Karnataka High Court
Sri Narasappa vs Smt Bhagyamma on 20 February, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.746 OF 2012
BETWEEN:
Sri. Narasappa
S/o. Siriyappa,
Aged about 68 years,
Agriculturist
Residing at Honnur village
Chellakere Taluk
Since dead by LRS applicants:
1. Smt. Chikkamma
W/o Late Narasappa
Aged about 66 years,
Household work,
2. Sri. Poojar Thammanna
S/o Late Narasappa,
Aged about 50 years,
Agriculturist,
3. Sri. Poojari Siriyanna,
S/o Late Narasappa,
Aged about 48 years,
Agriculturist
Applicants No.1, 2 and 3 are
R/at Honnuru Gollarahatti village,
Parusharam pura Hobli,
Challakere Taluk, Chitradurga District.
.... Appellants
(By Sri. Gopalakrishna Murthy, Advocate for
Sri. Nagarajappa S.H, Advocate)
2
AND:
1. Smt. Bhagyamma
W/o. Eranna
Aged about 40 years,
Agriculturist
Residing at Honnur village
Challakere Taluk-577 522.
2. Tammajja
S/o. Siriyappa
Aged about 62 years,
Agriculturist,
Residing at Honnur village,
Challakere Taluk-577 522.
3. Manjamma
W/o. Mahanthappa
Aged about 33 years,
Agriculturist,
Residing at Honnur village,
Challakere Taluk-577 522.
4. T. Nirmala
W/o. Krishnamurthy
Aged about 27 years,
Agriculturist
Residing at Honnur Village
Challakere Taluk-577 522.
5. Kavitha
D/o. Thammajja
Aged about 11 years,
6. Narasimha
S/o. Thammajja
Aged about 9 years,
Since respondents No. 5 and 6
Are minors they are represented
By their mother and natural guardian
3
Smt. Sakamma W/o. Thammajja
Aged about 45 years,
Residing at Renukapura,
Challakere Taluk-577 522.
... Respondents
(By Sri. Madan N, Advocate for Sri. P.N. Nanja Reddy,
Advocate for R1)
This RSA is filed under Section 100 of CPC,
against the judgment and decree dated 01.03.2012
passed in R.A.No.38/2010 on the file of the Senior Civil
Judge at Challakere, dismissing the appeal and
confirming the judgment and decree dated 02.03.2010
passed in O.S.No.130/2007 on the file of the Civil
Judge (Jr.dn) and JMFC, at Molakalmuru.
This appeal coming on for Orders this day, the
Court delivered the following:
JUDGMENT
This Regular Second Appeal is filed by the defendant No.1 challenging the judgment and decree dated 02.03.2010 passed by the Civil Judge (Jr.Dvn) and JMFC, Molakalmuru, in O.S.No.130/2007 and the concurring judgment and decree dated 01.03.2012 passed by the Senior Civil Judge at Challakere in R.A.No.38/2010, whereby the suit filed by the plaintiff 4 for partition and separate possession of the suit property was decreed.
2. The parties are henceforth referred to as they are arraigned before the appeal. The appellant herein was the defendant No.1, while respondent No.1 was the plaintiff and the respondents No.2 to 6 were the defendants No.2 to 6 before the trial court.
3. The suit filed in O.S.No.130/2007 discloses the genealogy of the family of the plaintiff, which is as follows:
Siriyappa S/o Sonna Thimmaiah ________________________________________________________________________________________ Late Late Late Narasappa Kaduramma Late Thammakka Thammajja Thammakka Nagajji Santhakka Defendant No.1 W/o late W/o late W/o late W/o Thammanna Bhagyamma Mallyappa Chittappa Nagappa - Plaintiff Chikkamma Chittakka Late Nagamma Jayamma Manjamma -D3 Eranna Chittaiah Thimmappa (Daughter) Nirmala - D4 Ramanna Santhakka Naganna Kavitha - D5 Erakka Eranna Eranna Narasimha - D6 Thammana Kariyamma Krishnappa Sakkamma Chennaiah
4. It is stated that the suit properties were the joint family ancestral properties. Further, a prior suit in 5 O.S.No.117/2004 was filed by the children of the defendant No.1 for partition and separate possession and the said suit was settled out of the Court on 29.06.2007. Subsequent thereto, the defendant No.1 attempted to sell the suit properties, which was protested by the plaintiff, who demanded her share. The defendant No.1 refused to heed to the request of the plaintiff which prompted the plaintiff to file the present suit for partition and separate possession of her share.
