Karnataka High Court
Nonayya Poojary vs Guruvappa Poojary on 25 January, 2023
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RSA No. 319 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 319 OF 2016 (PAR)
BETWEEN:
1. NONAYYA POOJARY
S/O DOOJA POOJARY
AGE:MAJOR
R/O MARODI MAJALADDA
ANDINJE, VILLAGE AND POST
BELTHANGADY TALUK
DK DISTRICT-574214
2. SHEELA
3. KUNHAPPA
4. GIRIJA
Digitally
signed by RESPONDENT NO.2 TO 4 ARE
ALBHAGYA R/A AIROTTU IN MARODI VILLAGE AND POST
Location: BELTHANGADY TALUK, D.K.DISTRICT-574214
HIGH
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI. SACHIN B S, ADVOCATE)
AND:
GURUVAPPA POOJARY
SINCE DEAD BY LRS
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RSA No. 319 of 2016
SMT JINNAMMA
W/O LATE GURUVAPPA POOJARY
AGED ABOUT 80 YEARS
SINCE DEAD BY HER LRS
1. ANANDA POOJARY
AGED ABOUT 61 YEARS
S/O LATE GURUVAPPA POOJARY
2. SUNANDA
AGED ABOUT 49 YEARS
3. RAMAPPA POOJARY
AGED ABOUT 46 YEARS
4. YASODHARA POOJARY
AGED ABOUT 44 YEARS
5. MOHAN POOJARY
AGED ABOUT 41 YEARS
6. VITTAL POOJARY
AGED ABOUT 38 YEARS
7. BABY
AGED ABOUT 35 YEARS
RESPONDENT NO.1 TO 7 ARE CHILDREN OF LATE
GURUVAPPA POOJARY,
ALL ARE R/O KARNBALADADDDA HOUSE
KOKRADY VILLAGE AND POST
BELTHANGADY TALUK
DK DISTRICT - 574214
8. VEERAPPA
S/O BALAMRNA
AGED ABOUT 47 YEARS
R/O KALLOTTU, MARODI VILLAGE AND POST
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RSA No. 319 of 2016
BELTHANGADY TALUK
DK DIST - 574214
DOMBI
AGED ABOUT 62 YEARS
W/O OBAYYA
SINCE DEAD BY HER LRs
9. SHEKAR
AGED ABOUT 62 YEARS
10. SHANKAR
AGED ABOUT 43 YEARS
11. DIVAKAR
AGED ABOUT 38 YEARS
12. UDAYA
AGED ABOUT 33 YEARS
13. SUMITHRA
AGED ABOUT 36 YEARS
RESPONDENT NOS.9 TO 13 ARE CHILDREN OF
OBAYYA POOJARY
ALL ARE R/O KALLOTTU
MARODI VILLAGE AND POST
BELTHANGADY TALUK
DK DIST - 574214
DEEKU
AGED ABOUT 68 YEARS,
S/O RAMA POOJARY
SINCE DEAD BY HIS LRS
14. MUTHU
W/O LATE DEEKU
MAJOR
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RSA No. 319 of 2016
15. BABU
S/O LATE DEEKU
MAJOR
16. VINODHARA
S/O LATE DEEKU
MAJOR
17. KORAGOPPA
S/O LATE DEEKU
MAJOR
18. VINITHA
D/O LATE DEEKU
MAJOR
19. GOOBE
S/O LATE DEEKU
MAJOR
RESPONDENT NO.14 TO 19
R/O MOODUJIDYBHA VILLAGE AND POST
MOODUKODUNJA, KARKALA TALUK
UDUPI DISTRICT-574104
20. PUSHPA
AGED ABOUT 56 YEARS
W/O BABU POOJARY
21. JAYA
AGED ABOUT 37 YEARS
22. VINODA
AGED ABOUT 35 YEARS
23. RAGHU
AGED ABOUT 33 YEARS
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RSA No. 319 of 2016
24. RAJANI
AGED ABOUT 29 YEARS
RESPONDENT NOS.21 TO 24 ARE CHILDREN OF
BABU POOJARY
RESPONDENT NO.20 TO 24 ARE
R/O KINYADI HOUSE, MARNAD VILLAGE, P.O.
