Karnataka High Court
Shivarathnamma vs Umadevamma on 5 September, 2024
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NC: 2024:KHC:36378
RSA No. 850 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL No. 850 OF 2020 (PAR)
BETWEEN:
1. SHIVARATHNAMMA
W/O LATE N K BASAVAIAH
AGED ABOUT 90 YEARS
NITTUR,
GUBBI TALUK - 571 112.
2. N B GIRIJAMBA
D/O LATE N K BASAVAIAH
AGED ABOUT 65 YEARS
PRESENTLY RESIDING AT
NEAR HMS SCHOOL
SIRA GATE
TUMAKURU - 571 112.
N R SARVAMANGALA
DEAD BY HER LR's
Digitally signed by
SHARMA ANAND
CHAYA 3. PUTTAGANGAIAH
Location: High Court
of Karnataka H/O LATE N B SARVAMANGALA
AGED ABOUT 67 YEARS
R/O BEHIND SIDDESWARA STORES
ARALIMARADAPALYA
HOUSING BOARD COLONY,
SIRA GATE
TUMAKURU - 571 112.
4. PALLAVI
D/O LATE N B SARAVAMANGALA
AGED ABOUT 29 YEARS
R/O BEHIND SIDDESWARA STORES
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NC: 2024:KHC:36378
RSA No. 850 of 2020
ARALIMARADAPALYA,
HOUSING BOARD
COLONY, SIRA GATE
TUMAKURU -571 112.
5. DARSHAN
S/O LATE N B SARVAMANGALA
AGED ABOUT 30 YEARS
R/O BEHIND SIDDESWARA STORES
ARALIMARADAPALYA
HOUSING BOARD COLONY,
SIRA GATE
TUMAKURU - 571 112.
6. N B KALLESHA
S/O LATE N K BASAVAIAH
AGED ABOUT 58 YEARS
PRESENTLY R/AT NITTUR
GUBBI TALUK COLONY,
SIRA GATE
TUMAKURU - 571 112.
7. N B SUMITHRAMMA
D/O LATE N K BASAVAIAH
W/O SOMASHEKARA
AGED ABOUT 57 YEARS
R/O CHIKKAMANGALURU.
8. N B NAGABHUSHANA PRASAD
S/O LATE N K BASAVAIAH
AGED ABOUT 52 YEARS
NITTUR, GUBBI TALUK
TUMAKURU DISTRICT - 571 112.
9. N B DINESH KUMAR
S/O LATE N K BASAVAIAH
AGED ABOUT 48 YEARS
NITTUR GUBBI TALUK
TUMAKURU DISTRICT - 571 112.
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NC: 2024:KHC:36378
RSA No. 850 of 2020
CHANNABASAVAIAH
DEAD BY HIS LR'S
10. LAKSHMIDEVAMMA
W/O LATE CHANNABASAVAIAH
AGED ABOUT 70 YEARS
THOLEKOPPA CHELURU HOBLI
GUBBI TALUK
TUMAKURU DISTRICT - 571 112.
11. SHIVARATHNAMMA
D/O LATE CHANNABASAVAIAH
AGED ABOUT 55 YEARS
THOLEKOPPA,
CHELURU HOBLI
GUBBI TALUK
TUMAKURU DISTRICT - 571 112.
...APPELLANTS
(BY SRI NATARAJ BABA K,
SRI SHANMUKHAPPA, ADVOCATES)
AND:
1. UMADEVAMMA
W/O LATE SIDDAPPA
AGED ABOUT 73 YEARS
R/O No.83/1, 5TH CROSS
SIDDAGANGA EXTENSION
TUMKURU - 571 112.
2. B S GANGAMMA
W/O SIDDGANGAIAH
AGED ABOUT 71 YEARS
R/AT KUMARA KRUPA
8TH CROSS, SIT EXTENSION
TUMAKURU - 571 112.
3. PRADEEP KUMAR N S
S/O LATE SHANKARALINGAIAH
AGED ABOUT 45 YEARS
R/O NITTURU VILLAGE
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NC: 2024:KHC:36378
RSA No. 850 of 2020
NITTURU HOBLI, GUBBI TALUK
TUMAKUR DISTRICT
PIN CODE - 572 223.
...RESPONDENTS
(BY SRI THYAGARAJA S, ADVOCATE FOR
SRI T G MARKANDAIAH, ADVOCATE FOR R1 & R2
R3 - SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 18.11.2019
PASSED IN RA No.113/2012 ON THE FILE OF THE VII
ADDITIONAL DISTRICT JUDGE, TUMAKURU ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 19.04.2012 PASSED IN OS No.280/2006 ON THE FILE
OF THE SENIOR CIVIL JUDGE AT GUBBI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by legal representatives of plaintiff No. 1 and legal representatives of defendant No. 1 challenging the judgment and decree dated 18.11.2019 in R.A. No.113/2012 by the VII Additional District Judge, Tumakuru, allowing the appeal -5- NC: 2024:KHC:36378 RSA No. 850 of 2020 and setting aside the judgment and decree dated 19.04.2012 in O.S. No. 280/2006 on the file of Senior Civil Judge and JMFC at Gubbi, decreeing the suit of the plaintiffs.
