Karnataka High Court
Anil @ Shamarao And Anr vs Meenakashibai And Anr on 4 June, 2024
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RSA No. 200418 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200418 OF 2023
(PAR/POS)
BETWEEN:
ANIL @ SHAMARAO
S/O PANDURANG RAO KULKARNI,
SINCE DECEASED BY HIS LR'S.
1. SMT. LEELAVATI
W/O SHARMARAO KULKARNI,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE,
R/O: KOTNOOR (D),
TQ AND DIST: KALABURAGI-585103.
...APPELLANT
(BY SRI RAMCHANDRA K., ADVOCATE)
Digitally signed
by SWETA
KULKARNI AND:
Location: High
Court of
Karnataka 1. SMT. MEENAKASHIBAI
W/O BHIMSAIN RAO KULKARNI,
AGED ABOUT: 65 YEARS,
OCC: HOUSEHOLD,
R/O: KALABURAGI,
R/O: SBH COLONY,
BEHIND CHANDERSHEKAR STADIUM,
KALABURAGI-585102.
2. ARUN KUMAR
S/O TULSHIRAM OZA ADVOCATE,
AGED ABOUT: 60 YEARS,
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RSA No. 200418 of 2023
R/O: GAZIPUR, KALABURAGI,
C/O SAINATH PU COLLEGE KALABURAGI-585102.
...RESPONDENTS
(BY SRI VINAYK APTE, ADV. FOR C/R1)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
CALL FOR RECORDS AND ALLOW THE REGULAR SECOND
APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
PASSED BY THE FIRST ADDL. DISTRICT JUDGE KALABURAGI
IN R.A. NO.25/2022 DATED 11.09.2023 AND ALSO JUDGMENT
PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AT
KALABURAGI IN O.S.NO.201/2017 DATED 16.03.2022 AND
FURTHER TO DECREE THE SUIT OF THE PLAINTIFF WITH
COSTS THROUGHOUT.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The unsuccessful plaintiff is in the second appeal
against the concurrent findings of the Courts
below, whereby, suit of the plaintiff was dismissed,
confirmed by the First Appellate Court.
2. Parties herein are referred to as per their
ranking before the Trial Court for the sake of convenience.
3. Suit seeking relief of partition and separate
possession of the plaintiff's half share, for perpetual
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injunction restraining the defendants from alienating the
suit property. One Pandurang Rao, the father of plaintiff
No.1 and defendant No.1, owned landed properties
situated at Madabhavi Village, Athani. The case of the
plaintiff is that the landed properties were the ancestral
properties, which were sold by Anil and defendant No.1
along with other sisters with an intention to settle at
Gulbarga, and the present suit property bearing survey
No.20, measuring 11 acres 23 guntas, was purchased in
the name of defendant No.1 out of the sale proceeds of
ancestral property. It is further stated that, as the
husband of defendant No.1 managed the entire family, the
suit property was purchased in the name of defendant
No.1 and that though the property is being purchased in
the name of defendant No.1, it is the property of plaintiff
No.1 and defendant No.1 and the plaintiff is entitled for
share in the suit property.
4. Pursuant to the suit summons issued by the
Trial Court, defendant Nos.1 and 2 appeared and
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defendant No.1 filed written statement. Defendant No.2
died during the pendency of the appeal, having not taken
steps by the plaintiff to bring the legal representatives of
deceased defendant No.2, the appeal stood abated
against defendant No.2.
5. Defendant No.1 admitted the relationship with
plaintiff No.1. The defendant specifically denied that the
suit schedule property was purchased out of the sale
proceeds of the ancestral property in the name of
the husband of defendant No.1. It is contended that the
suit property is the exclusive property of her husband,
who purchased the suit land through a registered sale
deed on 21.08.1980. The husband of defendant No.1 was
serving in the army and after his retirement in the year
1979, out of the service benefits and income derived from
his landed properties, i.e., survey Nos.393 and 149, the
suit property was purchased and it is the
exclusive property of the husband of defendant No.1. It is
further stated that after the death of her husband, the
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name of defendant No.1 got entered in the revenue
records and it is not the joint family property of the
plaintiff and defendant No.1, but the exclusive property of
defendant No.1.
6. It is further contended that earlier in O.S. No.
41/1982 filed by Sunil, one of the brothers, against the
plaintiff herein Shamrao, seeking relief of partition and
separate possession in respect of survey Nos.434/2,
5/1A, the said suit ended in a compromise on 25.03.1982
and as per the compromise, land bearing survey No.434/2
was allotted to the share of defendant Nos.2 to 4
therein. It is further contended that the plaintiff is not
entitled for any share in the suit property.
7. The Trial Court, on basis of the pleadings,
framed the following issues, which read as under:
"1. Whether the plaintiffs prove that, they and
defendants constitute joint family?
2. Whether the plaintiffs prove that suit property is the
joint family property?
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3. Whether the plaintiffs are entitled for the relief as
sought for?
4. What order or decree?
ADDITIONAL ISSUES
1. Whether valuation of subject matter of suit is
properly valued and accordingly paid proper court fees ?