DAREGUDDE, KARKALA TALUK, UDUPI-574104
25. RATNA
AGED 61 YEARS
W/O NONNU
26. SUNANDA
AGED 44 YEARS
27. SHUBHAKARA
AGED 38 YEARS
28. JEEVANDHARA
AGED 35 YEARS
29. PREMA
AGED 42 YEARS
RESPONDENT NOS.26 TO 29 ARE CHILDREN OF
NONNU
RESPONDENT NOS.25 TO 29 ARE
R/O ASATEYA MANE,
MARODI VGE, & POST,
BELTHANGADY TALUK
D.K. - 574214
30. RAJINI
AGED ABOUT 36 YEARS
31. VIMALA
AGED ABOUT 34 YEARS
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RSA No. 319 of 2016
32. PREMA
AGED ABOUT 32 YEARS
33. RAVI
AGED ABOUT 38 YEARS
34. MALATHI
AGED ABOUT 29 YEARS
35. MONGERU
AGED ABOUT 30 YEARS
RESPONDENT NOS.30 TO 35 ARE CHILDREN OF
ANNU POOJARY
NOW R/O "HALLARITU", KASHIPATNA VILLAGE,
P.O. BELTHANGADY TALUK
D.K. DISTRICT - 574214
36. DEEKU POOJARY
AGED ABOUT 80 YEARS,
S/O RAMANNA POOJARY.
37. RATHI POOJARTHI
ADULT,
W/O SUNDARA POOJARY.
38. DAYANANDA POOJARY
AGED MAJOR,
S/O SUNDARA POOJARY
RESPONDENT NOS.36 TO 38 ARE
R/O PADYARU MANE,
RENJALA VILLAGE & POST,
KARKALA TQ-574104.
39. CECILIA FERNANDIS
ADULT,
W/O LATE GREGORY FERNANDIS,
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RSA No. 319 of 2016
R/O PALKE HOLISQ, MARODY VGE & POST,
BELTHANGADY TK, D.K.-574214.
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC.,1908
AGAINST THE JUDGMENT AND DECREE DATED 30.10.2015
PASSED IN RA.NO.103/2004 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE & J.M.F.C, BELTHANGADY, DISMISSING THE
APPEAL AND CONFIRMING & MODIFYING THE JUDGMENT AND
DECREE DATED 14.07.2004 PASSED IN OS.NO.214/1995 ON
THE FILE OF THE CIVIL JUDGE (JR.DVN.,) AND J.M.F.C
BELTHANGADY D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the plaintiffs aggrieved by the dismissal of the suit insofar as item No.8 and item Nos.13 to 15 are concerned.
2. For the sake of brevity, the parties are referred to as per their rank before the trial Court. -8- RSA No. 319 of 2016
3. The family tree is as under:
Kukkedi |
------------------------------------------------------
| | |
Loku Hengsu Kookra(PD) Rama Poojary
| | |
| | |
Dooja Poojary Montu --------------------------
PD (D28) | |
| Deeku Sundara
| D29 D30
-------------------------------------------------
| | | |
Nonnayya Sheela Kunhappa Girija
Poojary (P1) P2 P3 P4
Jaku Hengsu
|
-----------------------------------------------------------------
| | | | Cheluvamma Venkamma Hengsu Neelayya Poojary Anni Poojay | | | | | Babu Seetha(D15) Girija (D21) | | | | | Pushpa(D10) Nonu |
-------------------------------- | | | | | | | | Ratna(D16) | Gurvappa Balamma Obayya Deeku | | | Poojary Hengsu Poojary Poojary | | | | | | | | Veerappa Dombi -------------------------- | | Poojary(D2) D3 | | | | | | | Jaya Vinoda Raghu Rajani | | | |
------------------------------------------- --------------------------------------
| | | | | | | | | Shekhar Shankar Divakar udaya Sumitra Sunanda Hubakare Jeevandar Prema D4 D5 D6 D7 D8 D17 D18 D19 D20`
------------------------------------------------------------
| | | | | | Rajiv Vimala Prema Ravi Malati Nongaru D22 D33 D24 D25 D26 D27 -9- RSA No. 319 of 2016
4. The present suit is filed by the plaintiffs who represent the branch of one Loku Hengsu. The plaintiffs claim that the persons reflected at Sl.Nos.32 to 36 in the registered partition deed dated 22.04.1955 constitute one Kavaru and plaint 'A' schedule properties were allotted to their joint shares in the said registered partition deed. The plaintiffs claim that they are entitled for 1/12th share in all the suit schedule properties and hence, the present suit is filed against defendant Nos.1 and 2.
