Karnataka High Court
Sri Kempegowda @ Kumaraswamy vs S.V Diwakara on 27 March, 2023
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RSA No. 176 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 176 OF 2011 (PAR)
BETWEEN:
SRI. KEMPEGOWDA @ KUMARASWAMY
AGRICULTURIST
S/O LATE VISHAKANTEGOWDA
AGED ABOUT 58 YEARS
R/O SIRIYUR VILLAGE
GAVADAGERE HOBLI, HUNSUR TALUK
MYSORE DISTRICT
...APPELLANT
(BY SRI. B S NAGARAJ., ADVOCATE)
AND:
1. S.V DIWAKARA
S/O LATE VISHAKANTEGOWDA
Digitally signed AGED 50 YEARS
by R DEEPA
R/O SIRIYUR VILLAGE
Location: High
Court of GAVADAGERE HOBLI, HUNSUR TALUK,
Karnataka MYSORE DISTRICT
2. SMT. RATHNAMMA
W/O PUTTEGOWDA
AGED 61 YEARS
KAGGERE VILLAGE, KASABA HOBLI
K R NAGAR TALUK
MYSORE DISTRICT
3. SMT. RAJAMMA
W/O LATE JAYARAMEGOWDA
AGED 47 YEARS
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RSA No. 176 of 2011
R/AT SIRIYUR VILLAGE
GAVADAGERE HOBLI
HUNSUR TALUK
4. REVANNA
S/O LATE JAYARAME GOWDA
AGED 21 YEARS
R/AT SIRIYUR VILLAGE
GAVADAGERE HOBLI
HUNSUR TALUK
5. RAMESHA
S/O LATE JAYARAME GOWDA
AGED 19 YEARS
R/AT SIRIYUR VILLAGE
GAVADAGERE HOBLI
HUNSUR TALUK
6. SMT. KAVERAMMA
SINCE DEAD BY HER LR'S
6(A) SATHISHA
S/O KUMARASWAMY
AGED 27 YEARS
R/AT KAGGERE VILLAGE
KASABA HOBLI, K R NAGAR TALUK
6(B) JAGADEESHA
S/O KUMARA SWAMY
AGED 29 YEARS
R/AT KAGGERE VILLAGE
KASABA HOBLI, K R NAGAR TALUK
7. SMT. MUNIYAMMA
W/O BASAVARAJ
MAJOR, R/AT ALGOWDANAHALLI
ANNACHAKANAHALLI POST
HOLENARASIPURA TALUK
HASSAN DISTRICT
...RESPONDENTS
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RSA No. 176 of 2011
(BY SRI. RAMESHA K.R., ADVOCATE FOR R1 TO R3,
R6(A & B) & R7
SRI. P H VIRUPAKSHAIAH, ADVOCATE FOR R4 & R5)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 15.07.2010 PASSED IN
R.A.NO.80/2009 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT, HUNSUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 03.09.2003
PASSED IN O.S.NO.50/1999 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.),HUNSUR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and preliminary decree dated 03.09.2023 passed in O.S.No.50/1999 on the file of Civil Judge (Jr.Dv.) at Hunsur and judgment and decree passed in R.A.No.80/2009 dated 15.07.2010 by the Fast Track Court, Hunsuru, the appellant has filed this second appeal.
2. The parties are referred to as per their status and ranking before the trial Court. The appellant is defendant No.2. Respondent No.1 is the plaintiff and respondent Nos.2 to 7 are the defendants before the trial Court.
3. Brief facts of the case are as under:
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It is the case of the plaintiff that the plaintiff filed a suit for partition and separate possession in respect of 'A & B' schedule property. It is the case of the plaintiff that the plaintiff is the son of late Vishakantegowda. Sri Vishakantegowda had three daughters and three sons defendant No.1 and defendant Nos.6 and 7 are the daughters of Sri Vishakantegowda, plaintiff and defendant No.2 and husband of defendant No.3 are the sons of late Vishakantegowda. Defendant Nos.4 and 5 are the sons of defendant No.3.
