Karnataka High Court
Parawwa W/O. Parasappa Karanavvagol vs Mahasidda S/O. Yamanappa Karanavvagol on 16 January, 2024
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RSA No. 6145 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.6145/2012(PAR)
BETWEEN:
1. SMT. PARAWWA
W/O. PARASAPPA KARANAVVAGOL,
AGED ABOUT 33 YEARS,
OCC: HOUSEHOLD WORK.
2. KUMARI MAHADEVI
D/O. PARASAPPA KARANAVVAGOL,
AGED ABOUT 15 YEARS.
3. KUMAR KUMAR
S/O. PARASAPPA KARANAVVAGOL,
AGED ABOUT 13 YEARS, BOTH ARE BEING
MINORS REPRESENTED BY THEIR NATURAL
GUARDIAN MOTHER I.E. PETITIONER NO.1
SMT. PARAWWA
W/O. PARASAPPA KARANAVVAGOL.
Digitally
signed by ALL ARE C/O: NINGAPPA SIDDAPPA WALENNAVAR,
ROHAN
HADIMANI R/O: BARA - IMAM GALLI, POST: JAMKHANDI,
T DIST: BAGALKOT - 587 301.
...APPELLANTS
(BY SRI PRASHANT S. KADADEVAR, ADVOCATE)
AND:
1. SRI MAHASIDDA
S/O. YAMANAPPA KARANAVVAGOL,
AGED ABOUT 53 YEARS, OCC: AGRICULTURE,
R/O: BIDAR VILLAGE, TQ:JAMAKHANDI,
DIST: BAGALKOT - 587 301.
2. SRI MALAKARISIDDA
S/O. YAMANAPPA KARANAVVAGOL,
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RSA No. 6145 of 2012
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE,
R/O: BIDARI VILLAGE, TQ:JAMAKHANDI,
DIST: BAGALKOT - 587 301.
3. SMT. KASHAWWA
W/O. SADASHIV KARANAVVAGOL,
AGED ABOUT 25 YEARS,
OCCN: HOUSEHOLD WORK,
R/O: KANNOLI VILLAGE, TQ:JAMAKHANDI,
DIST: BAGALKOT - 587 301.
4. KUMAR YAMANAPPA
W/O. SADASHIV KARANAVVAGOL,
AGED ABOUT 5 YEARS, SINCE MINOR,
REPRESENTED BY HIS NATURAL
GUARDIAN MOTHER RESPONDENT NO.3
SMT. KASHAWWA W/O. SADASHIV KARANAVVAGOL,
R/O: KANNOLI VILLAGE, TQ:JAMAKHANDI,
DIST: BAGALKOT - 587 301.
5. SRI KASHILING
S/O. MAHASIDDA KARANAVVAGOL,
AGED ABOUT 24 YEARS,
OCC: AGRICULTURE,
R/O: BIDARI VILLAGE, TQ:JAMAKHANDI,
DIST: BAGALKOT - 587 301.
6. SRI BHOOTALEPPA
S/O. MAHASIDDA KARANAVVAGOL,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O: BIDARI VILLAGE, TQ:JAMAKHANDI,
DIST: BAGALKOT - 587 301.
...RESPONDENTS
(BY SMT. DEEPA DODDOTTI, ADVOCATE FOR
SRI MRUTYUNJAY TATA BANGI, ADVOCATE
FOR R1, R2, R5 AND R6; R3 IS SERVED;
R4 IS MINOR REPRESENTED BY R3)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGMENT AND DECREE DATED 23.06.2012 PASSED IN
R.A.NO.129/2010 ON THE FILE OF THE FAST TRACK COURT,
JAMKHANDI, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT DATED 11.06.2010 AND THE DECREE PASSED IN
O.S.NO.246/2004 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
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RSA No. 6145 of 2012
JUDGE, JAMKHANDI, DISMISSING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The unsuccessful plaintiffs have filed this Regular Second
Appeal challenging the concurrent finding of fact that the
plaintiffs are not entitled to any share in the suit schedule
properties.
