Karnataka High Court
Rajesh Naik vs Smt. G Susheela on 5 July, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1790 OF 2010
BETWEEN:
Rajesh Naik,
Son of Balakrishna Naik,
Aged: 41 years,
Residing at 34,
Nekkilady Village,
Puttur,
Dakshina Kannada - 574 201. ....APPELLANT
(By Shri. A. Keshava Bhat, Advocate)
AND:
1. Smt. G. Susheela,
Wife of Late Balakrishna Naik,
Aged 64 years,
2. Smt. Indira,
Wife of Mohan Naik,
Aged: 41 years,
3. Smt. Shobha,
Aged: 40 years,
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4. Nirmala,
Aged: 39 years,
5. Kishora,
Aged: 34 years,
6. Shivaprasada,
Aged: 33 years,
7. Prakash,
Aged: 31 years,
Respondents 3 to 7 are
Children of late Balakrishna Naik,
Respondent No.2
Residing at Sub Registrar Office,
Puttur - 574 201.
Respondents No.1, 3 to 7 all are
Residing at 34,
Nekkilady Village,
Puttur,
Dakshina Kannada - 574 201. ....RESPONDENTS
( By Shri. A. Krishna Bhat, Advocate)
*****
This Regular First Appeal filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgment and decree
dated 23.08.2010 passed in O.S.No.99 of 2004 on the file of the
Principal, Senior Civil Judge, Puttur, Dakshina Kannada,
decreeing the suit for partition.
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This appeal coming on for Hearing this day, the Court made
the following:
JUDGMENT
Heard the learned Counsel for the appellant. The appellant was the plaintiff before the trial court.
2. It was the case of the plaintiff that the plaintiff and the defendant were tenants of lands described in the plaint schedule. The Land Tribunal had granted the land jointly in the name of the plaintiff and the defendant under the provisions of the Karnataka Land Reforms Act, 1961. The plaintiff claimed that he was entitled to one half share in the suit 'A' schedule properties before the death of his father. But subsequent to the filing of the suit, since the plaintiff's father, namely, defendant no.1 died intestate on 22.12.2004, the undivided half share of the deceased defendant no.1, it was contended, would devolve on the legal representatives, apart from the plaintiff himself, and eight others including his mother. Therefore, it was contended that the 4 plaintiff would be entitled to nine sixteenth share in the suit properties. This was the basic claim in the suit.
3. The suit was contested and it was urged by the legal representatives of the defendant, who came on record, that even according to the plaintiff, the lease was in favour of the family and the land in question was being cultivated by the entire family. When the original defendant no.1, the father of the plaintiff, had made an application in Form no.7 before the Land Tribunal and during the pendency of the proceedings. The plaintiff has made an application claiming that his father was of unsound mind and that he should be permitted to prosecute the proceedings, he had also stated that the land was being cultivated by the entire family. This admission having been brought to the attention of the court below, the court below ultimately held that all the parties namely, the plaintiff and the legal representatives of the original defendant, were entitled to equal shares in the suit properties and has accordingly granted one-eighth share in the suit 'A' schedule 5 properties. It is that which is under challenge in the present appeal..
4. The learned Counsel for the appellant would canvass the very grounds urged in the appeal that it was a joint application by the appellant and his father and therefore, the granted land ought to have been divided in equal shares between him and his father and he would yet be entitled to one more share in the father's share. This contention is the basic premise, on which the present appeal is filed.
5. Having regard to the admission made by the plaintiff himself before the Land Tribunal, that would militate against the appellant's case. In that, in terms of Order XII Rule 6 of the Code of Civil Procedure, 1908, an admission made either in the pleadings or elsewhere would bind the parties to a suit. Therefore, proceeding on that footing, the appellant's case seeking nine-sixteenth share in the suit property cannot be accepted.
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The appeal is accordingly dismissed.
Sd/-
JUDGE nv