Karnataka High Court
Shivaprakash vs Smt. Pooja T C on 13 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 285 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.285 OF 2025 (DEC)
BETWEEN:
1. SHIVAPRAKASH
S/O LATE K.S. JAYADEVAPPA
AGED ABOUT 44 YEARS
R/AT SAI NIVAS, 9TH CROSS
YAJAMANARA BEEDI
MANDIPETE, TUMAKURU
PIN-572101.
...APPELLANT
(BY SRI. LAKSHMIKANTH K., ADVOCATE)
AND:
1. SMT. POOJA T.C.,
W/O SUBASH H.N,
Digitally signed AGED ABOUT 32 YEARS
by DEVIKA M
R/AT HULLALLI VILLAGE
Location: HIGH NANJANGUDU TALUK
COURT OF
KARNATAKA MYSURU DISTRICT
PIN-571301.
2. SMT. AMBIKA R.R.,
S/O LATE CHANDRASHEKAR
AGED ABOUT 52 YEARS
R/AT YAJAMANARA BEEDI
MANDIPETE, TUMAKURU
PIN-572101.
...RESPONDENTS
(BY SRI. SURESH T.L., ADVOCATE FOR C/R2)
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RSA No. 285 of 2025
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 3.12.2024
PASSED IN R.A.NO.76/2023 ON THE FILE OF III ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 27.02.2023 PASSED IN O.S.NO.486/2018 ON THE FILE
OF V ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU.
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 appellant.
2. This second appeal is filed against this
concurrent finding. The factual matrix of case of plaintiff
before the Trial Court that one late H.N.Chandrashekhar,
father of 1st plaintiff and husband of 2nd plaintiff and
defendant were brothers. The suit schedule property i.e.,
house bearing Municipal Khata No.994, thereafter
1093/1277/1346 and new No.1492/258, PID No.17951
consisting of old house, measuring East-West 33 feet and
North-South 23 feet originally belongs to one late
K.S.Jayadevappa i.e., the father of late
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H.N.Chandrasekhar and defendant. After the death of the
K.S.Jayadevappa, his two sons namely late
H.N.Chandrasekhar and J.Shivaprakash have partitioned
their joint family property under registered partition deed
dated 11.06.2000. In the said partition, the above said
house property had fallen to the share of late
H.N.Chandrasekhar. The defendant has got acquired his
share in the form of cash Rs.50,000/- and license of fair
price depot to his share. Further, it is contended that room
measuring 8x8 feet facing towards west i.e., towards road
i.e., suit schedule property has been given to the
defendant by the husband of 2nd plaintiff as permissive
user for the purpose of running fair price depot and
accordingly, when husband of 2nd plaintiff desired to
vacate, the defendant agreed for that condition. Hence,
defendant is in possession of the scheduled property. It is
stated that said late Chandrasekhar died on 29.12.2004
leaving behind the plaintiffs as his legal heirs. After his
death, the Katha of the above property, including suit
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schedule property was transferred in the name of the 2nd
plaintiff. Accordingly, the 2nd plaintiff is in possession of
both the properties therein. Whereas the 2nd plaintiff
requested the defendant to vacate the suit property. But
the defendant did not vacate the same and hence, legal
notice was issued.
3. It is stated that on 20.07.2013, the 2nd plaintiff
has gifted the house property including the suit schedule
property in favour of her daughter i.e., 1st plaintiff through
registered gift deed. Subsequent to the gift deed, Katha
was also transferred and 1st plaintiff intends to demolish
the existing old structure and put up new construction in
the said property. Accordingly, permission was taken from
the Mahanagara Palike, Tumkur for demolition of the old
structure. The defendant fails to vacate the premises and
hence, the suit is filed. The defendant appeared and filed
the written statement contending that the relationship is
admitted and house property existence total area is also
admitted and belongs to the Jayadevappa is also admitted.
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The suit schedule property is an ancestral property of the
defendant which was acquired by him through his father
Jayadevappa who had acquired the same from his father
under a registered release deed dated 12.11.1969. The
defendant's father was allotted a government fair price
shop and the same is being run in one of the room in suit
schedule property since last 35 years. After the death of
defendant's father, the license of fair shop changed in the
name of the defendant's mother namely Shankaramma.
