Karnataka High Court
Mr.Dayananda.P vs Smt.Varija on 12 March, 2024
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NC: 2024:KHC:10398
RSA No. 319 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 319 OF 2014 (PAR)
BETWEEN:
MR. DAYANANDA.P
S/O LATE P. MUNDAPPA
AGED ABOUT 54 YEARS
R/AT MUNDAPPA COMPOUND
KULSHEKAR - 575 005
MANGALORE TALUK, DK.
...APPELLANT
(BY SRI. Y RAJENDRA PRASAD SHETTY, ADVOCATE)
AND:
1. SMT. VARIJA
AGED ABOUT 60 YEARS
Digitally signed D/O LATE MAIRE HENGSU
by R DEEPA KODIKAL KATTE - 575 006
Location: HIGH MANGALORE.
COURT OF
KARNATAKA 2. SMT KRISHNAMMA
D/O LATE SHANTHA
SINCE DEAD BY LR'S
2(A) MR. GIRIDHAR MAROLI
AGED ABOUT 66 YEARS
S/O KRISHNAMMA
R/AT CANARA APARTMENTS
FLAT NO.202, G T ROAD
HAMPANAKATTA, MANGALORE-575 001
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NC: 2024:KHC:10398
RSA No. 319 of 2014
2(B) MRS M. SHEELAVATHI
AGED ABOUT 60 YEARS
D/O KRISHNAMMA
R/AT SHIVA NILAYA
FIRST FLOOR, URVA MARIGUDI
HOIGEBAIL, MANGALORE - 575 008
2(C) MRS. SAVITHA
AGED ABOUT 37 YEARS
D/O SAKKUBAI
2(D) MR. SHARATH KUMAR
AGED ABOUT 35 YEARS
S/O SAKKUBAI
2(C) AND 2(D) BOTH ARE R/AT PANCHAJANYA
KUJATHBAIL, MARAKADA
MANGALORE - 575 015.
2(E) MR. SANTHOSH KUMAR
ADULT
S/O SAKKUBAI
R/AT D NO.6-9-293, MANJAPPA
ACHARI COMPOUND, KANTHARAJA LANE
MANNAGUDDA, MANGALORE - 575 003
3. MR RAGHUVEER
AGED ABOUT 45 YEARS
4. MRS PREMALATHA
AGED ABOUT 42 YEARS
5. MRS ROOPA
AGED ABOUT 40 YEARS
No.3, 4 AND 5 ARE CHILDREN OF LATE PALAKSHI
ALL ARE R/AT AMMU MOILY COMPOUND
KANTHARAJ LANE, MANNAGUDDA
MANGALORE - 575 003
6. MR JAYAPRAKASH
AGED ABOUT 61 YEARS
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RSA No. 319 of 2014
7. MRS. SUMITHRA
AGED ABOUT 58 YEARS
8. MRS. BHANUMATHI
AGED ABOUT 54 YEARS
9. MRS NALINI
AGED ABOUT 46 YEARS
10. MR PRAVEEN
AGED ABOUT 42 YEARS
R6 TO R10 ARE THE CHILDREN OF
LATE LEELA ALIAS SHARADA
ALL ARE R/AT AMMU MOILY COMPOUND
KANTHARAJ LANE, MANNAGUDDA
MANGALORE - 575 003.
11. MRS. LEELA
AGED ABOUT 58 YEARS
D/O LATE KAMALA
C/O KRISHNA DEVADIGA
PRAKRITHI, ANAND NAGAR
2ND CROSS, KAVOOR POST
MANGALORE - 575015.
12. MRS NALINI
AGED ABOUT 52 YEARS
D/O LATE BHAVANI
BEHIND MUNSIFF COURT
KARKALA, UDUPI DISTRICT - 574 104.
