Karnataka High Court
Sumadevi And Anr vs Jayalaxmi And Ors on 10 October, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.200253/2022 (PAR)
BETWEEN
1 . SUMADEVI W/O LATE MANIKAPPA
AGE 68 YEARS,OCC.HOUSEHOLD,
R/O MUDGAL, TQ.LINGASUGUR,
DIST.RAICHUR.
2 . PRASANNA KUMAR S/O LATE MANIKAPPA
AGE 47 YEARS, OCC.BUSINESS,
R/O J.P. NAGAR, 22ND WARD,
NEAR HOUSING BOARD
COLONY, HOSPET,
TQ. AND DIST.BALLARI.
...APPELLANTS
(BY SRI B. K. HIREMATH, ADVOCATE)
AND
1 . JAYALAXMI W/O PUNDALIKAPPA
AGE 66 YEARS, OCC.HOUSEHOLD,
R/O ABDULLA COLONY,
HUTTI VILLAGE, TQ.LINGASUGUR,
DIST.RAICHUR.
2 . NARAYANASWAMY
S/O LATE PUNDALIKAPPA
AGE 41 YEARS, OCC. BUSINESS,
R/O ABDULLA COLONY,
HUTTI VILLAGE, TQ.LINGASUGUR,
DIST.RAICHUR.
3 . SRINATH S/O PUNDALIKAPPA
AGE 38 YEARS, OCC. BUSINESS,
2
R/O ABDULLA COLONY,
HUTTI VILLAGE, TQ.LINGASUGUR,
DIST.RAICHUR.
4 . SUBASH S/O NARAYANAPPA HINGOLI
AGE 68 YEARS, OCC.PVT. EMPLOYEE,
R/O HUTTI VILLAGE, TQ.LINGASUGUR,
NOW RESIDING AT H.NO.44/1,
41/1 BLOCK, 6TH MAIN,
RAJAJINAGAR, BENGALURU.
5 . SYED ABDUL KARIM KHADRI
S/O SYED DOODPEER KHADRI
AGE 22 YEARS, OCC.STUDENT,
R/O VENKATARAYANA PET,
MUDGAL, TQ.LINGASUGUR,
DIST.RAICHUR.
6 . RUKUMAMMA
W/O NARAYANAPPA HINGOLI
AGE 78 YEARS, OCC.HOUSEHOLD,
R/O MUDGAL, TQ.LINGASUGUR,
DIST.RAICHUR.
...RESPONDENTS
THIS RSA FILED U/S. 100 OF THE CPC, AGAINST THE
JUDGMENT AND DECREE DATED 01.10.2021 PASSED IN R.A.
NO.14/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C.
LINGASUGUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DTD 29.08.2016 PASSED IN O.S.
NO.55/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC AT
LINGASUGUR.
THIS RSA IS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful plaintiff, who has questioned the concurrent findings of the Courts below, wherein, the 3 suit for partition filed by the plaintiff is dismissed and confirmed by the appellate Court.
2. For the sake of convenience, the parties will be referred to as per their ranks before the Trial Court.
3. The family tree is as under:
Narayanappa Hingoli (died) Rukumamma (wife) (R-5) (died) Manikappa (died) Pundalikappa (died) Subhash (R-4) Smt. Sumadevi Prasanna Kumar Smt.Jayalasmi Naryana Swamy Srinath 4
4. The plaintiff claims to be the son of one Narayanappa. The plaintiff has filed the present suit by specifically contending that he along with defendant Nos.1 to 3 constituted an undivided joint family and the suit schedule property is an ancestral property. The plaintiff has specifically pleaded that after the death of propositus Narayanappa, are jointly residing in the suit schedule property. The plaintiff alleges that defendant No.1 is the elder brother of plaintiff and defendant No.3 and therefore, their names were mutated in the revenue records. The plaintiff's grievance is that defendant No.1 is taking undue advantage of the fact that municipal records are standing in his name. The plaintiff has also alleged that defendant No.1 has alienated the suit schedule property and therefore, the present suit seeking relief of partition. The plaintiff has also sought for relief of declaration to declare that the sale 5 deed executed by defendant No.1 in favour of defendant No.4 through registered sale deed dated 28.01.2010 as null and void and not binding on the plaintiff's legitimate share.
5. Defendant No.1 on receipt of summons contested the proceedings by filing written statement. Defendant No.1 stoutly denied the entire averments made in the plaint. Defendant No.1 contended that the suit schedule property is his self acquired property. Defendant No.1 claimed that he was employed in Hutti company from the year 1962 to 2002 and therefore, contended that he has purchased the suit property out of his self earnings. Therefore, countered the allegations in the plaint that the suit schedule property is the ancestral property. 6
6. Both the parties have let in oral and documentary evidence to substantiate their respective claim.
7. The trial Court having examined the oral and documentary evidence, answered issue No.1 in the negative and recorded a finding that the plaintiff has failed to prove that the suit schedule property is the ancestral property. While examining issue No.2, the trial Court has answered the same in the affirmative and recorded a finding that defendant No.1 has succeeded in proving that the suit schedule property is his self acquired property. On these set of reasonings, the Trial Court has dismissed the suit.
8. The appellate Court having independently assessed the oral and documentary evidence and on examination of the material on record has also formed an opinion that there is absolutely no evidence let in 7 by the plaintiff to demonstrate that the suit schedule property is the ancestral property. The appellate Court has also taken cognizance of rebuttal evidence let in by defendant No.1. Referring to rebuttal evidence, the appellate Court was also of the view that the defendant No.1 entered into an agreement to sell with the erstwhile owner. The appellate Court found that defendant No.1 has adduced rebuttal evidence, wherein it is clearly evidenced that defendant No.1 agreed to purchase the property from the erstwhile owner Abdul Gafursab, who executed an agreement on 11.11.1962 by receiving a sum of Rs.1,000/- by way of an advance and consequently, the erstwhile owner by receiving balance sale consideration, executed sale deed in his favour. The appellate Court also found that by way of rebuttal evidence, defendant No.1 has also succeeded in proving that there was a litigation between defendant 8 No.1 and son of the original vender, which went to the Apex Court and title of defendant No.1 was held to be proved. On these set of reasoning, the appellate Court concurred with the findings of the trial Court and consequently, dismissed the appeal. These concurrent findings are under challenge in this appeal.
9. Heard the learned counsel for the appellants.
10. The subject matter of the suit is an old residential house and open space. Therefore, what emerges from the record is that the family did not possess any ancestral property. Defendant No.1 has let in clinching rebuttal evidence to demonstrate that he was employed in Hatti mines and that he has purchased suit property out of his self earnings. Though the plaintiff has made a feeble attempt by contending that he was running a Kirana shop and he 9 has contributed towards the purchase of suit property, however, no evidence is let in to indicate that it was jointly purchased or the sale consideration was equally paid by the plaintiff and defendant No.1. The concurrent findings recorded by the Courts below in holding that the suit schedule property is self acquired property of defendant No.1 is based on rebuttal evidence and in the absence of cogent evidence let in by the plaintiff. Therefore, I do not find any infirmity or illegality in the judgment rendered by the Courts below. The appeal is devoid of merits. No substantial question of law arises for consideration.
Accordingly, the Appeal is dismissed.
Sd/-
JUDGE Srt/RSP