Karnataka High Court
Sri H M Shivanna vs Smt H M Shivamma on 8 August, 2017
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8th DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
RSA No.679 OF 2016 C/W RSA No.680 OF 2016 (PAR)
IN RSA NO.679 OF 2016:
BETWEEN:
SRI.H.M.SHIVANNA,
S/O. LATE MARISHETTY,
AGED ABOUT 57 YEARS,
R/AT, SHIVAJI ROAD,
H.D.KOTE,
MYSORE DISTRICT-571114.
... APPELLANT
(BY SRI. NANJUNDASWAMY.N, ADVOCATE)
AND:
SMT. H.M.SHIVAMMA,
W/O. LATE P.M.PUTTASHETTY,
D/O. LATE MARISHETTY,
AGED ABOUT 68 YEARS,
R/AT. DO.NO.B4, 1104,
L & T SOUTH CITY, APARTMENTS,
BANNERUGATTA ROAD, ARAKERE,
MICO LAYOUT, BANGALORE-560045.
...RESPONDENT
( BY SRI. V.VISHWANATHSHETTY, ADVOCATE)
2
THIS REGULAR SECOND APPEAL IS FILED
UNDER SECTION 100 R/W ORDER XLI RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE
DATED 15.02.2016 PASSED IN RA.NO.263/2012 ON
THE FILE OF THE VIII ADDITIONAL DISTRICT JUDGE
MYSURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
07.04.2012 PASSED IN O.S..NO.61/2008 ON THE FILE
OF THE SENIOR CIVIL JUDGE, HUNSUR.
IN RSA NO.680 OF 2016:
BETWEEN:
SRI.H.M.SHIVANNA,
S/O. LATE MARISHETTY,
AGED ABOUT 57 YEARS,
R/AT, SHIVAJI ROAD,
H.D.KOTE,
MYSORE DISTRICT-571114.
... APPELLANT
(BY SRI. NANJUNDASWAMY.N, ADVOCATE)
AND:
SMT. H.M.SHIVAMMA,
W/O. LATE P.M.PUTTASHETTY,
D/O. LATE MARISHETTY,
AGED ABOUT 68 YEARS,
R/AT. DO.NO.B4, 1104,
L & T SOUTH CITY, APARTMENTS,
3
BANNERUGATTA ROAD, ARAKERE,
MICO LAYOUT, BANGALORE-560045.
...RESPONDENT
( BY SRI. V.VISHWANATHSHETTY, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED
UNDER SECTION 100 R/W ORDER XLI RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
15.02.2016 PASSED IN RA.NO.533/2014 ON THE FILE
OF THE VIII ADDITIONAL DISTRICT JUDGE MYSURU,
DISMISSING THE APPEAL FILED AGAINST THE
ORDER DATED 27.08.2014 PASSED IN FDP
NO.8/2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC HUNSUR, ACCORDINGLY
DRAWING FINAL DECREE.
THESE APPEALS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:-
JUDGMENT
RSA.No.679/2016 is filed by the defendant in O.S.No.61/2008 on the file of the Senior Civil Judge, Hunsur challenging the concurrent judgment and decree of the courts below whereby the trial court has 4 decreed the suit filed by the plaintiff in O.S.No.61/2008 for partition and separate possession of her share in the suit property and it was confirmed by the First Appellate Court in RA.No.263/2012, whereas RSA.No.680/2016 is filed by the respondent in FDP.No.8/2012 on the file of the Senior Civil Judge, Hunsur challenging the order passed by the trial Court for drawing up of final decree and its confirmation order passed by the First Appellate Court in RA.No.533/2014.
2. As these two appeals are arising between the same parties in respect of the same property, with the consent of the learned counsel for both the parties, both the appeals are heard together and disposed of by this common judgment.
