Karnataka High Court
S Rudrappa vs B.K Ramachandra on 1 February, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1086 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1086 OF 2022 (PAR/POS)
BETWEEN:
1. S.RUDRAPPA
S/O LATE SOMASHEKARAPPA
AGED ABOUT 67 YEARS
R/AT N. BELTHURU VILLAGE
ANTHARASANTHE HOBLI
H.D. KOTE TALUK
MYSURU DISTRICT-571 114
KEMPAMMA
W/O LATE KRISHNAPPA
(DEAD)
SINCE DEAD LEAVING BEHIND HER LRS
WHO ARE ALREADY ON RECORD
B.K.YESHODAMMA
Digitally signed
by SHARANYA T D/O LATE KRISHNAPPA
Location: HIGH (DEAD)
COURT OF
KARNATAKA
2. KRISHNAVENI
D/O YASHODAMMA
AGED ABOUT 62 YEARS
RESIDING AT BELTHURU VILLAGE
ANTHARASANTHE HOBLI
H.D.KOTE TALUK
MYSURU DISTRICT-571 114
...APPELLANTS
(BY SRI. RAJADITHYA SADASIVAN, ADVOCATE)
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RSA No. 1086 of 2022
AND:
1. B.K. RAMACHANDRA
S/O LATE KRISHNAPPA
AGED ABOUT 78 YEARS
RESIDING AT MAGUDILU VILLAGE
ANTHARASANTHE HOBLI
H.D. KOTE TALUK
MYSURU DISTRICT-571 114
...RESPONDENT
(SRI SANDEEP K., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 12.04.2022
PASSED IN RA.NO.57/2015 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
02.12.2014 PASSED IN O.S.NO.188/2006 ON THE FILE OF THE
CIVIL JUDGE, H.D.KOTE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. This Court heard the matter earlier and the learned counsel for the appellants sought time to place the citations before the Court. Accordingly, he has filed a memo with citations today before the Court.
2. This appeal is filed challenging the judgment and decree dated 12.04.2022 passed in R.A.No.57/2015 on the file of the Senior Civil Judge and JMFC., H.D.Kote. -3- RSA No. 1086 of 2022
3. The factual matrix of the case of the plaintiff before the Trial Court is that the suit items are ancestral and joint family properties of himself and defendants. Hence, the plaintiff is entitled for share in the suit schedule properties and claimed the share on the ground that the defendants have refused to give share in respect of the suit schedule properties.
4. In pursuance of the suit summons, the second defendant took the contention in the written statement by virtue of paluparikath dated 30.03.1966, the plaintiff severed from the joint family and also contended that in addition to paluparikath, sale deed dated 26.05.1980 was executed in respect of item No.1 by her father. It is also contended that her father had executed Will in respect of item No.2 and this Court has no pecuniary jurisdiction to try the suit and the same is also hit by the principles of partial partition and the suit is also barred by limitation. Hence, the plaintiff is not entitled for half share as claimed in the suit.
5. The Trial Court based on the pleadings of the parties, framed the issues. The plaintiff in order to substantiate his contention, he examined himself as P.W.1 and got marked -4- RSA No. 1086 of 2022 the documents as Exs.P1 to P8a. On the other hand, the second defendant examined herself as D.W.1 and also examined five more witnesses as D.Ws.2 to D.W.6 and got marked the documents as Exs.D1 to D47.
6. The Trial Court after considering both oral and documentary evidence available on record while answering issue No.1, came to the conclusion that the plaintiff failed to prove the fact that the suit items are ancestral and joint family properties of himself and defendants and came to the conclusion that already there was a partition dated 30.03.1996 and also came to the conclusion that the father had executed the Sale Deed dated 26.05.1980 and also came to the conclusion that defendant No.2 has proved the very execution of the Will in respect of item No.2 by her father and other issues are answered as 'negative' and came to the conclusion that the suit is barred by limitation and dismissed the suit filed by the plaintiff. Being aggrieved by the dismissal of the suit, the plaintiff has filed an appeal in R.A.No.57/2015 contending that the Trial Court has committed an error in dismissing the suit in entirety and also contended that the Trial Court erroneously came to the conclusion that the suit schedule -5- RSA No. 1086 of 2022 properties are not amenable for partition and also the suit is barred by limitation and considering the grounds urged in the appeal memo, the First Appellate Court formulated the point that whether the Trial Court was justified in holding that item No.1 of the suit properties was self acquired properties of defendant No.2 by virtue of the sale deed (Ex.D1) executed by her father in her favour and also formulated the point whether the Trial Court was justified in holding that the item No.2 of the suit schedule properties was separate property of daughter of defendant No.2 namely., Krishnaveni by virtue of Will executed by Mr.Krishnappa in her favour and also formulated the point that whether defendant No.2 is the owner of item No.3 of the suit schedule properties by virtue of oral Will/arrangement made by her father Mr.Krishnappa in her favour, whether the Trial Court was justified in holding that defendant No.3 is the bonafide purchaser of the item No.3 of the suit properties and whether the Trial Court was justified in holding that defendant No.2 is the absolute owner of item No.4 of the suit properties.
