Allowed

Smt Cheluvamma v. Sri Chikkaiah

Karnataka HC28 Jul 2021RSA.CROB/11/2006

Case brief

AI extract

What is this about?

In a regular second appeal cross-objection regarding partition, the court modified a previous decree. It held that land bearing Sy.No.354 was granted to a third party, and the house property was self-acquired by the plaintiff, requiring interference with the prior appellate finding.

What did the court decide?

RSA Crob No.11/2006 allowed; judgment and decree dated 31.03.2006 passed in R.A No.8 of 1995 modified.

Smt Cheluvamma Vs Sri Chikkaiah — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF JULY 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.(CROB) No.11 OF 2006 (DEC) in

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Regular Second Appeal 1951 of 2006

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BETWEEN:

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SMT. CHELUVAMMA W/O LATE MANCHAIAH AGE ABOUT 55 YEARS

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SMT. PARVATHAMMA W/O LATE KRISHNAMURTHY D/O LATE MANCHAIAH AGED ABOUT 43 YEARS

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SMT. K.M. RATHNA @ RATHNAMMA D/O LATE MANCHAIAH AGED ABOUT 36 YEARS

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ALL ARE RESIDENTS OF KATTEMALAVADI

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VILLAGE, HUNSUR TALUK, MYSORE DISTRICT

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... APPELLANTS

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(BY SRI. A.M VIJAY, ADVOCATE)

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AND:

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SRI. CHIKKAIAH S/O KUNCHAGINI MANCHAIAH AGED ABOUT 50 YEARS

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SHANKARIAH S/O KUNCHAGINI MANCHIAH SINCE DEAD BY HIS LRS.

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2(A). SMT GOWRAMMA W/O LATE SHANKARAIAH AGE ABOUT 67 YEARS

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2(B). SRI. K.S. RAJU S/O LATE SHANKARAIAH AGED ABOUT 37 YEARS

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2(C). SRI. K.S. PRAKASH @ SWAMY S/O LATE SHANKARAIAH AGED ABOUT 35 YEARS

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2(D). SRI. K.S. MAHESH S/O LATE SHANKARAIAH AGED ABOUT 30 YEARS

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2(E). KENCHAMMA W/O KUNCHAGINI MANCHIAH SINCE DEAD BY LRS I.E., RESPONDENTS 1,4 TO 7.

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3. SIDDAIAH

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S/O KUNCHAGINI MANCHAIAH AGED ABOUT 53 YEARS

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SMT. RADHAMMA D/O KUNCHAGINI MANCHAIAH W/O JAVARAIAH AGED ABOUT 48 YEARS

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RESPONDENTS 1 TO 2(D), 3 AND 4 ARE R/O KATTEMALAVADI VILLAGE GAVADAGERE HOBLI, HUNSUR TALUK, MYSORE DISTRICT PIN-571134.

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SMT. MANCHAMMA W/O CHANNI GASWAMY D/O KUNCHAGINI MANCHAIAH AGED ABOUT 46 YEARS RES/AT SOMANAHALLI

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KASABA HOBLI, HUNSUR TALUK, MYSORE DISTRICT-571105

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SMT. CHIKKAMANCHAYAMMA W/O NAGARAJU D/O KUNCHAGINI MANCHAIAH AGED ABOUT 44 YEARS RES/AT CHILKUNDA VILLAGE, HANAGODU HOBLI, HUNSUR TALUK MYSURU DISTRICT-571105

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SMT. RUKMINI W/O SIDDARAMAIAH D/O KUNCHAGINI MANCHAIAH AGED ABOUT 40 YEARS RES/AT MARUR VILLAGE, GAVADAGERE HOBLI, HUNSUR TALUK, MYSORE DISTRICT-571134.