2. The parties shall henceforth be referred to as they
were arrayed before the trial court. The appellants herein were
the plaintiffs, while the respondents were the defendants
before the trial court.
3. The suit in O.S No.246/2004 was filed for partition
and separate possession of the plaintiffs alleged share in the
suit schedule properties, which was the land bearing survey
No.102/1A, measuring 3 acres 15 guntas situated at Bidari
Village and tractor with two trailers. The plaintiffs claimed that
Yamanappa was the propositus of a joint family and his wife
predeceased him leaving behind four sons and a daughter.
4. The plaintiffs are the children of Parasappa, while
the defendant Nos.1 to 3 are the three children of Yamanappa.
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The plaintiffs claimed that during the lifetime of the propositus,
an ancestral house was submerged in the Upper Krishna
Project and an award was passed in favour of the propositus.
However, the defendant No.1 being the eldest son was looking
after the affairs of 12 acres of land, which stood in the name of
his mother (Smt. Siddawwa). The defendant No.1 allegedly
sold away 12 acres of land and purchased the suit property in
his name and the movables in the name of defendant No.2.
The plaintiffs claimed that such purchase was on behalf of the
joint family members and out of the sale proceeds of 12 acres
sold as well as the compensation amount received from the
acquisition of the ancestral house. They also claimed that
after the death of the propositus, his daughter (Akkavvatayi)
relinquished her share in the suit properties in favour of the
plaintiffs and defendants and therefore, the plaintiffs and
defendant Nos.1 to 3 were entitled to an equal partition of the
suit schedule properties.
5. The defendants contested the suit and claimed that
the suit schedule properties were not ancestral properties as
contended by the plaintiffs and therefore, the plaintiffs were
not entitled to any share therein. They claimed that 12 acres
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of land was not the ancestral property but was the property
owned and possessed by Smt. Siddawwa and the same was in
survey No.117. They also claimed that the land bearing
survey No.117 was therefore the absolute property of
defendant No.1 and that the plaintiffs were not entitled to
challenge the title of the defendant No.1 to the suit properties.
6. Based on these contentions, the trial court framed
the following issues:
a) Whether plaintiffs prove that suit properties are
their ancestral joint family properties and they are
entitled for 1/4th share in the suit schedule properties?
b) Whether plaintiffs and defendants prove that they
constitute the members of Hindu joint family?
[
c) Whether defendants prove that suit schedule A and
B properties are their self-acquired properties as
contended in the W/S?
d) Whether defendants prove that there is no cause of
action for this suit?
[
e) Whether defendants prove that court fee paid is not
proper and insufficient?
f) Whether plaintiffs are entitled for the relief as
prayed for?
g) What order of decree?
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7. The plaintiff No.1 was examined as PW-1 and she
marked EXs-P1 to P4, while the defendant No.1 was examined
as DW-1 and he marked EXs-D1 to D3.
8. Based on the oral and documentary evidence, the
trial court held that though the defendant No.1 claimed that
the land in survey No.117 was the property purchased by his
maternal grandfather in his name, but yet all the members of
the family had divided the said land in survey No.117 of which,
an extent of 3 acres was allotted to the share of husband of
the plaintiff No.1, while another extent of 3 acres was allotted
to the share of the defendant No.1. It also held that EX-D1
indicated the purchase of 12 acres 14 guntas of land in survey
No.117 in the name of defendant No.1 and EX-D2 indicated
that the husband of the plaintiff No.1 sold away 3 acres of land
that fell to his share at the partition in respect of survey
No.117. The trial court held that except the self serving
statement of the plaintiffs that the suit schedule property was
purchased out of the sale consideration received from the sale
of land bearing survey No.117 and the compensation amount
received by the defendant No.1, no documentary evidence was
produced to prove the same. Further the trial court noticed
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that DW-1 specifically admitted that the State Government had
provided a housing site to the defendant No.1 for construction
of a house and also paid some money for construction of a
house. Therefore, the trial court held that there was no
convincing material to establish that the suit property was also
a joint family property, where the plaintiffs were entitled for a
share. Consequently, it dismissed the suit filed by the
plaintiffs.
9. Being aggrieved by the said judgment and decree,
the plaintiffs filed R.A No.129/2010. The first appellate court
secured the records of the trial court, heard the counsel for the
parties and framed the following points for consideration:
a) Whether, appellants proves that the findings of the trial
court on issue Nos.1 to 3, of O.S No.246/04, are perverse,
capricious and erroneous and against law facts and
evidence on record, and hence the said findings deserves to
be interfered with and set aside?
b) What order?
10. The first appellate court held that there was
material to establish that the land bearing survey No.117 that
stood in the name of defendant No.1, was subject to partition
between four sons of Yamanappa and that 3 acres fell to the
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share of the husband of the plaintiff No.1 which he disposed off
in terms of a sale deed in the year 1997 as per EX-D2. It held
that except the land in survey No.117, there was no other
property that stood in the name of the joint family and that the
said property was divided between four sons of Yamanappa, of
which, 3 acres fell to the share of husband of the plaintiff No.1
and an equal extent fell to the share of the defendant Nos.1 to
3. It held that the suit property was purchased by the
defendant No.1 in the year 2000 after encumbering his share in
survey No.117. The first appellate court also held that there
was no document to establish that the suit property was
purchased out of the assets of joint family or was an accretion
from out of the joint family nucleus. Consequently, it dismissed
the appeal.
11. Being aggrieved by the said judgment and decree,
the plaintiffs have filed this Regular Second Appeal.
12. Learned counsel for the plaintiffs contended that
survey No.117 was purchased in the name of the defendant
No.1, but all the members of the family were cultivating the
said property. He contended that though the husband of the
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plaintiff No.1 had encumbered his share in survey No.117, the
joint family property was submerged in the Upper Krishna
Project, the State Government had awarded compensation
which was received by the defendant No.1 and he used the said
money to purchase the suit property. He therefore, contended
that the plaintiffs are also entitled for a share in the suit
property.
13. Per contra, the learned counsel for the defendant
Nos.1, 2, 4 and 5 contended that the property that fell to the
share of husband of plaintiff No.1 was encumbered, which only
indicates that there was already a partition in the joint family
and therefore, the plaintiffs cannot claim any share in the suit
properties, which were the independent properties of defendant
No.1.
14. I have considered the submissions made by the
learned counsel for the plaintiffs as well as learned counsel for
the defendant Nos.1, 2, 4 and 5. I have also perused the
records of the trial court as well as the judgments and decrees
of the trial court and the first appellate court.
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15. The fact that survey No.117 stood in the name of
the defendant No.1 even while he was a minor, is not in
dispute. However, it is contended by the defendant No.1 that
the survey No.117 was later divided between the four children
of Yamanappa in terms of which, 3 acres fell to the share of
husband of the plaintiff No.1 and an equal extent fell to the
share of defendant Nos.1 to 3. The husband of the plaintiff
No.1 undoubtedly has encumbered his share of 3 acres as per
EX-D2 and therefore, the claim if any, of the plaintiffs stood
exhausted. The defendant No.1 claimed that he disposed off
his share in survey No.117 and later purchased the suit
property in the year 2000. There is no evidence to establish
that the suit property was purchased out of the joint family
nucleus and or that it was purchased out of the sale of a joint
family property, where the plaintiffs had any right.
16. In that view of the matter, the trial court and first
appellate court have considered the facts in the right
perspective and have held that the plaintiffs have no subsisting
right, title or interest in the suit properties. Hence, no question
of law, much less a substantial question of law arises for
consideration in this appeal.
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17. Consequently, this appeal lacks merit and is
dismissed.
18. In view of dismissal of the appeal on merits,
pending IAs, if any, also stand dismissed.
SD/-
JUDGE
PMP
CT-ASC
