Karnataka High Court
Shri Veerappa S/O Channappa Akki vs Shri Shivaputrappa S/O Channappa Akki on 7 June, 2024
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NC: 2024:KHC-D:8102
RSA No. 100298 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100298 OF 2023
BETWEEN:
SHRI VEERAPPA
S/O CHANNAPPA AKKI
AGE: 73 YEARS, OCC: AGRICULTUE,
R/O. SHIRAGUPPI, TQ. HUBBALLI,
DIST. DHARWAD-580008.
...APPELLANT
(BY SRI ANAND R KOLLI.,ADVOCATE)
AND:
SHRI SHIVAPUTRAPPA
S/O CHANNAPPA AKKI
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O. SHIRAGUPPI, TQ. HUBBALLI,
DIST. DHARWAD-580008.
...RESPONDENT
Digitally signed by
SAROJA THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
HANGARAKI
Location: HIGH ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
COURT OF
KARNATAKA IN R.A.NO.122/2018 DATED 27.11.2021 PASSED BY THE V
DHARWAD
BENCH ADDITIONAL DISTRICT JUDGE, DHARWAD SITTING AT HUBBALLI
DHARWAD
AND THE JUDGMENT AND DECREE PASSED BY THE COURT OF THE
PRINCIPAL SENIOR CIVIL JUDGE, HUBBALLI IN O.S.NO.230/2015
DATED 10.072018.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:8102
RSA No. 100298 of 2023
JUDGMENT
The present second appeal is filed by the plaintiffs under Section 100 of the Code of Civil Procedure, 19081 challenging the judgment and decree dated 27.11.2021 passed in R.A.No.122/2018 by the Court of V Additional District Judge, Dharwad, sitting at Hubballi2 and the judgment and decree dated 10.07.2018 passed in O.S.No.230/2015 by the Court of Principal Senior Civil Judge, Hubballi3 whereunder, the suit for partition and separate possession filed by the plaintiff has been dismissed by the Trial Court which has been confirmed by the First Appellate Court.
2. Along with the above appeal, the appellant has filed I.A. No.1/2023 under Section 5 of the Limitation Act to condone the delay of 246 days in filing the above appeal. In the affidavit accompanying the application, it is deposed by the appellant that, after the counsel before the Trial Court informed him regarding the judgements of both the Courts, he was advised to prefer an appeal before this Court. It is further averred that, since the appellant was suffering from financial crisis and old 1 Hereinafter referred to as the 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' -3- NC: 2024:KHC-D:8102 RSA No. 100298 of 2023 age aliments, he could not approach the counsel before this Court immediately and when the appeal was filed, he learnt regarding the period of limitation stipulated under law and hence, the application has been filed to condone the delay.
3. In order to ascertain as to whether the I.A. No.1/2023 is required to be favourably considered, the merits of the above appeal have been considered and accordingly, the learned counsel for the appellant has made his submissions for admission.
4. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
5. It is the case of the plaintiff that, the suit properties measuring 38 acres 36 guntas in RS No.220 in Shiraguppi village is the ancestral family property standing in the name of the propositus Channappa S/o. Irappa Akki. That the plaintiff is the son of the propisitus from his first wife Smt. Neelavva. That after the death of his first wife, the propositus married one Smt.Basavannewwa his second wife. That from the second wife, the propositus had two sons and a daughter namely defendant No.1, late Shankrappa and Gangavva. That the -4- NC: 2024:KHC-D:8102 RSA No. 100298 of 2023 propositus and his wives died long back. That the daughter of propositus from his second wife namely Gangavva is given in marriage to another family.
6. It is the further case of the plaintiff that, after the death of the propositus, there was a division in the family property in and around the year 1979 between the plaintiff, defendant, late Shankrappa and step sister Smt. Gangawwa, wherein, the southern portion of RS No.220 measuring 10 acres 26 guntas fell to the share of the plaintiff, the middle portion measuring 10 acres 39 guntas fell to the share of the defendant and the adjacent portion measuring 10 acres 38 guntas fell to the share of late Shankrappa. That 6 acres of the land out of the same survey number towards northern side was given to Smt. Gangavva. That the said division is evidenced by Mutation Entry No.4439 dated 25.03.1979. That all the parties have acted upon the said partition and they are in possession of their respective shares.