13. MRS SHASHIKALA
AGED ABOUT 72 YEARS
D/O LATE SEETHAMMA
R/AT PARISHRAM
NEAR SHIVABAGH
3RD CROSS, KADRI
MANGALORE - 575 002
14. MRS KAMALA
AGED ABOUT 67 YEARS
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RSA No. 319 of 2014
SINCE DEAD BY LRS
14(A) SRI BHASKAR
AGED ABOUT 44 YEARS
14(B) SMT VANITHA
AGED ABOUT 40 YEARS
14(C) SRI KRISHNA POOJARY
AGED ABOUT 38 YEARS
ALL ARE R/AT SESI NIVAS
KOPPAL
HALEANGADI POST
MANGALORE TALUK - 575 146
14(D) SRI ASHOK
AGED ABOUT 49 YEARS
R/AT KADAMBODI HOUSE
HOSABETTU, SURATHKAL
MANGALORE TALUK - 575 014
14(E) SMT SUGANDHI
AGED ABOUT 42 YEARS
R/AT D NO.1/23
1ST BLOCK, KATIPALLA PORT
NEAR NITHYANANDA BAJANA
MANGALORE - 575 030
15. MRS VIMALA
AGED ABOUT 62 YEARS
16. MRS BABY
AGED ABOUT 60 YEARS
17. MR NAGESH
AGED ABOUT 55 YEARS
SINCE DECEASED HIS LR'S
17(A) SMT. INDIRA
AGED ABOUT 58 YEARS
W/O LATE NAGESH
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NC: 2024:KHC:10398
RSA No. 319 of 2014
R/AT No.1-45A, 1ST BLOCK
KATIPALLA, MANGALURU - 575 030
DK DISTRICT.
17(B) MR. RAMACHANDRA
AGED ABOUT 42 YEARS
S/O LATE NAGESH
17(C) MR. MACHENDRA
AGED ABOUT 41 YEARS
S/O LATE NAGESH
17(D) MR. UDAYA KUMAR
AGED ABOUT 39 YEARS
S/O LATE NAGESH
17(E) MS. SHOBHA
AGED ABOUT 37 YEARS
D/O LATE NAGESH
17(F) MS. SHARADA
AGED ABOUT 34 YEARS
D/O LATE NAGESH
15, 16, 17(B-F) ARE R/AT
KOPPAL HOUSE, HALEANGADI POST
MANGALURU TALUK - 575 146
18. MR CHANDRASHEKAR
AGED ABOUT 46 YEARS
19. MRS SAROJINI
AGED ABOUT 67 YEARS
20. MRS CHANDRAKALA (CHANDRAVATHI)
AGED ABOUT 50 YEARS
21. MRS VIJAYALAKSHMI
AGED ABOUT 45 YEARS
22. MRS HEMALATHA
AGED ABOUT 62 YEARS
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NC: 2024:KHC:10398
RSA No. 319 of 2014
23. MRS JAYANTHI
AGED ABOUT 57 YEARS
R15 TO R23 ARE THE CHILDREN OF
LATE MUNDAPPA
ALL ARE R/AT C/O PURUSHOTHAM DEVADIGA
D.A.R. NO.56, POLICE LANE
MANGALORE- 575001
24. MRS. SAROJINI
AGED ABOUT 67 YEARS
25. MR MANESH
AGED ABOUT 36 YEARS
R24 IS THE WIFE AND R25 IS THE SON OF
LATE VISHWANATHA
BOTH ARE R/AT MAROLI
SHAMBAVI NILAYA
NEAR K K STEEL, JEPPU
MAHAKALIPADPU, MANGALORE - 575 002.
...RESPONDENTS
(BY SRI. ANANDARAMA K, ADVOCATE FOR R1, R2(A-E)
R3 TO R13, R14(A-E), R15 TO R17(A TO F), R19, R20 TO
R25 ARE SERVED
V/O DATED 18.02.2019 NOTICE TO R18 IS HELD
SUFFICIENT)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 21.10.2013 PASSED IN R.A.NO.
45/2011 ON THE FILE OF THE COURT OF THE II ADDITIONAL
SENIOR CIVIL JUDGE MANGALORE, D.K. DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD
13.06.2011 PASSED IN O.S.NO.631/2008 ON THE FILE OF THE
COURT OF PRINCIPAL CIVIL JUDGE & J.M.F.C., AT
MANGALORE, D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:10398
RSA No. 319 of 2014
JUDGMENT
This Regular second appeal is filed by the appellants challenging the judgment and decree dated 21.10.2013 passed in R.A.No.45/2011 passed by the II Additional Senior Civil Judge, Mangalore, D.K., confirming the judgment and preliminary decree dated 13.06.2011 passed in O.S.No.631/2008 by the Principal Civil Judge and JMFC, Mangalore, D.K.
2. The parties are referred to as per their ranking before the trial Court. The appellant is defendant No.1, respondent Nos.1 to 17 are plaintiffs, respondent Nos.18 to 25 are other defendants.
