Karnataka High Court
Nagendrappa S/O Bhimsha Denki vs Annapurna W/O Chandrakanth Denki Anr on 27 November, 2015
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF NOVEMBER, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
REGULAR SECOND APPEAL NO.7466/2010
C/W
REGULAR SECOND APPEAL NO.7465/2010
REGULAR SECOND APPEAL NO.7466/2010:
BETWEEN:
NAGENDRAPPA S/O BHIMSHA DENKI
AGED ABOUT 50 YEARS
OCC: PRIVATE SERVICE
R/O SOLAPUR- 413502
(MAHARASTRA)
... APPELLANT
(BY SRI AMEET KUMAR DESHPANDE, ADV.)
AND:
1. ANNAPURNA
W/O CHANDRAKANTH DENKI
AGED ABOUT 55 YEARS
OCC: HOUSEHOLD AND AGRICULTURE
R/O DEVALGANAGAPUR
TQ. AFZALPUR,
DIST. GULBARGA- 585502.
2
2. REVAMMA
W/O BHEEMSHA DENKI
AGED ABOUT 82 YEARS
OCC: HOUSEHOLD & AGRICULTURE
R/O KADAGANCHI, TQ. ALAND
DIST. GULBARGA- 585 302.
... RESPONDENTS
(By Sri S. S. HALALLI, ADV.)
THIS RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD: 30.08.2010 PASSED IN R.A. NO.
157/2008 ON THE FILE OF THE IV ADDL. DIST. JUDGE AT
GULBARGA, PARTLY ALLOWING THE APPEAL AND MODIFYING
THE JUDGEMENT AND DECREE DTD: 26.08.2008 PASSED IN
O.S. NO. 61/2002 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN.) AT GULBARGA.
REGULAR SECOND APPEAL NO.7465/2010:
BETWEEN:
1. NAGENDRAPPA S/O BHIMSHA DENKI
AGED ABOUT 50 YEARS
OCC: PRIVATE SERVICE
R/O SOLAPUR
(MAHARASTRA)
2. DATTA S/O MANIKAPPA
AGED ABOUT 48 YEARS
OCC: BUSINESS
R/O KADAGANCHI
TQ: ALAND
DIST: GULBARGA
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VITHAL S/O BHIMSHA DENKI
DEAD BY LRS:
3. SHARANAMMA W/O LATE VITHAL DENKI
AGED ABOUT 71 YEARS,
OCC: HOUSEHOLD
4. SADANANDA S/O LATE VITHAL DENKI
AGED ABOUT 31 YEARS
OCC: AGRICULTURE
5. BASAVARAJ S/O LATE VITHL DENKI
AGED ABOUT 21 YEARS
OCC: AGRICULTURE
6. SHOBHA W/O SIDDARUDH SAWALI
AGED ABOUT 36 YEARS
OCC: HOUSEHOLD
7. SHARADA W/O MALAPPA NARONA
AGED ABOUT 33 YEARS
OCC: HOUSEHOLD
ALL ARE R/O KADAGANCHI
TQ: ALAND
DIST: GULBARGA
8. CHANNAMMA W/O SHIVANAND BABLAD
AGED ABOUT 26 YEARS
R/O MALLABAD
TQ: AFZALPUR
9. REVAMMA W/O BHEEMSHA DENKI
AGED ABOUT 81 YEARS
OCC: HOUSEHOLD & AGRICULTURE
R/O KADAGANCHI
TQ: ALAND
DIST: GULBARGA.
... APPELLANTS
(BY SRI AMEET KUMAR, DESHPANDE, ADV.)
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AND:
ANNAPURNA
W/O CHANDRAKANTH DENKI
AGED ABOUT 55 YEARS
OCC: HOUSEHOLD AND AGRICULTURE
R/O DEVALGANAGAPUR
TQ. AFZALPUR,
DIST. GULBARGA.
... RESPONDENT
(By Sri S. S. HALALLI, ADV.)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DTD: 30.08.2010 PASSED
IN R.A. NO.93/2009 ON THE FILE OF THE IV ADDL. DIST.
JUDGE AT GULBARGA, PARTLY ALLOWING THE APPEAL AND
MODIFYING THE JUDGEMENT AND DECREE DTD: 08.04.2009
PASSED IN O.S. NO.55/2002 ON THE FILE OF THE PRL. CIVIL
JUDGE (SR.DN.) AT GULBARGA.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Suit filed by the respondent in O.S. No.55/2002, on the file of Prl. Civil Judge (Sr. Dn.) Gulbarga, against the appellants, to pass a decree of declaration that she is the absolute owner of the suit schedule properties and for grant of consequential relief of permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment thereof having been contested, after raising of issues and holding the trial, was dismissed on 08.04.2009, reserving liberty to the plaintiff to file a suit for partition and separate possession of her share i.e., in the suit schedule properties. Feeling aggrieved, the respondent herein, filed R.A. No.93/1999, in the District Court at Gulbarga. Considering the rival contentions and the record, following points were raised for consideration:
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1. When it is acquisition of title by late Chandrakanth Denki under registered sale deeds and further in view of the admitted relationship between wife of Chandrakanth by name Annapurna and mother of Chandrakanth by name Revamma and they entitled to succeed in respect of ascertaining shares Under Section 8 of Hindu Succession Act? It is in view of Section 8 of Hindu Succession Act, the other defendants as contested without any title or inheritance have any share as succeeded by mother and wife of Chandrakanth Denki respectively?