5. The defendant No.1 filed his written statement contending that the earlier suit filed by his children in O.S.No.117/2004 was settled amongst them. He stated that his grandmother had purchased the suit item Nos.1 to 3 in terms of a sale deed dated 05.02.1945, at which point of time the defendant No.1 was a minor. Further, in terms of a partition deed dated 11.01.1990, the defendant No.1 received the suit item No.4 as his share in the properties of the family. He further claimed that he had alienated portions of 6 suit item Nos.1 to 3 and the purchasers were in possession. Further, he claimed that the plaintiff No.1 and the defendant No.1 were not in good terms and that they had settled the properties of the family, in terms of which plaintiff No.1 had received a sum of `10,000/- and also taken away 50 sheep in lieu of his share in the suit properties. He therefore contended that there was no joint family between the defendant No.1 and the family of the plaintiff.
6. The defendants 3, 5 and 6 filed a separate written statement, accepting the fact that the plaintiff No.1 had taken away his share in the suit property about 25 years back prior to filing of the suit and he had received a sum of `10,000/- and 50 sheep. The defendant No.4 filed a separate written statement claiming that she is entitled for share in the suit properties.
7. Before the trial court, the plaintiff No.1 was examined as PW1 and other witnesses were examined as PWs.3 and 4 and they marked Ex.P1 to P12. The 7 defendant No.1 was examined as DW-1 and two other witnesses were examined as DW2 and DW3 and they marked Exs.D1 to D14.
8. The trial Court found from the averments in O.S.No.117/2004 that the defendant No.1 had categorically admitted in his written statement filed in O.S.No.117/2004 that the plaintiff No.1 in this suit was entitled to ½ share in the suit properties. The trial Court also noticed that the plaintiff No.1 was not a party to the partition deed dated 11.01.1990 and thus, decreed the suit of the plaintiff No.1 and declared that she and her sister defendant No.4 are entitled to 1/12th share each in the suit property.
9. Aggrieved by the said judgment and decree, the defendant No.1 filed an appeal before the first appellate Court in R.A.No.38/2010. The first appellate court perused the records and framed the points for consideration and having regard to the facts and circumstances of the case, upheld the judgment and decree of the trial court by dismissing the appeal. 8 Defendant No.1 has therefore filed the present Regular Second Appeal, challenging the judgment and decree of the courts below.
10. I have heard the learned counsel for the appellants and learned counsel for the respondents and I have perused the judgments and decrees of the Courts below as well as the grounds urged in support of the appeal.
11. The counsel for the defendant No.1 contended that the family tree as placed on record by the plaintiff would indicate that there are other members of the family, who are to be arraigned as parties to the suit for partition. He also took me through the deposition of PW1, wherein he had deposed that certain other properties of the family were alienated and some were not included in the suit for partition. He therefore contended that the suit was liable to be dismissed for non-joinder of necessary parties and that the suit for partial partition was not maintainable. 9
12. It is found from the written statement of defendant No.1 that he had not raised such contentions. It is also not known as to how other members as shown in the family tree are proper and necessary parties, since the sisters of defendant No.1, are all dead leaving behind their children. The children of the sisters of the defendant No.1 have no claim in the suit property. Consequently it cannot be held that the deceased sisters of defendant No.1 and their children were proper and necessary parties. In so far as the question as to whether the suit for partial partition is maintainable or not, in his evidence PW1 has stated that 5 acres 1 guntas and another portion of 2 acres 9 guntas in Sy.No..111/p1 was alienated prior to the filing of the suit and the same was not available for partition. Consequently, the extent of the land which was alienated was not included in the suit for partition. Defendant No.1 did not prove that this extent of land was still available for partition or that he was aggrieved by the alienation of the properties. Consequently, the contention of the defendant No.1 that the suit was not maintainable, is unsustainable.
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13. Both the courts below have found that the suit property was ancestral in nature. The defendant No.1 has himself admitted that the suit item Nos.1 to 3 was purchased by his grand mother in the name of defendant No.1 in the year 1945 and that the suit item No.4, was fallen to the share of defendant No.1 in a partition deed dated 11.09.1990. He also admitted in a prior suit in O.S.No.117/2004 that the plaintiff herein was entitled to ½ share in the suit properties. In the face of these facts, the courts below were justified in decreeing the suit for partition and separate possession of the share of the plaintiff in the suit property. No substantial question of law arises for consideration in this appeal. Therefore, appeal is dismissed.
Sd/-
JUDGE ag