3. Smt. H.M. Shivamma (Plaintiff) filed a suit O.S.No.61/2008 against her brother Sri. H.M. Shivanna (defendant) before the Senior Civil Judge, Hunsur for the relief of partition and separate possession of her ½ 5 share in the suit land bearing Sy.No.90 measuring 8 Acres 28 Guntas situated at H.D. Kote, Mysore District. The trial court decreed the suit. The defendant aggrieved by the said judgment and decree of the trial court challenged the same by preferring a regular appeal in RA.No.263/2012 before the VIII District and Sessions Judge, Mysore sitting at Hunsur. In the meanwhile, the plaintiff, initiated the final decree proceedings in FDP.No.8/2012 against the defendant before the Senior Civil Judge, Hunsur praying for an order for drawing up of final decree pursuant to the preliminary decree passed in O.S.No.61/2008. The trial court allowed FDP.No.08/2012 and ordered for drawing up of final decree. The respondent in FDP.No.8/2012 (defendant in the suit), aggrieved by the said order passed by the trial court, challenged the same by preferring RA.No.533/2014 before the VIII District and Sessions Judge, Mysore, sitting at Hunsur. The First Appellate Court by common judgment and 6 decree dated 15.2.2016 dismissed both the appeals and confirmed the judgment and decree passed in O.S.No.61/2008 and the judgment and order passed in FDP.No.8/12. Aggrieved by the said concurrent findings of the courts below, the defendant has preferred the above appeals.
4. Regarding RSA.No.679/2016 Sri. Nanjundaswamy N., learned counsel for the appellant (defendant in the suit and respondent in FDP) submits that the courts below have erred in coming to the conclusion that plaintiff is entitled for decree for partition without considering the evidence of PW-1 and DW-1 to 3 and documents produced by the appellant. He submits that the judgment and decree passed by the courts below are not sustainable in law and the reasons assigned by the courts below are not valid reasons. Learned counsel submits that courts below failed to notice the admitted facts involved in the case. He submits that PW-1 admitted in her cross 7 examination that her father sold the suit schedule property and another land bearing Sy.No.94 measuring 5.01 Acres of land in favour of one Shivanna of Bhimana Kolli Village for total consideration of Rs.10,000/- and later he repurchased the above lands. But while purchasing the same, in order to give share to his daughter, he purchased the land bearing Sy.No.94 measuring 5.01 Acres in the name of his daughter and purchased the suit land in his name through two separate registered sale deeds dated 24.12.1976. Thus Katha of the suit land was changed in his name and Katha of the land bearing Sy.No.94 was changed in the name of plaintiff in M.R.No.23/1987-88 and after partition, the plaintiff had sold her land to one Sri. Ramachandra in the year 1983. Learned counsel further submits that the appellant (defendant) has transferred the house property bearing Katha No.2323 in the name of the husband of the plaintiff in order to obtain loan from the Karnataka Housing Board and 8 after obtaining loan transferred ½ portion in the said house in favour of the appellant (defendant) and remaining ½ portion in favour of the plaintiff and subsequently plaintiff sold her ½ portion in the house property to one Smt. Faravin Taj and thus plaintiff had sold the properties given to her share long back and claimed partition in the suit land belonging to the appellant (defendant). The courts below without considering the same, have committed an error in decreeing the suit contrary to law. Learned counsel submits that the appellant in order to show the above transactions tried to produce documents such as sale deeds dated 04.03.1968, 24.12.1976, 26.07.1982, 14.03.1988, 04.05.1998 with an application under Order XLI Rule 27 before the First Appellate Court in R.A.No.263/2012 by way of additional evidence. The First Appellate Court without considering these documents, erred in dismissing the application as well as the appeals. As such, there are substantial 9 questions of law arising for consideration in the above appeals and therefore, he prays for admitting the appeals for consideration of those substantial questions of law.
