suppressing
the facts and to legalize the illegal transfer and
obtained a fraudulent judgment and decree.
Against the said judgment and decree father of the
plaintiffs and brother had filed an appeal before the
First Appellate Court in R.A.No.30/2004 which was
dismissed on 26.03.2007. The father of the
plaintiffs and brother thereafter filed Regular
Second Appeal in R.S.A.No.2028/2007 which is also
dismissed by order dated 29.11.2011.
(g) That despite having knowledge of the aforesaid
properties being the family properties the
proceedings in O.S.No.45/1992 and
R.A.No.30/2004 and R.S.A. No.2028/2007 were not
properly prosecuted in the manner protecting the
interest of the appellants/plaintiffs resulting in
wasting of the ancestral properties depriving the
rights of the appellants/plaintiffs.
(h) Therefore the plaintiffs were constrained to file
the present suit seeking:
a. Reopening the partition and for further partition
and separate possession.
b. Declaration that the decree obtained in aforesaid
suit in O.S.No.45/1992 by defendant Nos.2 to 6 and
8 to 13 not binding on the plaintiffs.
c. For declaration that deed of sale dated 11.05.1992
executed by Chikkalingegowda in favour of
Ramegowda-defendant No.9 in respect of item No.5
of the suit schedule property is not binding on the
plaintiffs.
d. For declaration that deed of sale dated
23.06.1987 executed by Chikkalingegowda in favour
of Eshwariah-defendant No.10 in respect of item
No.4 of the suit schedule property is not binding on
the plaintiffs.
e. For declaration that deed of sale dated 17.09.1991
executed by Chikkalingegowda in favour of
C.Ningegowda-defendant No.12 in respect of item
No.4 of the suit schedule property is not binding on
the plaintiffs.
f. For declaration that deed of sale dated 23.01.1985
executed by Chikkalingegowda in favour of
Puttabadregowda-defendant No.14 in respect of item
No.3 of the suit schedule property is not binding on
the plaintiffs.
g. For declaration that deed of sale dated
07.03.1984 executed by Chikkalingegowda in favour
of Puttabadregowda-defendant No.14 in respect of
item No.1 of the suit schedule property is not binding
on the plaintiffs.
(i). For permanent injunction restraining the
defendants from interfering with the possession of
the plaintiffs.
3. Written statement is filed only by the
defendant No.9 disputing the plaint averments. It is
contended that the suit schedule properties are the self
acquired properties of the Chikkalingegowda who sold
the portion of properties in K.S.No.159 New No.160
measuring 20X20 in favour defendant No.9 under deed of
sale dated 11.05.1992. It is further contended that the
father of the plaintiffs and his brothers had filed the suit
in O.S.No.45/1992 in which the suit schedule properties
were also the part of, wherein it has been held that the
properties in K.S.No.160 and 159 are the self acquired
properties of Chikkalingegowda and not the family
properties. That the judgment and decree passed in said
suit has attained finality as the same has been
confirmed by the First Appellate Court as well as this
Court as such the present suit filed by the plaintiffs is not
maintainable.
4. Based on the pleading the Trial Court framed the
following issues:
1. Whether the plaintiffs prove that the suit
schedule properties are joint family property of
themselves and the defendants?
2. Whether the plaintiffs prove that the
judgment and decree in O.S.No.45/1992
dated:21.06.2004 in not binding on them?
3. Whether the plaintiffs prove that the sale
Deeds dated:11.05.1992, 23.06.1987,
17.09.1991, 23.01.1985 and 07.03.2004 are
not binding on them?
4. Whether the defendant No.9 proves that the
suit is barred by principle of res-judicata?
5. Whether the defendant No.9 is a bonafide
purchaser?
6. Whether the plaintiffs are entitled for the
relief as sought for?
7. What order or decree?".
5. Mother of the plaintiffs Smt.Sunitha examined
herself as PW.1 and has produced as many as 54
documents marked as Ex.P1 to Ex.P54. Defendant No.9
Sri.Ramegowda has examined himself as DW.1 and has
marked 7 documents as exhibits Ex.D1 to Ex.D7. On
appreciation of evidence the Trial Court decreed the suit
in part only in respect land in Sy.No.197/5 and claim of
the plaintiffs in respect of the rest of the properties were
rejected by its judgment and decree dated 02.05.2015.
6. Being aggrieved by the same, plaintiffs preferred
regular appeal in R.A.No.42/2015 on the file of the I
Additional District and Sessions Judge, Ramanagara.
First appellate Court considering the grounds urged in
the memorandum of appeal framed the following points
for its consideration:
"1. Whether the appellants prove that, the
impugned judgment and decree are illegal,
unlawful, perverse, vexatious and capricious,
opposed to all cannons of law, facts and
circumstances, as such untenable under the
law?
2. Whether the appellant proves that, the
interference of this court is quite necessary?
3. What order?".
7. On re-appreciation of evidence the first
Appellate Court dismissed the appeal filed by the
plaintiffs and confirmed the judgment and decree passed
by the Trial Court. Being aggrieved by the same,
plaintiffs are before this Court in this present appeal.
