Karnataka High Court
Smt Shivamma vs Smt Chinnamma on 29 July, 2024
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NC: 2024:KHC:29873
RSA No. 215 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.215 OF 2022 (PAR/POS)
BETWEEN:
1. SMT. SHIVAMMA
W/O BASAVARAJU
AGED ABOUT 51 YEARS,
R/OF LALITHADRIPURA VILLAGE
VARUNA HOBLI,
MYSURU TALUK
MYSURU-570 028.
2. SRI. SHIVANAGA
S/O P. ANKAPPA
AGED ABOUT 35 YEARS,
R/O VAJAMANGALA VILLAGE,
VARUNA HOBLI,
MYSURU TALUK,
MYSURU-570 028.
Digitally signed by
SHARMA ANAND
CHAYA
Location: High
...APPELLANTS
Court of Karnataka
(BY SRI. MOHAN B.K., ADVOCATE)
AND:
1. SMT. CHINNAMMA
W/O P. ANKAPPA,
AGED ABOUT 70 YEARS,
2. SMT. SHANTAMMA
W/O KEMPANNA (LATE)
AGED ABOUT 48 YEARS,
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RSA No. 215 of 2022
BOTH RESPONDENTS ARE
R/OF VAJAMANGALA VILLAGE
VARUNA HOBLI, MYSURU TALUK,
MYSURU - 570 028.
3. SRI NAVEEN K.
S/O KEMPANNA (LATE),
AGED ABOUT 29 YEARS,
4. SRI ANAND K.
S/O KEMPANNA (LATE),
AGED ABOUT 27 YEARS,
RESPONDENT NOS. 3 & 4 ARE
R/AT NO.348 NEAR
MARIGUDI BEEDI TEMPLE
VAJAMANGALA VARUNA HOBLI,
MYSURU TALUK
MYSURU -570 028.
5. SMT. SHIVAMMA
W/O LAKKEGOWDA (LATE)
AGED ABOUT 56 YEARS,
R/AT #11, MANASA GANGOTHRI QUARTERS,
MYSURU - 570 006.
6. SRI. KADUPANJA SHIVARAYI GOWDA
@ M.KADUPANJA
S/O KADUPANJA KRISHNAPPA
AGED ABOUT 61 YEARS,
R/AT NO.212 6TH CROSS ROAD
VIDYANAGAR NEAR
TERESIAN COLLEGE
NAZARBAD MOHALLA
MYSURU - 570 010.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
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RSA No. 215 of 2022
JUDGMENT AND DECREE DATED 10.11.2021 PASSED IN
R.A.NO.551 OF 2014 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MYSURU, REJECTING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 04.07.2014 PASSED IN OS.NO. 665/2011 ON THE FILE
OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND CJM.,
MYSURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is filed by the plaintiffs challenging the
judgment and decree dated 10.11.2021 passed in
RA.No.551 of 2014 on the file of the IV Additional District
and Sessions Judge, Mysore, dismissing the appeal and
confirming the judgment and decree dated 04.07.2014
passed in OS.No.665 of 2011 on the file of the III
Additional Senior Civil Judge and CJM, Mysore, dismissing
the suit of the plaintiffs.
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2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
3. The plaint averments are that, the plaintiffs and
defendant No.3 are the children of defendant Nos. 1 and
2, and defendant Nos.4 and 5 are the purchaser of the suit
schedule property. It is the case of the plaintiffs that, the
land in question is belonged to their grandfather-
Puttadevappa @ Puttadevaiah and after his death, the
property was transferred into the name of defendant No.1.
Plaintiff No.1 is married and residing at her matrimonial
home. It is further stated in the plaint that the defendants
Nos.1 to 3 have colluded with the defendant No.4 and 5,
have sold the suit schedule property as per two sale deeds
and feeling aggrieved by the same, the plaintiffs have filed
suit, seeking relief of partition and separate possession in
respect of the suit schedule property in OS No.665 of
2011.
