Dismissed

Boregowda v. Siddegowda

Karnataka HC30 Sept 2013RSA/1604/2010

Case brief

AI extract

What is this about?

In a regular second appeal against dismissal of a suit for partition and separate possession, the High Court of Karnataka held that the appellant failed to prove blood relationship between parties. A registered adoption deed established the first respondent as descendant of a different family branch.

What did the court decide?

Appeal dismissed; application for leave to adduce further evidence rejected.

Boregowda Vs Siddegowda — Partition | Karnataka HC (2013)

¶1

1 RSA No.1604/2010

¶2

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 30^TH DAY OF SEPTEMBER, 2013 BEFORE

¶3

THE HON’BLE MR. JUSTICE A.S. PACHHAPURE REGULAR SECOND APPEAL No.1604 OF 2010

¶4

BETWEEN:

¶5

BOREGOWDA S/O.LATE CHAPLE MARIGOWDA AGED 56 YEARS R/O. MUDALAKOPPALU VILLAGE MARADARU DHAKALE, MELURU POST BETTADAPURA HOBLI PERIYAPATNA TALUK-751 102 MYSORE DISTRICT.

¶6

... APPELLANT

¶7

(BY SRI: M M CARIAPPA, ADV FOR M/S AIYAPPA AND CARIAPPA, ADVS)

¶8

AND:

¶9

SIDDEGOWDA S/O. KARIKALANA SIDDEGOWDA AGED 66 YEARS

¶10

APPUGOWDA S/O.LATE KENCHABOREGOWDA AGED 58 YEARS

¶11

KARIGOWDA

¶12

S/O. LATE KALASANA SANNE GOWDA AGED 58 YEARS

¶13

ALL ARE R/O. MUDALAKOPPALU VILLAGE MARADARU DHAKALE, MELURU POST

¶14

¶15

RSA No.1604/2010

¶16

BETTADAPURA HOBLI PERIYAPATNA TALUK-751 102 MYSORE DISTRICT.

¶17

... RESPONDENTS

¶18

(BY SRI: A LOURDU MARIYAPPA, ADV FOR R1 & 2, R2 SERVED & UNREPRESENTED)

¶19

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 01.03.2010 PASSED IN RA NO.51/2009 ON THE FILE OF THE PRL. DISTRICT & SESSIONS JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.01.2009 PASSED IN OS NO.93/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & JMFC., K.R.NAGAR.

¶20

THIS RSA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:

¶21

J U D G M E N T

¶22

The unsuccessful plaintiff in both the

¶23

Courts below has filed this appeal challenging the dismissal of his suit for partition and separate possession of his share in the family properties.

¶24

The facts relevant for the purpose of this appeal are as under:

¶25

¶26

RSA No.1604/2010

¶27

One Kunda S/o Hottethoppa is said to be the propositus. The appellant-plaintiff claimed that Karikala @ Sannappagowda is the eldest son, whereas Thopegowda is the second and Chapalegowda is the third son of propositus. The first defendant is the lineal descendant of Karikala @ Sannappagowda, whereas the second defendant is that of second branch and plaintiff claims to be of the third branch. In the circumstances, he contends that the suit properties are the joint family properties of Kunda @ Hottethoppa and he claims 1/3^rd share in the suit properties.

¶28

The first defendant has denied the relationship and contended that his grand father Karikala @ Sannappagowda is not the son of Kunda @ Hottethoppa and therefore, it was his defence that there is no relationship between the plaintiff and the defendants, hence, sought for dismissal of the suit.

¶29

¶30

RSA No.1604/2010

¶31

The Trial Court framed the issues casting burden upon the plaintiff to establish the relationship and that the suit properties are joint family properties. The parties led the evidence and the plaintiff examined PWs.1 to 3 and got marked documents Exs.P1 to P8. On behalf of defendants, defendant No.3 was examined as DW1 and the documents EXs.D1 to D47 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the evidence on record, dismissed the suit holding that the relationship is not proved and that the suit properties are not joint family properties. Aggrieved by the judgment and decree, the plaintiff preferred RA No.51/2009 and the First Appellate court has dismissed the appeal on merits affirming the findings of Trial Court. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed.

