Dismissed

S L Gopalakrishna v. K S Parameshwara Gowda

Karnataka HC16 Aug 2021RSA/1173/2006

Case brief

AI extract

What is this about?

This Regular Second Appeal challenged a decree dismissing a suit for declaration of joint family property rights. The first appeal was filed by purchasers and the second by vendor's heirs. The High Court dismissed the appeal as appellants failed to prove self-acquired property status or adverse possession. No substantial question of law arose under Section 100 CPC.

What did the court decide?

Regular Second Appeal is liable to be dismissed at the Admission stage since no substantial question of law is made out.

S L Gopalakrishna Vs K S Parameshwara Gowda — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF AUGUST 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.1173/2006

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BETWEEN:

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S L GOPALAKRISHNA SINCE DECEASED BY HIS LRS.

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1A. SMT. RADHA @ SAVITHRI W/O LATE S L GOPALAKRISHNA NOW AGED ABOUT 39 YEARS

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1B. MASTER S G RAMAIAH S/O LATE S L GOPALAKRISHNA NOW AGED ABOUT 10 YEARS

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1C. KUM.S G KAVIYA D/O LATE S L GOPALAKRISHNA NOW AGED ABOUT 8 YEARS

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1D. MASTER S G YUVARAJ

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S/O LATE S L GOPALAKRISHNA NOW AGED ABOUT 5 YEARS

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THE APPELLANTS 1(B) TO 1(D) ARE MINORS, REP. BY THEIR NATURAL GUARDIAN MOTHER 1(A) SMT. RADHA @ SAVITHRI

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ALL THE APPELLANTS 1(a) TO (d) ARE R/OF KERE KURGAMMANAKERI SHIVAMOGGA-577 201.

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S L DEVEKERAPPA

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SINCE DECEASED BY HIS LR

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2A. SMT. KARIYAMMA

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W/O LATE S N DEVEKEREAPPA

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AGED ABOUT 65 YEARS R/AT KERE DURGAMMANAKERE SEEGEHATTI

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SHIVAMOGGA TOWN.

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VENKATAPPA SINCE DECEASED BY HIS LRS.

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3A. SMT. GANGAMMA W/O LATE VENKATAPPA AGED ABOUT 64 YEARS

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3B. SRIKANTA

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S/O LINGAPA AGED MAJOR

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BOTH ARE RESIDENTS OF KERE DURGAMMANAKERI SHIVAMOGGA-577 201.

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3C. SMT. SAROJAMMA

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W/O THOTAPPA D/O LATE VENKATAPPA

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MAJOR, TEACHER

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GURUPURA, BEHIND GANAPATHY TEMPLE SHIVAMOGGA-577 201.

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SRI K RANGANATHA S/O N KENCHAPPA MAJOR

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R/OF KERE DURGAMMANAKERI SHIVAMOGGA-577 201.

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... APPELLANTS

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(BY SRI K N PUTTEGOWDA, ADVOCATE)

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AND:

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K S PARAMESHWARA GOWDA SINCE DECEASED BY LRS.

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1A. K P PRAKASH S/O K S PARAMESHWARA GOWDA R/O KEEGADI VILLAGE SINGANABIDARE POST MANDAGADE HOBLI THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT-577 432.

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1B. SMT. ANNAPOORNA (1^ST DAUGHTER) W/O K T PUTTASWAMY C/O THIMMAIAH MAJOR HOUSE NO.2900, 14^TH MAIN E-BLOCK, 2^ND STAGE RAJAJINAGAR

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BENGALURU-560 010.

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1C. SMT. K P DEVARATHNA (2^ND DAUGHTER) W/O B K RAMESH MAJOR

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BEGANE VILLAGE AND POST SHRINGERI TALUK

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SHIVAMOGGA DISTRICT.

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1D. SMT. BHOODEVI (3^RD DAUGHTER) SINCE DECEASED BY HER LRS.