8. This Court by Order dated 23.04.2018
admitted the appeal for consideration of following
substantial question of law:
"Whether the both the courts below have not
appreciated the evidence in their proper
perspective which has resulted in both of them
holding that it is only Sy.No.197/5 which is the
joint family property, but not the remaining suit
schedule properties?"
9. Sri. Leeladhar H.P, learned counsel for the
appellants reiterating the grounds urged in the
memorandum of the appeal submitted that there is no
dispute with regard to lands in Sy.Nos.195/3, 197/4,
197/5 and property bearing K.S.Nos.159 and 160 being
the ancestral properties. He submitted that merely
because a decree was obtained in O.S.No.45/1992, the
trial court and the First Appellate Court declined to look
into the material evidence placed on record by the
plaintiffs which would demonstrate that the suit schedule
properties are the ancestral properties still available for
partition. He further submitted that the trial court and
the first appellate court erred in holding that there is
severance in the joint family status and that the joint
family properties were not available merely because
certain joint family properties were alienated. He
submitted that the trial court and first appellate court
have not adverted to the case of the plaintiffs with regard
to land bearing Sy.Nos.195, 197/4 indicating lack of
application of mind. Hence he submitted that substantial
question of law framed, has to be answered in favour of
appellants.
10. Sri.S.B.Halli, learned counsel for the
respondents on the other hand justifying the judgment
and decree passed by the Trial Court and confirmed by
the First Appellate Court submitted that since the dispute
raised in the present suit having been dealt with and
determined in the previous suit in O.S.No.45/1992 and
same having attained finality, appellants cannot be
allowed to reagitate the matter. He further submitted
that there has been categoric finding in the judgment
and decree passed in suit in O.S.No.45/1992 for the
schedule properties were the absolute properties of the
Chikkalinge Gowda and alienations made by him were in
accordance with law. That being the fact, the present
litigation reagitating the concluded issued cannot be
sustained. Hence, sought for dismissal of the appeal.
11. Heard. Perused the records.
12. Present suit by the minor plaintiffs represented
by their mother, though filed seeking their share in the
suit schedule properties, is essentially one for
declaration that the Judgment and decree dated
21.06.2004 passed in O.S.No.45/1992 as not binding on
them. The plaintiffs have also sought for declaration that
the deeds of sale dated 11.05.1992, 23.06.1987,
17.09.1991, 23.01.1985, 07.03.1984 under which suit
schedule properties were purchased by defendants 9 to
14 were not binding on them.
13. It is necessary at the outset to refer to the
aforesaid suit in O.S.No.45/1992. The said suit was filed
by Lingaraju (husband of defendant No.5 and father of
defendant No.3 to 5 in the present suit), Nagaraju (the
defendant No.6 in the present suit) and Ramalingaiah
(defendant No.8 in the present suit), sons of
Chikkalingegowda, against said Chikkalingegowda,
Ramegowda (defendant No.9 in the present suit),
Eshwaraiah (defendant No.10 in the present suit),
Puttachandramma (defendant No.11 in the present suit)
and Ningegowda (defendant No.12 in the present suit)
for relief of partition and separate possession. The
subject matter of the said suit in O.S.No.45/1992 are the
following properties:
(i) Property bearing K.No.159 situated at Akkur
Grama, Virupakshapura Hobli, Channapatna Taluk
measuring 40 ft x 40 ft.(Item No.1)
(ii) Property bearing K.Nos.160 and 161 situated at
Akkur Grama, Virupakshapura Hobli, Channapatna
Taluk. (Item No.2)
(iii) Property bearing Sy.No.197/4 measuring 13
guntas and Sy.No.197/5 measuring 27 guntas (item
No.3).
14. Plaintiffs in the said suit being the sons of
Chikkalingegowda had challenged the following alienation
made by Chikkalingegowda;
a) Sale dated 11.05.1992 in respect of portion
measuring 20x20 of the property in item No.1 in favour
of defendant No.2 namely, Sri.Ramegowda.
b) Sale dated 17.09.1991 in respect of another extent
of 16x20 in the suit item No.4 in favour of defendant
No.5 -Sri.Ningegowda.
c) Sale dated 28.07.1969 in respect of land bearing
Sy.No.71/2 in favour of Sri.Chamegowda.
d) Sale dated 22.05.1968 in respect of land bearing
Sy.No.179/4 in favour of Sri.Chamegowda.
e) Sale dated 23.06.1987 in respect of item No.4 in
favour of Sri.Eshwaraiah.
f) Sale dated 07.03.1984 in respect of land bearing
Sy.No.195/3 in favour of one Puttabhadregowda.
g) Mortgage dated 23.01.1985 in respect of land
bearing Sy.No.197/5 in favour of Puttabhadregowda.
h) Suit item No.3 land bearing Sy.No.197/4 measuring
13 guntas and Sy.No.197/5 measuring 27 guntas stood
in the name of defendant No.1.
