Sri.Mahadevappa vs Sri.Somappa
2024 Latest Caselaw 6548 Kant

Karnataka High Court

Sri.Mahadevappa vs Sri.Somappa on 5 March, 2024

Author: Hanchate Sanjeevkumar

Bench: Hanchate Sanjeevkumar

                                                -1-
                                                      NC: 2024:KHC-D:4867
                                                          RSA No. 100898 of 2016




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                            DATED THIS THE 05TH DAY OF MARCH, 2024
                                             BEFORE
                        THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
                        REGULAR SECOND APPEAL NO. 100898 OF 2016 (INJ)
                   BETWEEN:


                   SRI.MAHADEVAPPA S/O. DEMAPPA KADKOL,
                   AGE: 60 YEARS,
                   OCC: AGRICULTURE AND BUSINESS,
                   R/O: YARZARVI VILLAGE,
                   TQ: SAUNDATTI, DIST: BELAGAVI.
                                                                     ...APPELLANT
                   (BY SRI P G CHIKKANARAGUND, ADVOCATE)

                   AND:

                   1.   SRI.SOMAPPA S/O. DEMAPPA KADKOL,
                        AGE: 55 YEARS, OCC: AGRICULTURE,
                        R/O: YARZARVI VILLAGE,
                        TQ: SAUNDATTI, DIST: BELAGAVI.

                   2.   SRI.MALLAPPA S/O. DEMAPPA KADKOL,
                        AGE: 60 YEARS,
                        OCC: AGRICULTURE AND BUSINESS,
                        R/O: YARZARVI VILLAGE,
Digitally signed
by SUJATA               TQ: SAUNDATTI, DIST: BELAGAVI.
SUBHASH
PAMMAR             3.   SMT.BASAVVA
                        W/O. SHANKRAPPA RUDRAPUR,
Location: HIGH
COURT OF                AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
KARNATAKA               R/O: YARZARVI VILLAGE,
                        TQ: SAUNDATTI, DIST: BELAGAVI.

                   4.   SMT.PARAWATEWWA
                        W/O. CHANNAPPA BENCHANMARADI,
                        AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
                        R/O: YARZARVI VILLAGE,
                        TQ: SAUNDATTI, DIST: BELAGAVI.
                                                                  ...RESPONDENTS
                   (BY SRI J.S.SHETTY, ADVOCATE FOR R1;
                   R2 TO R4 - NOTICE RE SERVED.)
                                -2-
                                     NC: 2024:KHC-D:4867
                                       RSA No. 100898 of 2016




      THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE    JUDGMENT    AND    DECREE     DATED    03.12.2015  IN
R.A.NO.293/2011 PASSED BY THE COURT OF THE II ADDL. DISTRICT
JUDGE, BELAGAVI, AND THE JUDGMENT AND DECREE DATED
17.08.2011 IN O.S.NO.23/20098 PASSED BY THE COURT OF THE
PRL. SENIOR CIVIL JUDGE, SAUNDATTI, AND CONSEQUENTLY
DISMISS THE SUIT OF THE PLAINTIFF, AND ETC.,.

     THIS APPEAL COMING ON FOR ADMISISON THIS DAY, THE
COURT DELIVERED THE FOLLOWING:



                          JUDGMENT

This regular second appeal is filed by defendant No.1

challenging the judgment and decree dated 03.12.2015,

passed in R.A.No.293/2011, by the II Addl. District Judge,

Belagavi (first appellate Court), and the judgment and

decree dated 17.08.2011, passed in O.S.No.23/2009, by the

Prl. Senior Civil Judge, Saundatti (trial Court).

2. For the purpose of convenience, the ranking of

the parties is referred as per their status before the trial

Court.

3. The plaintiff has filed a suit for partition and

separate possession by metes and bounds claiming 1/5th

share in the suit schedule property. The trial Court has

decreed the suit by granting 1/5th share to the plaintiff. It is

NC: 2024:KHC-D:4867

the defence of the defendants that there was earlier partition

16 years before and all the plaintiff and defendants are

residing separately as there was severance in the joint

family. Therefore prays to dismiss the suit.

4. When the defendants have taken contention that

there was earlier partition 16 years before, the defendants

ought to have produced any evidence proving the earlier

partition. It is the case of defendants that there was earlier

oral partition. Though DW.2 and DW.3 have deposed that

there was earlier oral partition, but there is no proof of the

defence that the said earlier partition was acted upon.

Therefore the trial Court has disbelieved the evidence of the

defendants and decreed the suit as prayed for, which is

confirmed by the first appellate Court.

5. The relationship between the plaintiff and

defendants is not disputed. The properties are ancestral and

joint family properties is also not disputed. When it is the

defence that there was oral partition, that is not proved. The

defendants have not stated in which year there was earlier

oral partition. As discussed above, there is no evidence that

NC: 2024:KHC-D:4867

the earlier partition was acted upon. Therefore mere

separate residence of the parties is not the proof that there

was partition by metes and bounds. Hence the trial Court has

correctly appreciated the evidence on record and decreed the

suit in favour of the plaintiff and that is rightly affirmed by

the first appellate Court.

6. Therefore, there is no substantial question of law

involved to consider in this appeal. Thus, having found the

appeal is suffering from merits, hence the appeal is liable to

be dismissed. Accordingly the appeal is dismissed.

Sd/-

JUDGE

MRK CT:ANB