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R1(D) (1). SRI J K RAMESH (HUSBAND) S/O KUNDE GOWDA, MAJOR

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R1(D) (2). KUMARI ADMIYA (1^ST DAUGHTER) AGED ABOUT 15 YEARS,

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R1(D) (3). KUMARI ANKITHA (2^ND DAUGHTER) AGED ABOUT 8 YEARS,

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ALL ARE R/AT JAMBE VILLAGE GUDDE KOPPA (POST)

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THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT

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SINCE LRS (2) AND (3) ARE MINORS THEIR FATHER SRI J K RAMESH REPRESENTES THEM AS NATURAL GUARDIAN.

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SMT. SEETHAMMA SINCE DECEASED BY LRS R3 TO 7

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SRI K M DAYANAND S/O K S NANJAPPA GOWDA MAJOR R/O KEEGADI VILLAGE SINGANABIDARE POST MANDAGADE HOBLI THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT-577 432.

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SMT. K M VAGDEVI W/O K P DEVEGOWDA MAJOR R/O KARIMAKKI, AVATHI POST CHIKKAMAGALUR TALUK AND DISTRICT-577 101.

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SMT. K M VASANTHA W/O H N GOPAL MAJOR HADATHOL, KUDUVALLI POST CHIKKAMAGALUR TALUK AND DISTRICT-577 101.

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SMT K M SUJAYA W/O K M RAMAKRISHNA MAJOR HUDCO COLONY D NO.4 VINOBA NAGAR SHIVAMOGGA-577 201.

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SRI K M GURUMURTHY S/O K S NANJAPPA GOWDA MAJOR R/O SINGANEBIDERE POST MANDAGADDA HOBLI THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT-577 432.

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... RESPONDENTS

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(BY SRI B S PRASAD, ADVOCATE FOR R1(A); NOTICE TO R1(B) IS HELD SUFFICIENT; R1(C ) AND R1(D)(1) SERVED, R1(D)(2 & 3) ARE MINORS REPRESENTED BY R1(D) (1); R2 DECEASED AND R3 TO 7 ARE TREATED AS LRS OF DECEASED R2; VIDE ORDER DATED 08.09.2017 AND 12.09.2017 SERVICE OF NOTICE TO R3 TO 7 HELD SUFFICIENT )

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THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 23.12.2005. PASSED IN R.A.NO.23/2002 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN) AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.11.2001 PASSED IN OS.NO.1410/1989 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (JR.DN) SHIVAMOGGA.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by defendants 7 to 10 challenging the judgment and decree dated 23.12.2005 passed in RA.No.23/2002 on the file of the Additional Civil Judge (Sr.Dn.) & CJM, Shivamogga, dismissing the appeal and confirming the judgment and decree dated 23.11.2001

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passed in OS.No.1410/1989 on the file of the Civil Judge (Jr.Dn.), Shivamogga, decreeing the suit of the plaintiff.

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For the sake of convenience, the parties in this

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appeal shall be referred to in terms of their status and ranking before the trial Court.

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The plaint averments are that K.S.Manjappa Gowda (who is the husband of defendant No.1 and father of defendants 2 and 6) and plaintiff are the children of Sheshappa Gowda. It is further averred in the plaint that plaint ‘A’ schedule property is situated at Shivamogga and it is the joint family property of the Sheshappa Gowda and no division of property had taken place between the K.S.Manjappa Gowda and K.S.Parameshwara Gowda insofar as said property is concerned. It is further averred in the plaint that K.S.Manjappa Gowda died on 30.07.1982 and defendants 1 to 6 are the legal representatives of late K.S.Manjappa Gowda. It is further stated that defendant No.2, without consent of the plaintiff or issuing legal notice to the plaintiff, sold suit ‘A’ schedule property in favour of

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defendants 7 to 10 on 09.06.1989 and same is not binding on the plaintiff. Accordingly, the plaintiff has filed a suit for declaration, challenging the Sale Deed dated 09.06.1989 is not binding on him and also sought for half share in suit ‘A’ schedule property in OS No.1410/1989.

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After service of summons, defendants entered appearance and defendant No.2 filed detailed written statement denying the plaint averments. Defendants 1, 3 and 5 have adopted the written statement filed by defendant No.2. Defendant No.2 in his written statement contended that the K.S.Manjappa Gowda and plaintiff are the brothers and further contended that suit ‘A’ schedule

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property is self-acquired property of his fatherK.S.Manjappa Gowda and same was in the exclusive possession of his father and as such, defendant No.2 took up contention in the written statement that plaint ‘A’ schedule property is not the joint family property as averred by the plaintiff. Accordingly, they sought for dismissal of the suit.

