Karnataka High Court
Subhaschandra Died By Lrs 1) Veeresh And ... vs Mahadevi W/O Shivayogappa Shahapur ... on 15 October, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2024:KHC-K:7679
RSA No. 200349 of 2022
C/W RSA No. 200339 of 2022
RSA No. 200449 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200349 OF 2022
(DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 200339 OF 2022
(DEC/INJ)
REGULAR SECOND APPEAL NO. 200449 OF 2022
(DEC/INJ)
IN RSA NO.200349/2022:
Digitally signed by BETWEEN:
SHIVALEELA
DATTATRAYA
UDAGI
Location: HIGH
SUBHASCHANDRA DIED BY LRS
COURT OF
KARNATAKA
1. VEERESH
S/O SUBHASCHANDRA GOURAPPAGOL,
AGE: 14 YEARS, MINOR,
U/G TARABAI W/O SUBHASCHANDRA,
AGE: 40 YEARS, OCC: HOUSEHOLD AND
ADVOCATE,
R/O. H.NO. 4-316 AND 4-316/1, MAKTAMPUR,
KALABURAGI-585102.
2. BHAGYASHREE
D/O SUBHASCHANDRA GOURAPPAGOL
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NC: 2024:KHC-K:7679
RSA No. 200349 of 2022
C/W RSA No. 200339 of 2022
RSA No. 200449 of 2022
AGE: 17 YEARS, MINOR,
U/G TARABAI W/O SUBHASCHANDRA,
AGE: 40 YEARS,
OCC. HOUSEHOLD AND ADVOCATE,
R/O. H.NO. 4-316 AND 4-316/1, MAKTAMPUR,
KALABURAGI-585102.
...APPELLANTS
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
MAHADEVI W/O SHIVAYOGAPPA SHAHAPUR
DIED BY LRS
1. MEENAKSHI W/O RAVINDRA PATIL,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O. BUDWARPETH, BASAVAKALYAN,
DIST. BIDAR-585327.
2. RATANMALA W/O VINAYAK MALKHED
AGE: MAJOR, OCC: HOUSEHOLD,
R/O. SAKHARPETH,
SOLAPUR (NORTH)-413001.
3. SHIVAYOGI S/O SHANKRAPPA SHAPURE
AGE: 79 YEARS, OCC. RETD.,
R/O. SHAKARPETH,
SOLAPUR-413001.
4. COMMISSIONER CITY CORPORATION
KALABURAGI-585102.
5. MEENAKSHI W/O SUBHASCHANDRA
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O. SHANKARAPPA UKKALI HOUSE,
MAKTAMPUR, KALABURAGI-585102.
...RESPONDENTS
(BY SRI ANANTH S. JAHAGIRDAR, ADVOCATE FOR
R1, R2, R3 AND R5)
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NC: 2024:KHC-K:7679
RSA No. 200349 of 2022
C/W RSA No. 200339 of 2022
RSA No. 200449 of 2022
THIS RSA IS FILED UNDER SECTION 100 OF THE
CPC, PRAYING TO ALLOW THE APPEAL WITH COSTS,
THEREBY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 19.04.2022 IN R.A.NO.73/2017 ON THE FILE OF
I ADDITIONAL DISTRICT JUDGE, KALABURAGI, BY
MODIFYING THE JUDGMENT AND DECREE PASSED IN
O.S.NO.77/2007 DATED:31.07.2017 ON THE FILE OF THE
I ADDITIONAL SENIOR CIVIL JUDGE KALABURAGI AND
DECREE THE SUIT IN OS.NO.77/2007 AS PRAYED FOR.
IN RSA.NO.200339/2022:
BETWEEN:
SUBHASCHANDRA DIED BY LRS
1. VEERESH
S/O SUBHASCHANDRA GOURAPPAGOL,
AGE: 14 YEARS, MINOR,
U/G TARABAI W/O SUBHASCHANDRA,
AGE: 40 YEARS,
OCC: HOUSEHOLD AND ADVOCATE,
R/O. H.NO. 4-316 AND 4-316/1,
MAKTAMPUR, KALABURAGI-585102.
