Dismissed

Smt K Shalini Kini v. Smt Sanjeevini Amma

Karnataka HC2 Mar 2021RSA/1355/2020

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a revision application filed by defendants challenging the partition and separate possession decree in favor of the plaintiff. The Court upheld the concurrent findings of lower courts that the Land Tribunal correctly granted occupancy rights to all three sisters, establishing their undivided interest in the property.

What did the court decide?

The revision petition filed under Section 100 of the CPC is dismissed. I.A. No.1/2020 is disposed of.

Smt K Shalini Kini Vs Smt Sanjeevini Amma — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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R.S.A. NO.1355 OF 2020 (PAR)

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BETWEEN:

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SMT. K. SHALINI KINI AGED 52 YEARS

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SRI. K. VISHWANATH PAI AGED ABOUT 57 YEARS

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SRI. K. GANESH PAI AGED ABOUT 42 YEARS

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ALL ARE CHILDREN OF LATE TARA BAI AND LATE VITTAL PAI AND RESIDING AT SHESHA BHAT COMPOUND, EAST BLOCK ROAD, KUNDAPURA, KASABA VILLAGE AND POST, KUNDAPURA TALUK, UDUPI DISTRICT, PIN-581421.

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...APPELLANTS

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(BY SRI. M. KRISHNAPPA, ADVOCATE)

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AND:

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SMT. SANEEVINI AMMA D/O LATE KALYANIYAMMA, W/O LATE SANJEEVA PRABHU, KALAVARA VILLAGE, POST SALVADY, KUNDAPUR TALUK -581421.

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(NOW DEAD BY LRs) BENGALURU NORTH TALUK

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SRI RAMDAS PRABHU AGED ABOUT 75 YEARS

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SMT. CHANDRAKALA KAMATH AGED ABOUT 72 YEARS

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SMT. JAYANTHI NAYAK AGED ABOUT 69 YEARS

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SRI. HARISH PRABHU AGED ABOUT 52 YEARS

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SMT. PREMA AGED ABOUT 52 YEARS D/O LATE SHARADA BAI, W/O U. RAMESH SHENOY, COLLEGE ROAD, UJIRE, BELTHANGADI TALUK D.K., POST, UJIRE-PIN-574240.

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SYNDICATE BANK KUNDAPURA MAIN BRANCH, POST: KUNDAPURA, PIN-581421 REPRESENTED BY ITS BRANCH MANAGER AND PRINCIPAL OFFICER

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…RESPONDENTS

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(BY SRI. VIGHNESHWAR S SHASTRI, ADVOCATE FOR CAVEATOR RESPONDENT NO.4)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 07.08.2020 PASSED IN R.A.NO.3/2016 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE (SITTING AT KUNDAPURA), KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING AND UPHOLDING THE JUDGMENT AND DECREE DATED 18.04.2016 PASSED IN O.S.NO.18/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA.

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

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JUDGMENT

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Though this appeal is listed for admission today, the same is taken up for the final disposal with the consent of the learned counsel for the parties.

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This appeal is filed by defendants No.2, 3 and 4 in O.S. No.18/2013, challenging the concurrent finding of fact recorded by the Courts below in O.S. No.18/2013 and R.A. No.3/2016 by which the plaintiff was held entitled to partition and separate possession of her 1/3^rd share in the suit schedule property.

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The facts leading to filing of O.S. No.18/2013

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are that the suit property was possessed by Sri.Shesha Bhat, who was the tenant cultivating the suit land. Upon his death, the tenancy rights devolved upon his daughters, namely, one Madri @ Madhavi and Kalyaniyamma. The said Madhavi died intestate and issueless while Smt. Kalyaniyamma, had three daughters, namely, the plaintiff, Sharadabai and Tarabai. After the death of Kalyaniyamma, Tarabai, plaintiff and Sharadabai filed an application in Form No.7 seeking occupancy rights in respect of the suit land. The Tribunal after considering the

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claim in Form No.7 passed an order dated 10.08.1981 conferring occupancy rights in favour of Tarabai. The plaintiff filed a suit contending that the grant made in favour of Tarabai was in fact a grant made in favour of all the three sisters, and therefore, she is entitled for a share in the suit schedule property.