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Defendants 7 to 10 have filed their separate

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written statement contending that the portions of B.C.D.E schedule property have been sold by defendant No.2 in terms of registered Sale Deed dated 09.06.1989 in favour of defendants 7 to 10. Thereafter, they have constructed a shed in the suit schedule property and they are in possession of the same. It is the case of defendants 7 to 10 that the plaintiff has no right, title or interest in respect of suit schedule properties. It is also stated by defendants 7 to 10 that after the partition occurred between K.S.Manjappa Gowda and plaintiff during the year 1961, the schedule property fallen to the share of K.S.Manjappa Gowda and as such, sale made in favour of defendants 7 to 10 by defendant No.2 is legal and cannot be challenged by the plaintiff. Accordingly, defendants 7 to 10 sought for dismissal of the suit. Defendants 7 to 10 have also taken plea of adverse possession in respect of suit schedule property stating that they are residing in the said property

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against the interest of the plaintiff and as such, sought for dismissal of the suit.

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On the basis of the rival pleadings, the trial Court

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has formulated following issues for its consideration:

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Does the plaintiff proves that “A” schedule property is the joint family property of plaintiff and the deceased K.Manjappa Gowda ?

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2. Does the plaintiff further proves that “A” schedule property was not partitioned in the year 1961?

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3. Does the defendant No.7 to 10 proves that they are living in BCDE suit schedule properties for last 40 years ?

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4. Does 2^nd defendant proves that “A” schedule property is the self-acquired property of his father K.Manjappa Gowda ?

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5. Does defendant 2, 7 to 10 prove that registered sale deeds dt.09.06.1989 are only nominal value ?

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6. Does the plaintiff proves that registered sale deeds dt.09.06.1989 is not binding on him ?

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7. Whether plaintiff is entitled to half share in the “A” schedule property ?

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8. Whether plaintiff is entitled for consequential reliefs sought in the plaint ?

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9. What order or decree ?

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Additional Issues:

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1.Whether defendant No.1 to 5 prove that this Court has no pecuniary jurisdiction ?

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2. Does Defendant No.2 prove “A” schedule property is self acquired and separate property of Manjappa gowda as being left to him excludingly at the time of partition between him and plaintiff ?

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3. Whether defendants No.7 to 10 prove that the suit is barred by time ?

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4. Whether defendant No.7 to 10 proves that they have perfected their title with regard to plaint B.C.D.E schedule properties and the plaintiff and defendant No.1 to 6 have known this fact ?

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4. Whether defendants 7 to 10 proves that they have perfected their right, title and interest to B, C, D, E schedule property by way of adverse possession since 40 years till the date of registration of sale deeds dt.09.06.1989 ?

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In order to establish their case, plaintiff got

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examined himself as PW1 and marked 17 documents as

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Exs.P1 to P17. On the other hand, defendants examined 6 witnesses as DW1 to DW6 and produced 17 documents as Exs.D1 to D17.

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The trial Court, after considering the material on record, by its judgment and decree dated 23.11.2001 decreed the suit of the plaintiff in-part holding that the registered Sale Deed dated 09.06.1989 executed by defendant No.2 in favour of defendants 7 to 10 is not binding on the plaintiff and as such, ordered that plaintiff is entitled for half share in the plaint ‘A’ schedule property and being aggrieved by the same, defendants 1 to 5 preferred Appeal in RA.No.6/2002 and defendants 7 to 10 filed RA No.23/2002 on the file of First Appellate Court. The said appeal was resisted by the plaintiff. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 23.12.2005 dismissed both the appeals and confirmed the judgment and decree passed by the trial Court in OS.No.1410/1989. Being aggrieved by the judgment and decree passed by the First Appellate Court,

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defendants 7 to 10 have preferred this Regular Second Appeal under Section 100 of CPC.

