Karnataka High Court
Sannaswamygowda vs Rathnamma on 9 September, 2024
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RSA No. 888 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.888 OF 2024 (INJ)
BETWEEN:
1. SANNASWAMYGOWDA
SINCE DEAD BY LR'S.
1(a). RAJAMMA
W/O LATE SANNASWAMYGOWDA
AGED ABOUT 76 YEARS.
1(b). MEENAKSHI
D/O LATE SANNASWAMYGOWDA
AGED ABOUT 48 YEARS.
1(c). SHANTHA
D/O LATE SANNASWAMYGOWDA,
AGED ABOUT 47 YEARS.
1(d). CHANDREGOWDA
S/O LATE SANNASWAMYGOWDA
Digitally signed by AGED ABOUT 42 YEARS.
SHARMA ANAND
CHAYA
Location: High Court of
Karnataka 2. RAVI
S/O LATE SANNASWAMYGOWDA,
AGED ABOUT 42 YEARS.
ALL ARE RESIDING AT:
ULLENAHALLI VILLAGE,
KONANUR HOBLI,
ARAKALGUD TALUK,
HASSAN DISTRICT - 573 102.
...APPELLANTS
(BY SRI. SUNIL S. NARAYAN, ADVOCATE)
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RSA No. 888 of 2024
AND:
RATHNAMMA
W/O A.T. NAGARAJA
AGED ABOUT 61 YEARS,
ULLENAHALLI VILLAGE,
KONANUR HOBLI,
ARAKALGUD TALUK,
HASSAN DISTRICT - 573 102.
...RESPONDENT
(BY SRI. N. DEVARAJ, ADVOCATE FOR C/R)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE
JUDGMENT AND DECREE DATED 04TH MARCH, 2024 PASSED IN
REGULAR APPEAL NO.23 OF 2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, ARAKALAGUD, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 18TH FEBRUARY, 2019 PASSED IN ORIGINAL SUIT
NO.233 OF 2012 ON THE FILE OF CIVIL JUDGE AND JMFC.,
ARAKALGUD.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
ORAL JUDGMENT
This Regular Second Appeal is filed by the legal
representative's of the defendant No.1; and the defendant
No.2, challenging the judgment and decree dated 04th March,
2024 passed in Regular Appeal No.23 of 2019 on the file of the
Senior Civil Judge and JMFC., Arakalagud (for short, hereinafter
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referred to as 'First Appellate Court'), dismissing the appeal and
confirming the judgment and decree dated 18th February, 2019
passed in Original Suit No.233 of 2012 on the file of the Civil
Judge and JMFC., Arakalagud (for short, hereinafter referred to
as 'Trial Court'), wherein the suit filed by the plaintiff came to
be decreed.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and ranking
before the Trial Court.
3. It is the case of the plaintiff that the plaintiff and
the defendant No.1 are the children of late Gopalegowda and
the defendant No.2 is the son of Defendant No.1. It is stated in
the plaint that the schedule property had fallen to the share of
the plaintiff through oral partition and she is in possession and
enjoyment of the same. However, the defendants, without any
right, interest or title in respect of the schedule property are
interfering with the peaceful possession and enjoyment of
plaint schedule property and as such, the plaintiff has filed
Original Suit No.233 of 2012 before the Trial Court, seeking
relief of permanent injunction against the defendants.
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4. On service of notice, defendants entered appearance
and filed detailed written statement contending that the
schedule property is not an ancestral property of the plaintiff
and defendants. It is also the case of the defendants that the
plaintiff got the revenue records on the basis of the partition,
which never taken place between the plaintiff and defendant
No.1. Therefore, defendants sought for dismissal of the suit.
5. On the basis of pleadings on record, the Trial Court
framed issues for its consideration.
6. In order to prove their case, the plaintiff has
examined one witness as PW1 and got marked 4 documents as
Exhibits P1 to P4. On the other hand, defendants examined two
witnesses as DW1 and DW2 and got marked 10 documents as
Exhibits D1 to D10
7. The Trial Court, after considering the material on
record, by judgment and decree dated 18th February, 2019,
decreed the suit of the plaintiff and restrained the defendants
from interfering with the suit schedule property. Being
aggrieved by the same, the legal representatives of the
defendant No.1 and the defendant No.2 have preferred Regular
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Appeal No.23 of 2019 and the said appeal was resisted by the
plaintiff. The First Appellate Court, after re-appreciating the
material on record, dismissed the appeal, consequently,
confirmed the judgment and decree dated 18th February, 2019
passed by the Trial Court in Original Suit No.233 of 2012.
Being aggrieved by the same, the legal representatives of the
defendant No.1 and the defendant No.2 have preferred this
Regular Second Appeal.
8. Heard Sri. Sunil S. Narayan, learned counsel
appearing for appellants and Sri. N. Devaraj, learned counsel
appearing for the respondent.
9. Sri. Sunil S. Narayan, learned counsel appearing for
appellants contended that the plaintiff got her name in the
mutation register fraudulently and same has been produced
before the Trial Court to establish that the partition said to
have been effected between the plaintiff and the defendant
No.1. He further submitted that there is no partition in the
family of plaintiff and the defendant No.1 and the said aspect
has not been properly appreciated by the Courts below.
Accordingly, he sought for interference of this Court.
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10. Per contra, Sri. N. Devaraj, learned counsel
appearing for the respondent invited the attention of the Court
to Exhibit P3-Matation extract which reflects the name of the
plaintiff and accordingly, he sought for dismissal of the appeal.
11. In the light of the submission made by learned
counsel appearing for the parties, the plaintiff and the
defendant No.1 are the children of late Gopalegowda. It is the
case of the plaintiff that, there was a partition in the joint
family consisting of herself and her brother defendant No.1 and
as per the said oral partition, M.R.No.39/1999-2000 is made,
wherein, the name of the plaintiff reflects. Perusal of Exhibit
P4-Index of land pertaining to schedule property would indicate
that the schedule property is originally belongs to father of the
plaintiff and the defendant No.1 and accordingly, the name of
the plaintiff find place in Exhibit P4 and therefore, the plaintiff
filed suit for permanent injunction. Perusal of Exhibit P4 makes
it clear that the plaintiff is in possession of the schedule
property. In that view of the matter, the finding recorded by
the Trial Court is just and proper. The First Appellate Court,
after appreciating the material on record, particularly, with
respect to Exhibits P3 and P4, had rightly confirmed the
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judgment and decree passed in Original Suit No.233 of 2012 on
the file of the Trial Court. Taking into account the finding
recorded by the First Appellate Court at Paragraphs 16 and 17
in Regular Appeal No.23 of 2019 as the plaintiff is in possession
of the schedule property, I am of the view that the
appellant/defendants have not made out a case for
interference. According appeal is liable to be dismissed as
devoid of merits. Therefore, as the appellants were failed to
make out a case for formulation of substantial question of law
as required under Section 100 of the Code of Civil Procedure,
this appeal deserves to be dismissed at the stage of admission
itself. Accordingly, Regular Second Appeal is dismissed.
SD/-
(E.S. INDIRESH)
JUDGE
ARK
