Karnataka High Court
Smt.Payu Kom Shivu Gouda vs Sri.Baliya Jattu Gouda, on 28 August, 2020
Author: V.Srishananda
Bench: V. Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
RSA NO.5154/2013(PART & SEP POSSN)
BETWEEN
SMT.PAYU KOM SHIVU GOUDA
AGE: 72 YEARS, OCC: AGRICULTURIST,
R/O.SUNAGIMAKKI, BELSE, TQ: ANKOLA,
(U.K.DISTRICT.)-581321.
... APPELLANT
(BY SRI.: H S NAYAK, AND SRI. R H ANGADI &, ADV.s)
AND
1. SRI.BALIYA JATTU GOUDA,
AGE: 83 YEARS, OCC: AGRIUCLTURIST,
R/O.SUNAGIMAKKI BELSE, TQ: ANKOLA,
(U.K.DISTIRCT)-581321.
2. SRI.KANNE SUKRU GOUDA
AGE: 62 YEARS, OCC: AGRICULTURIST,
R/O.SUNAGIMAKKI BELSE, TQ: ANKOLA,
(U.K.DISTIRCT) -581321.
3. SRI.TULASU SUKRU GOUDA
AGE: 57 YEARS, OCC: AGRICULTURIST,
R/O.SUNAGIMAKKI BELSE, TQ: ANKOLA,
(U.K.DISTIRCT)-581321.
... RESPONDENTS
(BY SRI.:GIRISH YADWAD, ADV. FOR
SRI. V P KULKARNI, ADV. FOR R2 & R3
R1- SERVED)
2
RSA FILED U/S.100 R/W. ORDER 41 RULE 22 OF
CPC, AGAINST THE JUDGEMENT & DECREE
DTD:23.11.2012 PASSED IN R.A.NO.25/2009 ON THE FILE
OF THE SENIOR CIVIL JUDGE, KUMTA ITINERARY SITTING
AT ANKOLA, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT DTD:15.12.2007 AND THE DECREE PASSED IN
O.S. NO.89/2006 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.), AT ANKOLA, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS
DAY, COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri. Harish S. Naik, learned counsel representing Sri. R.H. Angadi, for appellant-plaintiff and Sri. Girish Yadawad, on behalf of Sri. V.P. Kulkarni, learned counsel for respondent Nos.2 and 3.
2. A suit came to be filed seeking for partition and separate possession in O.S. No.89/2006.
3. On service of suit summons, the defendants have entered appearance; filed written statement and sought for inclusion of one more property bearing Sy.No.364/5 of Belase village, Ankola taluk, U.K. District (hereinafter referred to as disputed property for short) 3 though standing in the name of plaintiff, contending that it is also joint family property.
4. The trial court after framing necessary issues and after hearing the arguments of the both sides came to the conclusion and decreed the suit holding that apart from the suit property mentioned in the plaint, disputed property is also a joint family property though standing in the name of plaintiff and granted 1/3rd share each in all the suit schedule properties including disputed property.
5. Being aggrieved by the said judgment and decree of the trial court to the extent that of decreeing the suit in property bearing Sy.No.364/5 of Belase village, the plaintiff filed appeal on the file of Senior Civil Judge, Kumta, itinerary sitting at Ankola in R.A. No.25/2009.
6. The First Appellate Court after reappreciation of the entire material on record and after hearing the parties has confirmed the decree passed by the trial 4 court stating that the plaintiff failed to establish that disputed property is the exclusively property of the plaintiff and dismissed the first appeal.
7. It is those judgments, which are under challenge in this second appeal.
8. Learned counsel for the appellant has raised the following substantial questions of law.
1. Whether the judgment and decrees passed by the courts below are suffering from an error and are justifiable in the eye of law?
2. Whether, the courts below have exceeded their jurisdiction by holding that, Sy.No.364/5 of Belase Village, is a joint family property in absence of any documentary and oral evidence?
9. On the above questions, this court heard the parties and perused the appeal papers. 5
10. On perusal of the papers especially the impugned judgment, this court finds that both courts have properly considered the material on record especially in respect of disputed property. In a suit of partition, duty is cast on plaintiff to include all joint family properties.
11. However, if any properties are left out by the plaintiff, defendant can as well bring it to the notice of the court in the written statement for inclusion of the property/ies that were left out by the plaintiff as the joint family properties.
12. Moreover, in a suit for partition, parties are though referred to as plaintiff and defendants, in reality all the parties are to be regarded as plaintiffs and defendants. It is settled proposition of law that in a suit for partition, court can look into the contents of written statement and include the property mentioned in written statement as part of the suit schedule property. Trial 6 court has rightly included the disputed property while decreeing the suit in the case on hand.
13. The First Appellate Court concurred with the reasoning and finding of the trial court after hearing the parties and perusing the records.
14. It is settled proposition of law that when there is a concurrent finding with regard to the fact/s in a given case by the trial court and First Appellate Court, hardly any scope is there for the Second Appellate Court to interfere with finding of fact/s.
15. In view of the same, this court does not find any legal infirmity in the finding recorded by the trial court and as well as the First Appellate Court in the impugned judgment.
Under circumstances, this court is of the considered opinion that the substantial questions raised in the appeal memo does not require further consideration. Accordingly, appeal dismissed. 7
No order as to costs.
In view of the above order, I.A. No.1 would not survive for consideration any longer.
SD/-
JUDGE MNS/-