2. BHAGYASHREE
D/O SUBHASCHANDRA GOURAPPAGOL
AGE: 17 YEARS, MINOR,
U/G TARABAI W/O SUBHASCHANDRA,
AGE: 40 YEARS,
OCC: HOUSEHOLD AND ADVOCATE,
R/O. H.NO. 4-316 AND 4-316/1,
MAKTAMPUR, KALABURAGI-585102.
...APPELLANTS
(BY SRI VINAYAK APTE, ADVOCATE)
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NC: 2024:KHC-K:7679
RSA No. 200349 of 2022
C/W RSA No. 200339 of 2022
RSA No. 200449 of 2022
AND:
MAHADEVI W/O SHIVAYOGAPPA SHAHAPUR
DIED BY LRS ( DIED DURING PENDENCY
OF THE APPEAL)
1. SHIVAYOGI S/O SHANKRAPPA SHAPURE,
AGE: 79 YEARS, OCC: RETD.,
R/O. SHAKARPETH, SOLAPUR-413001.
2. MEENAKSHI W/O RAVINDRA PATIL
AGE: MAJOR, OCC: HOUSEHOLD,
R/O. BUDWARPETH, BASAVAKALYAN,
DIST. BIDAR-585327.
3. RATANMALA W/O VINAYAK MALKHED
AGE: MAJOR, OCC: HOUSEHOLD,
R/O. SAKHARPETH,
SOLAPUR (NORTH) - 413001.
4. COMMISSIONER CITY CORPORATION
KALABURAGI-585102.
5. MEENAKSHI W/O SUBHASCHANDRA
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O. SHANKARAPPA UKKALI HOUSE,
MAKTAMPUR, KALABURAGI-585102.
...RESPONDENTS
(BY SRI ANANTH S. JAHAGIRDAR, ADVOCATE FOR
R1 TO R3 AND R5)
THIS RSA IS FILED UNDER SECTION 100 OF THE
CPC, PRAYING TO ALLOW THE APPEAL WITH COSTS,
THEREBY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 19.04.2022 IN R.A.NO.82/2017 ON THE FILE OF
THE I ADDITIONAL DISTRICT AND SESSION JUDGE,
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NC: 2024:KHC-K:7679
RSA No. 200349 of 2022
C/W RSA No. 200339 of 2022
RSA No. 200449 of 2022
KALABURAGI AND DECREE THE SUIT OF THE
O.S.NO.77/2007 AS PRAYED FOR.
IN RSA.NO.200449/2022:
BETWEEN:
SUBHASCHANDRA DIED BY LRS
1. VEERESH
S/O SUBHASCHANDRA GOURAPPAGOL,
AGE: 14 YEARS, MINOR,
U/G TARABAI W/O SUBHASCHANDRA,
AGE: 51 YEARS,
OCC: HOUSEHOLD AND ADVOCATE,
R/O. H.NO. 4-316 AND 4-316/1, MAKTAMPUR,
KALABURAGI-585102.
2. BHAGYASHREE
D/O SUBHASCHANDRA GOURAPPAGOL
AGE: 17 YEARS, MINOR,
U/G TARABAI W/O SUBHASCHANDRA,
AGE: 43 YEARS,
OCC: HOUSEHOLD AND ADVOCATE,
R/O. H.NO. 4-316 AND 4-316/1, MAKTAMPUR,
KALABURAGI-585102.
...APPELLANTS
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
1. MEENAKSHI W/O SUBHASCHANDRA
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O SHANKARAPPA UKKALI HOUSE,
MAKTAMPUR, KALABURAGI-585102.
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NC: 2024:KHC-K:7679
RSA No. 200349 of 2022
C/W RSA No. 200339 of 2022
RSA No. 200449 of 2022
2. COMMISSIONER CITY CORPORATION
KALABURAGI-585102.
MAHADEVI W/O SHIVAYOGAPPA SHAHAPUR
DIED BY LRS ( DIED DURING PENDENCY OF THE
APPEAL)
3. SHIVAYOGI S/O SHANKRAPPA SHAPURE,
AGE: 79 YEARS, OCC: RETD.,
R/O. SHAKARPETH,
SOLAPUR-413001.