The plaintiff and defendant Nos.2 and 3 constituted Hindu Joint Family and also the schedule properties are the ancestral properties of the plaintiff and the defendants. Item Nos.3 to 5 are came to the plaintiffs father through the land Tribunal, Hunsur when they were living jointly. After the demises of plaintiff's father, all the properties were enjoyed jointly. The plaintiff and defendant Nos.2 to 5 are enjoying the suit schedule property in joint possession. Due to ill-will of the woman, they are residing -5- RSA No. 176 of 2011 separately and enjoying the lands in joint partition. During the lifetime of the plaintiff's father, all the daughters marriage was performed long back. Now, defendant Nos.1, 6 and 7 are stayed at their husband's house. Defendant Nos.1 and 6 have no right in respect of the suit schedule property. Defendant No.2 is the kartha of the joint family property. After the demises of plaintiff's father, defendant No.2 showing hostile attitude towards the plaintiff and defendant No.2 mis-managed the joint family property and also they were vested with the income like anything. When the same is questioned by the plaintiff, defendant No.2 gave vague answer. The plaintiff filed an application before the Tahsildar of Hunsru for change of katha. The Tahsildar, Hunsur passed an order for changing the katha and RTC jointly in the name of plaintiff and defendant Nos.2 and 3.
It is contended that there was no registered partition deed. Hence, the plaintiff requested the defendant No.2 to effect the partition in respect of 'A' and 'B' schedule property. The defendant declined to give properties to the share of the plaintiff. Hence, the cause of action arose for -6- RSA No. 176 of 2011 the plaintiff to file a suit for partition and separate possession.
Defendant Nos.1, 6 and 7 filed a written statement admitting the relationship and also enjoyment of the suit schedule property in joint possession and also admitted that due to ill-will of the woman, they are residing separately and enjoying the lands in joint possession and further, they prayed to decreed the suit. Further, it is contended that they have also made counter claim and sought for decreeing the suit for partition and separate possession.
Defendant No.2 filed a separate written statement and admitted the relationship between the parties. It is further denied that the plaintiff and defendant No.2 are still living in the joint Hindu family and in joint possession and enjoyment of the family property. It is contended that late Vishkantegowda, the father of plaintiff and father of defendant No.2 passed away some where in the year 1967 and during his lifetime, he performed and celebrated the -7- RSA No. 176 of 2011 marriages of his daughters as well as his sons. Late Vishakantegowda owned and possessed the properties in his lifetime at Siriyur Village in Sy.Nos.34, 193, 107, 105/2, 101, 102 and 103. The Panchayat division took place between three sons of late Vishakantegowda in the presence of the village leaders, Panchayat members and kith and kin. The Panchayat took place in the year 1980. The said Panchayathdars allotted to the share of defendant No.2 are mentioned in para No.4 of the written statement and it is contended that the panchayat hissa was accepted and agreed by three sons of late Vishakantegowda. The plaintiff and defendant No.2 are alive. But Jayaramegowda is no more and he left behind his wife and two sons i.e., defendant Nos.2, 3 to 5. It is further contended that the suit of the plaintiff is not maintainable as the plaintiff has failed to include other properties. Hence, prayed to dismiss the suit.
4. The Trial Court, on the basis of the above said pleadings, framed the following issues: -8- RSA No. 176 of 2011
1. Whether plaintiff proves that suit schedule properties are the joint family properties he is in joint possession of the same?
2. Whether plaintiff proves that second defendant is showing hostile attitude and mis-managing the joint family properties?
3. Whether second defendant proves that partition has already taken place palupatti was also written, accordingly plaintiff and defendants are in separate possession?
4. Whether plaintiff is entitled for the relief as prayed?
5. What order and decree?
Plaintiff in support of his case examined himself as PW-1 and examined one witness as PW-2 and got marked documents as Exs.P1 to P8. Defendant examined six witnesses as DW.1 to DW.6 and got marked documents as Exs.D1 to D12.
The trial Court after recording the evidence held that the plaintiff has proved that the suit schedule properties are the joint family properties and they are in joint possession of the same and further held that the plaintiff proves that defendant No.2 is showing hostile attitude and -9- RSA No. 176 of 2011 mis-managing the family properties and held that defendant No.2 has failed to prove that the partition has already taken place, palupatti was all written. Accordingly, the plaintiffs and the defendants are in separate possession and consequently held that the plaintiff is entitled for the relief as prayed for and consequently decreed the suit of the plaintiff vide judgment dated 03.09.2003 and held that the plaintiff is entitled for 1/4th share and 1/24th share and defendant No.2 is entitled for 1/4th and 1/24th shares and defendant Nos.3 to 5 are jointly entitled to 1/4th share and 1/24th share. Defendant Nos.1, 6 and 7 each are entitled for 1/24th share in the suit schedule properties and also in Sy.Nos.101, 102, 103 measuring 1.02 acres and Sy.No.65/2 measuring 1 acre.
Defendant No.2 aggrieved by the judgment and preliminary decree passed by the trial Court, preferred an appeal in R.A.Old.No.133/2002 and R.A.New No.80/2009.
