Karnataka High Court
Smt Lakshmamma vs Sri B D Ramegowda on 6 March, 2024
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RSA No. 535 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 535 OF 2014 (PAR)
BETWEEN:
1. SMT LAKSHMAMMA
SINCE DEAD REP BY HER LR'S
1(a) RAVIKUMAR H R
S/O RAMEGOWDA R
R/AT HOSAHALLI VILLAGE
BELAVALA HOBLI, HOSAHALLI POST
SRIRANGAPATNA TALUK
MANDYA DISTRICT-571606.
1(b) SMT. LATHAMANI B.R
W/O PAPEGOWDA
D/O RAMEGOWDA R
AGED 43 YEARS
R/AT DEVAHARASANAHALLI
NANJANGUD TALUK
Digitally signed MYSORE DISTRICT-571301.
by R DEEPA
Location: HIGH 1(C) SMT. PADMA H R
COURT OF W/O BALRAM
KARNATAKA D/O LATE RAMEGOWDA R
R/AT PALAHALLI VILLAGE
SRIRANGAPATNA TALUK
BELAGALA HOBLI
MANDYA DISTRICT-571606.
...APPELLANTS
(BY SRI. YASHWANTH C., FOR
SRI.SADASHIVAIAH K G.,ADVOCATES)
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RSA No. 535 of 2014
AND:
1. SRI B D RAMEGOWDA
S/O H. DASEGOWDA
AGED ABOUT 73 YEARS
2. B.R. BALASUBRAMANYA
S/O B.D. RAMEGOWDA
AGED ABOUT 51 YEARS
BOTH ARE R/AT BELAGOLA VILLAGE
SRIRANGAPATNA TALUK
MANDYA DISTRICT-571438
...RESPONDENTS
(BY SRI. P NATARAJU, ADVOCATE FOR R1 & R2.,)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT & DECREE DATED:23.7.2013
PASSED IN R.A.NO.48/2011 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE, SRIRANGAPATNA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED: 24.1.2011 PASSED IN OS.NO.285/2007 ON THE FILE
OF THE PRL. CIVIL JUDGE (JR.DN) SRIRANGAPATNA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 23.07.2013,
passed in R.A.No.48/2011 by the Additional Senior Civil
Judge, Srirangapatna, confirming the judgment and decree
dated 24.01.2011 passed in O.S.No.285/2007 by the
Principal Civil Judge (Jr. Dn.) at Srirangapatna.
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2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellants are the legal representatives of deceased
plaintiff and respondents are the defendants. The plaintiff
filed a suit for partition and separate possession.
3. The brief facts leading rise to filing of this appeal
are as under:
It is the case of the plaintiff that the plaintiff is the
sister of defendant No.1. Her marriage took place about 25
years back and she is residing at her matrimonial house.
But she used to assist and co-operate defendant No.1 in
agricultural work and used to get some income and grains
from the suit schedule properties. It is contended that the
plaintiff and defendant No.1 are in joint possession of the
suit schedule properties. They are the members of the
Hindu Undivided Family. The plaintiff requested defendant
No.1 to effect a partition, but defendant No.1 refused to
effect a partition. Hence, cause of action arose for the
plaintiff to file a suit for partition and separate possession.
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4. The defendant No.1 filed written statement
denying the averments made in the plaint and it is
contended that the suit schedule properties are not the
joint family properties of plaintiff and defendant No.1, but
it is contended that the suit schedule properties are the
properties of defendant No.1. It is contended that the
plaintiff and defendant No.1 are the children of one late
H.Dasegowda through first wife Narasamma. During the
year 1967, the defendants executed the registered lease
deed in favour of his father by obtaining suit schedule
properties as his share and thereby relinquished his right
over the family properties and thereby severed from the
joint family. The other properties were continued to be as
the joint family properties of their father H.Dasegowda and
the said properties are in possession and enjoyment of the
children of H.Dasegowda through the second wife. It is
contended that suit filed by the plaintiff is not
maintainable for non-joinder of necessary parties and mis-
joinder of parties. It is contended that no cause of action
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arose for the plaintiff to file the suit. Hence, prayed to
dismiss the suit.
5. Defendant No.1 filed the additional written
statement and prayed to dismiss the suit. Defendant No.2
filed written statement denying averments made in the
plaint. It is contended that the plaintiff has no manner of
right or title to claim the share in the suit schedule
properties and that the suit schedule properties are not
the joint family properties and prayed to dismiss the suit.
It is contended that suit filed by the plaintiff is barred by
limitation, as the plaintiff has sought for the relief of
declaration after lapse of 30 years from the date of
execution of relinquishment deed. Hence, prayed to
dismiss the suit.
6. The Trial Court, on the basis of the above said
pleadings, framed the following issues and additional
issues:
1. Whether the plaintiff proves that she is in
joint possession and enjoyment of the suit
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properties along with the defendant as joint
family members?
2. Whether the defendant proves that in the
year 1967 he has executed a release deed by
taking the suit properties to his share?
