Karnataka High Court
Sri Thimmegowda vs Sri Harsha on 1 August, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.50 OF 2014 (PAR)
BETWEEN:
1. SRI THIMMEGOWDA
S/O KARIGOWDA
AGED ABOUT 61 YEARS
RESIDENTS OF SOMENAHALLI VILLAGE
KASABA HOBLI, TURUVEKERE TALUK
TUMKUR DISTRICT-572127
2. SRI SHEKAR
S/O THIMMEGOWDA
AGED ABOUT 36 YEARS
RESIDENTS OF SOMENAHALLI VILLAGE
KASABA HOBLI, TURUVEKERE TALUK
TUMKUR DISTRICT-572127
3. SMT PARVATHAMMA
W/O SHIVASWAMY
AGED ABOUT 43 YEARS
RESIDENTS OF SOMENAHALLI VILLAGE
KASABA HOBLI, TURUVEKERE TALUK
TUMKUR DISTRICT-572127
... APPELLANTS
(BY SRI.D.P.PRASANNA, ADVOCATE)
AND
1. SRI HARSHA
S/O S T VIRUPAKSHA
2
AGED ABOUT 11 YEARS
MINOR
REP BY HIS NATURAL GUARDIAN
SMT G N LATHAMANI
W/O S T VIRUPAKSHAIAH
AGED ABOUT 44 YEARS
R/O GONI TUMKUR
DABBEGHATTA HOBLI
TURUVEKERE TALUK
TUMKUR DISTRICT-572127
2. SRI S T VIRUPAKSHA
S/O THIMMEGOWDA
AGED ABOUT 41 YEARS
R/O SOMENAHALLI VILLAGE
KASABA HOBLI
TURUVEKERE TALUK
TUMKUR DISTRICT-572127
...RESPONDENTS
(BY SRI.M.N.MADHUSUDHAN, ADVOCATE FOR R-1, R-2
SERVED UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT &
DECREE DTD 1.8.2013 PASSED IN R.A.NO.5/2012 ON THE
FILE OF SENIOR CIVIL JUDGE AND JMFC, TURUVEKERE,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DTD 27.1.2012 PASSED IN
OS.NO.102/2008 ON THE FILE OF CIVIL JUDGE AND JMFC,
TURUVEKERE.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
The captioned Second Appeal is filed by the unsuccessful defendants who are questioning the concurrent judgment of the Courts below in granting share in the suit schedule property.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. Plaintiff claims to be the son of defendant No.2 namely, Sri.S.T.Veerupaksha @ Thimmegowda. His grievance is that after marriage his mother i.e., G.N.Lathamani led in marital life only for a period of one year. On account of ill treatment, she driven out of marital home and she was compelled to reside at her parental house. The cause of action to file the present suit is on account of the collusive partition effected between his father and his brothers as well as his grand father who is arrayed as defendant No.1. Plaintiff alleged that his father i.e., defendant No.2 in collusion with his grand father and 4 uncles have deliberately allotted lesser share in family properties which totally measures 7 acres 32 guntas.
4. Defendants on receipt of summons tendered appearance and filed written statement. The defendants specifically contended that there is already partition in the family under an unregistered document dated 26.03.2002 and therefore, sought for dismissal of the suit. Plaintiff corroborated and substantiated his claim in the properties, led in oral evidence and also produced documentary evidence. Defendants while leading rebuttal evidence have virtually given a go by to the document of prior partition and made an attempt to claim that all the suit schedule properties are self acquired properties of defendant No.1 i.e., grant father of plaintiff herein. The Trial Court having examined the oral and documentary evidence, led in by both the parties has answered issue No.1 in favour of plaintiff and the suit was decreed.
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5. Feeling aggrieved by the judgment and decree of the Trial Court, the defendants preferred an appeal before the Appellate Court. Before the Appellate Court, defendants produced a copy of unregistered partition deed dated 26.03.2002. The Appellate Court having independently assessed the oral and documentary evidence, declined to accept the contentions raised by the defendants herein. While deciding the matter on merits, the Appellate Court was of the view that defendants are not entitled to place reliance on an unregistered document. The Appellate Court concurred with the findings and conclusions arrived at by the Trial Court and consequently, the appeal was dismissed. Feeling aggrieved by the concurrent judgments, defendants are before this Court.
6. Heard the learned counsel appearing for the appellants and learned counsel appearing for the defendants.
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7. The defendants having set up a plea of prior partition however, did not choose to substantiate the said defence by producing documents indicating that there is a partition in the family. Even if defendants were to place reliance on the partition deed and claim that there is already severance in the family, this Court has to examine the said defence in the context of the relationship between the plaintiff and his father i.e., defendant No.2 in the present case on hand. The cause of action and the consequent actions by the litigants has to be gathered from the pleadings on record. It is not in dispute that plaintiff's mother is residing at her parental house and the marital relationship between defendant No.2 and the present plaintiffs next friend i.e., G.N.Lathamani are not cordial. The defence set up by defendants indicate that defendant No.2 who is the father of plaintiff is allotted 38 guntas in the total extent measuring 7 acres 32 guntas. The conduct of the defendants clearly reflects with the other coparceners taking undue advantage of disturbed relationship of defendant No.2 have conveniently chosen to 7 allot a lesser share to the defendant No.2, who has also conveniently agreed to accept a lesser share. Therefore, the question that needs to be examined is whether by voluntarily accepting a lesser share by defendant No.2, would affect the rights of plaintiff who is a coparcener and has got independent right over the suit schedule properties.
8. If all these significant details are taken into consideration, the concurrent findings recorded by the Courts below that the plea of prior partition is not proved by the defendants is in accordance with law. What is noticed by this court is that defendants having set up a plea of prior partition have conveniently given a go by to the said defence. During trial, a feeble attempt is made by the defendants and it is claimed that all the suit schedule properties are self acquired properties of defendant no.1. This stand taken by the defendants during trial will not come to the aid of defendants insofar as a plea of prior partition is concerned.
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9. The Appellate Court has rightly rejected the application filed under the provision of Order 41 Rule 27 of CPC. The unregistered document cannot be admitted in evidence on two counts. The unregistered partition deed is not required for effective adjudication of controversy between the parties. Even if defendant No.2 has voluntarily accepted a lesser share in the properties, that will not bind the plaintiff who is a coparcener. The plaintiff has got independent right by birth. Therefore, the additional evidence which was sought to be produced before the Appellate Court is not at all relevant and not necessary for effective adjudication. The averments made in the affidavit filed in support of application even otherwise does not satisfy the ingredients enumerated under the provisions of Order 41 Rule 27 of CPC. Therefore, if the said document is not taken on record, no prejudice is caused to defendants.
10. Therefore, no substantial question of law arises. The judgment and decree rendered by the Courts below is 9 based on legal evidence led in by the plaintiff and in absence of rebuttal evidence led in by the defendants. Judgment cited by counsel for appellants in Civil Appeal No.2413/2006 is not at all applicable to the present case on hand.
Accordingly, the regular second appeal is devoid of merits and stands dismissed.
In view of dismissal of second appeal all applications does not survive for consideration and stands disposed of.
Sd/-
JUDGE HDK