2. Whether suit of plaintiff is within law of limitation?
8. In order to substantiate the claim, plaintiff
examined herself as P.W.1 and one witness as P.W.2
and got marked documents at Exs.P.1 to P.12. On the
other hand, special power of attorney holder of defendant
No. 1 was examined as D.W.1 and got marked documents
at Exs.D.1 to D.20.
9. The Trial Court, on basis of the pleadings, oral
and documentary evidence, held that:
i. The plaintiff failed to prove that the plaintiff and
defendants constituted a joint family.
ii. That the plaintiff failed to prove that the suit
property is the joint family property of the plaintiff and
defendant No.1
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and by the impugned judgment and decree,
dismissed the suit of the plaintiff. Aggrieved, the plaintiff
preferred appeal before the First Appellate Court.
10. The First Appellate Court, while re-
appreciating the entire oral and documentary evidence,
concurred with the judgment and decree of the Trial
Court. Aggrieved, the plaintiff is in the second appeal.
11. Heard Sri Ramchandra K., the learned counsel
for the appellant and Sri Vinayak Apte, the learned counsel
appearing for the caveator/respondent No.1 and perused
the material on record including the judgment and decree
of the Courts below.
12. Learned counsel for the appellant would
contend that the Courts below were not justified in
dismissing the suit in view of not giving any immovable
property by virtue of the compromise in O.S. No.41/1982,
that the observation and findings of the Courts below in
the entire judgment that, the suit property was purchased
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by the husband of defendant No.1 in the year 1980 prior
to the compromise decree dated 25.03.1982 and that the
Trial Court, without looking to the facts and oral evidence,
erroneously dismissed the suit of the plaintiff.
13. Per contra, learned counsel appearing for the
respondents would justify the judgment and decree of the
Trial Court and would submit that the concurrent findings
of the Courts below cannot be interfered with under
Section 100 CPC and that no substantial question of law
arises for consideration in the present appeal.
14. The material on record would indicate that the
sale deed in respect of suit survey No.20 measuring 11
acres 23 guntas is at Ex.D.11. The sale deed was executed
in favor of the husband of defendant No.1, namely,
Bhimsen Rao through a registered sale deed dated
21.08.1980. The name of the husband of defendant No.1
was entered in the revenue records pursuant to the sale
deed at Ex.D.11. The sale deed was executed much prior
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to the compromise entered into between the parties in
O.S.No.41/1982. O.S. No.41/1982 was filed by one heir of
Pandurang Kulkarni, the brother of plaintiff No.1 and
defendant No.1 against the present plaintiff and the said
suit came to be compromised.
15. It is the contention of the plaintiff that there
was a sale of the ancestral property and joint family
property of the father of the plaintiff and defendant No.1
and the suit was purchased in the name of defendant
No.1, other than mere assertion, the plaintiff has not
produced any evidence or material documents to show
that there was a sale of the ancestral property and out of
the sale proceeds of the ancestral and joint family
property, the present suit property has been purchased. In
fact, the suit property was purchased in the year 1980 and
at the time of the compromise entered into between the
parties in O.S. No. 41/1982, if the suit property were the
ancestral property, the same would have been included in
the compromise petition. The compromise was entered
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way back in 1982, and the present suit is being filed in
2017. The initial burden is on the plaintiff to prove that the
suit property was purchased out of joint family funds,
however, no materials are forthcoming to establish the
purchase out of joint family funds, as contended by the
plaintiff. The plaintiff has failed to discharge the initial
burden of acquiring the suit property through joint family
funds.
16. On the other hand, the defendant has produced
material to show that after retirement, the husband of
defendant No.1 in the year 1979 received a pension
amount of Rs.11,776.30/-, a death-cum-gratuity amount,
group insurance and Armed Forces personal provident
fund. The suit property has been purchased immediately
after his retirement, i.e., 31.12.1979 and the suit property
was purchased on 21.08.1980. The sale consideration
mentioned in Ex.D.11 is Rs.15,000/- and at the time of
retirement, Bhimsen Rao had received a sum of Rs.
27,387/-, as could be seen from the records. The record of
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rights pertaining to the suit property would indicate that
the name of the husband of defendant No.1 was entered in
the revenue records and after his death, the name of
defendant No.1 was entered. The plaintiff has failed to
prove that the suit property as per Ex.D1 is out of the sale
proceeds of the ancestral property of Shamrao and
defendant No.1 and about any existence of joint family
property.
17. The Trial Court, on consideration of the entire
oral and documentary evidence, has rightly arrived at a
conclusion by dismissing the suit of the plaintiff. The First
Appellate Court, being the last-fact finding Court,
has rightly re-appreciated the entire oral and documentary
evidence and arrived at the appropriate conclusion that
the suit of the plaintiff is liable to be dismissed. The
concurrent findings of facts of the Courts below warrant no
interference and the manner in which the Courts below
have considered the entire oral and documentary
evidence, this Court is of the considered view that no
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substantial question of law arises for consideration in the
present appeal and accordingly, this Court pass the
following:
ORDER
i. The Regular Second Appeal is hereby
dismissed.
ii. The judgment and decree of the Courts
below stand confirmed.
Sd/-
JUDGE
MBM
CT-VD