¶32

5 RSA No.1604/2010

¶33

application IA.I/2013 seeking permission to produce certain documents.

¶34

I have heard learned Counsel for both

¶35

the parties.

¶36

It is the submission of learned

¶37

Counsel for the appellant that Karikala @ Sannappagowda is the son of Kunda @ Hottethoppa, the propositus and the first defendant is the lineal descendant of Karikala @ Sannappagowda, whereas plaintiff is the lineal descendant of third branch and the second defendant is the lineal descendant of second branch. He submits that the revenue records which has been produced would clearly indicate that prior to the institution of suit, the joint family properties stood in the name of lineal descendant of Kunda @ Hottethoppa, therefore, he would submit that the Courts below committed an error in rejecting these documents and accepting Ex.D3 wherein in

¶38

¶39

RSA No.1604/2010

¶40

the said document, it is mentioned that Karikala @ Sannappagowda is not the son of Kunda @ Hottethoppa, but he is the son of one Siddegowda. Hence, he submits that as the revenue records clearly indicate that the suit properties are the joint family properties, the courts below could have ignored the recital made in Ex.D3.

¶41

6. Ex.D3 is the registered adoption deed

¶42

wherein Karikala @ Sannappagowda has been taken by the father of first defendant - Siddegowda in adoption. This document is dated 05.06.1943. Perusal of this document would reveal that

¶43

father name of Karikala @ Sannappagowda has been shown as Siddegowda. Undisputedly, the first defendant is the lineal descendant of Karikala @ Sannappagowda. Ex.D3 is morethan 30 years old as on the date of suit and therefore, the contents need not be proved, they can be accepted on its face value. When document Ex.D3

¶44

¶45

RSA No.1604/2010

¶46

indicates that Karikala @ Sannappagowda was not the son of Kunda @ Hottethoppa, the question of first defendant being relative of either plaintiff or second defendant does not arise for consideration at all. It is necessary that the plaintiff in a partition suit should establish the relationship between the parties so as to claim the share in the joint family properties. The very link of relationship between the parties is not established.

¶47

It is no doubt true that the revenue

¶48

records particularly in Ex.D1, there is a mention of names of persons belonging to each of the branches, but this fact itself is not sufficient to establish the relationship between the parties. It may be that it is an indication of joint possession but not the joint possession of joint family. To establish the joint possession of joint family, it is necessary to establish their relationship. So as there are

¶49

¶50

RSA No.1604/2010

¶51

no other documents to establish that Karikala @ Sannappagowda was the son of Kunda @ Hottethoppa and Ex.D3 indicates that he was the son of Siddegowda, the Courts below on the basis of recital in Ex.D3 have concurrently held that suit for partition cannot be maintained as relationship itself is not proved. Both the Courts below have taken into consideration the revenue records and also the contents of Ex.D3 - the registered adoption deed and held that the plaintiff has failed to prove the relationship. It is purely a question of fact which has been decided by the Courts below.

¶52

Perusal of the material placed on record and on consideration of the submission made by the learned Counsel for the appellant, I do not find any substantial question of law for consideration.

¶53

In the result, the appeal fails and it is dismissed.

¶54

¶55

RSA No.1604/2010

¶56

So far as IA.I/2013 is concerned, it is only a extract of land revenue records and it is of no help to the appellant to establish the relationship. Hence, IA.I./2013 also deserves

¶57

to be rejected and accordingly dismissed.

¶58

Sd/JUDGE

¶59

*bgn/-

Boregowda v. Siddegowda

Case brief

What is this about?

What did the court decide?

Boregowda v. Siddegowda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

K R Iyyanna Vs Hanumanthappa

Fakeerappa S/O Melappa Vs Sharanappa S/O Melappa

Krishnamurthy S/O Bettaiah @ Mallaiah Vs Smt Chandramma D/O Bettaiah @ Mallaiah

H M Rudraradhya Vs Smt Uma

Sri N Prasannakumar Vs the Manager Siddaganga Urban Co-Op Bank Ltd.

Sri Nanjaiah S/O Late Mariyappa Vs Sri Boraiah S/O Late Mariyappa