3. The brief facts leading rise to filing of this appeal are as under:
The plaintiffs filed a suit for partition and separate possession against the defendants in respect of suit schedule property. It is the case of the plaintiffs, that plaintiffs and defendants are all successors of the 6 sisters -8- NC: 2024:KHC:10398 RSA No. 319 of 2014 namely, Myre(Ramu), Somu, Shantha, Dasamma, Seethamma and Devaki (Deyi). The said 6 sisters had joint and equal shares as moolgeni tenants of immovable property in the suit schedule property. The said 6 sisters had died intestate leaving behind their successors. The plaintiff No.1 is the successor of late Myre. Plaintiff Nos.2 to 10 are the successors of late Shantha. Plaintiff No.11 is the successor of late Dasamma. Plaintiff Nos.12 and 13 are the successors of late Seethamma. Plaintiff Nos.14 to 17 are the successors of late Devaki. The defendants are successors of late Somu. The plaintiffs demanded for partition and separate possession of the suit schedule property, but the defendants refused to effect the partition and cause of action arose for the plaintiffs to file a suit for partition and separate possession. Hence, filed this suit.
4. Though summons was duly served on defendant Nos.2 to 9, but they remained absent. Hence, they placed exparte.
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NC: 2024:KHC:10398 RSA No. 319 of 2014
5. Defendant No.1 filed the written statement admitting the contents of the plaint except denying that plaintiff No.1 is the daughter of Myre (Ramu). Hence, plaintiff No.1 is not entitled for any share in the suit schedule property and prayed to dismiss the suit against the plaintiff No.1.
6. The Trial Court, on the basis of the above said pleadings, framed the following issues:
1. Whether the plaintiff No.1 prove that she is the legal heir of Maire Hengsu alias Ramu and she is entitled for the share as prayed in the plaint?
2. Whether the plaintiffs prove that they are entitled for the share as claimed in the plaint?
3. Whether the defendant No.1 proves that he is the owner of the plaint schedule property as per the Will dated 18.08.1988 executed by said Ramu?
4. Whether the defendant No.1 proves that he has spent huge amount of Rs.3,00,000/- for the improvements in the plaint schedule property?
5. Whether the defendant No.1 proves that he and late Mundappa have perfected the title
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NC: 2024:KHC:10398 RSA No. 319 of 2014 over the property by way of adverse possession?
6. Whether the Court fee paid is not proper?
7. Whether the plaintiff is entitled for the relief of accounts as prayed in the plaint?
8. Whether the plaintiff is entitled for the relief as prayed in the plaint?
9. What order or decree?
7. The plaintiffs in order to prove their case, plaintiff No.13 was examined as PW.1 and got marked 8 documents as Exs.P1 to 8. In rebuttal, defendant No.1 was examined as DW.1 and got marked 8 documents as Exs.D1 to 8. The trial Court after recording the evidence and hearing the arguments of learned counsel for the parties and on the assessment of oral and documentary evidence answered issue Nos.1, 2 and 6 to 8 in the affirmative, issue Nos.3 to 5 in the negative and issue No.9 as per the final order. The suit of the plaintiffs was decreed with costs. It is ordered and declared that the plaintiffs are jointly entitled for 5/6th share in the suit schedule property and directed the defendants to render
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NC: 2024:KHC:10398 RSA No. 319 of 2014 accounts and to pay the share of the plaintiffs in the income arising out of the suit schedule property from the date of suit till the actual division.
8. Defendant No.1 aggrieved by the judgment and decree passed by the trial Court granting share to plaintiff No.1 preferred an appeal in R.A.No.45/2011 on the file of II Additional Senior Civil Judge, Mangalore, D.K. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
1. Whether the plaintiffs have proved before the trial Court that they have got legitimate share in the suit schedule property?
2. Whether the order passed by the trial Court is required interference?
3. What order ?
9. The First Appellate Court, on re-assessment of oral and documentary evidence answered point No.1 in the affirmative, point No.2 in the negative and consequently dismissed the appeal filed by defendant No.1.
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NC: 2024:KHC:10398 RSA No. 319 of 2014
10. Defendant No.1 aggrieved by the impugned judgments and decree passed by the courts below, has filed this second appeal.