4. MEENAKSHI W/O RAVINDRA PATIL
AGE: MAJOR, OCC: HOUSEHOLD,
R/O. BUDWARPETH, BASAVAKALYAN,
DIST. BIDAR-585327.
5. RATANMALA W/O VINAYAK MALKHED
AGE: MAJOR, OCC: HOUSEHOLD,
R/O. SAKHARPETH,
SOLAPUR (NORTH)-413001.
...RESPONDENTS
(BY SRI ANANTH S. JAHAGIRDAR, ADVOCATE FOR
R1, R3, R4 AND R5)
THIS RSA IS FILED UNDER SECTION 100 OF THE
CPC, PRAYING TO ALLOW THE APPEAL WITH COSTS,
THEREBY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 19.04.2022 IN R.A.NO.41/2008 ON THE FILE OF I
ADDITIONAL DISTRICT AND SESSION JUDGE
KALABURAGI, AND DECREE THE SUIT IN OS.NO.77/2007
ON THE FILE OF THE IST ADDITIONAL SENIOR CIVIL
JUDGE, KALABURAGI AS PRAYED FOR.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-K:7679
RSA No. 200349 of 2022
C/W RSA No. 200339 of 2022
RSA No. 200449 of 2022
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) These three appeals are filed by the children of original plaintiff No.1-Sri.Subhash Chandra aggrieved by the judgment and decree dated 31.07.2017 passed in O.S.No.77/2007 on the file I-Addl. Senior Civil Judge, Kalaburagi (hereinafter referred to as 'the Trial Court' for short), by which the Trial Court while declining and rejecting the reliefs of declaration of title and declaration that the partition deed dated 12.10.2006 was not binding on the plaintiffs, had however granted a relief of permanent injunction restraining the defendants No.1 and 3 from dispossessing the plaintiffs from the suit property without due process of law and also being aggrieved by the judgment and order dated 19.04.2022 passed on the file of I-Addl. Dist. Sessions Judge, Kalaburagi (hereinafter referred to as 'the First Appellate Court' for short), by which the First Appellate Court while dismissing the appeal -8- NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 filed by the plaintiffs in R.A.No.73/2017 and had partly allowed the appeals filed by defendant No.1 and defendant No.3 in R.A.No.82/2017 and R.A.No.41/2018 respectively by setting aside the decree of permanent injunction granted by the Trial Court.
2. Brief facts of the case are that, original plaintiff, namely Sri Subhash Chandra, along with his daughter Miss.Bhagyashree had filed the above suit seeking following reliefs:
1. That, it is here by declared that the plaintiffs are owner and possessor of the suit property.
2. That, it is here by declared that the alleged partition deed is null and void and not binding upon the plaintiffs and it is hereby cancelled.
3. That, the defendants his agents ,servants or any body claiming under or through them may kindly be restrained from interfering in the peace full possession of he plaintiffs over the suit property
4. That, the plaintiffs are entitled to enter the name of the plaintiffs in the Corporation records as owner and possessor of the suit property.
5. That, any other relief to which in the plaintiff in the entitled may be granted.
6. That, the cost of the suit be awarded.-9-
NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 Contending inter alia that plaintiffs are the absolute owners in possession of the house property bearing No.4- 316 and 4-316/1 of Maktampur, Gulbarga (hereinafter referred to as 'the scheduled property' for short) that the said suit property is ancestral property of the plaintiffs, same having been inherited by them through one Sri.Noorondappa Gourappagol-father of plaintiff No.1 and grandfather of plaintiff No.2 respectively. That the defendant No.1-Smt.Mahadevi, is the sister of plaintiff No.1 and that her marriage was solemnized by their father and mother in the year 1974, expending huge amounts of money and that ever since her marriage defendant No.1 has been residing at Shahabad along with her husband.
