Karnataka High Court
Mahadevegowda vs Smt Siddarajamma on 6 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 697 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.697 OF 2022 (PAR)
BETWEEN:
1. MAHADEVEGOWDA
S/O LATE KALEGOWDA @ SANNEGOWDA
AGED ABOUT 57 YEARS
SINDENAHALLI VILLAGE
HAMPAPURA HOBLI
H.D. KOTE TALUK
MYSURU DISTRICT-571125.
2. SRI. CHANDRU
S/O LATE KALEGOWDA @ SANNEGOWDA
AGED ABOUT 45 YEARS
SINDENAHALLI VILLAGE
HAMPAPURA HOBLI
Digitally signed H.D. KOTE TALUK
by DEVIKA M MYSURU DISTRICT-570008.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA
(BY SRI. SUBHASH CHANDRA BOSE, ADVOCATE)
AND:
1. SMT. SIDDARAJAMMA
W/O CHIKKANNA
AGED ABOUT 56 YEARS,
RESIDING AT DODDAHUNDI VILLAGE
JAYAPURA HOBLI
MYSURU TALUK
MYSURU DISTRICT-570008.
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RSA No. 697 of 2022
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2. SMT. MANGALAMMA
W/O K. MAHADEVAIAH
AGED ABOUT 53 YEARS
RESIDING AT NAYAKANAHUNDI VILLAGE,
HAMPAPURA HOBLI, H.D.KOTE TALUK
MYSURU DISTRICT-571125.
3. SMT. RATHNAMMA
D/O LATE KALEGOWDA
AGED ABOUT 50 YEARS,
RESIDING AT DODDAHUNDI VILLAGE,
JAYAPURA HOBLI, MYSURU TALUK
MYSURU DISTRICT-570008.
4. SRI NAGARAJU
S/O LATE KALEGOWDA @ SANNEGOWDA
AGED ABOUT 51 YEARS,
R/AT C/O RAJANNA
HOSA ANANDUR,
BELAGOLA POST
SRIRANGAPATNA TALUK
MANDYA DISTRICT-571606.
5. SRI. T.K. SUDHEERA
S/O T.V. KRISHNAMURTHY
AGED ABOUT 52 YEARS
NO.1044/H,
JAYALAKSHMI VILASA ROAD
CHAMARAJAPURA, MYSURU
MYSURU DISTRICT-570005.
6. SRI JAVAREGOWDA
S/O LATE BASAVEGOWDA
@ HALLIGOWDA BASAVEGOWDA
AGED ABOUT 85 YEARS,
RESIDING AT D SALUNDI VILLAGE
JAYAPURA HOBLI
MYSURU TALUK
MYSURU DISTRICT-570008.
...RESPONDENTS
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RSA No. 697 of 2022
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.09.2021
PASSED IN R.A.NO.373/2019 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, MYSURU, PARTLY ALLOWING
THE APPEAL AND FILED AGAINST THE JUDGMENT AND
DECREE DATED 18.07.2019 PASSED IN O.S.NO.1014/2007 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
MYSURU.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellants.
2. The suit is filed for the relief of partition and
separate possession claiming 1/6th share in the suit
schedule property. It is the case of the plaintiffs that the
plaintiffs and defendant Nos.1 to 3 are the children of
deceased Kalegowda @ Sannekoda and his wife Kadamma
who constitute joint family and suit schedule properties
are their ancestral and joint family properties and they are
in joint possession and enjoyment of the same. They have
succeeded to the estate of their father and no partition has
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been effected between them. The plaintiff had approached
the defendants several times, but his effort made to get
the partition was became vain and hence, filed the suit. In
the first instance filed the suit against only defendant
Nos.1 to 3 in respect of suit schedule item Nos.1 to 4 and
later on defendant Nos.4 and 5 came to be impleaded as
parties to the suit and also included suit item Nos.5 and 6
in the plaint and claimed their share. It is the claim of
defendant Nos.1 and 3 that plaintiffs have been married
much earlier to 1994 and their marriage was performed by
defendant No.1 by giving cash on gold ornaments. Hence,
they are not entitled for any share and they are
relinquished their share.
3. It is also the contention that the defendant
Nos.1 and 3 have disputed the survey number and
measurement of the suit schedule properties. The suit
schedule item No.3 bearing Sy.No.188/1 measuring 2
acres 26 guntas out of which 1 acre 8 guntas belong to
defendants and not 27 guntas has averred in the plaint.
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The suit schedule item No.6 is the absolute property of
defendant No.3, the said property was in a delirogated
condition and the same was renovated by defendant No.5
by investing more than Rs.4,00,000/-. It is also the
contention that there was already a partition earlier to the
institution of the suit and same has been suppressed by
the plaintiffs and also suit is barred by limitation. The 2nd
defendant also filed a separate written statement and he
claims that partition was taken place among the plaintiffs
and defendant Nos.1 to 3 and suit item No.5 was allotted
to the share of defendant No.1 and he has sold the same
in favor of defendant Nos.4 by executing a sale deed and
suit item Nos.1, 3 and 4 were allotted to the share of
defendant Nos.2 and 3 since they have performed the
marriage of plaintiffs and they looked after the welfare of
the plaintiffs. It is also the contention of the defendant
No.2 that father and mother died on 25.06.1980 and in
the year 2003 respectively and therefore defendant Nos.1
to 3 have performed the marriage of plaintiff and got
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partitioned the family properties and in view of already
there was a partition, question of granting any share
doesn't arise.
