Karnataka High Court
M Rajaiah vs M Shankaraiah on 9 February, 2023
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RSA No. 1242 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1242 OF 2014 (PAR)
BETWEEN:
M RAJAIAH
S/O LATE MUNIYAPPA
AGED ABOUT 61 YEARS
R/O ANEPALYA VILLAGE
SHETTYKERE HOBLI
CHIKKANAYAKANAHALLI TALUK
TUMKUR DISTRICT - 572214
...APPELLANT
(BY SRI. K S RAMASWAMY IYENGAR, ADVOCATE)
Digitally
signed by AND:
CHAITHRA A
Location: 1. M SHANKARAIAH
HIGH
COURT OF RETIRED PLD BANK SUPERVISOR
KARNATAKA S/O LATE MUNIYAPPA
AGED ABOUT 71 YEARS
R/O BEHIND KALPATARU COLLEGE
1ST CROSS, VIDYANAGAR
TIPTUR TOWN
TUMKUR DISTRICT - 572201
2. M.SHIVANANJAIAH
S/O LATE MUNIYAPPA
AGED ABOUT 66 YEARS
R/O ANEPALYA VILLAGE
SHETTYKERE HOBLI
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RSA No. 1242 of 2014
CHIKKANAYAKANAHALLY TALUK
TUMKUR DISTRICT - 572214
3. M.PRABHAIAH
S/O LATE MUNIYAPPA
AGED ABOUT 56 YEARS
R/O ANEPALYA VILLAGE
SHETTYKERE HOBLI
CHIKKANAYAKANAHALLY TALUK
TUMKUR DISTRICT - 572214
...RESPONDENTS
(BY SRI.G.C.SHANMUKHA, ADVOCATE FOR R.1 AND R.2;
R.2 - EXPIRED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 20.06.2014 PASSED IN
R.A.NO.107/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE,
ITINERATE COURT, C.N.HALLI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
05.09.2013 PASSED IN O.S.NO.52/2009 ON THE FILE OF ADDL.
CIVIL JUDGE & JMFC, CHIKKANAYAKANAHALLY AND ETC.
THIS APPEAL, COMING ON FOR PART HEARD IN
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful defendant No.2, who has questioned the concurrent -3- RSA No. 1242 of 2014 findings of the Courts below, wherein the plaintiff's suit for partition is decreed granting 1/4th share to the plaintiff.
2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court.
3. The plaintiff and defendants are sons of one Muniyappa. It is not in dispute that the suit properties were allotted to share of plaintiff and defendants father Muniyappa under unregistered partition deed dated 09.06.1985. There is a specific recital that after demise of the plaintiff and defendants parents, the lands are to be equally divided between plaintiff and defendants. The present suit is filed by the plaintiff alleging that the defendants are acting adversely to the interest of the plaintiff and in spite of repeated requests, defendants have refused to effect partition by metes and bounds and hence, the present suit.
4. On receipt of summons, defendant No.2 contested the proceedings by filing written statement. Defendant -4- RSA No. 1242 of 2014 No.2 claimed that after demise of plaintiff and defendants parents, there has been further adjustment of properties and suit item Nos.1 to 3 were allotted to his share. Defendant No.2 alleged that there is an arrangement between plaintiff and defendants and claimed that item Nos.1 to 3 are allotted to his share and therefore, sought for dismissal of the suit. Defendant No.2 also contended that two items are not included, which were alienated and are not the subject matter of the suit. Therefore, he claimed that non-inclusion of two properties and not arraying purchasers, the suit is bad for non-joinder of necessary parties.
5. The plaintiff and defendants to substantiate their respective claims have led oral and documentary evidence.
6. Trial Court after examining the pleadings of the parties and also having assessed oral and documentary evidence answered issue No.2 in the negative and held that the defendants have failed to prove that suit is bad -5- RSA No. 1242 of 2014 for non-joinder of necessary parties. While answering issue No.1 in the affirmative, the Trial Court on examining Ex.P.8, which is partition deed, was of the view that the said document clearly establishes that suit properties were allotted to the parents of the plaintiff and defendants. Defendant No.2 has tried to take benefit of the endorsement found in Ex.P.8, wherein item Nos.1 to 3 are shown to be allotted to defendant No.2. However, the Trial Court on meticulous examination of this document vide Ex.P.8 found that this document is tampered and some insertions are found, which are not endorsed by the scribe. Therefore, the claim of defendant No.2 that item Nos.1 to 3 are allotted to the share of defendant No.2 was disbelieved by the Trial Court and consequently, suit was decreed granting 1/4th share to the plaintiff.
7. The Appellate Court on independent assessment of oral and documentary evidence has concurred with the findings of the Trial Court and consequently, the appeal is dismissed. These concurrent findings are under challenge. -6- RSA No. 1242 of 2014
8. Heard learned counsel appearing for defendant No.2. Perused the concurrent findings recorded by the Courts below.
9. Both parties have not disputed that parents of the plaintiff and defendants were allotted the suit schedule properties under the partition deed dated 09.06.1985. Though this document is unregistered, pending suit, said document was impounded and stamp duty and penalty was deposited before the Court. Both Courts referring to Ex.P.8 found that plaintiff and defendants would succeed to the properties only after demise of their parents. The theory of family arrangement after demise of plaintiff and defendants parents as claimed by defendant No.2 is not at all substantiated by defendant No.2. Both Courts have concurrently held that there is absolutely no evidence indicating that post demise of plaintiff and defendants parents, there was a family arrangement and item Nos.1 to 3 were allotted to defendant No.2's share. The -7- RSA No. 1242 of 2014 alteration made in the partition deed vide Ex.P.8 is also taken note of by both Courts.
10. Both Courts have recorded a categorical finding that there is insertion and tampering of Ex.P.8 and therefore, defendant No.2 cannot take benefit of the inserted recital indicating that item Nos.1 to 3 were allotted to his share. These concurrent findings recorded by both Courts is based on the evidence placed on record.
I do not find any infirmities in the judgments and decrees passed by the Courts below.
Therefore, the appeal is dismissed.
In view of dismissal of the appeal, all pending interlocutory applications, if any, do not survive for consideration and accordingly, they are rejected.
Sd/-
JUDGE NBM List No.: 1 Sl No.: 4