3. That the plaintiff No.1 was married to one Meenakshi-defendant No.3 and since they did not have any child out of their marriage, plaintiff No.1 contracted second marriage with one Tarabai with the consent and cooperation of his mother and the first wife-the said
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 Meenakshi. That out of the second marriage, plaintiff No.2, namely, Bhagyashree was born.
4. That the first wife of plaintiff No.1 had taken away 100 tolas of gold ornaments from the house of the plaintiffs and had been residing separately at Aland Colony, Gulbarga that due to certain differences that arose between plaintiff No.1 and the his first wife-defendant No.3, she had filed a petition under Section 125 of Criminal Procedure Code against plaintiff No.1 seeking relief of maintenance before the Family Court, Gulbarga in Criminal Miscellaneous No.175/2006.
5. That the plaintiff No.1 was innocent and was not keeping well, as such, plaintiff No.2 had filed an application before defendant No.2-The Commissioner, Corporation city of Gulbarga, seeking mutation of the suit property in the name of plaintiff No.2 as the same was standing in the name of mother of the plaintiff No.1 and grandmother of plaintiff No.2 Smt. Sarubai and that the said Sarubai had passed away on 31.01.2005, leaving
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 behind plaintiffs as her legal heirs. However, defendant No.1 and defendant No.3 had filed objections before the defendant No.2 to the application so made, which was registered as case No.Rev/MUT/258/2006-07.
6. It is further contended that defendant No.1 had created a false and fictitious document in collusion with the first wife of plaintiff No.1 with an intention of grabbing the suit properties. The plaintiff No.1 had never executed any such document, much less any partition deed in favour of defendant Nos.1 and 3. That the signature on such documents had been obtained by the Advocate of defendant No.3 by misleading the plaintiff on the premise of withdrawing the petition filed by his first wife under Section 125 of Cr.P.C. As such, the said document was not binding on the plaintiffs and the said partition deed requires to be declared as null and void. The defendant No.2 had registered another case on the application filed by defendant No.1 in file No.REV.MUT/529/2006-07 and was making hectic efforts to mutate the name of the
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 defendant No.1 based on the said partition deed detriment to the interest of the plaintiffs. That the defendant No.1 has no share, right, title, interest over the suit property. That, on the basis of false and fabricated document, a claim was made that since the defendant No.1 was attempting to trespass into the property, interfering with the peaceful possession of the same by the plaintiffs, plaintiffs were constrained to file the above suit for the reliefs as sought for.
7. On service of summons, defendant No.1 filed the written statement denying the plaint averments and allegations. However, admitted the relationship between the plaintiff No.1 and defendant Nos.1 and 3. The claim of plaintiff of he having married Tarabai as second wife has been denied. The allegation of defendant No.3 stealing 100 tolas of gold ornaments from the plaintiffs house is also denied. The allegations of creation of partition deed in collusion with defendant No.3 and with the assistance of her counsel has also denied.
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022
8. It is contended that suit property was owned by Sarubai, mother of plaintiff No.1 and defendant No.1, who herself had inherited the property from her mother. As such, the Sarubai was the absolute owner in exclusive possession of the same. That upon her demise, plaintiff No.1 and defendant No.1 had divided the suit property into equal shares and had entered into a deed of partition, which has duly executed and registered on 12.10.2006. In terms of the said partition, eastern portion was allotted to the share of the defendant No.1 and western portion of the property was allotted to the plaintiff No.1. Thus, defendant No.1 is the owner in possession of eastern portion of the suit property. Since the plaintiff No.1 being party to the said deed of partition cannot claim the relief of declaration as sought for. Hence, sought for dismissal for suit.
9. The defendant No.3 also filed written statement denying all the averments and allegations made in the plaint and sought for dismissal of the suit.
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022
10. Based on the pleadings, the Trial Court framed the following issues:
1. Whether the plaintiffs prove that, the suit property is an ancestral property of themselves?
2. Whether the plaintiffs prove that, the alleged partition deed dated 12-10-2006 under Document No.6326 is null and void and not binding upon them?
3. Whether the plaintiffs further prove that, they are the absolute owners in possession of the suit property?
4. Whether the plaintiffs further prove that, the defendants have interfered in their peaceful possession and enjoyment over the suit property?
