Karnataka High Court
Srinivas Shetty S/O. Badmi Narayana ... vs Sudhalakshmi W/O Ananthasena Shetty on 9 January, 2025
-1-
NC: 2025:KHC-D:367
RSA No. 100478 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100478 OF 2023 (PAR-)
BETWEEN:
1. SRINIVAS SHETTY
S/O. BADMI NARAYANA SHETTY,
AGE. 73 YEARS,
OCC. BUSINESS,
R/O. MOKA VILLAGE,
TQ. BALLARI,
DIST: BALLARI - 583117.
2. ANANTHACHAKRAPANI SHETTY,
S/O. BADMI NARAYANA SHETTY,
AGE. 71 YEARS,
OCC. HOUSEHOLD,
R/O. MOKA VILLAGE,
TQ: BALLARI,
DIST: BALLARI - 583117.
VN ...APPELLANTS
BADIGER
(BY SMT. SUNITHA P KALASOOR, ADVOCATE)
Digitally signed AND:
by V N
BADIGER
Date: 1. SUDHALAKSHMI
2025.01.10 W/O. ANANTHASENA SHETTY,
16:44:26 +0530 D/O. BADMI NARAYANA SHETTY,
AGE. 69 YEARS,
OCC: HOUSEHOLD,
R/O. MOKA VILLAGE,
TQ. BALLARI.
DIST: BALLARI - 583117.
2. VIJAYALAKSHMI
W/O. VENKOBAIAH SHETTY,
-2-
NC: 2025:KHC-D:367
RSA No. 100478 of 2023
AGE. 79 YEARS,
R/O. MOKA VILLAGE,
TQ. BALLARI.
DIST: BALLARI - 583117.
...RESPONDENTS
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THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
DECREE PASSED IN O.S.NO.183/2014 DATED 22.10.2018 PASSED
BY THE I ADDL. SENIOR CIVIL JUDGE, BALLARI AND R.A.NO.56/2018
DATED 14.12.2022 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, BALLARI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the defendant Nos.1 and 2,
challenging the judgment and decree dated 14.12.2022 in RA
No.56/2018 on the file of Principal District and Sessions Judge,
Ballari, (for short hereinafter referred to as 'First Appellate
Court'), confirming the judgment and decree dated 22.10.2018
in OS No.183/2014 on the file of I Additional Senior Civil Judge,
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Ballari, (for short hereinafter referred to as 'Trial Court'),
decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. It is the case of the plaintiff that the defendant
Nos.1 and 2 are the brothers of the plaintiff and defendant No.3
is the sister-in-law of the plaintiff. It is the case of the plaintiff
that the father of the plaintiff had two wives by name Smt.
Meenakshamma and Smt. Seethamma. Smt. Meenkashamma
had a son by name Venkoba Shetty (husband of the defendant
No.3). The second wife of the father of the plaintiff by name
Seethamma had three children i.e, defendant Nos.1 and 2 and
the plaintiff. It is the case of the plaintiff that the schedule
properties are the joint family properties of the plaintiff and
defendants and as such the plaintiff has made a demand for
division of the property, and same was denied by the
defendants despite panchayath was conducted in the presence
of elderly people in the locality and as such the plaintiff has
filed OS No.183/2014 before the Trial Court seeking relief of
partition and separate possession in respect of the suit
schedule properties.
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4. After service of notice, the defendants entered
appearance and filed separate written statement. It is the
specific contention of the defendant No.1 that the suit schedule
properties are the self acquired properties of the defendant
No.1 having purchased the same out of his own earnings and
as such denied the right of the plaintiff in respect of the suit
schedule properties. It is further stated in the written
statement that item Nos.3 and 4 are the self acquired
properties of defendant No.1 and therefore, sought for
dismissal of the suit.
5. The defendant No.2 has filed written statement
contending that the plaint schedule properties have been
granted to the tenants by the government during 1974 and the
defendant No.2, got back the land by purchasing the same and
therefore, the defendant No.2 is in peaceful possession of the
land in question.
6. The defendant No.3 has filed written statement
admitting the relationship between the parties and sought for
equitable share in the suit schedule properties.
7. The Trial Court after considering the pleadings on
record formulated issues for its consideration. In order to
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establish his case the plaintiff has examined one witness as
PW1 and got marked 11 documents as Ex.P1 to P11.
Defendant No.1 was examined as DW1 and produced 2
documents and same were marked as Ex.D.1 and D2. The Trial
Court after considering the material on record by its judgment
and decree dated 22.10.2018 decreed the suit in part holding
that the plaintiff is entitled for 1/4th share in item Nos.1 and 2
of the suit schedule properties. Feeling aggrieved by the same,
the defendant No.1 has preferred appeal before the First
Appellate Court in RA No.56/2018 and same was resisted by
the respondents therein. The First Appellate Court after
considering the material on record by its judgment and decree
dated 14.12.2022 dismissed the appeal and as such confirmed
the judgment and decree passed in OS No.183/2014. Feeling
aggrieved by the same, the defendant Nos.1 and 2 have
preferred this regular second appeal.
8. Smt. Sunitha P. Kalasoor, learned counsel
appearing for the appellants argued that both the Courts below
have not properly appreciated the material on record
particularly considering the revenue entries made in the RTC
extracts and accordingly, sought for interference of this Court.
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9. Having taken note of the submission made by the
learned counsel appearing for the appellants it is not in dispute
that the father of the plaintiff - Ananthasena Shetty had two
wives namely Meenkashamma and Seethamma. Plaintiff and
defendant Nos.1 and 2 are the children of second wife of the
father of the plaintiff and defendant No.3 is the daughter-in-law
of the first of wife of Badmi Narayana-Meenkashi.
10. In order to understand the relationship between the
parties, the genealogical tree is reads as under:
Badmi Narayana Shetty s/o. Nagappa (Poti)
wife wife
Meenakshamma Seethamma (poti)
(Poti)
Children
Son
Venkoba shetty 1. Son 2. Son 3. Daughter
(poti) Srinivas Ananthachadrapani Sudhalakshmi
Shetty Shetty 60 (years)
Wife
Vijayalakshmi
(70 years)
11. It is also not is dispute that the item Nos.1 and 2 of
the suit schedule properties stand in the name of the father of
the plaintiff and the defendant Nos.1 and 2 have not produced
any cogent material before the Trial Court to establish that the
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item Nos.1 and 2 of the suit schedule properties are the self
acquired properties of the defendant Nos.1 and 2. It is also to
be noted that the defendant No.2 has accepted the judgment
and decree passed by the Trial Court in OS No.183/2014 and
has not challenged the same in appeal under Section 96 of
CPC. However, preferred the second appeal under Section 100
of CPC which is impermissible under law.
12. Taking into account the finding of fact recorded by
both the Courts below as the item Nos.3 and 4 of the suit
schedule properties are the self acquired property of defendant
Nos.1 and 2 and that apart, the item Nos.1 and 2 of the suit
schedule properties are the joint family properties of plaintiff
along with the defendants and therefore, there is no perversity
in the judgment and decree passed by the Courts below. The
appellants herein has not made out a case for formulation of
substantial question of law as required under Section 100 of
CPC and accordingly, the appeal is dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM
