Karnataka High Court
Sri. Nanjundaswamy vs Smt. Gowramma on 1 April, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC:13554
RSA No. 1694 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1694 OF 2015 (PAR)
BETWEEN:
SRI NANJUNDASWAMY,
S/O CHIKKANANJAIAH,
AGED ABOUT 41 YEARS,
R/AT MADAHALLI VILLAGE,
JAYAPURA HOBLI,
MYSURU TALUK - 570 008.
...APPELLANT
(BY SRI PRITHVI RAJ B.N., ADVOCATE)
AND:
1. SMT. GOWRAMMA,
W/O MAHADEVAPPA @ MURTHY,
D/O NINGAPPA,
AGED ABOUT 42 YEARS,
R/AT KARYA VILLAGE,
Digitally signed by KOWLANDE HOBLI,
GEETHAKUMARI NANJANGUD TQ,
PARLATTAYA S MYSORE DIST - 571 301.
Location: High
Court of Karnataka 2. SRI NINGAPPA,
S/O LATE CHAMAIAH,
AGED ABOUT 75 YEARS,
3. SMT SHIVAMMA,
W/O NINGAPPA,
AGED ABOUT 61 YEARS,
4. JAYANNA,
S/O NINGAPPA,
AGED ABOUT 38 YEARS,
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RSA No. 1694 of 2015
5. PARAMESH,
S/O NINGAPPA,
AGED ABOUT 36 YEARS,
RESPONDENT NOS.2 TO 5 ARE
R/AT MARAIAHNAHUNDI VILLAGE,
YELWALA HOBLI,
MYSURU TQ - 570 026.
6. SMT. VASANTHA,
D/O NINGAPPA, W/O REVANNA,
AGED ABOUT 29 YEARS,
R/AT KALMALLI VILLAGE,
BILIGERE HOBLI,
NANJANGUD TALUK,
MYSURU DIST - 571 129.
7. SRI JAGADEESH,
S/O BORALINGE GOWDA,
AGED ABOUT 45 YEARS,
R/AT NO 201 8TH CROSS,
RAMAMANDIRA ROAD,
BOGADI, KASABA HOBLI,
MYSURU - 570 026.
...RESPONDENTS
(BY SRI P NATARAJU, ADV. FOR R1)
RESPONDENTS NO.2 TO 7 ARE SERVED, BUT UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 04.07.2015 PASSED IN RA
NO.428/2012 ON THE FILE OF THE V ADDL. DISTRICT AND
SESSIONS JUDGE, AT MYSURU, ALLOWING THE APPEAL AND
MODIFYING THE JUDGMENT AND DECREE DATED 05.09.2012
PASSED IN OS.NO.272/2009 ON THE FILE OF THE IV ADDL. SENIOR
CIVIL JUDGE, MYSORE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
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RSA No. 1694 of 2015
ORAL JUDGMENT
Challenging judgment and decree dated 04.07.2015
passed by V Addl. District and Sessions Judge, Mysuru, in RA
no.428/2012 and judgment and decree dated 05.09.2012
passed by IV Addl. Senior Civil Judge, Mysuru, in
OS.no.272/2009, this appeal is filed.
2. Brief facts as stated are, appellant was defendant
no.6 in OS no.272/2009 filed by respondent no.1 (plaintiff) for
partition and separate possession. In plaint, she stated suit
properties were ancestral joint family properties of her father
(defendant no.1). It was stated defendant no.1 had two wives.
Plaintiff and Renuka were born to Smt.Akkamma (1st wife),
among whom only plaintiff was alive. Defendant no.2 -
Smt.Shivamma (2nd wife), who had two sons and one daughter
namely, defendants no.3 to 5. It was further stated, defendants
had joined together and sold item no.3 of suit properties to
defendant no.6 under registered Sale Deed dated 27.06.2005.
Though, plaintiff had share in suit properties and demanded her
share, defendants no.1 to 5, postponed it on some pretext.
Hence, suit was filed.
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3. On receipt of suit summons, defendants no.1 to 4
filed written statement opposing suit on various contentions,
such as, denying relationship with plaintiff as well as
Smt.Akkamma, non-inclusion of all joint family properties, mis-
joinder and non-joinder of parties, erroneous boundaries of suit
property and suit being filed without cause of action, etc. It was
alternatively contended that they had borrowed loan of Rs.2
Lakhs from defendant no.6 on interest. As security for
repayment, sale deed was executed in respect of item no.3 of
suit property, wherein defendant no.6 had agreed to cancel
said sale deed on repayment.
4. Defendant no.6 filed separate written statement
denying knowledge about relationship of plaintiff with other
defendants due to non-disclosure by defendants at time of sale
of item no.3 of suit property to him. He claimed to be bonafide
purchaser in possession and that his name was mutated in
revenue records. It was specifically stated that defendant no.6
would have no objection for grant of share to plaintiff in suit
properties other than item no.3. Defendant no.7, who was also
purchaser, took similar contentions and sought dismissal of
suit.
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5. Based on pleadings, trial Court framed following
issues:
1. Whether the plaintiff proves that suit schedule
properties are the joint family ancestral properties
of the plaintiff and defendant?
2. Whether the plaintiff proves that late Akkamma is
the legally wedded wife of 1st defendant?
3. Whether the defendants 1 to 4 prove that this suit
is bad for non-joinder and mis-joinder of necessary
parties?
