Karnataka High Court
Sri Nanjundappa vs Sri Shivanna on 27 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1900 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1900 OF 2010 (PAR)
BETWEEN:
1. SRI NANJUNDAPPA
S/O LATE NANJUNDAPPA
AGED ABOUT 62 YEARS
R/AT DYAVANNANAPALYA
YELACHALIHALLI MAJRE
KASABA HOBLI, GUBBI TALUK
TUMKUR DISTRICT-572135
SINCE DEAD BY LRS
1(a) SMT.GOWRAMMA
W/O LATE NANJUNDAPPA,
AGED ABOUT 62 YEARS,
Digitally signed R/AT DYAVANNANAPALYA
by SHARANYA T YELACHALIHALLI MAJRE
Location: HIGH KASABA HOBLI,
COURT OF
KARNATAKA GUBBI TALUK
TUMKUR-572130
1(b) SMT.BHAGYAMMA
D/O LATE NANJUNDAPPA,
W/O CHANNABASAPPA
AGED ABOUT 43 YEARS,
R/AT MADDENAHALLI
KASABA HOBLI,
GUBBI TALUK
TUMKUR-572130
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RSA No. 1900 of 2010
1(c) SMT.SUNANDA
D/O LATE NANJUNDAPPA,
W/O CHANNABASAPPA
AGED ABOUT 35 YEARS,
R/AT GEEGANAHALLI
KASABA HOBLI,
GUBBI TALUK
TUMKUR-572130
(AMENDED VIDE COURT ORDER DATED 05.10.2018)
...APPELLANTS
(BY SRI PUNITH C., ADVOCATE)
AND:
1. SRI SHIVANNA
S/O LATE NANJUNDAPPA,
AGED ABOUT 54 YEARS,
2. SRI GANGANNA
SINCE DEAD BY LRS
2(a) SMT.PRAMEELAMMA,
W/O LATE GANGANNA,
AGED ABOUT 50 YEARS
2(b) SMT. KALPANA
W/O SRI PRABHU SWAMY
D/O LATE GANGANNA
AGED ABOUT 25 YEARS,
R/AT GODIKERE
SHETTYKERE HOBLI,
C.N.HALLI TALUK,
TUMKUR DISTRICT-572135
2(c) SMT. LAVANYA
W/O SRI MALLIKAIAH
D/O LATE GANGANNA
AGED ABOUT 24 YEARS,
R/AT KATTIGENAHALLI,
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RSA No. 1900 of 2010
KASABA HOBLI, GUBBI TALUK
TUMKUR DISTRICT-572135.
2(d) KUM.YESHODA,
D/O LATE GANGANNA,
AGED ABOUT 21 YEARS,
2(e) KUM. SHILPA
D/O LATE GANGANNA,
AGED ABOUT 29 YEARS,
2(f) KUM. MEGHASHREE
D/O LATE GANGANNA,
AGED ABOUT 28 YEARS,
3. SRI. BASAVARAJU
S/O LATE NANJUNDAPPA,
AGED ABOUT 48 YEARS,
RESPONDENT NO.1 AND
RESPONDENT NO.2(a), (d) (e) & (f)
AND RESPONDENT NO.3 ARE
R/AT YALACHAIHALLI MAJARE,
DEVANNANAPALYA,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT-572135.
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 24.04.2010 PASSED IN
R.A.NO.58/2008 ON THE FILE OF THE SENIOR CIVIL
JUDGE,GUBBI,DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 12.12.2007 PASSED IN
O.S.NO.155/1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN.)
JMFC,GUBBI.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1900 of 2010
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant and there is a delay of four days
in filing the appeal and the same is condoned.