5. Per Contra, Sri. V.Vishwanath Shetty, learned counsel for the respondent submits that it is true that the plaintiff initially averred in the plaint that suit properties are ancestral properties and after realising her mistakes, got the plaint amended and pleaded that the suit schedule land was purchased by the father of the plaintiff and it is in joint possession of the plaintiff and the defendant. As admitted by the defendant, father of the parties, had sold both the land bearing Sy.No. 90 and 94 to one Sri. Shivanna of Bhimanakolli village for Rs.10,000/-, for celebrating the marriage of the plaintiff, as evident from the recitals of the sale deed, (Ex.P.16) and the suit land was repurchased by the father of the parties and the land bearing Sy. No. 94 was purchased by the plaintiff with the 10 financial assistance of her husband who was working in K.R.Hospital, Mysore at the relevant point of time. Thereby, he submits that the suit land is the self acquired property of the father of the parties to the suit and land bearing Sy.No.94 was acquired by the plaintiff. Learned counsel submits plaintiff after purchasing the land bearing Sy.No.94 sold the same in favour of one Sri. Ramachandra in the year 1982 and again repurchased it from said Sri. Ramachandra in the year 1988 and again sold it to one Sri. Papashetty in the year 1998 and these sale deeds were not called in question and the latest purchaser Sri. Papashetty is not arrayed as party to the proceedings.
6. Learned counsel submits that the appellant (defendant) has not substantiated his contention that land bearing Sy.No.94 was purchased by his father in the name of the plaintiff to give the same towards her share. Learned counsel submits there is no illegality or infirmity in the judgments of the courts 11 below warranting interference of this court. He further submits that there is no any substantial question of law that arises in the above appeals which require admission of the appeals. He therefore prays for dismissal of both the appeals.
Regarding RSA.No.680/2016
7. Learned counsel for the appellant (defendant) submits that the court Commissioner without issuing notice either to the appellant or to his advocate, inspected the spot and submitted report. The trial court without giving an opportunity to the appellant to file his objections to the said Commissioner's report has committed an error in ordering for drawing up of final decree. Learned counsel submits the Court Commissioner instead of submitting report as to feasibility of division of the suit property between the parties has himself divided the property between the parties. The trial court, without considering the same 12 has ordered for drawing up of final decree as per the report of the Commissioner. The First Appellate Court has also committed the same mistake in dismissing the appeal and confirming the order passed by the trial Court.
8. Per Contra, Sri. V. Vishwanath Shetty, learned counsel submits the First Appellate Court after perusing the order sheet of the trial court has held that the Commissioner inspected the suit property after issuing notice to the parties by RPAD and he submits that the order passed by the trial court for drawing up final decree and its confirmation order passed by the first appellate court are in accordance with the preliminary decree and he further submits that if the appellant has got any grievance about the report submitted by the Commissioner suggesting the division of the property, plaintiff is agreeable to take the property allotted to the share of the appellant towards her share and give the property allotted to her share in favour of the 13 defendants towards his share. He further submits that plaintiff has no objection for the appellant to reach his land at the corner of the land allotted to her share at the Northern edge. Therefore, he prays for dismissal of both the appeals.
9. For the sake of convenience, parties are referred to as they are referred to in O.S.No.263/2012.
10. It is not in dispute that plaintiff (Shivamma) and defendant (Shivanna) are the children of Late Marishetty. It is also not in dispute that the suit land bearing Sy.No.90 measuring 8 acres 28 guntas and another land bearing Sy.No.94 measuring 5 acres 0.1 gunta were held by said Marishetty. On 04.03.1968 Marishetty had sold both the lands to celebrate the marriage of the plaintiff as admitted by the appellant (defendant), for a sum of Rs.10,000/- through registered sale deed dated 04.03.1968. It is recited so in the said 14 sale deed. The suit land bearing Sy.No.90 was repurchased by father of the parties (Marishetty) for Rs.6,000/- through the registered sale deed dated 24.12.1976. The land bearing Sy.No.94 measuring 5.01 guntas was purchased by the plaintiff for Rs.4,000/-. It is not the case of the appellant (defendant) from the sale consideration of Rs.10,000/- for which price both the lands were sold through registered sale deed dated 04.03.1968, a portion of the amount was spent for the marriage of the plaintiff and he retained the remaining amount and from that amount he repurchased the suit land bearing Sy.No.90 in his name and the land bearing Sy.No.94 in the name of the plaintiff. On the other hand, it is admitted case of the defendant that lands were sold by his father - Marishetty to meet the marriage expenses of the plaintiff herein. Defendant has admitted in his evidence that the plaintiff's husband was working in K.R. Hospital, Mysore when the land bearing Sy.No.94 was purchased by her. It is 15 the case of the plaintiff that she has purchased the said land with the financial assistance of her husband for Rs.4,000/-. The defendant has not substantiated his contention that land bearing Sy.No.94 was re- purchased by his father in the name of the plaintiff to give it to her share, by adducing cogent evidence. If the land bearing Sy.No.94 was re-purchased by father of the parties in the name of the plaintiff, appellant (defendant) would not kept quite when plaintiff sold the said land in favour of one Sri. Ramachandra and after repurchasing it while selling it again to one Papashetty.
