Karnataka High Court
Narasimhaiah vs Smt Kariyamma on 20 January, 2025
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2025:KHC:2082
RSA No. 1544 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR SECOND APPEAL NO. 1544 OF 2022 (PAR)
BETWEEN:
1. NARASIMHAIAH
SINCE DEAD BY HIS LRS.
2. SRI KARIYAPPA
AGED 49 YEARS
SON OF LATE NADUKERAIAH
3. SMT. MANJULA N
AGED 43 YEARS
DAUGHTER OF LATE NARASIMHAIAH
WIFE OF SRI RANGAIAH.
3. SRI RANGAIAH
AGED 68 YEARS
SON OF LATE NADUKERAIAH.
ALL ARE RESIDENT OF
DODDAKUNNALA KADABA HOBLI
Digitally GUBBI TALUK - 572 219
signed by
NANDINI MS TUMAKURU DISTRICT.
Location: ...APPELLANTS
High Court of
Karnataka (BY SRI JAGADISH BALIGA N, ADV.)
AND:
1. SMT. KARIYAMMA
AGEED 88 YEARS
WIFE OF LATE NARASIMHAIAH.
2. SRI LAKSHMINARASIMHAIAH
AGED 48 YEARS
SON OF LATE NARASIMHAIAH.
3. SRI KALI PRASAD
AGED 43 YEARS
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RSA No. 1544 of 2022
SON OF LATE NARASIMHAIAH.
ALL ARE RESIDING AT DODDAKUNNALA
KADABA HOBLI, GUBBI TALUK - 572 219
TUMAKURU DISTRICT.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
AGAINST THE JUDGMENT AND DECREE DATED 26.07.2022 PASSED
IN RA.NO.28/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, GUBBI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 23.07.2018
PASSED IN OS.NO.352/2017 ON THE FILE OF THE ADDITIONAL
CIVIL JUDGE AND JMFC, GUBBI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
1. This appeal is filed by the appellants/defendants under
Section 100 CPC challenging the judgment and decree dated
23.07.2018 passed by the Addl. Civil Judge & JMFC, Gubbi, in
O.S.No.352/2017 granting half share in the suit schedule
property to the defendants, which is confirmed by the Addl.
Senior Civil Judge & JMFC, Gubbi, in R.A.No.28/2019 vide
judgment and decree dated 26.07.2022.
2. The case of the appellants/defendants is, that
plaintiffs/respondent nos.1 to 3 herein had filed a suit for
partition and separate possession of the land measuring 3 acres
29 guntas in Sy. No.276 situated at Kunnala, Kadaba Hobli,
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Gubbi Taluk (herein after referred to as 'Suit Schedule
Property').
3. One Nadikeraiah was said to be the propositus of the
family who had two sons viz., Nadikeraiah (defendants family)
and Narasimhaiah (plaintiffs family). Nadikeraiah had three
sons viz., Narasimhaiah (defendant no.1), Rangaiah (defendant
no.2) and Kariyappa (defendant no.3). Narasimhaiah - second
son of Nadikeraiah had only one son by name Narasimhaiah,
who died leaving bhind his wife - Kariyamma (plaintiff no.1)
and two sons viz., Lakshminarasimhaiah (plaintiff no.2) and
Kaliprasad (plaintiff no.3) as his legal representatives.
4. The further case of the plaintiffs before the Trial Court is
that the parties to the suit constituted a Hindu Undivided Joint
family and the suit schedule property is the ancestral property
belonging to Nadikeraiah. After the death of Nadikeraiah,
plaintiffs family would get half share and defendants family
would get half share in the suit schedule property. Hence, the
plaintiffs were constrained to file the suit against the
defendants.
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5. Pursuant to the notice issued, defendants appeared
through their Counsel, but they neither filed the written
statement nor contested the suit. The Trial Court upon perusal
of the plaint averments and the documentary evidence, had
framed the following points for consideration, which reads as
under:
1. Do the plaintiffs prove that the suit
schedule property is an ancestral and joint family
property of suit parties?
2. Do the plaintiffs prove that they and the
defendants are the joint family members?
3. Do the plaintiffs prove that they are
entitled for the share in the suit schedule property
as sought for?
