Karnataka High Court
Poovani Gowda vs Smt. Poovakka @ Pushpavathi on 4 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 1633 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 1633 OF 2015 (PAR)
BETWEEN:
POOVANI GOWDA
S/O KRISHNAPPA GOWDA,
AGED ABOUT 70 YEARS,
R/AT ADENJA HOUSE,
KANIYOOR VILLAGE,
BELTHANGADY TALUK,
D.K. DISTRICT - 574 214.
...APPELLANT
(BY SRI. N.V. VASANTH, ADVOCATE)
AND:
1. SMT. POOVAKKA @ PUSHPAVATHI,
W/O NONAYYA GOWDA,
Digitally signed AGED ABOUT 52 YEARS,
by
NARAYANAPPA R/AT UGRODY,
LAKSHMAMMA KLOYYUR VILLAGE & POST,
Location: HIGH
COURT OF BELTHANGADY TALUK - 574 214.
KARNATAKA
2. VASANTHI
W/O JARAAPPA GOWDA
AGED ABOUT 65 YEARS,
R/O BAKIDANDA HOUSE,
KOYYUR VILLAGE AND POST
BELTHANGADY TALUK,
D.K. DISTRICT - 574 214.
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RSA No. 1633 of 2015
3. RUKMAYYA GOWDA,
S/O LATE KRISHNAPPA GOWDA,
AGED ABOUT 63 YEARS,
R/AT ADENJA HOUSE,
KANIYOOR VILLAGE & POST,
BELTHANGADY TALUK,
D.K. DISTRICT - 574 214.
4. GOPI
W/O VASANTHA GOWDA,
AGED ABOUT 61 YEARS,
R/AT BANKAYA HOUSE,
MOGRU VILLAGE & POST,
VIA: UPPINANGADY,
BELTHANGADY TALUK,
D.K. DISTRICT - 574 214.
...RESPONDENTS
(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE FOR R1;
SRI. A. KESHAVA BHAT, ADVOCATE FOR R3 AND R4;
R2 SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 18.12.2014 PASSED IN
R.A NO.59/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JMFC., BELTHANGADY, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
03.03.2009 PASSED IN O.S NO.274/1999 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) AND JMFC., BELTHANGADY, D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1633 of 2015
JUDGMENT
1. Defendant No.2 in O.S.No.274/1999 and the appellant
in R.A.No.59/2009 is before this Court challenging
the concurrent finding of the Trial Court and the First
Appellate Court seeking for the following relief:-
"a. Call for the records in O.S.No.274/1999 on
the file in the Court of the Junior (Jr.Dn.) and
JMFC, Belthangady, and the appeal
R.A.No.59/2009 in the Court of the Principal
Senior Civil Judge, & JMFC at Belthangady and set
aside the judgment and decree passed by the
Court of the Principal Senior Civil Judge, & JMFC
at Belthangady at R.A.No.59/2009 dated
18.12.2009 in the interest of justice and equity."
2. Respondent No.1 had filed a suit in O.S.No.274/1999
seeking partition and separate possession of the suit
schedule properties claiming that the properties are
joint family properties on the ground that it had been
granted in favour of her father. The said suit was
defended by the defendant contending that there was
a oral partition, which has been entered into in a
panchayath conducted on 24.04.1998 in terms
whereof two acres of land was proposed to be handed
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over to the plaintiff and as such the suit for partition
was not maintainable, after the partition has already
been agreed upon in the panchayath in the year 1998
itself. The said contention of the defendant was
disbelieved by the trial court by holding that the
defendant had not produced any acceptable evidence
to show that the oral partition was entered into or
acted upon. The katha of the properties continued to
remain in the joint names of the plaintiff and the
defendants. There is no explanation given as to why
the alleged oral partition has not been acted upon.
The properties continuing to be joint, the trial Court
decreed the suit declaring that the plaintiff is entitled
to 1/5th share in the suit schedule properties and so
also defendants 4 and 5 are entitled to 1/5th share in
the suit schedule properties.
3. Defendant No.2/brother had challenged the said
judgment in R.A.No.59/2009. The First Appellate
Court after re-appreciating the evidence on record
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again came to the conclusion that the so called
partition arrived at in the panchayath conducted on
24.04.1998 had not been established or later on acted
upon. The alleged amount of Rs.50,000/- to be paid
to defendant Nos.4 and 5 had not been handed over.
None of the family members had acted upon the so
called oral partition. The First Appellate Court came
to a categorical finding that defendant Nos.1 and 2
therein had failed to prove that on 24.04.1998 there
was a partition in respect of suit schedule properties
which had occurred, and therefore, upheld the
judgment of the Trial Court. It is challenging the said
concurrent finding, appellant is before this Court.
4. Sri N.V. Vasanth, learned counsel for the appellant
would again reiterate the contention that the oral
partition had taken place on 24.04.1998 and as such
the properties cannot be partitioned once again. The
appellant is ready and willing to hand over two acres
of land as agreed in the oral partition to the plaintiff
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and Rs.50,000/- to the defendant Nos.4 and 5, the
entire properties cannot be made subject matter of
the partition suit once again.
5. Having heard the learned counsel for the appellant
and perused the judgments of the Trial Court and the
First Appellate Court, I am of the considered opinion
that there is no substantial question of law which
arises for consideration in the present matter.
6. The properties being joint family properties is not in
dispute. The plaintiff and defendants being members
of the joint family is not in dispute. The only issue
which was required to be considered by both the
Courts was whether there was a oral partition, which
had been effected in the panchayath held on
24.04.1998 or not. Both the Trial Court and the First
Appellate Court have come to a categorical
conclusion that defendant Nos.1 and 2 had not
established such a oral partition having been arrived
at and of the same being acted upon. (Defendant
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No.1 had expired on 05.01.2003). The defence set up
by defendant Nos.1 and 2 being factual in nature it
was required for them to have established the same
by way of co-gent evidence. No evidence was placed
on record to establish such an oral partition. The
RTC's continued to be in the joint names of plaintiff
and the defendants, which would also indicate that
even after more than a year of the alleged partition,
the same has not been given effect to.
7. In that view of the matter, the defence not having
been established in factual matrix, there being no
substantial question of law, which arises in the
present matter, the appeal is dismissed at the stage
of admission itself.
Sd/-
JUDGE
NG
List No.: 2 Sl No.: 20 CT:SNN
