Karnataka High Court
Ningamma W/O Kallappa Anegundi vs Smt. Gulamma And Anr on 22 August, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RSA NO.200378/2019
BETWEEN
NINGAMMA W/O KALLAPPA ANEGUNDI
AGED ABOUT 52 YEARS, OCC: HOUSEHOLD
AND AGRICULTURE, R/O: ANEGUNDI STREET,
SHAHAPUR TALUK, DIST: YADGIR.
...APPELLANT
(BY SRI A.M.NAGRAL, ADVOCATE)
AND
1 . SMT. GULAMMA W/O MALLIKARJUNA,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O: NEERASHIVA KALYANA MANTAP TOWN,
YADGIRI-585201.
2 . SMT.SUBHADRAMMA W/O IRANGOUDA
AGE: 42 YEARS, OCC: HOUSEHOLD AND
AGRICULTURE, R/O: VILLAGE MADDERIKI,
SHAHAPUR TALUK, DIST: YADGIRI-585201.
...RESPONDENTS
(BY SRI GURURAJ RAO KAKKERI, ADVOCATE FOR
SRI GANESH NAIK, ADVOCATE FOR R2;
R1 SERVED)
2
THIS RSA FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 28.08.2019 PASSED IN
R.A. NO.20/2017 ON THE FILE OF THE SENIOR CIVIL
JUDGE AT SHAHAPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
20.02.20217 PASSED IN O.S. NO.165/2015 ON THE FILE
OF THE PRL. CIVIL JUDGE AND JMFC AT SHAHAPUR.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
For the sake of convenience, the parties will be referred to as per their rankings before the Trial Court.
2. Present appeal by the defendant No.1 aggrieved by the judgment and decree dated 28.08.2019 passed in R.A.No.20/2017 on the file of the Senior Civil Judge at Shahapur (for short 'first appellate Court'), by which, the first appellate Court while dismissing the appeal filed by the defendant No.1 confirmed the judgment and decree dated 20.02.2017 passed in O.S.No.165/2015 by the Principal Civil Judge and JMFC at Shahapur (for short 3 'Trial Court'), by which, the suit of the plaintiff for partition was decreed allotting 1/3rd equal shares in the suit schedule property to the plaintiff and defendant Nos.1 and 2.
3. Brief facts of the case are that the plaintiff and defendant Nos.1 and 2 are the real sisters and constituted a joint family having inherited the suit land namely, land bearing Survey No.262/2 measuring 4 acres situated at Maddarki village. It is the case of the plaintiff that the mother of the plaintiff and defendant Nos.1 and 2 Smt.Guramma was the owner in possession and enjoyment of the suit property, who died about 3 years prior to filing of the suit. After her demise, the plaintiff and defendant Nos.1 and 2 have succeeded the suit property through her and are in joint possession and enjoyment of the suit property till filing of the suit. Nominally, the name of defendant No.1 is shown in the record of 4 rights of the suit land. Defendant No.1 with an intention of denying the rights of the plaintiff and defendant No.2 was making hectic efforts to alienate the suit land to others. That the plaintiff and defendant Nos.1 and 2 are entitled for 1/3rd share in the suit property. Therefore, the plaintiff had filed a suit seeking partition of the suit property.
4. Defendant No.1, who filed the written statement contended that the plaintiff and defendant No.2 have no concern to the suit property in any manner. The suit property was never treated as a joint family property, inasmuch as, defendant No.1 has been in possession of the suit property for more than 35 years. That the mother of the plaintiff and defendant Nos.1 and 2 passed away about 20 years prior to filing of the suit while their father had passed away about 30 years prior to filing of the suit. That the suit land had been settled in her favour about 35 5 years back during lifetime of her parents to the knowledge and consent of the plaintiff and defendant No.2. That defendant No.1 had taken care of her parents during their lifetime and in consideration whereof, the suit property was given to her. That the defendant No.1 has been in possession and enjoyment of the suit property and the plaintiff and defendant No.2 had no share, right, title or interest over the suit property. Hence, she sought for dismissal of the suit. Defendant No.2 in her written statement admitted the case of the plaintiff and hence, sought for decreeing the suit.
5. Based on the pleadings of the parties, the Trial Court framed the following issues and recorded the evidence:
1. Whether the plaintiff proves that, the suit schedule property is the ancestral and joint family property of 6 herself and the defendants and is available for partition?
2. Whether the defendant No.1 proves that the mother of the plaintiff was given the suit property to defendant No.1 with the consent and knowledge of the plaintiff and defendant No.2 as pleaded in W/S?