4. What order or decree?
6. The plaintiffs, in order to prove their case, had examined
plaintiff no.3 as PW-1 and got marked documents at Exs.P-1 to
P-3. Defendants did not lead any evidence. The Trial Court after
hearing the arguments of the plaintiffs, decreed the suit of the
plaintiffs by granting half share to the plaintiffs and another
half share to the defendants. Being aggrieved by the same, the
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defendants filed appeal before the First Appellate Court in
R.A.No.28/2019. They also had filed an application under Order
XLI Rule 27 CPC seeking to produce additional evidence. The
application and the appeal was dismissed by the First Appellate
Court confirming the judgment and decree of the Trial Court.
Accordingly, the defendants are before this Court.
7. Learned Counsel for the appellants has contended that
though they appeared through an advocate before the Trial
Court, they have not contested the matter, and therefore, they
need an opportunity to contest the matter. It is also contended
that though the learned Counsel for the appellants had filed an
application under Order XLI Rule 27 CPC before the First
Appellate Court, seeking production of sale deed for having
purchased the property by the grandfather of the appellants,
the same was not allowed by the First Appellate Court.
Therefore, he prays to remand the matter to the Trial Court
and provide the defendants an opportunity to contest the
matter.
8. Considering the facts of the case, issuance of notice to
the respondents is dispensed with.
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9. Having heard the learned Counsel for the appellant, the
point that arises for consideration is,
(1) whether both the courts below committed
an error in passing the impugned judgment and
decree?
(2) whether the appellant ahs made out
sufficient grounds in the present appeal for
remanding the matter to the Trial Court for
providing an opportunity to the appellant?
10. On a careful reading of the judgment and decree of both
the courts below, it is not in dispute that one late Nadikeraiah
was the propositus of the family. The said Nadikeraiah had two
sons viz., Nadikeraiah and Narasimhaiah. The said
Narasimhaiah who is said to be the second son of Nadikeraiah,
had only one son by name Narasimhaiah, who had died leaving
behind the plaintiffs as his legal representatives. Whereas, the
first son - Nadikeraiah was having three children who are
defendants 1 to 3 herein.
11. Admittedly, the propositus Nadikeraiah is the owner of
the property. Even if the documents produced along with the
application under Order XLI Rule 27 CPC is taken into
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consideration, Narasimhaiah S/o Narasimhaiah who had left
behind the plaintiffs, is entitled for half share in the suit
schedule property. Plaintiffs family are the legal heirs of
Narasimhaiah S/o Nadikeraiah and the defendants are the legal
heirs of Nadikeraiah - elder son of Nadikeraiah.
12. Considering the evidence of PW-1 and the documents at
Ex.P-1 - genealogical tree, Ex.P-2 - RTC and Ex.P-3 - certified
copy of RTC, the Trial Court has held that the plaintiffs family is
entitled for half share and defendants family is entitled for half
share. Accordingly, the suit was decreed.
13. Though the appellants have prayed to contest the matter,
since the genealogical tree is not in dispute, the propositus of
the family is also not in dispute, there is no discrepancy in the
allotment of share by the Trial Court and since it is not the case
of the appellants that the suit schedule property is the self-
acquired property of their father, this is not a fit case to
remand the matter back to the Trial Court for contest. Though
the defendants have not contested the matter, they have been
rightly granted half share in the suit schedule property by the
courts below.
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14. It is well settled law that in a suit for partition, the
plaintiffs are defendants and the defendants are plaintiffs.
Therefore, even though there was no contest in the matter by
the defendants, half share to which they are legally entitled,
has been granted by the Trial Court. The said finding of the
Trial Court has been rightly upheld by the First Appellate Court.
Even if the matter is remitted back to the Trial Court, no
divergent finding, otherwise, could be recorded by the Trial
Court. Under the circumstances, no illegality could be found in
the judgment and decree passed by the courts below.
15. The contention of the appellants that they are in
possession of a dwelling house in the suit schedule property
could be putforth in the final decree proceedings for suitable
adjudication.
16. So far as the present appeal is concerned, no substantial
question of law arises for consideration.
17. Accordingly, the appeal is dismissed at the stage of
admission.
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18. Parties are at liberty to agitate their grievances in the
final decree proceedings.
Sd/-
(K.NATARAJAN)
JUDGE
KK