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Sri.K.N.Puttegowda, learned counsel for the defendant/appellants submits that respondents are bonafide purchasers and they have purchased the suit schedule property by virtue of the partition executed between K.S.Manjappa Gowda and plaintiff during the year 1961 and said property fell to the share of K.S.Manjappa Gowda and as such, the sale made by children of K.S.Manjappa Gowda on 09.06.1989 is valid. Therefore, he argued that both the Courts below have not properly appreciated the documentary evidence on record, particularly, Exs.D1 to D17. He further contended that the defendants 7 to 10 are in possession of the suit schedule property since 1989 and also have established their ownership through adverse possession and said aspect of the matter has not been considered by both the Courts below. He further contended that the finding recorded by both the Courts below holding that the suit schedule property was the joint family property

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of the Sheshappa Gowda and his children i.e. K.S.Manjappa Gowda and K.S.Parameshwara Gowda, is contrary to the material on record and same calls for interference in this appeal.

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Per Contra, Sri.B.S.Prasad learned counsel for the respondents R1(a) contended that the schedule property has been allotted to the share of Sheshappa Gowda as per the that partition took place in the year 1937, (Ex.P1) and thereafter, the suit schedule property was continued to be the joint family property of K.S.Manjappa Gowda and the plaintiff, as the said property has not found place in the partition of the year 1961, when the partition was entered into between the K.S.Manjappa Gowda and plaintiff and as such, the sale made by defendant No.2 on 09.06.1989 is not binding on the plaintiff. He further contended that both the Courts below concurrently held against the plaintiff holding that suit schedule property is the joint family property of K.S.Manjappa Gowda and K.S.Parameshwara Gowda and said finding recorded by both the Courts below cannot be

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disturbed in the second appeal by excising power under Section 100 of Code of Civil Procedure.

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Heard the learned counsel appearing for the

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parties and perused the findings recorded by both the Courts below.

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On careful perusal of the finding recorded by the trial Court, it shows that while answering Issues 1, 2 and 4, the trial court has come to a conclusion that the suit schedule property is the joint family property of the K.S.Manjappa Gowda and K.S.Parameshwara Gowda as per the partition deed entered in the year 1937. The trial court also analyzed the partition deed entered into between the K.S.Manjappa Gowda and K.S.Parameshwara Gowda in the year 1961 as per Ex.P2 and recorded a finding that the suit schedule property was not considered at the time of partition during the year 1961 and partition deed entered into between K.S.Manjappa Gowda and K.S.Parameshwara Gowda in the year 1961 is a partial partition and therefore, though K.S.Manjappa Gowda was paying taxes and was in

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exclusive possession of the suit schedule property, however, said property has been allotted to the share of the K.S.Manjappa Gowda and K.S.Parameshwara Gowda, as per partition deed executed in the year 1937 at Ex.P1. The trial court also recorded the finding that the partition deed of the year 1937 has got presumptive value in the eye of law as the partition deed entered in the year 1961 would reveal that plaint ‘A’ schedule property was not the part of the partition deed and it was left out during the partial partition took place in the year 1961 and accordingly, the trial court having considered the evidence on record, has come to the conclusion that documentary evidence produced by the plaintiff would clearly reveals that suit schedule property had fallen to the share of deceased K.S.Manjappa Gowda and plaintiff as per Ex.D1. Ex.P2 (partition entered between the K.S.Manjappa Gowda and plaintiff in the year 1961) and Ex.P3- the partition deed executed during the year 1975 (partition between K.S.Manjappa Gowda and his children ) do not reveal that the suit property exclusively belong to K.S.Manjappa Gowda. The trial Court, after considering the

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material on record, has come to the conclusion that suit schedule property is not the self-acquired property of late K.S.Manjappa Gowda as contended by defendants 1 to 5 and accordingly, held that the sale made by defendant No.2 in favour of defendants 7 to 10 as per Sale Deed dated 09.06.1989 is not binding on the plaintiff. As such, the finding recorded by the trial Court is based on the records and an appreciation of evidence as defendants 1 to 6 failed to prove before the court below that the suit schedule property is the self-acquired property of K.S.Manjappa Gowda and therefore, I do not find any material irregularity to interfere with the finding recorded by the trial court.