2. For the sake convenience, parties are referred as per their ranking before the trial Court.
3. It is the case of the plaintiffs that original propositor Patel Kallegowda had 3 children, namely, (1) N.K. Karibasavaiah (father of defendant No. 1), (2) N.K.Shivananjaiah (husband of defendant No. 2 and father of defendant Nos.3 and 4) and (3) N.K. Basavaiah (husband of defendant No. 1(b). It is the case of the plaintiffs that the schedule properties are the joint family properties of late Patel Kallegowda and his three children and the second son of late Patel Kallegowda - N.K. Shivananjaiah was granted schedule property as Darkasth land in his favour and therefore, the said property has to be considered as the joint family property of plaintiffs and -6- NC: 2024:KHC:36378 RSA No. 850 of 2020 defendants and as such, the plaintiffs have filed suit in O.S. No.280/2006 seeking the relief of partition and separate possession of suit schedule properties.
4. After service of notice, defendant Nos. 1, 3 and 4 have entered appearance and filed separate written statement. Defendant No. 1 has admitted the relationship between the parties and has pleaded that the schedule properties have been granted in the name of N.K. Shivananjaiah and they are enjoying the joint family properties. It is also stated in the written statement that late Patel Kallegowda had filed application seeking grant under Darkasth and therefore, defendant No.1 has supported the contention of the plaintiffs and accordingly, sought for 1/3rd share in the suit schedule properties.
5. Defendant No. 3 has filed the written statement and contended that, the children of Patel Kallegowda never lived as joint family status and Patel Kallegowda had no joint family or ancestral property. It is the specific case of -7- NC: 2024:KHC:36378 RSA No. 850 of 2020 defendant No. 3 that, defendant No. 3 had filed O.S. No. 167/1984, seeking declaration of her title in respect of schedule property which was given to her under gift and plaintiff No. 1 the present case was arrayed as defendant No.1 in the said case and in the said suit, the plaintiff had claimed 1-1/4 guntas in survey No. 235 and she had been given up contention with regard to the same and therefore, as the said suit has reached finality, and therefore, the suit itself is not maintainable and accordingly, sought for dismissal of the suit.
6. Defendant No. 4 had filed written statement admitting the relationship between the parties, however, supported the view of defendant No. 3 and as such, sought for dismissal of the suit.
7. Based on the pleadings on record, the trial Court had formulated issues and re-casted issues accordingly. In order to prove their case, plaintiffs have examined three witnesses as P.W.1 to P.W.3 and got -8- NC: 2024:KHC:36378 RSA No. 850 of 2020 marked 27 documents and same were marked as Ex.P.1 to Ex.P.27. Three witnesses were examined on behalf of defendants as D.W.1 to D.W.3 and got marked 45 documents and same were marked as Ex.D.1 to Ex.D.45.
8. The trial Court, after considering the material on record, by judgment and decree dated 19.04.2012 decreed the suit holding that the plaintiffs are entitled for 1/3rd share in the suit schedule properties. Feeling aggrieved by the same, defendant Nos. 3 and 4 have preferred R.A. No. 113/2012 before the First Appellate Court and the same was resisted by the plaintiffs. The First Appellate Court, after considering the material on record by judgment and decree dated 18.11.2019 allowed the appeal, consequently set aside the judgment and decree in O.S. No. 280/2006. Feeling aggrieved by the same, the legal representatives of the plaintiffs and legal representatives of defendant No.1 have preferred this Regular Second Appeal.
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NC: 2024:KHC:36378 RSA No. 850 of 2020
9. Sri. Nataraja Baba K., learned counsel appears on behalf of Sri. Shanjukhappa for the appellants and Sri. Thyagaraja S., learned counsel appears on behalf of respondent Nos.1 and 2.
10. Sri. Nataraja Baba K., learned counsel appearing for appellants contended that the trial Court after considering the material on record, rightly decreed the suit holding that the suit schedule properties are the joint family properties of the parties and the said finding has been erroneously reversed by the First Appellate Court without considering the fact that land has been granted in favour of joint family of late Patel Kallegowda and therefore, contended that the finding recorded by the trial Court requires interference by this Court. He also submitted that the finding recorded by the First Appellate Court with regard to Ex.D.43 - grant certificate is contrary to law and as such, sought for interference by this Court.
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NC: 2024:KHC:36378 RSA No. 850 of 2020
11. Per contra, Sri. Thyagaraja S., learned counsel appearing on behalf of respondent Nos. 1 and 2 sought to justify the impugned judgment and decree passed by the First Appellate Court and contended that, as per the grant certificate produced at Ex.D.43 which is a Darkast land granted by Government in favour of N.K. Shivananjaiah and therefore, he contended that the finding recorded by the First Appellate Court is just and proper as plaintiffs have not produced any iota of documents to establish their right over the suit schedule properties and therefore, sought for dismissal of the appeal.
