Dismissed

Muddumadaiah, v. D Gurusiddaiah

Karnataka HC30 Sept 2021RSA/801/2015

Case brief

AI extract

What is this about?

The High Court dismissed this regular second appeal regarding a suit for partition. The court held that an oral partition of 1948 was already legally recognized and acted upon in a prior suit confirmed by the High Court. Finding no substantial question of law under Section 100 CPC, the appeal was dismissed at the admission stage.

What did the court decide?

Regular Second Appeal dismissed at the admission stage for failure to formulate a substantial question of law under Section 100 CPC.

Muddumadaiah, Vs D Gurusiddaiah — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF SEPTEMBER, 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. 801 OF 2015

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BETWEEN:

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1. MUDDUMADAIAH

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SINCE DECEASED REPRESENTED BY HIS LRS.

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1A. C NAGAMMA

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W/O LATE MUDDUMADAIAH

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AGED ABOUT 56 YEARS

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1B. NAGAMALESWAMY

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S/O LATE MUDDUMADAIAH

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AGED ABOUT 44 YEARS

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1C. MARIYAPPA

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S/O LATE MUDDUMADAIAH

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AGED ABOUT 42 YEARS

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ALL ARE R/O NO.227 GAYATRI NILAYA, UDIGALA VILLAGE HARAVE HOBLI CHAMARAJANAGAR DISTRICT-571 313.

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1D. SOUBHAGYA

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D/O LATE MUDDUMADAIAH

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W/O SOMESH D T

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AGED ABOUT 41 YEARS

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R/O DEVALAPUR VILLAGE

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CHAMARAJNAGAR TALUK AND

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DISTRICT-571 313.

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1E. SMT. GAYATRI

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D/O LATE MUDDUMADAIAH W/O SHIVAKUMAR AGED ABOUT 34 YEARS R/O SILKPURA VILLAGE TAGARAPURA HOBLI-571313.

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... APPELLANTS

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(BY SRI SOMASHEKHAR KASHIMATH, ADVOCATE)

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AND:

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D GURUSIDDAIAH S/O LATE DEVAIAH, AGED ABOUT 67 YEARS, R/O UDIGALA VILLAGE, HARVE HOBLI, DISTRICT-CHAMARAJANAGAR PINCODE-5711313.

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D ANKAIAH, SINCE DECEASED REPRESENTED BY HIS LR

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2A. SAKAMMA W/O LATE ANKAIAH D MAJOR R/O UDIGALA VILLAGE HARAVE HOBLI CHAMARAJANAGAR DISTRICT-571 313.

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A SHIVASWAMY, S/O LATE S ANKAIAH, AGED ABOUT 59 YEARS, WORKING IN BANK OF BORODA, R/O BARODA BRANCH, TOWER ROAD, NAVASARI, SOUTH GUJARAT, GUJARATH DISTRICT-396445.

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CHIKKABASAMMA W/O LATE S ANKAIAH,

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AGED ABOUT 80 YEARS, R/O UDIGALA VILLAGE, HARVE HOBLI, CHAMRAJANAGAR DISTRICT-571313.

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MAHADEVAMMA, D/O LATE S ANKAIAH, AGED ABOUT 61 YEARS, R/O UDIGALA VILLAGE, HARVE HOBLI, CHAMRAJANAGAR DISTRICT-571313.

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CHINNAMMA, D/O LATE S ANKAIAH, W/O GURUSWAMY, AGED ABOUT 55 YEARS, R/O MALLAIHNAPURA VILLAGE, HARAVE HOBLI, CHAMRAJANAGAR DISTRICT-571313.

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CHANDRAMMA, D/O LATE S ANKAIAH, W/O BASAVARAJU, AGED ABOUT 45 YEARS, R/O DYAPAPURA VILALGE, THERAKANAMBI HOBLI, GUNDLUPET TALUK, CHAMRAJANAGAR DISTRICT-571313.

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SIDDAMMA D/O LATE MADAIAH, W/O K RACHAIAH, AGED ABOUT 72 YEARS, R/AT KUDERU, SANTHEMARAHALLI HOBLI, CHAMRAJANAGAR DISTRICT-571313.