7. The First Appellate Court on re-appreciation of both oral and documentary evidence available on record confirmed the judgment of the Trial Court in respect of all other aspects -6- RSA No. 1086 of 2022 except item No.3 is concerned. In respect of item No.3 is concerned, the First Appellate Court came to the conclusion that when the plaintiff is the legal heir of the father and when there is no any testamentary document in favour of defendant No.2, the plaintiff is also entitled for half share in the property and granted the relief only in respect of item No.3 i.e., one and a half share. Hence, the present appeal is filed by the subsequent purchasers. In the second appeal, the subsequent purchasers who had purchased item No.3 of the property vehemently contends that the Trial Court failed to take note of the fact that the plaintiff was separated from defendant No.2 long back and when the plaintiff is not in joint possession of the property and when the Trial Court has also came to the conclusion that he has not been in physical possession, the Trial Court ought to have taken note of the limitation as well as when the possession is ousted the First Appellate Court ought not to have granted the relief in respect of item No.3 also. The learned counsel also would submit that the First Appellate Court failed to take note of the said fact.
8. Learned counsel appearing for the appellants in support of his contentions he has relied upon the following -7- RSA No. 1086 of 2022 judgments of the Apex Court, particularly, in the case of Krishna Pillai Rajasekharan Nair (D) by LRs. v. Padmanabha Pillai (D) by LRs. and Ors. reported in AIR 2004 SC 1206 and in the case of Raghunath Das v. Gokal Chand and Ors. reported in AIR 1958 SC 827, in respect of limitation is concerned.
9. The learned counsel also brought to the notice of this Court the principles laid in Krishna Pillai Rajasekharan Nair's case (supra), with regard to the limitation aspect, the Apex Court held that Article 120 of the Limitation Act, 1908 attracts. For a suit for partition the starting point of limitation is when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied. The learned counsel would vehemently contend that the plaintiff has not stated anything in the plaint when his right of share was refused by the plaintiff. Hence, it is the duty of the plaintiff to narrate and explain the same and the same has not been stated. Hence, the learned counsel would contend that the judgment is aptly applicable to the case on hand. -8- RSA No. 1086 of 2022
10. The learned counsel also brought to the notice of this Court that the principles laid down in Raghunath Das's case (supra), with regard to limitation is concerned, the period of limitation fixed by Article 120 of the Limitation Act, 1908 is six years from the date when the right to sue accrues. The learned counsel also would contend that the substance of the plaintiff's claim in both cases is for separating his share out of the estate and for allotment and delivery to him of his share so separated. In short such a suit is nothing but a suit for partition or division of the moveable properties held jointly or as tenants-in-common by the parties and there being no specific Article applicable to such a suit it must be governed by Article 120. The learned counsel also referring to these judgments would contend that the very suit filed by the plaintiff is barred by limitation and the Trial Court also considered this aspect while dismissing the suit.
11. Learned counsel appearing for the appellants in support of his contentions he has also relied upon the judgment of the Apex Court in the case of Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. reported in AIR 2004 SC 1801, and brought to the notice of this Court -9- RSA No. 1086 of 2022 with regard to omitting of pleading with regard to refusal of share by the defendant and brought to the notice of this Court paragraph No.20, wherein, distinction is made with regard to 'material facts' and 'particulars'. The words 'material facts' show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad.
12. Learned counsel appearing for the appellants in support of his contentions he has also relied upon the judgment of the Apex Court in the case of Jagannath Amin v. Seetharama (Dead) by Lrs. and Ors. reported in (2007)1 SCC 694, and brought to the notice of this Court with regard to valuing of the suit under Section 35(2) and Section 7(2)(d) of the Karnataka Court Fees and Suit Valuation Act, 1955 and the learned counsel would contend that once the Court came to the conclusion that the plaintiff is not in actual possession of the property, the general principle of law is that in the case of co- owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be
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RSA No. 1086 of 2022in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. The learned counsel relying upon this judgment would contend that in the cross-examination, it is elicited that he is separated from the last 20 years and the same has not been considered by the First Appellate Court.
13. Learned counsel appearing for the appellants in support of his contentions he has also relied upon the judgment of this Court in the case of Nanjamma v. Akkayamma and Ors. reported in AIR 2008 Kant 102, and also brought to the notice of this Court that while this Court dealing with the matter with regard to the payment of Court Fee is concerned, held that Section 35(2) is with regard to the payment of Court Fee in a suit for partition and separate possession and brought to the notice of this Court in paragraph No.16(iv), wherein, it is stated that the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay
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RSA No. 1086 of 2022the Court-Fee under Section 35(1) of Act does not arise. But it is a matter of trial with regard to the possession is concerned.