2. The factual matrix of the case of the plaintiff in
O.S.No.155/1998 for the relief of partition that the suit
schedule properties are the ancestral joint family
properties of plaintiff and defendants. Hence, he is entitled
for 1/4th share in the suit schedule properties. In
pursuance of the claim made by the plaintiff for the relief
of partition and separate possession, defendant No.1 has
appeared and filed written statement denying the very
contention of the plaintiff and setup the defense that
already there was a partition in the family and no joint and
family property is in existence for granting any relief. It is
also contended that the plaintiff colluding with other
defendants sought for the relief of partition and hence
there is no any cause of action for the suit and also he did
not disputes with regard to the property originally belongs
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to the father Nanjundappa and his brother and also there
was a partition and not disputes the fact that other son
Shivalingappa died intestate. It is also contended that the
plaintiff is the eldest son of Nanjundappa and 20 years
back, he demanded for the partition with his father and he
acquired the property bearing Sy.No.119 measuring 1 acre
and also land bearing Sy.No.139/1 measuring 1 acre 35
guntas and he relinquished his right over other properties
of joint family and he was residing separately after he
went out from the joint family.
3. It is also the contention that later plaintiff has
acquired the land bearing Sy.No.168 measuring 2 acres
and khata of the said properties have been changed in the
name of the plaintiff. Later the plaintiff has also sold 20
guntas of land in Sy.No.119 to the defendant No.2 vide
sale deed dated 23.12.1999 which clearly establishes that
the plaintiff has separated from the joint family and he is
no more coparcener of the defendant's family. It is also
the case of the defendant that the remaining defendants
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have divided the remaining properties under Palupatti
dated 05.03.1980 in which the defendant Nos.1 and 2
have acquired their separate shares. After such partition,
the defendants separately cultivating the properties which
were acquired by the plaintiffs under Palupatti dated
05.03.1980. It is also the contention that after the
partition, defendant No.1 has applied for change of khata
of the property fallen to his share. The defendant Nos.2
and 3 colluding with the plaintiff, filed an application
before the Tahashildar, the said proceedings are pending
for adjudication. Hence, prayed the Court to dismiss the
suit.
4. The Trial Court having considered the pleadings
of the parties, framed the issues whether the plaintiff
proves that suit properties are ancestral joint family
properties of plaintiff and defendants and plaintiff is
entitled for 1/4th share in the suit properties. The Trial
Court in order to prove the case of the plaintiff, given an
opportunity and plaintiff himself got examined as PW1 by
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filing affidavit and also marked document Ex.P1 to Ex.P9
and also examined 2 witnesses and defendant No.1 got
examined himself as DW1 by filing the affidavit and got
marked document Ex.D1 to Ex.D7. The Trial Court having
considered both oral and documentary evidence available
on record, answered all the issues as negative and
dismissed the suit in coming to the conclusion that already
there was a partition and even in the partition also portion
of the property was sold in terms of the Ex.D1 which also
reveals that he got the property by partition and no
existence of coparcenary property granting share as
claimed in the plaint.
5. Being aggrieved by the said judgment and
decree of the Trial Court, an appeal is filed in
R.A.No.58/2008 and the First Appellate Court having
considered the grounds urged in the appeal, formulated
the point whether the judgment and decree of the Trial
Court is erroneous and the same is sustainable or not. The
First Appellate Court having re-assessed both oral and
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documentary evidence available on record comes to the
conclusion that the Trial Court has not committed any
error and answered both the points as negative. Being
aggrieved by the said concurrent finding, the present
appeal is filed.
6. The counsel appearing for the appellant would
vehemently contend that no dispute with regard to the
plaintiff and defendants are the brothers and also no
dispute that they are the children of Nanjundappa. The
counsel also submits that they had one more brother by
name Shivalingappa who died without marriage. It is the
contention of the counsel that suit schedule properties are
joint family properties and both the plaintiff and
defendants are in possession of the suit schedule
properties and most of the suit schedule properties are
allotted to the share of deceased father Nanjundappa in a
partition between himself and his brother Siddalingappa
and some of the properties were also purchased by their
father Nanjundappa.
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7. The counsel also vehemently contend that the
plaintiff has demanded 1/4th share and defendant Nos.2
and 3 are also consented for the partition and only
defendant No.1 contested on the ground that suit schedule
properties are not ancestral properties. The plaintiff has
taken away 2 items in the joint family properties but he is
not entitled for any share. The very approach of the Trial
Court is erroneous and the First Appellate Court committed
an error. Hence, this Court has to frame substantial
question of law that the approach made by the Trial Court
as well as the First Appellate Court is erroneous and
erroneously comes to the conclusion that suit schedule
properties are not ancestral properties and when there is
an admission on the part of the parties also that the
properties are standing in the name of said Nanjundappa
who is the father of the plaintiff and defendants. Both the
Courts ought not to have given such finding. Hence, it
requires interference.