15. The trial Court in the said suit in
O.S.No.45/1992 on appreciation of evidence held that all
the suit items of the properties were the self acquired
properties of Chikkalingegowda who was defendant No.1
and grand father of the present plaintiffs and upheld all
the alienations made by him in favour of aforesaid
persons. Since during the pendency of the said suit
defendant No.1 Chikkalingegowda passed away leaving
behind three sons namely Lingaraju, Nagaraju and
Ramalingaiah and two daughters namely, Puttalakshmma
and Jayalakshamma, it was declared that they are
entitled for 1/5th share in the said suit item Nos.1, 2 and
3 properties. The operative portion of the decree is
extracted hereunder;
" Suit is decreed in part. It is declared that the
plaintiffs are entitled for partition and separate
possession of 1/5th share each in suit item No.2,
13 guntas of land in Sy.No.197/4 out of suit item
No.3 and 640 sq.ft. area excluding the properties
purchased by the defendants 2 to 5 out of suit
item No.1. The suit inrespect of other properties
and mesne profits stands dismissed."
16. The aforesaid Judgment and decree dated
21.06.2004 passed in O.S.No.45/1992 was carried in
appeal by the plaintiffs therein (the defendants 6 and 8
and deceased Lingaraju the husband and father of
defendant Nos.2 to 5 in the present suit) in
R.A.No.30/2004. By Judgment and order dated
26.03.2007 the said appeal was dismissed confirming the
Judgment and decree passed in the said O.S.No.45/1992.
Being aggrieved by the same, a regular second appeal in
RSA No.2028/2007 was filed. This Court by order dated
29.11.2011 dismissed the said regular second appeal
confirming the Judgment and decree passed by the trial
Court and confirmed by the first appellate Court.
17. Thus, as seen above challenge to the
alienation of properties as made by Chikkalingegowda in
favour of respondents 9, 10, 12 and 13 under the
aforesaid deeds of conveyance has attained finality.
18. When the above being the factual position
present suit is filed by the plaintiffs claiming to be son
and daughter respectively of Ramalingaiah, the
defendant No.8 questioning the very same Judgment and
decree dated 21.06.2004 seeking to declare the same as
not binding on them and to reagitating the sale
transactions yet again in the present suit which have
already attained finality.
19. The trial Court and First appellate Court
having appreciated aforesaid factual aspects of the
matter have come to the conclusion that once the issue
with regard to the ownership of Chikkalingegowda over
the suit schedule properties and alienations made by him
as noted above having attained finality the plaintiffs in
the present suit being children of Ramalingaiah, who was
the plaintiff No.3 in the said suit in O.S.No.45/1992, are
bound by the said Judgment and decree and accordingly
have declined the effort of plaintiffs herein to reinvent
the wheel. It is necessary to note though allegations
have been made by the plaintiffs in the present suit that
their father Ramalingaiah, the defendant No.8 and his
brothers did not prosecute the earlier suit in a manner
protecting their interest, nothing is brought on record to
justify the said allegation. Further, records reveal that
the very suit in O.S.No.45/1992 was filed challenging the
alienation made by Chikka Lingegowda which was
declined. The said judgment and decree was questioned
in regular appeal in R.A.No.30/2004 which was also
dismissed and again in RSA No.2028/2007 which was
also dismissed. In the light of these aspects of the
matter, the plea of interest of the present plaintiffs not
having been protected by their father cannot be
countenanced. No infirmity or illegality can be found
with the said reasoning arrived at by the trial Court and
first appellate Court.
20. As already noted above, in the aforesaid suit
in O.S.No.45/1992 the trial Court held that the plaintiffs
therein were entitled for 1/5th share each in the following
properties;
a) an extent of 640 sq. ft area in item No.1 of
the property in K.No.159 excluding the area
sold to defendant Nos.2 to 5 therein,
b) property in K.Nos.160 and 161 which was
item No.2 in the said suit.
c) 13 guntas of land in Sy.No.197/4.
21. The trial Court in the instant case has found
that land in Sy.Nos.195/3 and 197/5 which are item
Nos.1 and 3 in the present suit were not included in the
earlier suit in O.S.No.45/1992. However as regards land
in Sy.No.195/3 it is held that the same was sold in favour
of defendant No.13 on 07.03.1984 as such the said land
was not available for partition. As regards land in
Sy.No.197/5 the trial Court has found that though the
said land was mortgaged by defendant No.1 in favour of
defendant No.13 same got released by defendant No.8
from defendant No.13 as such only the said property was
available at the hands of defendant No.8 capable of
partition. Accordingly the trial Court declared the shares
of the parties in the impugned Judgment and decree.
22. The first appellate Court on reappreciation of
the aforesaid evidence has confirmed the Judgment and
decree passed by the trial Court. As such, no infirmity or
illegality can be found with the reasonings and conclusion
arrived at by the trial Court and first appellate Court in
holding that only land in Sy.No.197/5 is available for
partition and that all other contentious issues having
been adjudicated and determined in the earlier suit in
O.S.No.45/1992 were binding on the plaintiffs in the
present suit. The substantial question of law is thus
answered accordingly.
Appeal is dismissed confirming the judgment and
decree dated 02.05.2015 passed in O.S.No.08/2013 by
the Trial Court and judgment and Order dated
09.10.2017 in R.A.No.42/2015 passed by the First
Appellate Court.
Sd/-
JUDGE
RL/SBN/RU