11. Heard the learned counsel for defendant No.1.
12. Learned counsel for defendant No.1 submits that defendant No.1 has denied the relationship of plaintiff No.1 with Myre (Ramu). He submits that plaintiff No.1 has not entered into witness box. The trial Court has committed an error in awarding a share to plaintiff No.1. He also submits that plaintiff No.1 has not produced any record to show that she is the legal heir of Myre (Ramu). Hence, the judgments and decrees passed by the courts below are arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal.
13. Perused the records and considered the submission of the learned counsel for defendant No.1.
14. It is the case of the plaintiffs that plaintiffs are the legal heirs of deceased Myre (Ramu), Somu, Shantha,
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NC: 2024:KHC:10398 RSA No. 319 of 2014 Dasamma, Seethamma and Devaki(Deyi) and all the sisters had a joint and equal share as a Moolageni tenants of immovable properties in respect of suit schedule property. The plaintiffs have succeeded to the estate of their deceased mothers as successors. The plaintiffs demanded for partition and separate possession but defendant No.1 denied to effect the partition on the ground that the plaintiffs have not approached and requested him to effect partition. Further, defendant No.1 has filed the written statement contending that plaintiff No.1 is not a legal heir of Myre (Ramu). Though in the course of cross examination it was suggested to DW.1 that all the plaintiffs are the legal heirs of 6 sisters and in fact, it includes plaintiff No.1, in view of the admission in the course of cross examination at para 25, which reads as under:
"25. J¯Áè ¥ÀæwªÁ¢UÀ¼ÀÄ ¸ÉÆêÀÄÄ EªÀ¼À ªÁgÀ¸ÀÄzÁgÀgÀÄ JAzÀgÉ ¸Àj. ªÁ¢UÀ¼ÀÄ ¸ÉÆêÀÄÄ«£À ¸ÀºÉÆÃzÀjAiÀĪÀgÀ ªÁgÀ¸ÀÄzÁgÀgÀÄ JAzÀgÉ ¸Àj. ªÁ¢UÀ½UÉ zÁªÁ ¸ÀéwÛ£À°è 6 gÀ°è 5 CA±À ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ½UÉ 6 gÀ°è 1 CA±À ºÀPÀÄÌ EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëAiÀÄÄ ªÁ¢UÀ¼ÀÄ E°èvÀ£ÀPÀ ºÀPÀÄÌ PÉüÀ®Ä §A¢gÀĪÀÅ¢®è JAzÀÄ ºÉüÀÄvÁÛgÉ."
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NC: 2024:KHC:10398 RSA No. 319 of 2014 ªÁ¢UÀ¼ÀÄ ºÀPÀÄÌ PÉüÀzÉà EzÀÝ PÁgÀtPÉÌ CªÀjUÉ ºÀPÀÄÌ E®è JAzÀÄ ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸Àj.
15. Defendant No.1 in the course of cross examination has admitted the relationship of plaintiff No.1 with Myre (Ramu). In view of admission of DW.1, the fact admitted need not be proved as per Section 58 of Evidence Act, 1872. Further, Section 50 of Evidence Act is clear in order to form the opinion of the relationship. The Court will form an opinion in regard to the relationship as to consider the opinion expressed by conduct, or as to the existence of such relationship, of any person who, as a member of the family or otherwise, has a special means of knowledge on the subject, is a relevant fact. Plaintiff Nos.2 to 17 admitted the relationship of plaintiff No.1 with Myre (Ramu) and also defendant No.1 has admitted the said relationship. In the view of Section 50 of the Evidence Act, plaintiffs have proved that plaintiff No.1 is the legal heir of Myre (Ramu). The trial Court was justified in granting the share to plaintiff No.1. The First Appellate Court on re-appreciation
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NC: 2024:KHC:10398 RSA No. 319 of 2014 of material evidence on record was justified in confirming the judgment and preliminary decree passed by the trial Court. Both the courts below have assigned reasons to grant a share to plaintiff No.1. I have perused the impugned judgments. I do not find any substantial question of law that arises for consideration and any error in the impugned judgments.
16. Accordingly, I proceed to pass the following:
ORDER The appeal is dismissed.
Judgments and decree passed by the courts below are hereby confirmed.
No order as to the costs.
In view of disposal of the appeal, I.A.No.1/2015 does not survive for consideration and accordingly disposed of.
Sd/-
JUDGE SKS