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I have carefully considered the finding recorded by the First Appellate Court. The First Appellate Court after re-appreciating the material on record, has carefully considered the recital in the partition deed dated 28.06.1973 as per Ex.P1, which reads as under:

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“²ªÀªÉÆUÀÎ lªÀ¤£À°è ¹ÃUÉºÀnÖ PÉgÉzÀÄUÀðªÀÄä£À PÉÃjAiÀÄ°è gÀ¸ÉÛ ¥ÀÆªÀðQÌgÀÄªÀ PÀÄgÀÄ§gÀ zÁåªÀÄPÀÌ£À ªÀÄ£É ¥ÀPÀÌ EgÀÄªÀ ªÀÄ£É ¤ªÉÃ±À£ÀzÀ°è MAzÀ£ÉÃ »¸Éì µÀqÀÆå°£À°è vÀ¥À¹Ã®Ä PÀAqÀAvÉ D »¸ÉìUÉ CzsÀð¨sÁUÀ ºÉÆÃUÁÛ ZÁvÁ G½zÀ F

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G¼ÀÌAqÀ CzsÀð¨sÁUÀPÉÌ ZÀPÀÄÌ§AzÀ: ¥ÀÆªÀðPÉÌ »A¨sÁUÀzÀ PÀ£ÀìgÉé¤ì gÀ¸ÉÛ, ¥À²ÑªÀÄPÉÌ PÀgÉzÀÄUÀðªÀÄä£À zÉÆqÀØ gÀ¸ÉÛ GvÀÛgÀPÉÌ gÀ«ªÉÆzÀ°AiÀiÁgïgÀªÀgÀ ªÀÄ£É ªÀÄvÀÄÛ PÁ° eÁUÀ zÀQëtPÉÌ MAzÀ£ÉÃ »¸Éì F eÁUÀ zÀ DzsÀð¨sÁUÀ F jÃw ¹ÜgÀ ¸ÉÆvÀÄÛUÀ¼ÀÄ.”

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Continued from NBM

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On perusal of the findings recorded by the First Appellate Court, though the said appeal has been filed by both purchasers of the suit schedule properties and children of K.S.Manjappa Gowda, however, these defendants not able to prove that the suit schedule properties are the self-acquired properties of K.S.Manjappa Gowda. Perusal of records would clearly indicate that the finding recorded by the First Appellate Court is just and proper. Though learned counsel appearing for appellants contended that defendants 7 to 10 have perfected their title as they were in possession of the suit schedule properties since 09.06.1989, however, the plaintiff has taken up a contention in the plaint that the said suit schedule property is the joint family property of Sheshappa Gowda and the same has been given to K.S.Manjappa Gowda as per Ex.P1-Partition Deed. In that view of the matter, even on perusal of the Sale Deed dated 09.06.1989 would clearly indicate that defendant No.2 has sold the suit schedule property in favour of defendants 7 to 10. It is alleged that the said property exclusively belonged to

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K.S.Manjappa Gowda. However, both Courts below have held against the defendants holding that the suit schedule properties are not self-acquired properties of K.S.Manjappa Gowda and perusal of the evidence of defendants 7 to 10 would indicate that they have not proved the said fact before the trial Court by producing oral and documentary evidence to say that they have perfected their title by way of adverse possession.

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It is settled principle of law that it is the duty of the occupant, who claims adverse possession to establish that he is residing in the suit schedule property against true owner. I have carefully considered that the appeal is preferred by defendants 7 to 10 and not the children of K.S.Manjappa Gowda, who claims to be vendor of defendants 7 to 10. However, the said fact has not been proved by defendants 7 to 10 before the trial Court. In view of the law declared by the Hon'ble Apex Court in the case of

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Council of Architecture Vs.Mukesh Goyal and Others reported in AIR 2020 SC 1736 , I do not find any material irregularity or perversity in the judgments and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed . Since, the defendant/appellants have not made out grounds for formulation of substantial question of law

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as required under Section 100 of Code of Civil Procedure, appeal is liable to be dismissed at the Admission stage itself, accordingly, dismissed .

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Sd/-

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JUDGE

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SB/NBM

S L Gopalakrishna v. K S Parameshwara Gowda

Case brief

What is this about?

What did the court decide?

S L Gopalakrishna v. K S Parameshwara Gowda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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