Karnataka High Court

Sri. Krishnappa vs Smt. Narayanamma on 31 July, 2024

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                                                          RSA No. 578 of 2019




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 31ST DAY OF JULY, 2024

                                            BEFORE
                             THE HON'BLE MR. JUSTICE E.S.INDIRESH
                       REGULAR SECOND APPEAL NO. 578 OF 2019 (PAR)
                      BETWEEN:

                      1.   SRI. KRISHNAPPA,
                           AGED ABOUT 60 YEARS,
                           SON OF LATE CHIKKA MUNISHAMAPPA.

                      2.   SRI. NARAYANASWAMY,
                           AGED ABOUT 66 YEARS,
                           SON OF LATE CHIKKA MUNISHAMAPPA,

                           BOTH ARE R/AT YANAGUNTE,
                           SULIBELE HOBLI,
                           HOSKOTE TALUK,
                           BENGALURU RURAL DISTRICT - 562 129.
                                                             ...APPELLANTS
                      (BY SRI. CHANDRAIAH, ADVOCATE)
Digitally signed by
ARUNKUMAR M S
Location: High
Court of Karnataka    AND:

                      1.   SMT. NARAYANAMMA,
                           AGED ABOUT 65 YEARS, W/O RAMAIAH,

                      2.   SRI. LAKSHMINARAYANAPPA,
                           AGED ABOUT 70 YEARS,
                           SON OF LATE DODDA MUNISHAMAPPA,

                      3.   SRI. BACHE GOWDA,
                           AGED ABOUT 60 YEARS,
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                                           NC: 2024:KHC:30403
                                          RSA No. 578 of 2019




      SON OF LATE DODDA MUNISHAMAPPA

      RESPONDENT 1 TO 3 ARE R/AT
      YANAGUNTE VILLAGE,
      SULIBELE HOBLI,
      HOSKOTE TALUK,
      BENGALURU RURAL DISTRICT - 562 129.

4.    SMT. SAROJAMMA,
      AGED ABOUT 60 YEARS,
      W/O BACHANNA,
      R/AT POJENA AGARAHARA,
      KASABA HOBLI,
      HOSKOTE TALUK,
      BENGALURU RURAL DISTRICT - 562 114.

5.    SMT. BYRAMMA,
      AGED ABOUT 55 YEARS,
      W/O PUTTANNA ALIAS DODDANARAYANAPPA,
      R/AT NAGARESHWARA NAGENAHALLI,
      KOTTANUR POST,
      BENGALURU - 560 077.
                                    ...RESPONDENTS


(BY SRI. OMKARESHA, ADVOCATE FOR R1;
     NOTICE TO R2 TO R5 SERVED AND UNREPRESENTED)

       THIS RSA IS FILED U/S.100 R/W ORDER XLI OF CPC
1908 AGAINST THE JUDGMENT AND DECREE DATED
02.03.2019 PASSED IN RA.NO.64/2016 ON THE FILE OF
THE    VII   ADDL.   DISTRICT     AND   SESSIONS   JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 13.07.2015 PASSED IN OS.NO.901/2008
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                                               NC: 2024:KHC:30403
                                           RSA No. 578 of 2019




ON   THE   FILE   OF    THE   PRL.    SENIOR   CIVIL   JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE.

     THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM:     HON'BLE MR. JUSTICE E.S.INDIRESH


                       ORAL JUDGMENT

This appeal is preferred by the plaintiff and

defendant No.1 challenging the judgment and decree

dated 02.03.2019 in R.A.No.64/2016 on file of VII

Additional District & Sessions Judge, Bengaluru Rural

District, Bengaluru, setting-aside the judgment and

decree dated 13.07.2015 in O.S.No.901/2008 on the

file of the Prl. Senior Civil Judge, Bengaluru Rural

District, Bengaluru, decreeing the suit of the plaintiff.

2. Relevant facts for adjudication of this case

are that, the original propositus Sri. Byrappa had three

children namely, Bachappa, Dodda Munishamappa and

Chikka Munishamappa. The Elder son of the Byrappa

viz Bachappa died without leaving behind any legal

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heirs, therefore, it is the case of the plaintiff that the

suit schedule property is the joint family property of

plaintiff and defendants. Accordingly, the plaintiff has

filed a suit in O.S.No.901/2008 claiming the share in

the suit schedule property.

3. On service of notice, the defendants

entered appearance and filed a written statement

denying the averments made in the plaint. Defendant

No.1 has taken up the plea that, the schedule property

is the joint family property of grandchildren of

Byrappa. Defendant No.2 has stated that the schedule

property was given to her by her brothers in the form

of Arishina-Kunkuma and as such, the same was

deduced into writing on 10.06.1996 and therefore,

defendant No.2 has contended that the suit schedule

property is the exclusive property of defendant No.2.

4. On the basis of the pleadings on record, the

trial Court formulated the issues for its consideration

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5. The plaintiff was examined as PW-1 and got

marked 12 documents as Ex. P-1 and Ex. P-12. On the

other hand, defendant No.2 was examined as DW-1

and got marked 3 Documents, same were got marked

as Ex.D-1 to Ex. D-3. The trial Court after considering

the material on record, by its judgment and decree

dated 13.07.2015, decreed the suit holding that, the

plaintiff and defendant No.1 are entitled for one-fourth

share of each in the suit schedule property.