The defendant's mother died on 16.10.1998 and thereafter
license of the fair price depot has been transferred in the
name of the defendant.
4. It is contended that defendant, his brother and
sisters have raised loan from Tumkuru Veerashaiva
Co-operative Bank as a security of suit schedule property.
The defendant's brother namely late Chandrasekhar asked
defendant to come near Sub-Registrar Office, Tumkuru to
sign on loan paper. The defendant believing words of his
brother has signed on loan paper. Defendant's brother
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died in the year 2004. It is stated that defendant
continued to do business in the portion of the suit
schedule property and during lifetime of his brother, he
never stated about alleged deed of partition and denied
the very partition.
5. The Trial Court having considered the pleadings
of the parties, framed the issues and allowed the parties to
lead evidence. Having considered both oral and
documentary evidence, comes to the conclusion that there
was a partition as per Ex.P.1 and in defence of the
defendant that document was created by playing fraud
was not accepted by taking into note of admission on the
part of P.W.1 and the P.W.1 in his cross-examination has
admitted about the partition has been taken place
between himself and his brother late Chandrasekhar on
11.06.2001. He also admitted that he has put his
signature on Ex.P.1 and also admitted that 2nd plaintiff is
residing in the house property. However, it is denied the
very execution of gift deed in favour of the 1st plaintiff and
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also admitted that he is running the society in suit
schedule property. Having taken note of all these
admission comes to the conclusion that defendant is in
possession of the property as permissive user and not as
owner and hence, answered the issues accordingly and
granted the relief by declaring that 1st plaintiff is the
absolute owner of the property in terms of the Gift deed
executed by 2nd plaintiff and also directed to deliver the
vacant possession.
6. Being aggrieved by the said judgment and
decree, present second appeal is filed before this Court.
The First Appellate Court also having considered the
grounds which have been urged in the appeal, formulated
the point whether the judgment and decree of the Trial
Court is perverse and particularly the Appellate Court
considering the admission on the part of D.W.1 and comes
to the conclusion that moreover in the said partition deed,
it was clearly mentioned about cash of Rs.50,000/- and
license for fair price shop towards the share of this
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defendant. When such being the case, if the property is
divided among the brothers and the respective sharers will
get absolute right towards their share to enjoy the same
and also taken note of the very contention that gift deed
was executed and though defendant denies the very
document of partition and the document was registered
document and the same also taken note of and confirmed
the judgment of the Trial Court.
7. Having heard the appellant's counsel and also
on perusal of the grounds which have been urged before
this Court, the main contention raised before this Court is
both the Courts fail to consider the material available on
record and not examined the fact that as per Ex.D.17 the
appellant has shown that the appellants are in possession
and enjoyment of the property and even inspite of their
admission regarding possession is concerned, but
erroneously accepted the case of the plaintiff regarding
partition. It is not in dispute that the partition was taken
place in the year 2000. Subsequently, documents are also
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changed. The very contention that Ex.P.1 is forged and
fabricated and created document. In order to substantiate
the same, not placed any material. Apart from that the
Trial Court while considering the material on record taken
note of admission on the part of D.W.1 in paragraph No.21
wherein he categorically admitted that partition was taken
place between himself and his brother late Chandrasekhar
on 11.06.2001. He has admitted that he has put his
signature on Ex.P.1 and also admitted that the 2nd plaintiff
is residing in the house property. Having taken note of all
these admissions, the very contention of defendant that
fraudulently obtained his signature cannot be accepted.
Apart from that in the document, the very recital is clear
with regard to the payment of Rs.50,000/- and also the
license with regard to the fair price shop is concerned.
When such material is available on record, both the Trial
Court as well as the First Appellate Court considered both
oral and documentary evidence and not found any
perversity and also with regard to the question of fact and
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question of law also considered by both the Courts since
there is a registered document of partition between the
brothers. Hence, rightly passed an order and hence not a
case to invoke Section 100 of CPC.
8. In view of the discussions made above, I pass
the following:
ORDER
i) Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if
any do not survive for consideration, the
same stands disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