7. It is the further case of the plaintiff that, the step brother of the plaintiff namely Shankrappa died on 07.02.1982 as a bachelor. During his lifetime, the late Shankreppa had -5- NC: 2024:KHC-D:8102 RSA No. 100298 of 2023 alienated 3 acres of land out of 10 acres 30 guntas to third persons for his personal necessity and that he died leaving behind 7 acres 38 guntas in the said RS No.220 which is the suit property. That the plaintiff being the step brother has half share in the suit property.
8. It is further case of the plaintiff that, the defendant No.1 colluding with revenue officials, got the mutation in respect of the suit property in his exclusive name and denied to give the share of the plaintiff. Consequently, the plaintiff issued legal notice dated 18.04.2015 demanding partition. That despite the receipt of the said notice, the defendant is making hectic attempts to sell the suit property as a result of which, the plaintiff has given a public notice which was published in the newspaper on 13.05.2015. Since, the defendant is not paying any heed to the request of the plaintiff for partition, the plaintiff has filed the suit for partition.
9. The defendant entered appearance before the Trial Court and contested the case of the plaintiff by filing the detailed written statement. In the written statement, except admitting the inter se relationship and the family genealogy, -6- NC: 2024:KHC-D:8102 RSA No. 100298 of 2023 the defendant has denied the other allegations. It is averred that there was already a partition between the plaintiff and his sister in the year 1979 in respect of the family properties and the plaintiff being the step brother is not entitled for any share in the suit property of his full brother. It is also contended that, the suit is beyond limitation and barred by time. Hence, the defendant sought for dismissal of the suit.
10. The Trial Court, consequent to the pleadings of the parties framed the following issues:
1. Whether the plaintiffs prove that they are in lawful possession over the suit property as stated in the suit?
2. Whether the plaintiffs prove that the defendants are interfering with their lawful possession over the suit property?
3. Whether the plaintiffs are entitled for the relief of Permanent Injunction as sought in the suit?
4. What order or decree?
11. The plaintiff examined himself as PW.1. Ex.P.1 to Ex.P.15 has been marked in evidence. PW.1 has not been cross-examined by the defendant, nor the defendant has lead any evidence. The Trial Court vide its judgement and decree -7- NC: 2024:KHC-D:8102 RSA No. 100298 of 2023 dated 10.07.2018 dismissed the suit. Being aggrieved, the plaintiff preferred RA No.122/2018, the defendant entered appearance in the said appeal and contested the same.
12. The First Appellate Court framed the following points for consideration:
1. Whether the plaintiffs established that they are in lawful possession of the suit schedule property?
2. Whether the plaintiffs established that the defendants tried to interfere with their peaceful possession and enjoyment of the suit schedule property?
3. Whether the findings given by the Trial Court requires interference by this Court?
4. What order?
13. The First Appellate Court vide its judgement and decree dated 27.11.2021 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.
14. Learned counsel for the appellant vehemently contended that, the Trial Court ought not to have dismissed the suit, having regard to the fact that, the defendant did not cross-examine PW.1, nor adduced any evidence. Hence, it is -8- NC: 2024:KHC-D:8102 RSA No. 100298 of 2023 contended that, the suit ought to have been decreed. He further contended that, the judgement of the First Appellate Court affirming the dismissal of the suit by the Trial Court is also erroneous. It is further contended that, the interpretation of the Section 18 of the Hindu Succession Act, 19564 by the Trial Court as well as the First Appellate Court is erroneous. Hence, he seeks for allowing of the above appeal and granting of the reliefs sought for.
15. The submissions of the learned counsel for the appellant have been considered and the material on record have been perused.
16. It is forthcoming that, the Trial Court upon appreciation of the oral and documentary evidence on record noticed that, the plaintiff is the son of the propositus from the first wife and the defendant and deceased Shankreppa are the sons of the propositus from the second wife. That the defendant and the deceased Shankreppa are full blood brothers, whereas the plaintiff is the half blood brother of the defendant and deceased Shankreppa.