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... RESPONDENTS

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( R-1,R2(A), R2(B), R2(D). R-3, R-4, R-7 ARE SERVED, R2(C) HELD SUFFICIENT)

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THIS REGULAR SECOND APPEAL CROSS OBJECTION NO 11 OF 2016 IS FILED IN REGULAR SECOND APPEAL 1951 OF 2016 UNDER ORDER XLI RULE 22 R/W 100 CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 31.03.2006 PASSED IN R.A.NO.08/1995 ON THE FILE OF THE COURT OF CIVIL JUDGE (SR.DIVISION), HUNSUR, PASSED BY THE FIRST APPELLANT COURT ONLY SO FAR IT RELATES TO THE FINDING WHREBY IT IS ORDERED FOR THE PARTITION OF THE LADS IN SY. NO. 354 & THE HOUSE PROPERTY BOTH WRONGLY STANDING IN THE NAME OF DECEASED PLAINTIFF AND ETC.,

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

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J U D G M E N T

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This cross-objection in RSA No.1951/2006 is filed by the legal representatives of the plaintiff. Plaintiff has filed suit for declaration, partition and separation possession in respect of the suit schedule properties, which came to be dismissed by judgment and decree dated 04.01.1995 and being aggrieved by the same, plaintiffs have preferred appeal in Regular Appeal No. 08/1995 on the file of Civil Judge (Sr. Dn.) at Hunsur and the First Appellate Court allowed the appeal by setting aside the judgment and decree passed in OS No.131/1991 and as such, ordered that the plaintiffs and defendants 1 to 3 are entitled for 1/4^th + 1/32^nd share each by metes and bounds. The First Appellate Court also ordered that, plaintiffs and defendants 1 to 3 shall furnish correct particulars of Sy.No.354 and the house property standing in the name of plaintiff for drawing up of the preliminary decree.

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Being aggrieved by the judgment and decree passed by the First Appellate Court, the defendants have preferred RSA No.1951/2006 and said appeal came to be dismissed on 12^th September, 2019. The plaintiff has

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preferred RSA.Crob No.11/2006 challenging the finding recorded by the First Appellate Court with regard to the house property and land bearing Sy.No.354 situated at Kattemalavadi village, Hunsur Taluk, Mysore Dist.

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The facts in nutshell are that, one Kunchagani Manchaiah had two wives viz. Gundamma and Kenchamma. Plaintiff is the son of Gundamma and Kunchagani Machayya; and defendants are the children of Kunchagani Manchayya through Kenchamma. It is the case of the plaintiff that, suit schedule properties are the joint family properties of his father. His father died on 08.03.1983 and thereafter, he sought for partition in the suit schedule property and same was denied by the defendants and as such, plaintiff filed O.S No.131/1991 before the trial Court seeking relief of declaration, partition and separate possession.

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Defendants 1 to 5 and 7 have entered appearance and resisted the plaint by filing written statement. The defence taken by the defendants in the written statement that, there is no dispute with regard to relationship between the parties, however, the suit schedule properties

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were divided by metes and bounds on 04^th June, 1979 by virtue of the partition deed executed between the plaintiff and defendants and certain properties had been given to the plaintiff in terms of aforementioned partition deed and as such, the suit is liable to be dismissed with exemplary cost.

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The trial Court based on the pleadings on record

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formulated the following issues:-

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1. Whether the 1^st defendant proves the partition dated 04.06.1979?

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2. Whether the Court fee paid is incorrect?

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3. Whether the plaintiff is entitled to 1/4^th share in the schedule properties?

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4. To what order or decree?

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The plaintiff was examined as PW1 and examined two more witnesses as PW2 and PW3 and produced 16 documents and same were marked as Exhibits P1 to P16. On the other hand, defendants adduced evidence through DWs.1 to DW.3 and produced 28 documents and same were marked as Exhibits D1 to D28.