3. Whether the defendant No.1 proves that this court has no pecuniary jurisdiction to entertain the suit?
4. Whether the plaintiff is entitled to the relief's of partition and separate possession as prayed for?
5. What order or decree?
Additional issue
1. Whether the defendant No.2 is entitled to the relief's of partition and separate possession?
7
6. The plaintiff examined herself as PW.1 and exhibited seven documents, marked as Exs.P1 to P7. Defendant No.1 examined herself as DW.1 and no material evidence has been marked on her behalf.
7. The Trial Court taking into consideration the evidence and pleadings of the parties decreed the suit as prayed for allotting 1/3rd share each in the suit property to the plaintiff and defendant No.2. Aggrieved by the same, defendant No.1 filed an appeal in R.A.No.20/2017 before the first appellate Court. In consideration of the grounds urged by defendant No.1, the first appellate Court framed the following points for its consideration:
1. Whether the trial court has committed error in holding that the plaintiff has proved that the plaint schedule property is the Hindu undivided ancestral joint family property of 8 parities to the suit and the defendant has failed to prove that her mother gave the said property to her with the consent of plaintiff and defendant No.2?
2. Whether the judgment and decree dated 20.02.2017 passed by the learned Principal Civil Judge and JMFC., Shahapur in O.S.No.165/2015 are contrary to law, facts and materials on record?
3. Are there any grounds to interfere in the impugned judgment and decree of the trial court?
4. What Order?
8. Thereafter, the first appellate Court by the impugned judgment and decree had dismissed the appeal confirming the judgment and decree passed by the Trial Court in O.S.No.165/2015. Being aggrieved 9 by the same, defendant No.1/appellant is before this Court in this appeal.
9. Sri A.M.A.Nagaral, learned counsel for the appellant/defendant No.1 reiterating the grounds urged in the memorandum of appeal submitted that the defendant No.1 had raised a specific contention with regard to her mother Guramma having settled the property in her favour and has also raised an issue with regard to the pecuniary jurisdiction of the Court to entertain the suit, but, the Trial Court and the first appellate Court have not adverted to this issue and the same has given raise to substantial question of law warranting consideration.
10. Sri Gururaj Rao Kakkeri, learned counsel for respondent No.2/plaintiff justifying the judgment and decree passed by the Trial Court and the first appellate Court submits that the defendant No.1 10 though had raised a contention, has not led any evidence whatsoever. Therefore, no grounds are made out warranting interference and no substantial question of law arises for consideration in this appeal. Hence, he seeks for dismissal of the appeal.
11. Heard the learned counsel for the parties and perused the records.
12. It is not in dispute that the suit schedule property belongs to one Smt.Guramma. The plaintiff and defendant Nos.1 and 2 are the daughters of said Guramma. Upon the demise of said Guramma, the suit property has been devolved upon the plaintiff and defendant Nos.1 and 2. They being the legal representatives of deceased Guramma, each being entitled to 1/3rd share in the suit property. However, defendant No.1 has raised a specific plea that the suit property having been settled in her favour about 35 11 years back and thereby she has become the exclusive owner of the same. To justify the aforesaid contention, defendant No.1 has not produced any evidence. The Trial Court at paragraph No.18 of the judgment taking note of the specific contention raised by defendant No.1 and also taking note of the deposition of defendant No.1, wherein, defendant No.1 has specifically stated that her mother had given the suit property for her livelihood by signing on a white paper. She further deposed that the said document was drafted by one Bhimaray Kulkarni. She had also contended that the said document contains the signature of her mother and also the signatures of the plaintiff and defendant No.2. However, the defendant No.1 has not produced the purported document referred to in her deposition. She has also not led any evidence including examining the said Bhimray Kulkarni. The first appellate Court has also 12 taken note of this aspect. Thereby, the Trial Court and the first appellate Court have negated the contention of defendant No.1 of she having been given the suit property exclusively. The aforesaid factual aspect of the matter having been appreciated by the Trial Court and confirmed by the first appellate Court, no infirmity in this matter can be found/attributed on the part of the Trial Court and the first appellate Court.
13. As regards the contention that the Courts having no pecuniary jurisdiction, though defendant No.1 had raised the said issue, answering issue No.3, the Trial Court has taken note of the fact that defendant No.1 has not led any evidence with regard to the actual valuation of the property to oust the pecuniary jurisdiction of the Court.
13
14. In that view of the matter, no substantial question of law arises for consideration in the matter. In the result, following:
ORDER A. The appeal is dismissed.
B. The judgment and decree dated 28.08.2019 passed in R.A.No.20/2017 is confirmed.
C. In view of disposal of main appeal, I.A.1/2020 does not survive for consideration.
Sd/-
JUDGE Srt