2. What order?
2. On fresh assessment of the evidence and appreciating the rival contentions, the appeal was allowed in part, the impugned Judgment and Decree passed by the Trial Judge was set aside and the suit was decreed in part, holding the appellant / plaintiff and respondent 4 / defendant No.4 - Smt. Revamma, W/o Bheemsha Denki are entitled to ½ share each in the suit schedule properties, as described in para 2 of the plaint. It was held that defendants 1, 2 and legal heirs of defendant No.3 7 are not entitled to any share in the suit schedule properties, as claimed by them.
3. Assailing the said decree, defendants 1, 2 and 4 and the legal heirs of deceased defendant No.3, filed RSA 7465/2010. Defendant No.9, shown as appellant No.9 in RSA 7465/2010, has passed away. Her legal representatives being on record, there is no abatement.
4. O.S. 61/2002 filed by the respondent No.1 i.e., in RSA 7466/2010, on the file of Prl. Civil Judge (Sr.Dn.), Gulbarga, to pass decree of declaration that she is the absolute owner of the suit schedule properties and for consequential relief of permanent injunction having been contested, issues were raised and after trial, the suit was decreed. The plaintiff was declared as the absolute owner and in possession of the suit schedule properties. The defendants i.e., the appellants in RSA 7466/2010, were permanently restrained from interfering with the 8 possession and enjoyment of the suit schedule properties by the plaintiff. R.A. 157/2008 filed by the defendants in the said suit, against the said decree, in the Dist. Court at Gulbarga, upon consideration, having been allowed in part and the impugned Judgment and Decree having been set aside and the suit having been decreed in part, entitling the plaintiff to have half share in the suit schedule properties, as described in para 2 of the plaint, feeling aggrieved, the defendant No.1 in the suit, filed RSA 7466/2010.
5. Defendant No.4 in O.S.55/2002, on the file of Prl. Civil Judge (Sr. Dn.) Gulbarga, has instituted O.S. No.146/2011, against the respondent in these two appeals i.e., Smt. Annapurna, to pass a decree of declaration and separate possession entitling her to ½ share in the suit schedule properties and to appoint Commissioners to effect the division of the properties. In the said suit, four items of properties have been shown, as liable for division. Item 9 Nos. (a) (b) & (c), shown in para 2 of the plaint therein are the subject matter of consideration in the suits and the appeals, noticed supra.
6. Smt. Revamma, W/o Bhimsha Denki, mother- in-law of the respondent - Annapurna, in these appeals, had filed O.S. No.391/2001 on the file of II Addl. Civil Judge (Sr. Dn.) Gulbarga, to pass a decree of declaration that the defendant - Annapurna is not the legally wedded wife of Sri Chandrakant and for declaring that she is the absolute owner in respect of the building bearing Nos.6/12 and 6/12A and grant a decree of perpetual injunction, restraining the defendant from interfering with the possession of the plaintiff over the suit properties, which consisted of land measuring 4 acres 30 guntas in Sy.No.124/1, 5 acres in Sy.No.124/1 and 11 acres and 3 guntas in Sy. No.131. Chandrakant was the son of Smt. Revamma and he died on 25.01.2001, who according to Smt. Revamma had remained unmarried and on account of 10 she being the only surviving legal heir, it was contended that estate of Chandrakant devolved upon her. The suit was contested by contending that there was marriage between the defendant and Chandrakant on 06.12.1996 at Sholapur, as per the customs prevailing in the community and in view of the death of Chandrakant, the plaintiff alone cannot claim right, title and interest over the estate left by deceased Chandrakant. Issues were raised and the parties adduced evidence, both oral and documentary. Suit having been dismissed by a Judgment and Decree dated 04.12.2006, RFA 2505/2006 was filed in this Court. The points were raised for consideration i.e., keeping in view, the rival contentions and record of the suit. After appreciation of the rival contentions, finding no merit, the appeal was dismissed on 13.07.2011. The said Judgment and Decree has attained finality.
7. In view of the decree passed by the Civil Court in O.S.No.391/2001, confirmed in RFA No.2505/2006 by 11 Judgment and Decree dated 04.12.2006 and the admissions in the plaint in O.S.No.146/2011 instituted by Smt. Revamma W/o Bhimsha Denki, there is no merit in these two appeals. The issues and points determined by the Courts below, in the impugned decrees herein, are pure finding of fact. Apart from the same, the rights of the parties have already been adjudicated in the Judgment and Decree passed by this Court i.e., RFA No.2505/2006. Hence, no substantial question of law arises for consideration. In the absence of substantial question of law, the second appeal filed under Section 100 CPC is not maintainable.
In the result, the appeals stand rejected. However, liberty is reserved to the parties, to seek relief in respect of the building bearing No.6/12 and 6/12A, situated at village Deval Ganagapur, which is the subject matter of consideration in O.S.No.146/2011, pending on the file of the Civil Judge (Sr.Dn.) at Afzalpur. 12
Since the suit has been pending from a long time and as the parties are litigating for more than one decade, the said Court is directed to decide the suit with as much expedition as is possible and within a period of six months from the next hearing date.
No costs.
Sd/-
JUDGE sac*