Karnataka High Court
Parasappa vs Sangappa And Ors on 31 July, 2024
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NC: 2024:KHC-K:5629
RSA No. 200322 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 200322 OF 2018 (PAR)
BETWEEN:
PARASAPPA S/O SANGAPPA NARASANAGI
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O. HANDARGALL, TQ.MUDDEBIHAL,
DIST. VIJAYAPUR-586401.
...APPELLANT
(BY SRI V.K. NAYAK, ADVOCATE)
AND:
1. SANGAPPA S/O HANAMAPPA NARASANAGI,
AGE:79 YEARS, OCC: AGRICULTURE
Digitally signed 2. HANAMAWWA W/O SANGAPPA NARASANAGI
by RENUKA AGE: 68 YEARS, OCC:HOUSEHOLD WORK,
Location: HIGH
COURT OF 3. HANAMAWWA D/O SANGAPPA NARASANGI
KARNATAKA AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O. HANDARGALL,
TQ. MUDDEBHIHAL,
DIST. VIJAYAPUR-.
...RESPONDENTS
(BY SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE FOR R1 TO
R3)
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RSA No. 200322 of 2018
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 12.03.2015
PASSED IN O.S.NO.152/2009 BY THE CIVIL JUDGE
MUDDEBIHAL AND THE R.A.NO.7/2015 VIDE JUDGMENT AND
DECREE DATED 06.08.2018 BY THE SENIOR CIVIL JUDGE
MUDDEBIHAL BY ALLOWING THE SUIT OF THE PLAINTIFF FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
Heard learned counsel appearing for the appellant and
the learned counsel appearing for the respondents.
2. The plaintiff is questioning the concurrent finding
rendered by the Trial Court in O.S.152/2009 on the file of the
Civil Judge, Muddebihal and also the finding of the Appellate
Court in R.A.7/2015 on the file of the Civil Judge, Sr.Dvn.,
Muddebihal.
3. The relationship of the parties is not in dispute.
Sangappa, the first defendant is the propositus. Defendant
No.2 - Hanumavva is the second wife. First wife is no more
and defendant No.3 - Hanumavva is the daughter of propositus
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Sangappa from first wife. Plaintiff is the son from second wife
of Sangappa.
4. Plaintiff filed a suit claiming ¼ share in the suit
schedule property. The suit is filed against father, mother and
daughter from the first wife of his father.
5. The defendants resisted the suit. The defendants
took a stand that there was already a partition in the family in
the year 2006 and plaintiff is already allotted a share in the
said partition. The defendants also took a stand that defendant
No.3 had filed a suit for bare injunction against the plaintiff in
O.S. No.75/2007. The said suit was decreed. It is observed by
the Trial Court that in the said suit, there is already a finding
relating to previous partition of 2006 where the present plaintiff
is also allotted a share. The judgment in the said suit has
attained finality. Thus, the defendants contended that the suit
is also hit by principle of res judicata.
6. The Trial Court has dismissed the suit on the
premise that the plaintiff has admitted the previous partition.
7. Admittedly, the plaintiff has not challenged the
previous partition.
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8. The plaintiff filed the First Appeal. The First
Appellate Court has also held that there is a previous
partition. In addition the First Appellate Court has also held
that the suit is hit by the principle of res judicata as the finding
relating to previous partition upheld in the earlier suit has
attained finality. The Trial Court has held that the earlier suit
being a suit for injunction, the principle of res judicata would
not apply. However, the First Appellate Court has concurred
with the finding of the Trial Court that there is already a
partition.
9. Aggrieved by the aforementioned judgments and
decrees, the plaintiff is in second appeal.
10. Learned counsel appearing for the plaintiff would
contend that the partition which is said to have been taken
place in the year 2006 is not an equitable partition as the
plaintiff is allotted lesser share when compared to other
sharers. He would also contend that the finding of res judicata
rendered by the First Appellate Court is an incorrect finding as
the earlier suit being only a suit for injunction, there could not
have been a contention relating to res judicata.
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11. Learned counsel for the respondent would defend the
judgments and decree passed by the Trial Court as well as the
First Appellate Court.
12. This Court has considered the contentions raised at
the bar.
13. There is a finding that the partition has taken place
in the year 2006 among the family members. In that partition,
the plaintiff is also allotted share in a Survey number
measuring 4 acres 4 guntas. The plaintiff in the cross
examination has admitted this aspect. In addition it is also
forth coming from the records that 3rd defendant had filed a
suit against the plaintiff and that suit for injunction was decreed
on the premise that the suit property in the said suit was
allotted to the share of the plaintiff in the said suit based on the
previous partition of 2006. Thus, there is a finding in the
earlier suit that partition has already taken place in the family.
Though the said suit is for injunction, what is relevant for
application of doctrine of res judicata is the finding on the
issue, not necessarily the nature of the suit. This being the
position, the First Appellate Court is justified in holding that the
suit filed by the plaintiff is hit principle of res judicata.
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14. Apart from that there is already a finding in the
earlier suit that there is already a partition in the family.
Admittedly, the suit is not filed challenging the previous
partition. This being the position, this Court does not find any
error in the judgments and decrees passed by the First
Appellate Court as well as the Trial Court.
15. No substantial question of law arises for
consideration.
Accordingly, the appeal is dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
BRN
CT: PK
