Karnataka High Court
Smt.Neelawwa W/O. Basappa Menasinkai vs Smt.Mahadevi W/O. Laxman Menasinkai on 2 July, 2013
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 2 n d DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
R.S.A.No.6077/2011 (Dec. & P.I)
BETWEEN:
Smt. Neelawwa, W/o.Basappa Menasinkai
Age: 69 years, Occ: Agriculture
R/o. Hallur village - 590 312
Tal: Gokak, Dist: Belgaum
... APPELLANT
(By Smt. P. G. Naik, Adv.)
AND:
1. Smt. Mahadevi, W/o. Laxman Menasinkai
Age: 34 years, Occ: Agriculture
R/o. Hallur village - 590 312
Tal: Gokak, Dist: Belgaum
2. Kumari Mahananda
D/o. Laxman Menasinkai
Age: 21 years, Occ: Student
R/o. Hallur village - 590 312
Tal: Gokak, Dist: Belgaum
3. Kumari Sunanda
D/o. Laxman Menasinkai
Age: 19 years, Occ: Student
R/o. Hallur village - 590 312
Tal: Gokak, Dist: Belgaum
... RESPONDENTS
(By Sri.M. G. Naganuri, Adv. for C/R1, R2 & R3)
2
This Regular Second Appeal is filed under Section
100 of CPC against the judgment and decree dated
27.08.2011 passed in R.A.No.171/2010 on the file of the
Principal District Judge, Belgaum, partly allowing the
appeal filed against the judgment dtd. 30.01.2010 and
the decree passed in OS No.263/2007 on the file of the
1 s t Addl. Civil Judge (Sr.Dn.) Gokak, decreeing the suit
filed for declaration and permanent injunction.
This appeal coming on for admission, this day, the
court delivered the following judgment:
JUDGMENT
Heard the learned counsel for the appellant and also the learned counsel for the respondents 1 to 3.
2. The appellant-plaintiff filed suit in O.S.No.263/2007 for declaration and permanent injunction. The case of the appellant-plaintiff was that, she purchased the suit property i.e., 1 acre and 32 guntas of land in R.S.No.108/1B/2 of Hallur village from Sri. Mahadevappa Shivalingappa Gourawwagol and his brother on 24.4.1979. The sale deed was taken in the name of her minor son Laxman. The suit property was purchased by the plaintiff out of her own earnings. The plaintiff is the owner of the suit property. The defendants taking advantage of the entry in the record of 3 rights are claiming right to the suit property. The defendants have no right in the suit property. The plaintiff is in peaceful possession and enjoyment of the suit property. Therefore, the plaintiff has prayed for declaration and permanent injunction.
3. The defendants have contended that the plaintiff is not the owner and she is not in possession of the suit property. After the death of Laxman, the defendants have succeeded to the property. They are in possession and enjoyment of the suit property. The suit is bad for non-joinder of necessary parties. Therefore, the defendants have prayed for dismissal of the suit.
4. The trial Court considering the material on record has held that the plaintiff has failed to prove that she is the owner in possession of the suit property. The plaintiff is entitled for ½ share in the suit property. Consequently, the suit has been decreed declaring that the plaintiff is entitled for ½ share and the defendants are entitled for ½ share.
4
5. The defendants have preferred appeal in R.A.No.171/2010. The Appellate Court by its judgment and decree dated 27.08.2011 has allowed the appeal and modified the judgment and decree passed by the trial Court declaring that the plaintiff is entitled for 7/32 n d share in the suit property.
6. Aggrieved by that, the appellant-plaintiff has filed this appeal.
7. The learned counsel for the appellant and also the learned counsel for the respondents 1 to 3 submitted that the property was purchased in the name of Laxman, the son of the plaintiff. Laxman died intestate in the year 1996. The plaintiff and the defendants 1 to 3 are the legal heirs of Laxman. They are entitled for 1/4 t h share each in the suit property. Therefore, the judgment and decrees passed by the Courts below may be modified granting ¼ share each to the plaintiff and the defendants 1 to 3.
8. It is not in dispute that the suit property was purchased in the name of Laxman through registered sale 5 deed dated 24.4.1979. Laxman died intestate in the year 1996. The plaintiff is the mother and the defendants 1 to 3 are the wife and children of Laxman. They are the legal heirs of deceased Laxman. Therefore, the plaintiff and defendants 1 to 3 are entitled for 1/4 t h share each. The Courts below were not justified in granting either ½ share or 7/32 n d share to the plaintiff. The plaintiff and the defendants 1 to 3 are entitled for ¼ share each in the suit property. Therefore, the impugned judgment and decrees need to be modified.
Accordingly, the appeal is allowed and the impugned judgment and decrees passed by the trial Court and also the Appellate Court in O.S.No.263/2007 and R.A.No.171/2010 are hereby modified granting 1/4 t h share each to the plaintiff and defendants 1 to 3. The parties shall bear their own cost.
I.A.No.2/2011 does not survive for consideration and accordingly, it is rejected.
Sd/-
JUDGE gab/-