14. Learned counsel appearing for the appellants in support of his contentions he has also relied upon the judgment of this Court in the case of Tukaram v. Sambhaji and Ors. reported in ILR 1998 Kar 681, wherein also with regard to the proviso of Order II Rule 2 and the learned counsel would contend that there cannot be any partial partition and other properties are not included. Hence, the question of granting share in respect of item No.1 of the property cannot be accepted. Even the learned counsel referring to this judgment also contends that the subsequent purchaser even cannot plead for equity if any petition is filed for final decree proceedings. Under the circumstances, this Court has to take note of the circumstances of the case and protect the interest of the subsequent purchasers, who is the appellants before this Court.
15. Having heard the learned counsel appearing for the appellants and the principles laid down in the judgments, this Court has to analyze the material available on record. No doubt, the plaintiff in O.S.No.188/2006 sought for the relief of
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RSA No. 1086 of 2022partition in respect of different items of the suit schedule properties. The Trial Court totally rejected the claim of the plaintiff and the same has been questioned before the First Appellate Court. The First Appellate Court only considering the material on record in respect of item No.3 i.e., the land situated at Mysuru District, H.D.Kote Taluk, Antharasanthe Hobli, N.Belthuru Grama, Sy.No.51, Hissa No.3A (51/3A) measuring 1 acre 28 guntas granted the relief of partition to the extent of half share of the plaintiff. It is not in dispute that these appellants have purchased the property from defendant No.2 and also the learned counsel appearing for the appellants also not disputes the fact that the property belongs to the father and he died intestate. The main contention of the learned counsel is that the suit is barred by limitation and also the interest of the subsequent purchasers has not been protected by the First Appellate Court and also the plaintiff was not in possession as on the date of filing the suit and he has been separated from the joint family from long back. Having taken note of the said contention of the learned counsel for the appellants, it is not in dispute that there was an earlier partition on 30.06.1996 and also it is not in dispute that in terms of the
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RSA No. 1086 of 2022partition, the father had sold the property on 26.05.1980 in favour of the second defendant herein. But the fact is that father did not execute any testamentary document in favour of either the plaintiff or in favour of the second defendant in respect of the property sold in favour of the appellants. When the father died intestate, the plaintiff is also entitled for a share. But the fact is that when there was already a partition among the family member and the father was alive, question of claiming the share does not arise. Merely because they have been separated from the family cannot take away the right of the plaintiff and the right accrues only after the death of the father when there is no any testamentary document. The other contention of the learned counsel for the appellants that there is no pleading with regard to the omission i.e., refusal of his share.
16. It is important to note that in the pleading also there is no specific pleading that on what date his share was refused. But it is the claim that he made a request on several occasions but the share was refused. In the cross-examination of the witness also, nothing is elicited with regard to the specific date of refusal of share. When such being the case, the
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RSA No. 1086 of 2022very contention of the learned counsel that the limitation attracts in claiming of share, cannot be accepted. No doubt, the principles laid down in the judgments referred supra, the Apex Court held that the limitation starts from the date of accruing of right. But there is no specific material before the Court with regard to the date of refusal. Hence, the very contention of the learned counsel for the appellants cannot be accepted.
17. The other contention of the learned counsel for the appellants is with regard to the possession is concerned. This Court already pointed out with regard to the fact that already there was a partition in respect of the other properties and rightly held by the Trial Court as well as the First Appellate Court that there was a partition. But in respect of the property which has been left by the father there was no any partition at all. Hence, when the father was enjoying the property during his life time and after the death of the father, defendant No.2 is also one of the co-owner. When such being the case, the very principles laid down in the judgment referred by the learned counsel for the appellants is very clear that in a case of co- owner is in possession of the property, if any one of the co-
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RSA No. 1086 of 2022owner is in possession of the property, the same is in possession of all. Here is a case of the plaintiff that subsequent to the death of the father, defendant No.2 refused to give share. After refusal of the share only sought for an order of partition in respect of the property left by the father. Hence, the very contention that the plaintiff has been ousted from the joint possession of the property also, cannot be accepted.
18. The third contention is that the appellants have purchased the property from defendant No.2. When defendant No.2 is not having any exclusive right to sell the property and the plaintiff is not a party to the said sale deed, the plaintiff cannot be made as binding on the sale made by defendant No.2. When such being the case, the very title of the appellants is defective title. Hence, the very contention of the learned counsel for the appellants is that even the appellants cannot plead the equity cannot be a ground to reverse the finding of the First Appellate Court. The First Appellate Court having taken note of the entitlement of the plaintiff in the property left by the father and father died intestate, share has been allotted in favour of the appellants in that appeal. Hence, I do not find any force in the contention of the learned counsel
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RSA No. 1086 of 2022for the appellants that even the appellants cannot plead equity cannot be a ground to defeat the legitimate share of the plaintiff. Hence, I do not find any ground to admit the second appeal and to invoke Section 100 of CPC., to frame the substantial question of law.
19. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed. In view of dismissal of the appeal, I.As, if any do not survive for consideration, the same stand disposed of.
Sd/-
JUDGE CP List No.: 1 Sl No.: 37