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8. Having heard the appellant's counsel and also
the counsel appearing for the respondents and also on
perusal of the reasoning given by the Trial Court as well as
the First Appellate Court, based on the pleadings of
plaintiff as well as defendant No.1, the Trial Court framed
a issue whether the plaintiff proves that suit schedule
properties are ancestral joint family properties of plaintiff
and defendants, the same is answered as negative having
taken note of the admission on the part of PW1 that he
has sold the property in Sy.No.119 measuring 20 guntas
of land in favour of defendant No.2 and not disputed the
sale deed executed in favour of defendant No.2 during the
pendency of the suit. It is also important to note that
according to the defendants, the alleged Sy.No.139/1 is
also allotted in favour of the plaintiff and the recital of the
document at Ex.D1 also clearly discloses that the property
bearing Sy.No.119 is allotted in favour of the plaintiff in
the partition. When the said reference is made, the
plaintiff cannot contend that there is no partition between
the family members.
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9. It is the specific case of defendant No.1 that the
plaintiff went out from the joint family long back and the
property bearing Sy.No.168 also purchased by him.
Though the counsel for the appellant would contend that it
is mistakenly mentioned as properties acquired by
partition but there is no any partition in the family by
metes and bounds. Having considered the material
available on record particularly, the document at Ex.D1
wherein it is clearly discloses that the revenue records also
stands in the name of the appellant consequent upon the
partition and the sale is also made by him subsequent to
the partition and also the fact that the plaintiff is residing
separately is not in dispute and acquisition of other
property in Sy.No.168 is also not in dispute. When such
material is available on record, the Trial Court while
answering Issue No.1 given the reasoning that there is no
any coparcenary property since already there was a
partition and the plaintiff went out from the family and
thereafter only other brothers i.e., defendant Nos.1 to 3
have partitioned the property. During the course of cross-
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examination of PW1, he admitted with regard to the fact
that surrounding lands which he is in possession also
belongs to the family and respective parties are also in
possession. The said fact has been discussed by the Trial
Court in detail while answering Issue No.1 and comes to
the conclusion that there is no need of registered partition
when already there is an oral partition among the family
members and they are in possession accordingly.
10. The First Appellate Court also reanalyzed the
material available on record and taken note of the
evidence of PW1 to PW3 wherein it discloses that PW2 and
PW3 have not able to give any evidence with regard to the
possession is concerned in respect of suit schedule
properties i.e., Sy.No.139/1 and 119. In paragraph 19, the
First Appellate Court in detail discussed the same and also
for having sold the property by the plaintiff himself and
also taken note of the fact that while filing the suit, an
intelligent method is adopted and in an ingenious method,
excluded the property which he acquired in the partition
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and taking note of the said fact into consideration, the
First Appellate Court comes to the conclusion that partial
partition is also not maintainable since the fact that
Sy.No.139/1 and 119 are also the family properties and
the same is not in dispute. It is not the claim of the
plaintiff that that property is acquired by him
independently. When such material is available on record,
the First Appellate Court also considered the same in
paragraph 20 and 22 and comes to the conclusion that the
evidence of PW2 and PW3 is not supports the case of the
plaintiff. The First Appellate Court is also of the opinion
that already there was a partition and the plaintiff is in
exclusive possession of Sy.No.139/1 to the extent of 1
acre 35 guntas as well as in respect of Sy.No.119, to the
extent of 1 acre and the plaintiff had sold 20 guntas of
land in Sy.No.119 in favour of defendant No.2. Hence, the
documentary evidence excludes the very oral evidence of
the plaintiff. Hence, I do not find any error committed by
both the Courts in dismissing the suit and in confirming
the judgment and decree of the Trial Court and there is no
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any substantial question of law to be framed by invoking
Section 100 of CPC in the absence of perversity in finding
of both the Courts when both the Courts have considered
both oral and documentary evidence placed on record in a
proper perspective. Thus, there are no grounds to invoke
Section 100 of CPC to admit the appeal and to frame the
substantial questions of law.
11. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
RHS/SN