4 Hereinafter referred to as the 'Act of 1956' -9- NC: 2024:KHC-D:8102 RSA No. 100298 of 2023
17. Further, the Trial Court noticing Section 3(C) of the Hindu Marriage Act, 19555 and Section 18 of the Act of 1956 recorded a finding that, the plaintiff being the step brother of late Shankreppa cannot claim any share in the property left behind by Late Shankreppa since the defendant is the full brother of Shankreppa and he inherits the same.
18. The Trial Court has further noticed that, the previous partition between the plaintiff and defendant is an admitted one and hence, answered issue Nos.1 and 2 in the negative and held that, the plaintiff is not entitled for share in the suit property.
19. The First Appellate Court upon re-appreciation of the oral and documentary evidence on record has noticed that, the plaintiff is not disputing the fact that, he is a half blood brother of deceased Shankreppa, as also the fact that, the defendant, the deceased Shankreppa and one Gangavva are born to his step mother Smt. Basavannewwa. That admittedly, the defendant, Shankreppa and Smt.Gangavva are full blood brother and sister and the plaintiff is the half blood brother. Further, the First Appellate Court relied on the judgement of 5 Hereinafter referred to as the 'Act of 1955'
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NC: 2024:KHC-D:8102 RSA No. 100298 of 2023 the Bombay High Court, in the case of Waman Govind Shindore and others Vs. Gopal Baburao Chakradeo and others6 confirmed the findings of the Trial Court and dismissed the appeal filed by the plaintiff.
20. It is forthcoming from the aforementioned that, the fact situation is not in dispute in as much as the defendant and deceased Shankreppa are full blood brothers and the plaintiff is the half blood brother of the defendant and deceased Shankreppa as has been noticed by the Trial Court and the First Appellate Court. Further, the manner in which the property has devolved amongst the heirs of the propositus Channappa Akki is also undisputed. The partition entered into between the children of Channappa Akki in the year 1979 is also undisputed.
21. The sole question for consideration that arose before the Trial Court and the First Appellate Court was whether the plaintiff proves that he being the half blood brother of the defendant and deceased Shankreppa was also entitled for a share of the property left behind by the his step brother the deceased Shankreppa.
6 1983 SCC Online Bom 304
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NC: 2024:KHC-D:8102 RSA No. 100298 of 2023
22. In this contest, it is relevant to note the following statutory provisions:
22.1 Section 3(C) of the Act of 1955 states as follows:
3.Definitions.- In this Act, unless, the context otherwise requires
a)xxxx
b)xxxx
c) "full blood" and "half blood"- two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;
(Emphasis supplied) 22.2 Section 8 of the Act of 1956 states as follows:
8. General rules of succession in the case of males- The property of a male Hindu dying intestate shall devolve according to the provisions f the chapter-
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b)secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(Emphasis supplied)
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NC: 2024:KHC-D:8102 RSA No. 100298 of 2023 22.3 Section 18 of the Act of 1956 states as follows:
18. Full blood preferred to half blood.- Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.
(Emphasis supplied)
23. It is clear from Section 3(C) of the Act of 1955, that the plaintiff is the half blood brother of the defendant and late Shankreppa and that the defendant is the full blood brother of the deceased Shankreppa. The deceased Shankreppa having died as a bachelor intestate, his property shall devolve according to Section 8 of the Act of 1956, as per the relatives specified in Class-II of the schedule to the Act to his brother/ sister. Having regard to Section 18 of the Act of 1956, the full blood brother shall be referred to the heirs of the deceased by half blood.
24. In view of the fact that deceased Shankreppa survived by the defendant and their sister Gangavva from the second wife of the propositus, the plaintiff who is a half blood brother of the deceased Shankreppa will not be entitled to a share in the property of the deceased Shankreppa.
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NC: 2024:KHC-D:8102 RSA No. 100298 of 2023
25. The Trial Court has rightly appreciated the factual matrix as well as the legal position and dismissed the suit. The First Appellate Court has adequately re-appreciated the relevant facts and also rightly noticed the legal position while dismissing the appeal of the plaintiff.
26. In view of what is stated above, the appellant has failed in demonstrating that any substantial question of law arises for consideration in the above appeal.
27. Hence, no useful purpose will be served in favourably considering I.A No.1/2023. Hence, I.A No.1/2023 is dismissed. Consequently, the above appeal is dismissed.
Sd/-
JUDGE PJ CT:GSM List No.: 1 Sl No.: 28