11. The suit is only in respect of the land bearing Sy.No.90 measuring 8 Acres 28 guntas. The land bearing Sy.No.94 and a house property were not the subject of the suit. The question that arose before the trial court was whether the suit land belonged to the father of the parties and if so, to what share the plaintiff is entitled to in the suit land. As already stated there 16 were only two lands, ie., the suit land and land bearing Sy.No.94, which were held by the father of the parties. They were sold by the father of the parties to the suit in the year 1968 for a meager sum of Rs.10,000/- to meet the marriage expenses of his daughter (plaintiff) as admitted by the defendant. It is not the case of the defendant that from out of the sale of consideration of Rs.10,000/- for which the above two lands were sold, only a portion of Rs.10,000/- was spent for the marriage of the daughter (plaintiff) and from the remaining amount the suit land and the land bearing Sy.No.94 were repurchased in the name of the father and the plaintiff respectively. As already stated the contention of the defendant that the land bearing Sy.No.94 was re-purchased by the father in the name of plaintiff in order to give it to her share is not proved and established. The further contention of the defendant that under the oral partition which took place between the parties, the land bearing Sy.No.94 was allotted to 17 the share of the daughter and house property was divided between them equally is also not proved and established. If the contention of the defendant that in the house property, ½ portion was given to the plaintiff and ½ portion was given to the defendant is true, there was no occasion for the defendant to purchase ½ portion in the house property from the husband of the plaintiff. The trial court considering the above material aspect of the matter was justified in decreeing the suit of the plaintiff holding suit property is the self acquired property of her father and plaintiff is entitled for ½ share in the suit land. The First Appellate Court after reappreciating the entire oral and documentary evidence on record dismissed the appeal and confirmed the judgment and decree passed by the trial court. I have carefully gone through the judgments and decrees passed by the courts below and do not see any illegality or infirmity warranting interference of this court. Further, there is absolutely no substantial question of 18 law which arises for consideration and warranting admission of the appeal for consideration of said question of law. As such RSA.No.679/2016 is liable to be dismissed as devoid of merits.
12. Regarding order passed by the trial court in FDP for drawing up of final decree in respect of the suit land, it is to be noted that as per the preliminary decree passed by the trial court and confirmed by the First Appellate Court, parties are entitled for 4 Acres 14 Guntas each in the suit land bearing Sy.No.90 measuring 8 acres 28 guntas. If that is so, I do not see any error either in the report of the Commissioner suggesting division of suit land into two equal parts between the parties. It was submitted the learned counsel appearing for the respondent (plaintiff) that the plaintiff is agreeable to take the property allotted to the share of the defendant towards her share and agreeable to give the property allotted to her share towards the 19 share of the appellant. The First Appellate Court has held that the Commissioner inspected the suit property after issuing notice to both the parties and submitted his report suggesting division of suit land into two equal shares. As such, there is no merit in the contention of the appellant that the Commissioner has inspected the suit property and submitted report without giving notice to the parties. I have carefully gone through the order passed by the Trial Court in FDP.8/2012 and its confirmation order passed by the First Appellate Court in R.A.No.533/2014 and do not see any error in the said orders warranting interference of this Court and I do not see any substantial question of law arises for consideration. Hence this appeal is also liable to be dismissed.
Hence, the following Order:
20
Both the appeals are dismissed as devoid of merits.
In view of the dismissal of the appeals, I.As. do not survive for consideration and hence they are rejected.
SD/-
JUDGE sd