5. The Appellate Court, after hearing the parties, has framed the following points for consideration:
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1. Whether the appellant has made out that the judgment and decree passed by the trial Court is perverse, capricious and opposed to law, facts and circumstances of the case?
2. Whether the appellant has made out that the judgment and decree of the trial Court has to be interfered with?
3. Whether order?
The Appellate Court, after re-appreciating the oral and documentary evidence, held that the defendant No.2 has not made out that the judgment and decree passed by the trial Court is perverse, capricious and opposed to law, further held that the defendant No.2 has not made out any grounds for interference with the judgment and decree passed by the trial Court. Consequently, dismissed the appeal field by the defendant No.2 by confirming the judgment and decree passed by the trial Court.
Defendant No.2 aggrieved by the judgment and decree passed by the Courts below filed this second appeal.
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RSA No. 176 of 2011
6. This Court has admitted the appeal on the following substantial question of law:
"Whether the suit for partial partition was maintainable and the courts below were justified in decreeing the suit though plaintiff had not included property bearing Sy.No.101, 102, 103 measuring 1 acre 2 guntas and Sy.No.65/2 measuring 1 acre?".
7. Heard learned counsel for defendant No.2 and the plaintiff.
8. Learned counsel for the plaintiff submits that the land in Sy.Nos.73/1, 102/3 and 101/1 was not included in the suit schedule property. He submits that the house property bearing Old Junger No.6/2 and New Jundger Nos.108 and 109 and Junger No.203 and 204 of Siriyur Village was not included in the suit schedule property. Hence, the suit filed by the plaintiff for partition and separate possession is not maintainable for non-inclusion of necessary property.
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RSA No. 176 of 2011
9. In order to buttress his arguments, he has placed reliance on the judgment of this Court in the case of SRI TUKARAM VS. SRI SAMBHAJI AND OTHERS reported in ILR 1998 KAR 681 and also in the case of KENCHEGOWDA VS. SIDDEGOWDA ALIAS MOTEGOWDA reported in (1994)4 SCC 294.
10. Further, he submits that the suit for partial partition is not maintainable. He submits that defendant No.2 has filed an application for production of additional documents. He submits that from the perusal of the additional documents it indicate that, the said properties were standing in the name of plaintiff's father. Hence, he submits that the suit filed by the plaintiff is not maintainable for non-inclusion of the necessary properties. Hence, on these grounds, he prays to allow the appeal.
11. Per contra, learned counsel for the plaintiff submits that Sy.No.75/1, 73/1 does not belonging to the family of the plaintiff's father. It was standing in the name of Shivanangegowda as the said property was fallen to the
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RSA No. 176 of 2011share of Shivanangegowda in the family partition. Further, he submits that the Sy.No.102/3 is included in the suit schedule properties and insofar as Sy.No.101/1 is concerned, the said property was standing in the name of Puttaswami. The said Sy.No.101/1 was not standing in the name of the plaintiff's father at any point of time. He submits that insofar as house properties are concerned, the said house properties are not the ancestral properties of the plaintiff and defendants. Hence, for the said reason, the said properties are not included in the suit schedule property. Hence, he submits that the suit filed by the plaintiff is maintainable. He further submits that the Courts below were justified in passing the impugned judgment and decree. Hence, on these grounds, he prays to dismiss the appeal.
12. Perused the records and considered the submissions of learned counsel for the parties.
13. It is a case of the plaintiff that the suit schedule properties are the ancestral properties of the plaintiff.
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RSA No. 176 of 2011Further, the plaintiff requested the defendants to effect the partition. Defendant No.2 declined to effect a partition. The plaintiff has filed a suit for partition and separate possession. The plaintiff examined himself as PW.1 and he has reiterated the plaint averments in his examination-in- chief and got marked documents at Exs.P1 to P8. In support of his case, he has examined one witness as PW.2, who has deposed that no partition was effected in between the plaintiff and the defendants and the suit schedule properties are the ancestral properties of the plaintiff and the defendants. Defendant No.2 examined himself as DW.1 and he has reiterated his written statement averments in his examination-in-chief and also examined five witnesses as DW.2 to DW.6 and got marked the documents as Exs.D-1 to D-12. From the perusal of the evidence of the parties it is clear that the suit schedule properties are the ancestral properties of the plaintiff and the defendants and it is also clear that no partition was effected between the plaintiff and the defendants. The plaintiff filed a suit for partition and separate possession.