12. In the light of the submission made by the learned counsel for the parties it is clear that there is no dispute with regard to the relationship of the parties as genealogical tree of the parties is set out as under:
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NC: 2024:KHC:36378 RSA No. 850 of 2020 PÀ®èAiÀÄå (¥ÀªÀw) ºÉA:¨ÉÆÃgÀªÀÄä(¥ÀªÀw) J£ï.PÉ.PÀj§¸ÀªÀAiÀÄå(¥ÀªÀw) J£ï.PÉ.²ªÀ£ÀAdAiÀÄå(¥ÀªÀw) J£ï.PÉ.§¸ÀªÀAiÀÄå(¥ÀªÀw) ºÉA:UÀAUÀªÀÄä(¥ÀªÀw) ºÉA:zÉëgÀªÀÄä(¥ÀªÀw) ºÉA:²ªÀgÀvÀߪÀÄä(90) J£ï.PÉ.ZÀ£Àߧ¸ÀªÀAiÀÄå(¥ÀªÀw) ºÉA:®QëÃzÉêÀªÀÄä(70) J¸ï.GªÀiÁzÉêÀªÀÄä(79) ©.J¸ï.UÀAUÀªÀÄä(74) UÀAqÀ£À ªÀÄ£É ªÁ¸À UÀAqÀ£À ªÀÄ£É ªÁ¸À J£ï.¹.²ªÀgÀvÀߪÀÄä (52) (vÀAzÉ ªÀÄ£É ªÁ¸À) UÀAqÀ:ZÀAzÀæ±ÉÃRgÀAiÀÄå PÉ.J¸ï.
1.J£ï.©VjeÁA§ (65) UÀAqÀ£À ªÀÄ£É ªÁ¸À JA.¦.zÀ±Àð£ï(32)
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3. J£ï.©.PÀ¯Éèñï(58)(CfðzÁgÀgÀÄ) ±À²PÀ¯Á(47)
4. J£ï.©.¸ÀÄ«ÄvÀæªÀÄä(55) UÀAqÀ£À ªÀÄ£É ªÁ¸À
5. J£ï.©.£ÁUÀ¨sÀƵÀuï ¥Àæ¸Ázï(52) ºÉA:VjeÁA§ ©.(48)
6. J£ï.©.¢£Éñï PÀĪÀiÁgï (48) C«ªÁ»vÀ.
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NC: 2024:KHC:36378 RSA No. 850 of 2020
13. A perusal of the genealogical tree would indicate that, the original propositor Patel Kallegowda had three children, namely, N.K. Karibasavaiah (father of defendant No.1), Sri. N.K. Shivananjaiah (husband of defendant No. 2 and father of defendant Nos. 3 and 4) and N.K. Basavaiah (husband of defendant No. 1(b)). Undisputedly, there are two schedule properties in the suit. Plaintiffs have filed a suit seeking relief of partition and separate possession in respect of subject matter of the suit. The trial Court, after considering the material on record, arrived at a conclusion that suit schedule properties is the joint family properties of late Patel Kallegowda and accordingly, 1/3rd share each was given to the children of late Patel Kallegowda. Said judgment and decree passed by the trial Court was challenged in R.A. No. 113/2012 by defendant Nos. 3 and 4. It is the case of defendant Nos. 3 and 4 that, as per the grant certificate produced at Ex.D.43, schedule lands were granted in favour of their father - N.K. Shivananjaiah as Darkast land and pursuant to the same, said N.K. Shivananjaiah had
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NC: 2024:KHC:36378 RSA No. 850 of 2020 paid upset price in respect of schedule properties and therefore, it is the contention of defendant Nos. 3 and 4 that, schedule properties are not joint family properties of children of late Patel Kallegowda. In this regard having taken note of the finding recorded by the First Appellate Court, the First Appellate Court, after re-appreciating the entire material on record, particularly, with regard to Ex.D.43, wherein, the land has been granted in favour of N.K. Shivananjaiah not as a tenant of the said land but land was granted at upset price which is clear from the reading of grant certificate Ex.D.43. In that view of the matter, as the land in question has been granted as Darkast land in favour of father defendant Nos. 3 and 4, the First Appellate Court has properly re-appreciated the material on record as per the procedure contemplated under Order 41 Rule 31 of CPC. It is also to be noted that plaintiffs have not produced any material to prove that nature of grant was being made in favour of N.K. Shivananjaiah is for the benefit of the joint family. No contribution has been made on behalf of plaintiffs or the
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NC: 2024:KHC:36378 RSA No. 850 of 2020 other brother of N.K. Shivananjaiah - Sri. N.K. Basavaiah. In that view of the matter, as grant certificate at Ex.D.43 discloses that grant was made in favour of N.K. Shivananjaiah on payment of upset price and therefore, the finding recorded by the First Appellate Court reversing the judgment and decree passed by the trial Court is just and proper and as the plaintiffs have failed to establish that the schedule properties are the joint family properties of late Patel Kallegowda and therefore, I do not find any merit in the appeal. Accordingly, Regular Second Appeal is dismissed at the stage of admission itself as the appellants have not made out any grounds for formulation of any substantial question of law as required under Section 100 of CPC.
Sd/-
(E.S.INDIRESH) JUDGE LRS List No.: 1 Sl No.: 27