6. Feeling aggrieved by the same, defendant

No.2 has filed R.A.No.64/2016 before the First

Appellate Court and the appeal was resisted by the

respondents therein. The First Appellate Court, after

considering the material on record, by judgment and

decree dated 02.03.2019, allowed the appeal and set-

aside the judgment and decree dated 13.07.2015 in

O.S.No.901/2008 on the file of the trial Court. Being

aggrieved by the same, the plaintiff and defendant

No.1 have preferred this second appeal.

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7. This Court vide order dated 12.04.2021

formulated following substantial questions of law:

"The following substantial questions of law arise for consideration in this appeal:

i. Whether the First Appellate Court was right in holding that the suit for partial partition is not maintainable, though none of the defendants had taken up such a contention?

ii. Whether the First Appellate Court committed an error in reversing the judgment and decree of the Trial Court?

8. Heard Sri. Chandraiah, learned counsel

appearing for the appellants and Sri. Omkaresha, learned

counsel for respondent No.1.

9. Sri. Chandraiah, learned counsel appearing for

the appellants invited the attention of the Court to the

genealogical tree of the parties and submitted that, the

original propostus - Byrappa had three children. The

Elder son Bachappa died without leaving behind any legal

representatives and as such, the branches of the second

and third sons of the original propositus -Byrappa are

entitled to a half share each in the suit schedule property.

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10. He further contended that the finding recorded

by the First Appellate Court that the schedule property was

given to defendant No.2 as per the deed dated 10.06.1996

was not produced before the trial Court and therefore, the

finding recorded by the First Appellate Court on the said

aspect is incorrect. He also further contended that the

plaintiff has filed the suit in respect of the subject matter of

the land and defendants have not taken plea relating to

any other properties of Byrappa in the said suit and

therefore, he sought for interference of the this Court.

11. Per contra, Sri. Omkaresha, learned counsel

appearing for respondent No.1 invited the attention of this

Court to the finding recorded by the First Appellate Court

and the evidence deduced by PW-1 that there was several

properties belonged to the grandfather of the plaintiff-

Byrappa and same were not included in the suit schedule

property, accordingly, he sought for dismissal of the appeal

on the ground of non-joinder of the parties as well as the

subject matter of the properties by the plaintiff.

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12. Having heard learned counsel appearing for the

parties, the genealogical tree of the parties which is

produced herein is undisputed, reads as under:

BYRAPPA

BYRAPPA

Bachhappa, Dodda Mishamappa Chikka Wife Muddamma, (Dead) Munishamappa Died Issueless. Wife Muniyamma (Dead) (Dead). Thimmakka (Dead)

Muniyamma (Dead) Narayanamma------- Deft-2. Narayana Swamy Lakshminarayanapp- Deft-3 Deft-1 Bachhe Gowda -------Deft-4 Krishnappa ----

Sarojamma -----------Deft-5 Plaintiff Byramma -------------Deft-6

13. A perusal of the genealogical tree of the

parties would indicate that, the original propositus-

Byrappa had three children namely, one Bachappa,

Chikka Munishamappa and Dodda Munishamappa.

The first son-Bachappa died without leaving beyond

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any legal representatives and thereafter, the property

belongs to the original propositus - Byrappa has to be

devolved to his two children namely, Dodda

Munishamappa and Chikka Munishamappa.

Undisputedly, the plaintiff and defendant No.1 are the

children of Chikka Munishamappa and defendant No.2

to 6 are the legal representatives of the deceased

Dodda Munishamappa.

14. Having taken note of finding recorded by

the both Courts below, it is not in dispute that plaintiff

has mentioned the solitary subject matter of the land

in the schedule. The perusal of the written statement

made by the defendants would indicate that there are

no other properties belonging to Late Byrappa. The

claim made by defendant No.2 that, the schedule

property was given to her as per deed dated

10.06.1996, stating that her brothers had given the

schedule property, in view of love and affection as a

form of Arishina-Kunkuma.

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15. A perusal of the documents would indicate

that, the said deed dated 10.06.1996 has not been

produced by defendant No.1. In that view of the

matter, no averments was made in the written

statement by defendant No.2 that the deed dated

10.06.1996 was registered and a valid conveyance

made in respect of the subject matter of land in

question.

16. In that view of the matter, the trial Court

rightly comes to the conclusion that, the

appellant/plaintiff and defendant No.1 are entitled for

one-fourth share each in the suit schedule properties.

However, the perusal of the judgment and decree

passed by the First Appellate Court, would indicate

that, the First Appellate Court on erroneous

assumption of law, has come to the conclusion that,

there are four ancestral properties held by the Late

Byrappa. Even, there is noninclusion of certain

properties, if any, held by the parties in the suit, the

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same be included in the Final Decree proceedings by

the parties. That apart, no averments have been

made in the written statement by defendant No.2, in

specific about the properties belonging to the Byrappa,

other than the suit schedule properties. In that view

of the matter, the First Appellate Court has committed

an error in interfering with the judgment and decree

passed by the Trial Court in O.S.No.901/2008.

Therefore, the substantial question of law referred to

above favors the appellants and accordingly, I pass

the following order:

ORDERS

i) The Regular Second Appeal is allowed.

ii) The judgment and decree dated 02.03.2019

in R.A. No.64/2016 on the file of the VII

Additional District and Session Judge, Bengaluru

Rural District, Bengaluru, is set-aside and the

judgment and decree dated 13.07.2015 in O.S.

No.901/2008 on the file of the Prl. Senior Civil