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RSA No. 176 of 2011The grievance of defendant No.2 is that the plaintiff has failed to include the other properties in the suit schedule property. In support of defence, the defendants filed an application for production of additional documents. He has produced the copy of RTC extracts and also index of the lands. From the perusal of the records produced by parties before the trial Court, it discloses that the oral partition was effected in between the plaintiff's father and his brother in the year 1941 and subsequently, the properties were transferred in the name of respective parties in the year 1980. The application for revenue authorities in the year 1995 for effecting the partition based on oral partition.
14. From the perusal of the records of right produced by the party it indicate that there was a partition effected between Shivanangegowda and his brother. In the said partition, Sy.No.73/1 was fallen to the share of Shivanangegowda and Sy.No.101/1 fallen to the share of Kallegowda, Sy.No.102/3 and 103/2 was fallen to the
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RSA No. 176 of 2011share of plaintiff's father and Sy.No.103/2, 103/3, 103/4 fallen to the share of Puttaswami gowda. It is the case of defendant No.2 that Sy.No.73/1 and 102/3, 101/1 was not included in the suit schedule property. As could be seen from the records that Sy.No.73/1 was standing in the name of Shinangegowda and subsequently, it was transferred in the name of plaintiff. Insofar as Sy.No.102/3 is concerned, the plaintiff has included SyNo.102/3 in the suit schedule property. Insofar as Sy.No.101/1 is concerned, the said property is standing in the name of Puttaswamigowda as per Exs.D3 and D6. Insofar as house properties are concerned, the defendant No.2 except taking the defence that the house properties bearing Old Junger No.6/2 and New Jundger Nos.108 and 109 and Junger No.203 and 204 of Siriyur Village.
15. In order to demonstrate that the said house properties are the ancestral properties of the plaintiff and the defendants, defendant No.2 has not produced any material evidence before the Courts below. The said
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RSA No. 176 of 2011properties cannot be said to be an ancestral properties of the plaintiff and the defendants.
16. Learned counsel for defendant No.2 submits that the plaintiff in the course of cross-examination has admitted that one kutcha house (ºÀÄ°è£À ªÀÄ£É) was owned by his father and subsequently, after his demises, PW.1 has demolished the old structure and reconstructed a new building. Though PW.1 in the course of cross-examination admitted that the said property was owned by the father of the plaintiff. Admittedly, the said property has not been included in the suit schedule properties. Defendant No.2 is justified in submitting that said house is not included in the suit schedule properties.
17. Learned counsel for the plaintiff submits that the plaintiff has no objection to include the schedule property. Further, he seeks oral prayer to include the said property in the schedule 'B' property for which the learned counsel for defendant No.2 submits no objection to include
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RSA No. 176 of 2011the said property in the schedule 'B' property. If the plaintiff is permitted to include the suit property, no injustice would caused to the defendant. In order to avoid the multiplicity of litigation and put an end to the litigation, the plaintiff is permitted to include the said property in the schedule 'B' property. In view of inclusion of said properties, it can be said that the plaintiff has included all the properties. Its well established that suit for partial partition is not maintainable.
18. From the perusal of the records produced by the defendant No.2 discloses that the properties which were not included in the schedule properties are not the ancestral property of the plaintiff and the defendants. Further, the appeal was filed in the year 2011 and defendant No.2 has filed application on 01.08.2018. Further, defendant No.2 is permitted to produce the document. No purpose would serve for defendant No.2 as the parties have already produce the said documents before the trial Court and the said documents are already
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RSA No. 176 of 2011marked as exhibits 'P' serious and 'D' series. Hence, question of considering the said application would not arise. Accordingly, defendant No.2 has not made out any grounds to entertain the application for production of additional documents.
19. Learned counsel for defendant No.2 has placed a reliance on the judgment of this Court as well as the Hon'ble Apex Court. Now, the plaintiff has included the property which was not included earlier. Hence, the said judgments which are placed on record are not applicable to the case on hand.
20. In view of the above discussion, I answer substantial question of law in the partly affirmative. But in view of inclusion of house property, the suit filed by the plaintiff is maintainable.
21. In view of the aforesaid facts and circumstances, I proceed to pass the following:
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ORDER
1) The appeal is allowed in part.
2) The judgment and preliminary decree dated 03.09.2023 passed in O.S.No.50/1999 on the file of Civil Judge (Jr.Dv.) at Hunsur is modified.
3) The petitioner is directed to include kutcha house in the suit 'B' schedule property.
4) The plaintiff and defendants are entitled for share in the said house as determined by the trial Court.
SD/-
JUDGE SSB