Karnataka High Court
Shanthappa vs Channabasavaiah on 9 January, 2009
Equivalent citations: AIR 2009 (NOC) 2146 (KAR.), 2009 (3) AIR KANT HCR 130, 2009 A I H C 1934, (2009) 2 KANT LJ 644, (2009) 3 ICC 567, (2009) 79 ALLINDCAS 380 (KAR), (2009) 2 KCCR 893, (2009) 4 CIVLJ 61
Author: K.Ramanna
Bench: K.Ramanna
IN THE HIGH COURT OF KARNATAKA AT BAh¥.§§AIg§§:}'E§i 4
DATED THIS THE 9th ms' 0;:
BEFORE V ' 2 V' V'
THE HON'BLE MR..3i.i"sf:*;.cE K"'RAf.4A§iv;Ii E:._:"'v
REG::ILAR SECQRB AB9F;§;__19'a, 34.92 X2092 7
BETWEEN:
I
. W.
£3/0 Basavaiah
Slianthappa V
S)' 0 Basg:v::x§.§,§.fi§.*
S[9__Ba$§;fiai9_;}1V 3 '
S/E') B_asava3'ahL«.V V.
_G-a11g'énna V _
Sig Basaizgiah
.....
" --- TsV,:,¢s«§3as.3a:aian ' __ W; 0 _B-asavajah Ssgivmnamma Appciiants
- ailam majars and am r/a Thippmu Palya, Kasaba Hobli Gubbi Taluk, Tumlmr District.
(By Sri G S Pzasanna Kumar, Adv') AND:
1 Channabasavaiah aclult by age 2' Ramakka Adult by age
- both legal heirs of 3 3 Shazlkanappa : 'V Sic) Liugappa u Since deceased hay his V
a) Kailcshi, s/cs Shéfiicmfippg "
b) Shadakshaiah, c} &s'§,{ day' (1)
c) 4 s2;1ci%am% a%r.:%a ;'1%,3=A'_;jz;1 L"
S/0._Li1:gappa' _ " Respondents .. 'V -'~ all Hazcsaxahalli V' V, (3-1.1bbi'I'a1i§1{, Tumkux District (By Sri B K Manjunath , Adv} '£:a.é$':;¢x1$pea1 is filed under Section we cm against that j21figmi:mt' and tiezcmc dated L3-2002 passed in R.A.f'i1).i3f9} and 18/91 on the 111% of the: Prl.Civil Judge "{€3rfl.Dn)" &. CJM, Tumkur allowing the appea} in R.A.13]9i plaintifi" that one Shankarappa had three Lingapjpa, Gangaiah and b Shankarappa died leaving behjzfd Jeaidd' succeed its his estate; thaf ,1" V behind 21"' and 313 defendax;:s;VV:A.tba£--~.®"d vfiranigaiaia died leaving behind his that 3"' son Channabasavafgahh that the suit schedude' and joint family " that diffeatenee of joiet famiiy properties; that ééfeedants to effect partition of the jaigt 'that defendants have not complied * §neig§;a§t~c;f the Hence he filed the suit.