5. Whether the defendant No.1 proves that, the said suit house property was owned by one Sarubai i.e., the mother of plaintiff No.1 and defendant No.1 from her (Sarubai) mother who was the absolute owner and possessor of the same?
6. Whether the plaintiffs further prove that, they are entitled for the relief of declaration in respect of their ownership over the suit property?
7. Whether the plaintiffs further prove that, they are entitled for the relief of declaration, declaring that the alleged partition deed is null and void and not binding upon them and also regarding it's cancellation?
8. Whether the plaintiffs further prove that, they are entitled for the relief of perpetual injunction as sought for in the plaint?
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022
9. Whether the suit of the plaintiffs is properly valued and court fee paid is proper?
10. Whether the instant court has no jurisdiction to try and entertain the instant suit?
11. Whether the plaintiffs are entitled for the relief as sought for?
12. To what order or Decree?
11. During the pendency of the said suit, the plaintiff No.1 died on 24.07.2016 thereupon one Veeresh claiming to be the son of plaintiff No.1 from his second wife was brought on record as his legal representative. Tarabai claiming to be the second wife of plaintiff No.1 examined herself as PW.1 and also five additional witnesses were examined as PWs.2 to 6 and exhibited 84 documents marked as Exs.P1 to P84. Smt.Meenakshi has examined herself as DW.1 and daughter of defendant No.1 namely Meenakshi has been examined as DW.2 and exhibited four documents marked at Exs.D1 to D4.
12. On appreciation of the evidence, the Trial Court answered issue Nos.1, 2, 5, 6, 7 and 10 in the Negative; issue No.4 in the Affirmative; issue Nos.3, 8, 9 and 11
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 partly in the Affirmative and partly in the Negative; and consequently dismissed the suit of the plaintiffs as regards the relief of declaration of title, declaration in respect of a deed of partition and for rectification of revenue records. However, the Trial Court held that the plaintiffs were entitled for relief of permanent injunction restraining the defendants No.1 and 3 their agents and servants from dispossessing the plaintiffs from the suit schedule property with due process of law.
13. Aggrieved by the dismissal of the suit, the plaintiffs filed R.A.No.73/2017; while aggrieved by grant of relief of permanent injunction, defendant No.1 filed appeal in R.A.No.82/2017 and defendant No.3 filed appeal in R.A.No.41/2018 before the First Appellate Court.
14. Considering the grounds urged in these appeals, the First Appellate Court framed the following common points for its consideration:
1. Whether the appellants/plaintiffs in R.A.No.73/2017 have established that the
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 learned trial court Judge has committed grave error in relying the partition deed claimed by the defendants No.1 &3 thereby fails to grant relief for declaration to declare their ownership over the suit property, is needed interference by this court?.
2. Whether the appellants in R.A. No.82/2017 and R.A. No.41/2018 established that the learned trial court Judge has committed error in granting relief of permanent injunction against them is also needed interference by this court?
3. Whether the appellants in R.A.No.73/2017 established that the judgment and decree rendered by trial court is erroneous, perverse, capricious and against the principles of law and evidence available on record, hence needed interference of this court?
4. Whether the appellants in R.A.No.82/2017 and R.A. No.41/2018 further established that the judgment and decree rendered by trial court is erroneous, perverse, capricious and against the principles of law and evidence available on record, hence needed interference of this court?
5. What order?
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022
15. On re-appreciation of the material evidence, the First Appellate Court answered the point No.1 and 3 partly in the Affirmative, point No.2 and 4 in the Negative and consequently dismissed the appeal in R.A.No.73/2017; partly allowed R.A.No.82/2017 and appeal in R.A.No.41/2018. Consequently, vacated the permanent injunction that was granted by the Trial Court against defendant Nos.1 and 3 in favour of the plaintiffs. Aggrieved by the aforesaid orders of the Trial Court as well as the First Appellate Court, the plaintiffs have filed the aforesaid three appeals.