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MADAMMA, D/O LATE MADAIAH, W/O SIDDAIAH, AGED ABOUT 70 YEARS, R/O SHANKARAPURA EXTN.,

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NANJANAGUD TOWN, MYSORE DISTRICT-571301. 10. CHIKKAMUNIYAMMA, D/O LATE MADAIAH, W/O SIDDAIAH, AGED ABOUT 68 YEARS, R/O KUDERU, SANTHEMARAHALLI HOBLI, CHAMARAJANAGARA TALUK-571313.

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SAKAMMA D/O LATE MADAIAH, W/O CHIKKANANJAIAH, AGED ABOUT 66 YEARS, R/O VEERADEVANAPUR, CHINNADAGUDIHUNDI HOBLI, NANJANAGUD TALUK, MYSORE DISTRICT-571301.

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NAGAMMA, D/O LATE MADAIAH, W/O LATE KRISHNAIAH, AGED ABOUT 61 YEARS, R/O KALKUNIKE, HUNSUR TOWN, MYSORE DISTRICT-571105.

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... RESPONDENTS

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(BY SRI G ANANTHARAM, ADVOCATE FOR R1 TO 7; R8 TO R12 ARE SERVED AND UNREPRESENTED)

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THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 28.02.2014 PASSED IN R.A.NO.82/2008 ON THE FILE OF THE DISTRICT JUDGE, CHAMARAJANAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.02.2008 PASSED IN OS.NO.216/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN) CHAMARAJANAGAR.

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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 the plaintiff challenging the judgment and decree dated 28.02.2014 passed in RA.No.82/2008 on the file of the District Judge, Chamarajanagar, dismissing the appeal and confirming the judgment and decree dated 18.02.2008 passed in OS.No.216/2002 by the Civil Judge (Sr.Dn), Chamarajanagar, dismissing the suit of the plaintiff.

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For the sake of convenience, the parties in

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

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It is the case of the plaintiff that, one propositus-Doddasiddaiah @ Siddaiah had three children, viz., Madaiah, Devaiah and S.Ankaiah. Plaintiff is the son of Madaiah. It is further stated that, father of the plaintiff had six children. The second son of Doddasiddaiah-Devaiah died without any issues. The third son Doddasiddaiah-Ankaiah died leaving behind his legal representatives-defendants 3, 5, 6 and 7. It

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is the case of the plaintiff that the suit schedule properties are the joint family properties of late Doddasiddaiah and as such, all the three sons of Doddasiddaiah are enjoying the suit schedule property jointly and also have purchased certain properties out of nucleus of Doddasiddaiah. It is further stated in the plaint that, there was no partition effected between the plaintiff and defendants insofar as suit schedule properties are concerned and as such, the plaintiff filed OS No.216/2002 on the file of Civil Judge (Senior Division), Chamarajanagar and sought partition and separate possession in respect of suit schedule property .

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After service of summons, defendants 1 to 4 entered appearance and filed written statement denying the plaint averments and contended that there was oral partition in the year 1948 between the sons of Doddasiddaiah and it is also stated in the written statement that the subject matter of the suit is the

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subject matter in OS No.127/1993, which is filed by defendants 1 and 2 and their father Devaiah against the plaintiff, seeking the relief of declaration and perpetual injunction, which came to be dismissed by the trial Court and thereafter, judgment and decree passed in OS No.127/93 was confirmed by this court in RSA No.129/2005, and therefore, the present suit in OS No.216/2002 is not maintainable as per Section 11 of Code of Civil Procedure.

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On the basis of the rival pleadings, the trial Court has formulated following issues for its

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consideration:

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(1) Whether plaintiff proves that the suit schedule properties are the joint family properties of the plaintiff and defendants?

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(2) Whether plaintiff further proves that suit properties are in joint possession of the plaintiff and defendants as contended in the plaint?

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(3) Whether defendants prove that already there was an oral partition between the brothers Madaiah, Devaiah and Ankaiah, as averred in para.12 to 18 of their written statement?

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(4) Whether defendants further prove that the present suit is not maintainable in view of the pendency of RA.308/02 before Civil Judge (Sr Dvn) Chamarajanagar?

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(5) Whether plaintiff proves that he is entitled for 1/3^rd share in the suit properties by way of partition?

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(6) What reliefs the plaintiff is entitled to?

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(7) What Order or decree?

