Karnataka High Court
Siddappa S/O Sidram Polisgol vs Gangawwa Bhimappa Mallapur on 14 August, 2020
Author: V.Srishananda
Bench: V. Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.S.A.NO.5451 OF 2013 (PART & POS)
BETWEEN
1. SRI. SIDDAPPA
S/O SIDRAM POLISGOL,
AGE: 61 YEARS,
OCC: AGRICULTURE,
R/O: DANDAPUR, TQ: GOKAK,
DIST: BELGAUM-591307
2. SRI. SANNASIDDAPPA
S/O SIDRAM POLISGOL
AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O DANDAPUR, TQ: GOKAK,
DIST: BELGAUM - 591307
3. SRI. MALLIKARJUN
S/O SIDRAM POLISGOL,
AGE: 47 YEARS,
OCC: AGRICULTURE,
R/O DANDAPUR, TQ: GOKAK,
DIST: BELGAUM - 591307
4. SRI. NAGAPPA S/O SIDRAM POLISGOL
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O DANDAPUR, TQ: GOKAK,
DIST: BELGAUM - 591307.
... APPELLANTS
(BY SRI. VINAY S KOUJALAGI, ADV.,)
2
AND
1. SMT. GANGAWWA BHIMAPPA MALLAPUR,
AGE: 43 YEARS,
OCC: AGRICULTURE,
R/O DHUPDALE, TQ: GOKAK,
DIST: BELGAUM - 591307
2. SRI.VITHAL GOUDAPPA BASALIGUNDI
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O DANDAPUR, TQ: GOKAK,
DIST: BELGAUM - 591307
3. SRI. RAMAPPA S/O SIDRAM POLISGOL
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O DANDAPUR, TQ: GOKAK,
DIST: BELGAUM - 591307
4. SMT. BAGAWWA SIDRAM POLISGOL
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O DANDAPUR, TQ: GOKAK,
DIST: BELGAUM - 591307
... RESPONDENTS
(BY SRI. S. G. KADADAKATTI, ADV FOR R1)
RSA FILED U/S.100 R/W. ORDER 41 RULE 1 OF CPC,
AGAINST THE JUDGEMENT & DECREE DATED 13.12.2012
PASSED IN R.A.NO.103/2012 ON THE FILE OF THE
PRESIDING OFFICER FAST TRACK COURT AND ADHOC
DISTRICT JUDGE, HUKKERI SITTING AT GOKAK, DISMISSING
THE APPEAL FILED AGAINST THE JUDGMENT DATED
29.02.2012 AND THE DECREE PASSED IN O.S. NO.2/2010 ON
THE FILE OF THE I ADDL. SR. CIVIL JUDGE, GOKAK,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
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THIS RSA COMING ON FOR ADMISSION, THIS DAY,
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri. Vinay S Koujalagi, the learned counsel for the appellant.
2. This second appeal is preferred against the judgment and decree passed in Regular Appeal No.103/2012 dated 13.12.2012 passed by the Fast Track Court and Adhoc District Judge, Hukkeri, Sitting at Gokak wherein the judgment passed by the First Additional Senior Civil Judge, Gokak in O.S.No.2/2010 dated 29.02.2012 is confirmed.
3. The suit in O.S.No.2/2010 was filed contending that the plaintiff, Smt. Gangawwa is the daughter of the common propositus, Sidram. Sidram has a wife by name Bhagavva and children by name Siddappa, Balavva, Sanna Siddappa, Mallikarjun, Ramappa and plaintiff. 4
4. It is contended that after the death of her father, she demanded for partition but the defendants went on postponing the partition for one reason or the other and ultimately she had approached the Court seeking partition in respect of suit schedule property.
5. The defendants entered appearance before the Trial court and filed written statement. Trial was held. Trial Court decreed the suit by its judgment dated 29.02.2012.
6. Being aggrieved by the said judgment and decree, defendants 1, 3, 4 and 6 preferred appeal in R.A.No.103/2012 on the file of the Fast Track Court and Adhoc District Judge, Hukkeri, Sitting at Gokak. In the appeal, after service of notice to the respondents, the First Appellate Court heard the arguments and perused the records and confirmed the decree of the Trial Court wherein the plaintiff has been granted 1/8th share.
7. The learned counsel for the appellant in this second appeal vehemently contended that both the courts 5 have erred in law in not properly appreciating the case of the appellant. Following substantial questions have been raised in the appeal.
1) Whether or not the courts below are justified in decreeing the suit even through the plaintiff has consented and given up her share in the suit properties?
2) Whether or not the courts below are justified in decreeing the suit through the plaintiff has not challenged the mutation wherein the name of the plaintiff is entered?
8. Insofar as first substantial question is concerned, it is well established principle of law that a person cannot give up his share in an immovable property without a registered document except in case of family settlement. Therefore, the courts below were justified in decreeing the suit.
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9. Next question is in regard to non-challenging of the mutation entries.
10. Mere non-challenging revenue entries (mutation) would not affect a right of a person in an immovable property. Revenue entries by themselves do not create any right in an immovable property.
11. Therefore, both the substantial questions raised in the appeal memo do not require further consideration.
12. Apart from the above two substantial questions, the learned counsel for the appellant submitted that share allotted by the Courts below is incorrect, but in view of the recent pronouncement of the judgment by the Hon'ble Apex Court in Vineetha Sharma v. Rakesh Sharma and others, decided on 15.05.2018, this Court is of the opinion that the Trial Court is justified in allotting 1/8th share to the plaintiff.
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13. Thus, the contentions urged by the learned counsel for the appellants in this appeal cannot be treated as substantial questions of law.
14. No other grounds are urged by the learned counsel for the appellant either to consider the second appeal.
15. In view of the above, this Court is of the considered opinion that this is not a case for admission and further hearing. Hence, the following order is passed.
ORDER The appeal sans merit and is hereby dismissed. No order as to costs.
Sd/-
JUDGE yan