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The suit was contested by legal heirs of Tarabai who claimed that the suit was belated and that the plaintiff had sought for partition in the year 1971 which was turned down and that the suit ought to have been filed within 12 years therefrom. It is also contended that the plaintiff had filed O.S. No.28/2006 in which the suit property was not included, and that therefore the suit property was never treated to be joint property of the plaintiff and the defendants.

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The trial Court framed the following issues for

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its consideration :

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Whether the plaintiffs prove that the plaintiff and defendants are joint family members and suit family property of the plaintiff and defendants governed by Hindu Mitakshara Law of Inheritance under the Hindu Succession Act?

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Whether the suit of the plaintiff is barred by law of limitation?

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Whether the defendants No.2 to 4 proves that the defendants No.2 to 4 and their mother acquired full and absolute title by way of adverse possession?

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Whether the plaintiffs are entitled for partition and separate possession over the ‘A’ schedule property?

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What order?

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Plaintiff’s son was examined as P.W.1 and he

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marked documents at Exs.P-1 to P-13. Defendant No.3 was examined as D.W.1 and he marked documents as Exs.D-1 to D-45.

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Based on the oral and documentary evidence

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the trial Court held that the plaintiff had proved that she was entitled to an undivided share in the suit schedule property and consequently decreed the suit of the plaintiff.

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Feeling aggrieved by the aforesaid judgment and decree of the trial Court, defendants No.2, 3 and 4 being children of Tara Bai, filed R.A. No.3/2016. The First Appellate Court secured the records of trial Court, framed points for consideration and considered the evidence on

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record which indicated in clear terms that the land in question was earlier tenanted and was cultivated by the grandfather of the plaintiff Sri.Shesha Bhatta. It also noticed that even though an application was filed by all the three grand children of Sri. Shesha Bhatta, the property in question was granted to Smt. Tarabai being one of the grand daughters of Sri. Shesha Bhatta. Thus the First Appellate Court held that the grant in favour of Tarabai in fact enured to the benefit of the plaintiff as well as another sister Sharadabai. The First Appellate Court noticed the statements made before the Land Tribunal, which made it more than probable that the suit property was granted to all the three grand daughters of Sri.Shesha Bhatta.

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Feeling aggrieved by the aforesaid concurrent findings recorded by the Courts below, defendants No.2, 3 and 4 have filed present appeal. I have heard the learned counsel for the parties and I have perused the Judgment and Decrees of the Courts below.

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It is not in dispute that Sri.Shesha Bhattta was

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the tenant in respect of the suit property. It is also not in dispute that after the death of Sri.Shesha Bhatta, the

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tenancy rights devolved upon his two daughters Madri @ Madhavi and Kalyaniyamma. It is not in dispute that Madhavi died intestate and issueless while Smt.Kalyaniyamma, had three daughters, namely, the plaintiff, Sharadabai and Tarabai. After the death of Kalyaniyamma, her daughters Tarabai, plaintiff and Sharadabai filed an application in Form No.7 seeking occupancy rights in respect of the suit land as per Ex-P3. The Tribunal in terms of its Order dated 10-08-1981 granted occupancy rights as per Ex-P4 and the Trial Court had extracted the portion of the Order of the Tribunal which categorically indicated the above facts. Thus, the suit land was granted to the three sisters by the Land Tribunal in terms of the order dated 10.08.1981. It is thus evident that all of them had an undivided right, title and interest in the suit property and the Courts below have rightly concluded so in favour of the plaintiff. There is no infirmity in the reasoning recorded by the Courts below, and therefore, the appeal lacks merit and the same is dismissed.

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In view of dismissal of appeal, I.A. No.1/2020

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does not survive for consideration and accordingly, the same is disposed of.

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Sd/JUDGE

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hnm

Smt K Shalini Kini v. Smt Sanjeevini Amma

Case brief

What is this about?

What did the court decide?

Smt K Shalini Kini v. Smt Sanjeevini Amma

Case brief

What is this about?

What did the court decide?

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