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In order to establish their case, plaintiff got examined himself as PW1 and other three witness as PW2 to PW4 and produced 85 documents and same were marked as Exs.P1 to P85. On the other hand, defendant No.1 examined as DW1 and produced 118 documents and same were marked as Exs.D1 to D118.

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The trial Court, after considering the material on record, by its judgment and decree dated 18.02.2008 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Appeal in RA.No.82/2008 on the file of First Appellate Court. The said appeal was resisted by the defendants. The First Appellate Court, after re-appreciating the

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facts on record, by its judgment and decree dated 28.02.2014 dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS.No.216/2002. Being aggrieved by the judgment and decree passed by the Courts below, the plaintiff has preferred this Regular Second Appeal under Section 100 of CPC.

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I have heard, Sri.Somashekhar Kashimath,

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learned counsel for the appellants and Sri.G.R. Anantharam, learned counsel for the respondents 1 to 7.

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Sri.Somashekhar Kashimath, learned

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counsel for the appellants contended that, both the courts below have wrongly concluded that the suit is hit by Section 11 of Code of Civil Procedure. He further

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contended that the suit in OS.No.127/1993 was filed seeking relief of declaration and permanent injunction in respect of some of the properties and not for all the properties involved in OS.No.216/2002 and therefore,

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he contended that the finding recorded by both the Courts below is contrary to records.

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Per contra, Sri.G.R.Anantharam, learned

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counsel for the respondents argued that the dispute is with regard to division of the property, which has been considered by the trial Court in OS No.127/1993, and same is confirmed by this Court in RSA No.129/2005 and same has reached finality and therefore, finding recorded by both the Courts below is just and proper which does not call for interference in this appeal.

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Having taken note of the rival contention raised by the learned counsel for the parties, I have carefully considered finding recorded by the trial court. Perusal of the finding would substantiate the fact that there is no dispute with regard to relationship between the parties. However, finding recorded by trial Court at paragraph 8 of the judgment and decree would indicate the fact that the defendants 1 and 2 and their father late Devaiah had filed OS No.127/1993 against

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the plaintiff. The certified copy of the plaint, written statement and deposition made therein and the judgment and decree in the said suit have been filed before the trial Court as Exs.D1, D2, D106, D107, D108 and D109 respectively. The judgment and decree passed by this Court in RSA No.129/2005 was marked before the trial court as EX. D111 and 112 respectively. Perusal of the finding recorded by trial Court would establish the fact that the question relating to oral partition made between the children of

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the Doddasiddaiah @ Siddaiah was considered and the competent Court had come to a conclusion that there was a partition between the sons of Doddasiddaiah. The subject matter, as per the issue Nos.1 to 5 in OS No.127/1993, is also connected with the issues framed by the trial Court in the OS No.216/2002. Accordingly, the trial Court had come to a conclusion that though the said suit is filed for declaration and consequential relief of injunction, however, the present suit is filed seeking partition and separate possession of suit

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schedule property. However, the parties to the lis have understood the issues and went for trial under the impression that there was oral partition among the children of Doddasiddaiah @ Siddaiah and in that view of the matter, I do not find acceptable ground to interfere with the judgment and decree passed by the trial court.

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It is also to be noted that the judgment and decree passed by the trial Court in OS No.127/1993 was confirmed by this court in RSA No.129/2005 by the judgment and decree dated 23.05.2005 (Ex.D112) and in that view of the matter, perusal of the finding recorded by this court in RSA No.129/2005 would clearly substantiate the fact that this court has confirmed the finding recorded by trial Court in OS No.127/1993 with regard to oral partition between the parties in the year 1948 and same has been acted upon by the parties. In that view of the matter, I do

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not find any valid ground to interfere with the judgment and decree passed by the trial Court.

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I have also examined finding recorded by

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the First Appellate Court. The First Appellate Court after re-appreciating the material on record as required under Order XLI Rule 31 of Code of Civil Procedure had come to the conclusion that the finding recorded by the trial Court with regard to the partition held in the year 1948 is just and proper.

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Therefore, I do not find 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 plaintiff/appellants have not made out grounds for formulation of substantial question of law 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/JUDGE

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SB

Muddumadaiah, v. D Gurusiddaiah

Case brief

What is this about?

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Muddumadaiah, v. D Gurusiddaiah

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