4. The Trial Court having considered the pleadings
of the parties, framed the issues and also in view of
defense taken by defendant No.5 that suit is not
maintainable against him in respect of item No.3. The Trial
Court having considered the evidence available on record,
particularly the evidence of witnesses that is P.W.1 and
P.W.2 and also D.W.1 to D.W.7 and document at Ex.P.1 to
Ex.P.11 and Ex.D.1 to Ex.D.76 answered the issue Nos.1,2
and 5 partly in the affirmative and addl issue Nos.1 and 3
as affirmative in coming to the conclusion that suit
schedule properties are ancestral and joint family
properties and also though claimed 1/6th share in the suit
schedule property, granted the relief of partition 1/24th
share each in suit schedule item Nos.1, 2, 4 and 6 and
defendant Nos.1 to 3 are entitled for 7/24th share each in
the suit item Nos.1, 2, 4 and 6. Being aggrieved by
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granting of the share only in respect of item Nos.1, 2, 4
and 6, an appeal is filed by the plaintiffs before the First
Appellate Court and Appellate Court also having
re-assessed both oral and documentary evidence available
on record and also the grounds which have been urged in
the appeal, formulated the point as whether Trial Court
committed an error in not granting the relief in respect of
item Nos.3 and 5 and whether they are entitled for equal
share with defendant Nos.1 to 3 and First Appellate Court
having re-assessed both oral and documentary evidence
available on record, not accepted the case of appellant
claiming of the share in respect of item Nos.3 and 5.
However, answered the point No.2 as affirmative in
coming to the conclusion that appellants are entitled for
equal share along with defendant Nos.1 to 3 and modified
the share as 1/6th share in item Nos.1, 2, 4 and 6 of the
suit schedule property along with defendant Nos.1 to 3
since they are the legal heirs of Kalegowda and Kalamma
and equal share was given by the appellant. Being
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aggrieved by the judgment of Trial Court and also the
judgment of the Appellate Court, present second appeal is
filed before this Court by the defendants/appellant
contending that though an application is filed under Order
41 Rule 27 of CPC to receive additional documents that is
Gramasthara Helike dated 14.12.2019 and copy of the
order in R.A.No.238/2016 dated 03.02.2021 passed by the
Assistant Commissioner not considered the I.A in a proper
perspective and ought to have been allowed the same and
given an opportunity to adduce the evidence and also
contend that granting of 1/6th share in item Nos.1, 2, 4
and 6 of suit schedule property along with defendant
Nos.1 to 3 by First Appellate Court is also erroneous and it
requires interference of this court. The counsel would
contend that this Court has to frame the substantive
question of law for granting of 1/6th share in respect of
defendant Nos.1 to 4 and 6 and it requires interference.
5. Having heard the learned counsel for the
appellants and also reasoning given by the Trial Court,
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there is no dispute with regard to the relationship between
the parties that the plaintiff and defendant Nos.1 to 3 are
the children of Kalegowda and Kalamma. The Trial Court
taken note of in paragraph No.29 that the nature of
properties which are subject matter of the partition also
ancestral properties and also the reasoning was given
while granting the share in respect of item Nos.1, 2, 4 and
6, the entitlement of share was also discussed but granted
the share of 1/4th share over 1/24th share which comes to
7/24th share each in the properties and also taken note of
relationship and father of the defendant Nos.1 to 3 died in
the year 1980 and comes to the conclusion that plaintiffs
are entitled for notional partition and as observed by the
First Appellate Court in R.A.No.173/2013 and granted
1/24th share and the same was challenged before the
Appellate Court and Appellate Court having re-assessed
the material on record and though an application is filed
under Order 41 Rule 27 of CPC and only document
produced before the Court is Gramasthara Helike and this
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document is not an admissible document and also the
same is not the document of partition or settlement.
Hence, the First Appellate Court rightly comes to the
conclusion that the said document cannot be relied upon
and also another document relied upon is
R.A.No.238/2016 only an order passed by the Assistant
Commissioner that is only setting aside the order passed
by the Tahasildar and rights of the parties has to be
decided in Civil Court subject to the decision of the Civil
Court and when reason was assigned in paragraph No.39
in detail in rejecting the application filed under Order 41
Rule 27 of CPC while considering an application under
Order 41 Rule 27 of CPC, it is also settled law that if any
issues involved between the parties and the additional
documents which were produced touches the germane
issues between the parties, then Court can consider the
same, but in the case on hand, the document which has
been relied upon admittedly, the document is not a
registered document and also not an admissible document
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and neither a partition deed nor a deed of settlement and
when such being the case and also the counsel appearing
for the appellant would contend that already there was a
partition and in order to prove the factum of earlier there
was a partition between the plaintiff and defendants,
nothing is placed on record except pleading that after the
death of the parents, the defendant No.1 only performed
the marriage of the appellants. The fact that appellants
are the sisters of the defendant Nos.1 to 3 is not in
dispute. when such material available on record and there
is no dispute with regard to the relationship between the
parties, the First Appellate Court rightly answered the
point No.2 as affirmative that they are equally entitled for
share in the property left by their parents and when such
reasoning was given by the appellate Court, the question
of interfering with the finding of the Appellate Court in
coming to the conclusion that they are entitled for 1/6th
share and same is also considered by the Trial Court, both
question of fact and question of law. Hence, question of
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framing of any substantive question of law doesn't arise.
Hence, I do not find any grounds to admit and frame any
substantive question of law to decide the issue in this
second appeal.
6. In view of the discussions made above, I pass
the following:
ORDER
Second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