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4. After service of summons, defendants 4 and 5
entered appearance and have filed written statement
contending that they are bonafide purchasers of one acre
of land each, as per two registered Sale Deeds and
accordingly, sought for dismissal of the suit.
5. Defendant Nos.1 to 3 appeared before the Trial
Court but failed to file written statement.
6. On the basis of the rival pleadings, the trial
Court has formulated the issues for its consideration.
7. In order to establish their case, plaintiff No.1
examined himself as PW1 and got marked 09 documents
as Exs.P1 to P9. On the other hand, defendants examined
two witnesses as DW1 and DW2 and produced 16
documents as Exs.D1 to D16.
8. The trial Court, after considering the material
on record, by its judgment and decree dated 04.07.2014
dismissed the suit of the plaintiffs and being aggrieved by
the same, the plaintiffs have preferred Regular Appeal in
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RA.No.551 of 2014 on the file of First Appellate Court. The
said appeal was resisted by the respondents therein. The
First Appellate Court, after re-appreciating the facts on
record, by its judgment and decree dated 10.11.2021
dismissed the appeal and confirmed the judgment and
decree passed by the trial Court in OS.No.665 of 2011.
9. Being aggrieved by the judgment and decree
passed by the Courts below the plaintiffs/appellants have
preferred this Regular Second Appeal under Section 100 of
CPC.
10. I have heard Sri.Mohan B.K., learned counsel
for the appellants and perused records.
11. Sri. Mohan B.K., learned counsel for the
appellants contended that the relationship between the
parties is not disputed and the defendant Nos.1 to 3 have
colluded with defendant Nos.4 and 5, have sold the
property in which the plaintiffs have share in the said suit
schedule property and therefore, sought for interference of
this Court. He further contended that, the finding recorded
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by both the courts below with regard to the fact that
whether the plaintiff No.2 was born or not, as on the date
of sale made in favour of the defendant Nos. 4 and 5
requires to be interfered with in this appeal.
12. Heard the learned counsel appearing for the
appellants. I have carefully examined the finding recorded
by both the courts below. Perusal of the appeal papers
would indicate that, the plaintiffs claims to be the children
of defendant Nos. 1 and 2 and defendant No.3 is the
brother of the plaintiffs. Relationship between the parties
as per the Genealogical Tree is produced at page 71 of the
Memorandum of Appeal. It is the grievance of the plaintiffs
that, defendant Nos. 1 to 3 have executed the registered
Sale Deed in respect of the suit schedule property on
12.08.1998 despite the fact that the plaintiffs have share
in the suit schedule property and their consent was not
taken during their life time.
13. Having taken note of the submission made by
learned counsel for the appellants, in terms of proviso to
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Section 6 of the Hindu Succession Act, as the registered
Sale Deed dated was executed on 12.08.1998, wherein,
plaintiff No.1 has no right to claim share in the suit
schedule property. It is also not in dispute that the Sale
Deed has been executed by defendant Nos. 1 to 3. Insofar
as claim made by plaintiff No.2 is concerned, registered
Sale Deeds have been executed on 12.08.1998 and the
defendant No.1 being kartha of the joint family has
alienated the suit schedule property in favour of the
defendant Nos.4 and 5. It is also pertinent to mention that
suit is filed by the plaintiffs during 2011, challenging the
registered Sale Deeds made on 12.08.1998 and that
apart, suit schedule property has been sold by the
defendant Nos. 1 to 3 for the legal necessity of the family
and taking into consideration the finding recorded by both
the courts below, I do not find material irregularities or
perversity in the judgments and decree passed by the
Courts below and accordingly, the Regular Second Appeal
is liable to be dismissed. Since, the plaintiffs/appellants
have not made out grounds for formulation of substantial
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question of law as required under Section 100 of Code of
Civil Procedure, appeal is liable to be dismissed at the
Admission stage itself, accordingly, appeal is dismissed.
SD/-
(E.S.INDIRESH)
JUDGE
SB