16. The learned counsel for the appellants reiterating the grounds urged in the memorandum of appeals, submitted that both the Trial Court and the First Appellate Court erred in not granting the relief of declaration of plaintiffs being the absolute owners of the suit property inasmuch as admittedly marriage of the defendant No.1 was solemnized in the year 1975 and had been residing separately along with her husband at
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 Shahabad since then. That plaintiffs had been in exclusive possession enjoyment of the property ever since then. He submits that the Trial court and the First Appellate Court have not appreciated the evidence of the witnesses with regard to partition deed at Ex.P68, being false and created document. He submits the circumstances under which the said document was executed were well established by the plaintiffs, which has not been appreciated by both the Courts.
17. He further submits that alternatively, perusal of the said partition deed would indicate that, there was no equal partition and there was uneven distribution of the properties, which factor alone was sufficient enough for Trial Court and the First Appellate Court to have set aside the terms of the partition. He submits that the plaintiffs have been in possession and enjoyment of the property exclusively and documents produced in that regard, namely, Exs.P2, P4 to P6, P8, P12 to P14 being the tax paid receipts and Ex.P59 being the electricity bill, have not
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 been appreciated by the First Appellate Court while vacating the permanent injunction granted by the Trial Court. That the reasons assigned by the First Appellate Court, while allowing the regular appeal in R.A.No.82/2017 and R.A.No.41/2018 are contrary to the material evidence placed on record. That though defendant No.1 had set up the partition deed produced at Ex.P68, she had failed to prove the same having been acted upon since no portion of the property was delivered to the defendant No.1 and the plaintiffs continued to be in possession of the entire extent of property.
18. He further submits that the plaintiffs had filed an application under Order 6 Rule 17 of CPC, and also had filed an application under Order 14 Rule 5 of CPC, seeking amendment of the plaint and for recasting of the issues in I.A.No.4 and I.A.No.5 respectively, and the First Appellate Court, without disposing of the said applications, proceeded to dismiss the appeals filed by the plaintiffs while partly allowing the appeals filed by the defendants,
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 which according to the counsel of the plaintiffs is a serious infirmity, giving rise to substantial questions of law. Hence, seeks for intervention of this Court.
19. On the other hand, learned counsel appearing for the defendant Nos.1 and 3, justifying the judgment and decree partly passed by the Trial Court and confirmed by the First Appellate Court submits that admittedly, suit property belong to the mother of the plaintiff No.1 and defendant No.1 and upon her demise, the property has devolved equally upon the plaintiff No.1 and defendant No.1 being her children. Since the defendant No.1 had vested right in the property, a deed of partition was entered into mutually between the parties, dividing the said property equally between them. That there has been no collusion or fraud played as alleged. Referring to the evidence of PW.6 counsel, who had apparently drafted the partition deed, the learned counsel submits that the said witness was though examined on behalf of the plaintiff,
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 has spoken in favor of the defendants with regard to the authenticity of the partition deed.
20. He submits the Trial Court though had dismissed suit for substantial reliefs had, however, erred in granting the relief of permanent injunction, which has been rectified by the First Appellate Court by vacating the same. He submits, since admittedly there has been no partition prior to execution of the deed of partition dated 12.10.2006, the plaintiffs could not have maintained the suit for declaration. The plaintiff and defendant No.1, being co owners of the property, relief of injunction could not have been granted in favor of the plaintiff No.1 against defendant No.1. He submits that no substantial question of law would arise for considering the matter. Hence, seeks for dismissal of the appeals.
21. Heard. Perused the records.
22. There is no dispute of the fact that the suit schedule property belonged to the parents of plaintiff No.1
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 and defendant No.1. While plaintiff No.1 claims that originally suit schedule property belonged to his father and upon his demise, property was made in the name of his mother-Sarubai and defendant No.1 claims the suit property exclusively belonged to their mother-Sarubai, the fact remains, as rightly taken note of by both the Trial Court and the First Appellate Court that the plaintiff No.1 and defendant No.1 being children of said Noorondappa and Sarubai, would be entitled for a definite equal share, upon their demise, in terms of the provisions of Hindu Succession Act, 1956.