5. On receipt of summons, defendant No.2 tendered appearance and filed written statement. The defendants claimed that under the registered partition deed dated 22.04.1955, the properties were allotted to the father of plaintiffs late Dooja Poojary towards his legitimate share. Therefore, defendants contended that the properties are now standing in the name of plaintiff No.2. The defendants therefore contended that plaintiffs are not entitled for any share in plaint 'A' schedule
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RSA No. 319 of 2016properties. In the alternate, the defendants claimed that if at all Court holds that plaintiffs are entitled for share in plaint 'A' schedule properties, then the plaintiffs cannot maintain the present suit without including the properties standing in the name of the plaintiff No.2 and therefore, contended that unless those properties which are not included are brought into one common hotchpotch, the present suit is not maintainable.
6. The plaintiffs and contesting defendants to substantiate their respective claim have led oral and documentary evidence.
7. The trial Court having examined the pleadings of the parties as well as oral and documentary evidence, partly answered issue No.1 in the affirmative and held that except portion of item No.8 and item Nos.13 to 15, the plaintiffs are entitled for legitimate share and accordingly suit was decreed granting 1/10th share to the plaintiffs.
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RSA No. 319 of 2016
8. Feeling aggrieved by the judgment and decree of the trial Court, the plaintiffs preferred appeal before the Appellate Court.
9. The Appellate Court having taken cognizance of Ex.P-1 which is a registered partition deed also found that portion of item No.8 and item Nos.13 to 15 were not the subject matter of registered partition deed and therefore, Appellate Court was also of the view that plaintiffs having approached the Court have failed to discharge their initial burden in establishing that portion of item No.8 and item Nos.13 to 15 are also ancestral properties. In absence of cogent and clinching evidence, Appellate Court was also not inclined to grant any relief to the plaintiffs insofar as portion of item No.8 and item Nos.13 to 15 are concerned. Consequently, appeal is dismissed.
10. These concurrent findings are under challenge.
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RSA No. 319 of 2016
11. Heard learned counsel appearing for the plaintiffs. Perused the concurrent findings of the Courts below.
12. Plaintiffs are tracing their title under registered partition deed dated 22.04.1955. Both the Courts have taken cognizance of registered partition deed and on examining the properties covered under the registered partition deed, have concurrently held that portion of item No.8 and item Nos.13 to 15 are not reflected in the registered partition deed.
13. It is trite law that in a partition suit, initial burden is always on the plaintiffs to prove that suit properties are joint family ancestral properties. If both the Courts have concurrently held that there is no evidence indicating that these properties were also ancestral properties of the plaintiffs family, then I am of the view that the concurrent findings recorded by both the Courts below in declining a share in these four items is in
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RSA No. 319 of 2016accordance with law and would not warrant any interference at the hands of this Court. The disputed question of fact as to whether the above said four items are also ancestral properties is dealt with by both the Courts. The Appellate Court being final fact finding authority has in fact adverted to the registered partition deed vide Ex.P-1. The Appellate Court has culled out significant details of the properties covered under the partition deed dated 22.04.1955. On re-appraisal of the entire evidence on record, Appellate Court has also come to conclusion that these four items were admittedly not the subject matter of registered partition deed. If these properties are not found in the registered partition deed, then in absence of pleadings indicating as to how these four properties were acquired by the family and the fact that it is not substantiated by documentary evidence during trial, I am of the view that both the Courts were justified in declining a share in these four items.
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RSA No. 319 of 2016
14. The findings of both the Courts below that these four items are self acquired properties of defendant No.2 is of no consequence. The initial burden is always on the plaintiffs to plead and then substantiate that these four items were also joint family ancestral properties. If the initial burden is not discharged, then the question as to whether these four items are self acquired properties of defendants would be of no consequence.
15. No substantial question of law would arise for consideration. Accordingly, appeal is dismissed.
The pending interlocutory applications, if any, do not survive for consideration and stand disposed of.
Sd/-
JUDGE CA List No.: 1 Sl No.: 24