3. Whether the defendant proves that the suit is
bad for non-joinder of parties?
4. Whether the plaintiff proves that she has a
share in all the suit schedule properties?
5. Whether the plaintiff is entitled for the relief
as sought for?
6. What Order or Decree?
Additional issues:
1. Whether the plaintiff proves that the
relinquishment deed dated 7.10.1967 is null and
void and not binding on the rights of the
plaintiff?
7. Plaintiff in order to substantiate her case,
examined herself as PW-1 and got marked 12 documents
as Exs.P1 to P12. On the other hand, defendant No.1 was
examined as DW-1 and got marked 21 documents as
Exs.D1 to D21 and parties have closed their side. The trial
Court after hearing the arguments of the learned counsel
for the parties and on the assessment of oral and
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documentary evidence, answered issue Nos.1 and 4 in the
negative, issue Nos.2 and 3 in the affirmative, additional
issue No.1 in the negative, issue No.5 as not entitle and
issue No.6 as per the final order. The suit of the plaintiff
was dismissed vide judgment dated 24.01.2011.
8. The plaintiff aggrieved by the judgment and
decree passed by the trial Court preferred the appeal in
R.A.No.48/2011 on the file of Additional Senior Civil Judge,
Srirangapatna. The First Appellate Court, after hearing
the parties, has framed the following points for
consideration:
1. Whether the appellant proves that the
judgment and decree as passed in
O.S.No.285/2007 on the file of Principal Civil
Judge (Jr.Dn) and JMFC., Srirangapatna,
dated 24.01.2011 is perverse, capricious
and is not sustainable in law?
2. What order ?
9. The First Appellate Court, on re-assessment of
the oral and documentary evidence answered point No.1 in
the negative and point No.2 as per the final order.
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10. The First Appellate Court dismissed the appeal
confirming the judgment and decree passed by the trial
Court. The plaintiff, aggrieved by the judgments and
decrees passed by the courts below, has filed this second
appeal.
11. Heard the learned counsel for the plaintiff.
12. Learned counsel for the plaintiff submits that the
plaintiff is the coparcener and suit schedule properties are
the joint family properties of the plaintiff and defendants
and there is no partition effected between the plaintiff and
defendants. Hence, he submits that trial Court has
committed an error in dismissing the suit. He submits that
admission given by the plaintiff- PW.1 is a stray sentence.
The Court would have consider the entire pleadings and
evidence of PW.1. He submits that the courts below have
committed an error in passing the impugned judgments
and decrees. Hence, prayed to allow the appeal.
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13. Perused the records and considered the
submission of learned counsel for the plaintiff.
14. It is the case of the plaintiff that the suit
schedule properties are the joint family properties of the
plaintiff and defendants. Plaintiff and defendants are the
members of Hindu Joint Family and there is no partition
effected between the plaintiff and defendants. The
plaintiff in order to substantiate her case, she was
examined herself as PW.1 and she has reiterated the
plaint averments in the examination-in-chief and
produced the documents as Exs.P.1 to 6 are the RTC
extracts; Ex.P7 is the demand register extract; Ex.P8 is
the copy of the legal notice; Ex.P8(a) is the postal receipt;
Ex.P9 is the reply notice; Ex.P10 is the copy of RTC;
Ex.P11 is the MR extract and Ex.P12 is the certified copy
of the relinquishment deed.
15. In the course of cross of examination of PW.1,
it is admitted that defendant No.1 separated from his
family in the year 1967 and also admitted that defendant
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No.1 got his share through relinquishment deed and rest
of the properties in the family are continued to be the joint
family properties and further, she has admitted that
except suit schedule properties, rest of the properties are
in possession of second wife of her father. Further, she
has also admitted that there was a partition in between
her and her father's second wife and there was a partition
deed, but she has not produced the documents. On the
contrary, the defendants have produced relinquishment
deed marked as Ex.P12, wherein defendant No.1 has
acquired the suit properties under the relinquishment deed
and the said relinquishment deed is registered and same is
marked as Ex.P12. The said relinquishment deed executed
in the year 1967 itself and the plaintiff was aware about
the execution of relinquishment deed in the year 1967 and
the plaintiff has not chosen to challenge the
relinquishment deed executed in the year 1967. The
plaintiff filed the suit in the year 2007 and further, the
defendant has also taken the defence that plaintiff has not
included the other joint family properties and further the
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said fact has not been disputed by the plaintiff. Hence,
the First Appellate Court also recorded the finding that suit
for partial partition is not maintainable. The trial Court as
well as First Appellate Court considering the material on
record were justified in passing the impugned judgments.
Hence, I do not find any substantial question of law that
arises for consideration and error in the impugned
judgments. I concur with the judgments passed by the
courts below.
16. Accordingly, I proceed to pass the following:
ORDER
The appeal is dismissed.
Judgments and decrees passed by the
courts below are hereby confirmed.
No order as to the costs.
SD/-
JUDGE
SSB/SKS