23. It is not the case of the plaintiff No.1 that his mother or the father, as the case may be, had executed any deed of conveyance in his favor. It is his case of he having inherited the property through his father. The relationship of plaintiff No.1 and defendant No.1, being that of a brother and sister having been admitted, the contention of the plaintiffs that the defendant No.1 did not
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 have any share in the property cannot be accepted. Such a legal right cannot be denied on a denial by the plaintiffs.
24. Even if it is to be held, as rightly observed with the Trial Court and the First Appellate Court, that the suit schedule properties are the ancestral properties at the hands of plaintiff No.1 with the amendment to Section 6 of the Hindu Succession Act, defendant No.1, being the daughter, was equally entitled for share in the suit schedule property. As such, no fault can be found with the Trial Court and the First Appellate Court in dismissing the suit of the plaintiffs, seeking declaration that the plaintiff No.1 to be the absolute owner of the entire extent of suit property.
25. As regards the relief of declaration declaring the deed of partition dated 12.10.2006 - Ex.P68, to be null and void on the ground that the same had allegedly been obtained by misleading the plaintiff No.1 is concerned, the Trial Court and the First Appellate Court have adverted to the evidence led in by the plaintiffs in this regard in detail
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 and have come to conclusion the plaintiffs have failed to prove the allegations of misrepresentation and misleading.
26. It was alleged that the said document was obtained by defendant No.1 in collusion with defendant No.3 while the counsel for the defendant No.3 had made the plaintiff No.1 to affix his signature on certain documents on the pretext of withdrawing proceedings under Section 125 of Cr.P.C. that was initiated by defendant No.3 against the plaintiff No.1. The Trial Court and the First Appellate Court have found that the except making a bald allegations no material particulars with regard to alleged misleading, misrepresentation have been provided in the plaint.
27. Plaintiffs themselves have examined PW.6- Smt.Arati W/o Surendra Prasad, who was the counsel for defendant No.3 in the said proceedings under Section 125 of Cr.P.C. The said witness, as taken note of by the Trial Court and the First Appellate Court has deposed that there was no misleading or misrepresentation at the time of
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 obtaining the signatures. The said witness has specifically deposed that the deed of partition had been executed with the active participation of the plaintiff No.1, who himself got prepared the map enclosed to the deed of partition. The Trial Court and the First Appellate Court have also found that as on 12.10.2006 when the deed of partition was executed, no proceeding under Section 125 was pending as the said proceedings were initiated on 07.12.2006.
28. The Trial Court and the First Appellate Court have rightly taken note of the fact that plaintiffs have approached the Court seeking declaration of partition deed as null and void and not for reopening the partition on the ground of unequal distribution of the properties. No other material evidence has been produced by the plaintiffs as regards the terms of the partition deed being unequal.
29. Though the Trial Court had granted the relief of permanent injunction on the premise that the despite there being a deed of partition, plaintiffs continued to be in
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 possession and that they would be required to be dispossessed with due process of law, the First Appellate Court has rightly reversed the said finding as there could be no injunction against a co-owner of the property. Defendant No.1 being the only sister of the plaintiff is entitled for share in the suit schedule property. Defendant No.3 being legally wedded wife of plaintiff No.1 and their marriage not having been dissolved in the manner known to law is entitled for her share in the portion of property belonging to her husband the plaintiff No.1 who is now deceased. As such there cannot be any order or decree prohibiting them from enjoying the suit schedule property.
30. The Trial Court and the First Appellate Court have in the considered view of this Court have adverted to all the factual and legal aspect of the matter and have thus come to just conclusion of the matter warranting no interference. No substantial question of law would arise for consideration in these appeals. The grounds regarding non-consideration of interim applications in the
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NC: 2024:KHC-K:7679 RSA No. 200349 of 2022 C/W RSA No. 200339 of 2022 RSA No. 200449 of 2022 circumstances become irrelevant. Accordingly, the same are dismissed.
31. Consequently, the appeals are dismissed.
Sd/-
(M.G.S.KAMAL) JUDGE SDU LIST NO.: 1 SL NO.: 33 CT:PK