Karnataka High Court
Smt Yashodamma vs Smt Premamma on 30 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:18389
RSA No. 1451 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1451 OF 2023
BETWEEN:
1. SMT. YASHODAMMA
W/O LATE RAJEGOWDA,
D/O LATE THIMMEGOWDA,
AGED ABOUT 67 YEARS,
MANTIBILAGULI VILLAGE,
HARANAHALLI HOBLI,
PIRIYAPATNA TALUK,
MYSURU DISTRICT - 571107.
...APPELLANT
(BY SRI. NANJUNDA SWAMY N., ADVOCATE)
AND:
1. SMT. PREMAMMA
W/O GOVINDEGOWDA,
Digitally signed
by DEVIKA M D/O LATE THIMMEGOWDA,
Location: HIGH AGED ABOUT 58 YEARS,
COURT OF OCC: AGRICULTURE,
KARNATAKA HALEYURU VILLAGE,
CHUNCHANAKATTE HOBLI,
K.R.NAGAR TALUK-571617.
2. SMT. SAKAMMA,
W/O SUBBEGOWDA,
D/O LATE THIMMEGOWDA,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURE,
HONNENAHALLI VILLAGE,
SALIGRAMA HOBLI,
K.R.NAGAR TALUK-571604.
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RSA No. 1451 of 2023
3. SMT. CHANDRAMMA,
W/O HALAGEGOWDA,
D/O LATE THIMMEGOWDA,
AGED ABOUT 47 YEARS,
OCC: AGRICULTURE,
BANDAHALLI VILLAGE,
CHUNCHANAKATTE HOBLI,
K.R.NAGAR TALUK,
MYSURU DISTRICT-571617.
4. SMT. SHARADAMMA,
W/O NAGEGOWDA,
D/O LATE THIMMEGOWDA,
AGED BAOUT 76 YEARS,
OCC: AGRICULTURE,
R/AT SALIGRAMA VILLAGE AND HOBLI,
K.R.NAGAR TALUK
MYSURU DISTRICT-571604.
5. SRI RAMEGOWDA
S/O LATE NAGEGOWDA,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE,
MANTIBILAGULI VILLAGE.
HARANAHALLI HOBLI,
PIRIYAPATNA TALUK,
MYSURU DISTRICT-571107.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 12.06.2023
PASSED IN R.A.NO.7/2022 ON THE FILE OF THE SENIOR CIVIL
JUDGE PERIYAPATNA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 24.11.2021
PASSED IN O.S.NO.48/2015 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, PERIYAPATNA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1451 of 2023
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant.
2. The factual matrix of the case of the plaintiffs
before the Trial Court is that plaintiff Nos.1 to 3, defendant
Nos.1 and 2 are the children of Late Thimmegowda and late
Mallamma and suit schedule properties are ancestral properties
of the father of the plaintiffs. The father of the plaintiffs has no
male issues. He during his life time was in possession and
enjoyment of the suit schedule properties. After his death, the
plaintiffs and the defendant Nos.1 and 2 are in possession and
enjoyment of the suit schedule properties. The defendant No.1
by colluding with the revenue officials got mutated her name in
the revenue records of the item Nos.3 to 5 properties. Then,
she sold the said properties in favour of the defendant No.3
without consent of the plaintiffs through registered sale deed
dated 24.05.2014. The said sale deed is not binding on the
right of the plaintiffs in the suit schedule properties. The
defendant No.3, in order to deprive the legitimate share of the
plaintiffs in the suit schedule properties, is making efforts to
sell the suit schedule item Nos.3 to 5 properties. Hence, filed
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the suit for the relief of partition contending that the suit
schedule properties are ancestral joint family properties.
3. The defendants took the specific contention that
plaintiffs have given up their right in the suit schedule
properties by executing panchayath document and in order to
discharge the loan raised towards marriage of the plaintiffs and
to provide maintenance to the plaintiffs, item Nos.3 to 5 of the
properties are alienated.
4. The Trial Court, having considered both oral and
documentary evidence placed on record, answered issue No.1
as 'partly affirmative' granting the relief of partition in respect
of item Nos.1 and 2 and dismissed the claim of the plaintiffs in
respect of item Nos.3 to 5. The same is challenged before the
First Appellate Court. The First Appellate Court on re-
appreciation of both oral and documentary evidence placed on
record, confirmed the judgment of the Trial Court. Hence, this
second appeal is filed before this Court.
5. The main contention of the learned counsel for the
appellant is that both the Courts failed to consider the material
available on record that the respondents/plaintiffs had given up
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their right in respect of item Nos.1 and 2 also and the Court
has committed an error. Learned counsel also would
vehemently contend that there is a panchayath document with
regard to giving up of right of the plaintiffs and the same has
not been considered.
6. Having heard the learned counsel for the appellant
and also on perusal of the material available on record,
particularly the pleadings of the parties and also the defence,
the very defence of the defendant Nos.1 to 3 is that plaintiffs
have given up their right by executing panchayath document.
Admittedly, the said document is not a registered document
and no dispute with regard to the relationship between the
parties and the defendants have produced the document of
Exs.D1 to D8 i.e., RTC Extracts and certified copy of Mutation
Register Extract i.e., Ex.D9 and Mutation Register Extract as
Ex.D10. Though the defendants took a specific defence that
plaintiffs have given up their right by executing panchayath
document, the said panchayath document is not placed before
the Trial Court and apart from that the same is not a registered
document. When there is no dispute with regard to the
relationship between the parties and properties belong to late
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Thimmegowda and in respect of giving up of right also, no such
document is placed and it is not the case of the appellant that
no share is given in respect of the suit schedule properties in
favour of the plaintiffs. When such being the case, in the
absence of any legal document to prove that the plaintiffs have
given up their right, I do not find any error committed by the
Trial Court and First Appellate Court in granting share in
respect of item Nos.1 and 2 of the suit schedule properties in
favour of the plaintiffs. Hence, there is no merit to admit the
appeal and frame substantial question of law by invoking
Section 100 of CPC.
7. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
JUDGE
ST