hefcre trial court defendants filed *si飣ement and centested the suit, denying the AA furnished by plaintifl' and they further denied their 'miedienship with piainiiff. Aeeerding to them the said V' V fiihankerappa had 31:: $011 by name Channabasavaiah; that the plaintifi" is a stranger to the family of defendants; that jp}ainfifl" is a resident of Razaapurag that thfi properties am not the ancestral:-jbint. " Itgf plaintifl and defendants; that the two sons namely Lingappa» % 1 was V L' already paxfittiosn of tllgair 80 years ago; that dcfcndanté . _ and possession of 'their z*cspcctij;r§' V_sha;féS;".* they have perfected Hence it is prayed for picadings of the parties the trial com The p}a;infifi' in support of his P.W.1 and got examined 11 more 'P_.W.2 12 anci got marked documents Ex.P.1 '¢{()_ of the dcfenéants, dcfzmdant No.2 cxamintd and also got marked dacuments §'.x.D.1 to AA 34. the pendttncy of suisi; the or1g:m' ' 31 »p}ai11ti;€f died his LRS were brought on record. The trial court after considering the material evidence: placed before. it came to the conclufiion that the dcccaacd original plaintifi is tilt:
GK grand son (sf Pmpesitor Shankexappa anti . ti2:;1t suit schedule properties item No.6, 8 ancestral propttrtics. Accord§I2g1y, déC1r:ed "t&h:r:_:pi.éi:1x't;Efi" A T for paxfifion of his 1/3*" share 6f_..V s.u.:it«. properties item No.6, and :}..OV.V:.Bcii}g not with the said judgment and d.éc;~;%;e. £11; picceasefl original plaintiff Flfifsizwgd a"ppéé;i E-.A§:§:¢3.17B') 1991 and the defendamisisr¢fi%i%t:d'vF§x<§-1?§.9- 1._«'*3%*;'if.'19591 "'t":;c;t"<:»::r.: the Civil Judge {st 132;] Licazncd Civil Judge after ~ hcadgig __ -bGt11 partitrs, considering tht xzaatcxiéisjmlaaicé-:1VBr$;fbfE'«--.if'é;H0wcd R.A.No.13f1991 filed by defgazidagntsuscttifigt aside'; the judgment and decree passed by qnd diéfijisscd the R.A.No.18/1991 mm by 1111::
" that though plaiI1f:ifi's are belong to the _jéi§1t {if propositor Shankarappa and flzzimgh the suit schcfivfilé pmpcrtiss except item 110.13 are the joint family méperues, the suit of the plaintifi" is barred by limitation. ' __}He3:1cc the plainhlffsj appellants have come: up with this appeal under Scciion 100 CFC.
6. Aeeoxding, tn appellants the judmen"§e..E_r::':1€i:' passed by the lower appellate court is on and pzesumptions; that there is rmmleirklenee }!:a_Al&et:m;)ne<i1*é'£%e that appellants were excluded u ancestral properfles of pmjneslfer V the lower appellate cqzzae cenei1:;siml that suit schedule properties, the ancestral properties it" 7 leuit of plaintiffs. Hence, it gist' Vtlfie oonsequenfly to bf counsel for both parties and perusecl question of law thaic for eel;eleide:za1.:ion is :
V. l the Imvcr appellate Court: is justified in ll Ex.P~13 into evidence and oansidering l same, when there is absolutely no mafexial as regards authearzticity of the said document anti when it is not a public document? (2) Whether the €30u:rts below could have held that the suit is baxred by time only relying upon ww in Rampura in his father-in~--laW's pmpcrtics; that he died during v*.:h'e "
according to plainfifl", ha died from the cvidcnct: of ;3Iain1:ifi'§:;""e'5ziu1c:As.;5s¢:§, the'; said Channabasavaiaigdicd:at Vi§ampp1a iri11.égc am he was enjoying the propczfivc§--;§f'- Further, Ex.P- 12 -- Will cxgcmcd favour of his daughter . and that other docu1 3:_u:;;tv;s~ discloses that the said 7;an;i-- of deceased original piaintifi after Kallamma. Thus the Qvcr all evigifinge {>11 disclescs that deceased " scvafgof Chaxmabasavaiah and grand son of more thc said finding mooxded by the bcifsts? is not ciisputcd before me, in this appml. H As rcganzls the suit schcciuic prspcrties are * cdfgccmcd, according to p}a1'ntifi's, the same are the anccstrai joint family properties. Even the dcfandants had 1191:
seriously disputed the same and D.W.1 has admittw during Charmabasavaiah has been excluded from L' was Within his Icnawlccigc.
I 1. Of course, fnrzm the "1f3]af:&cl b¢:fQIfi Cotirfs bciow have came to Vt»i1,c;; €9nciii'si.pn "ti'¢=:djcascci" V original plaintifl" is the the son of Channabasava2'ah.V suit schedule pmperfics since a clear finding W bg? mm was paw':-tan their lift: time about 50 yégi-§x's _of the suit which ww within the kn<3w1eA$:igt;"of and that the said partition has; :20; by said Channabasavaiah and the . only during the year 1982. Thcmforc, °t.r;g :;$j¢1§s:a have rightly held that the suit of plaintifi"£$ .Ly:v1:m;itat3on. Article 110 of Limitation Act: pmvides for an of limitation of 12 years for a pcmcm exciudcd a joint family property to enforce a right to sham fhcrein, and the said period begins to run from the dam of knowledge of plaintifi of such exclusion. Thus, in the instant '1 9;» Mm appeal fails and is acconiingiy, dwisxnisscé ' 2;:-f merits. No costs.