4. Whether the sixth defendant proves that he is
bonafide purchaser of the item no.3 of suit
schedule property?
5. Whether the plaintiff is entitled lawful share in the
suit schedule properties ?
6. What order or decree?
Additional Issue
1. Whether the 7th defendant proves that he is the
bonafide purchaser of the suit schedule properties
from defendant nos.3 and 4 from valuable
consideration to discharge their legal necessity?
6. During trial, plaintiff examined herself and two
others as PWs.1 to 3 and got marked Exhibits P.1 to P.18. On
other side, defendants no.6 and 4 were examined as DWs.1
and 2 and got marked Exhibits D.1 to D.4.
7. On consideration, it answered issues no.1, 2 and 5
in affirmative, issues no.3, 4 and additional issue no.1 in
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negative and issue no.6 by decreeing suit, holding plaintiff
entitled for 1/5th share in suit schedule properties by metes and
bounds.
8. Aggrieved thereby, defendant no.6 filed
R.A.no.428/2012 on various grounds. Based on same, following
points were framed:
1. Whether the appellant proves that I.A.no.II filed
U/O41 Rule 27 of CPC., is deserves to be allowed
at this stage?
2. Whether the appellant proves that the trial Court
erred in allotting share of the plaintiff in suit item
no.3 as 1/5th share by metes and bounds and to
draw preliminary decree without considering the
appellant is the bonafide purchaser of suit item
no.3 as contended in the grounds of appeal?
3. Whether the impugned judgment and decree of
the trial Court is opposed to law, facts and
circumstances of the case and is liable to interfere
by this Court?
4. What order?
9. On consideration, it answered point no.1 in
negative, points no.2 and 3 partly in affirmative and point no.4
by allowing appeal, setting aside judgment and decree passed
by trial Court in respect of item no.3 and holding defendant
no.6 entitled for 4/5th share in item no.3 and plaintiff entitled
for 1/5th share and confirming trial Court's decree insofar as
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other suit properties. Aggrieved, this appeal is by defendant
no.6.
10. Sri Prithvi Raj B.N., learned counsel for defendant
no.6 submitted, item no.3 of suit property was purchased by
defendant no.6 from defendants no.1 to 5, as they had
represented him that there were no other person having
interest in it. It was further contended, since plaintiff was
claiming only 1/5th share in suit properties, defendant no.6
would be entitled to seek for allotment of plaintiff's share in
other suit properties. Modification by first appellate Court would
virtually foreclose his right to work out equities in final decree
proceedings and sought to draw support from decision in case
of Basavanappa v. Gurappa Ankalkoti and Ors. reported in
ILR 1999 KAR 3994.
11. Sri P.Nataraju, learned counsel for plaintiff,
however, opposed appeal. Though defendants no.1 to 5 had
disputed relationship with plaintiff, they had not filed appeal
against finding of trial Court about plaintiff being one of sharers
over suit properties nor challenged decree granting her 1/5th
share in suit properties. Since trial Court had held plaintiff
entitled for 1/5th share in suit properties, first appellate Court
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had rightly modified decree protecting her 1/5th share in suit
properties, while holding defendant no.6 entitled for 4/5th share
in item no.3. Same was in accordance with law and did not call
for interference. It was further submitted, no substantial
question of law was involved. On said ground, sought dismissal
of appeal.
12. Heard learned counsel, perused judgment and
decree and records.
13. From above, it is seen, this appeal is by defendant
no.6 - purchaser of item no.3 of suit properties seeking to
assail judgment and decree of first appellate Court modifying
trial Court decree for partition and granting him right over 4/5th
share in item no.3 of suit properties.
14. Main grievance espoused in this appeal is against
modification of trial Court decree by first appellate Court on
ground that it virtually placed defendant no.6 in worse position
than decree passed by trial Court, in his own appeal.
15. From facts and circumstances narrated above, it
would emerge that in suit for partition filed by plaintiff, though
defendants no.1 to 5, who were vendors of defendant no.6
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denied relationship of plaintiff with them in their written
statement, they failed to sustain same during trial. After trial
Court decreed plaintiff's claim by holding her part of joint
family, they did not challenge such finding and virtually
conceding to said finding. Even, defendant no.6 failed to
examine any other relative to establish to contrary. Therefore,
challenge by defendant no.6 against preliminary decree would
not sustain. However, grievance about his right to claim equity
in final decree proceedings having been curtailed by first
appellate Court while modifying trial Court decree appears
sound.
16. Therefore, even while holding that no substantial
question of law would arise for consideration in present appeal,
it would be appropriate to make observations reserving right to
defendant no.6 - appellant to seek for adjustment of share of
plaintiff in other suit properties or as far as possible to allot
item no.3 to share of defendants no.1 to 5 and thereby give
effect to alienation of said property by them to appellant.
17. In view of above, appeal is disposed of holding no
substantial question of law as arising for consideration, but with
observation that restriction of right of defendant no.6 insofar as
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4/5th share only in item no.3 of suit properties would not come
in way of defendant no.6 seeking for allotment of share of
plaintiff in other suit properties or for allotment of shares of
defendants no.1 to 5 in item no.3 of suit properties, in equity at
time of drawing up of final decree.
18. It is clarified that above shall not be treated as
expression of opinion one way or other and Final Decree Court
would be entitled to arrive at any just conclusion on basis of
material on record.
Sd/-
(RAVI V HOSMANI)
JUDGE
AV