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The trial Court, after considering the material on record, by its judgment dated 04^th January, 1995 dismissed the suit of the plaintiff. Being aggrieved by the same, the plaintiff preferred RA No.8/1995 before the First Appellate Court. The First Appellate Court after reappreciating the material on record, by its judgment and decree dated 31^st March, 2006 allowed the appeal preferred by the plaintiff and consequently set aside the judgment and decree passed in OS No. 131/1991. Being aggrieved by the same, defendants have preferred RSA No. 1951 of 2006, which came to be dismissed on 12^th September, 2019. RSA Crob No.11/2006 is filed by the plaintiff in respect of the house property and the land bearing Sy.No.354. The legal representatives of plaintiff has filed two applications under Order XLI Rule 27 of Code of Civil Procedure and produced certain documents to establish the fact that, house property was granted to him as per the notice dated 03^rd March, 1997 (as per the document-A) and same was reflected in the demand register of Kattemalavadi Gram Panchayat at Kattemalavadi village, Hunsur Taluk, Mysuru District (as per the document No ‘B’).

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The plaintiff further stated that, the Sy.No.354 is originally notified as Sy.No.268 at Kattemalavadi Village and same was granted in favour of one Sidda S/o Mancha. Therefore, the said survey number was re-numbered Sy.No.354, which is not belonging to the plaintiff. On this ground, Cross objections are filed to interfere with the finding recorded by the First Appellate Court.

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I have Heard Sri. A.M.Vijay, learned counsel appearing for the plaintiffs/cross objectors. Respondents though served, unrepresented.

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Sri A M Vijay, learned counsel for the plaintiff, contended that, pursuant to the dismissal of suit by the trial court, plaintiff has preferred RA No.08/1996 before the First Appellate Court and the First Appellate Court after reappreciating the material on record set-aside the judgment and decree passed in OS No.131/1991 and thereby held that, plaintiffs 1 to 3 are entitled 1/4^th + 1/32^nd share each by metes and bounds. He further contended that, the findings recorded by the First Appellate Court with regard to division of land in Sy.No.354 and house property requires to be modified in the cross-objection. Therefore, he sought

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to allow the cross-objection in terms of the grounds urged in the memorandum of the cross-objections filed under order XLI Rule 22 of Code of Civil Procedure.

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I have carefully considered the findings recorded by Courts below and perused the records.

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The undisputed facts are that, Kunchagani Manchaiah had two wives and plaintiff is the son of Kunchagani Manchaiah through first wife-Gundamma; and defendants are the children of Kunchagani Manchaiah through second wife-Kenchamma. In the plaint there are five items of the suit schedule properties. Items 1 to 3 are the agricultural properties situated at Kattemalavadi village; and item No.4 is the house measuring 2 ½ ankanams situated at Kattemalavadi Village (house property) and item 5 is also house property measuring 5 ankanams situated at kattemalavadi Village.

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In view of the submission made by the learned counsel appearing for the cross-objectors, I have carefully considered the written statement filed by the defendant particularly in para No. 10 which reads as under:

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“On 4^th June, 1079 the plaintiff and defendants 1 to 3 are divided the ancestral and self acquired properties of the late Kunchagini Manchaiah. According to the panchayath paluparikath the land bearing Sy.No. 354 measuring 3 acre, 06 guntas and newly constructed house was allotted in favour of the plaintiff and the suit schedule item No.1 to 5 are allotted in favour of the defendants 1 to 3. From the date of partition the plaintiff and defendants are cultivated the land as absolute owners in respect of his shares. The plaintiff is not entitled to any reliefs as claimed in the plaint and also the defendants are not liable to pay any means profits as claimed in the plaint.”

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Perusal of paragraph 10 of the written statement would indicate that, defendants have stated that they no objection insofar as allotting the house property and they have no objection to allot the land bearing Sy.No.354 measuring 3 acre 06 guntas and house in favour of the plaintiff. However, the Trial Court, having taken note of the facts that there was a prior partition between the parties on 04^th June, 1979 (Ex.D-1), dismissed the suit of the plaintiff. However, the First Appellate Court reversed the findings recorded by the trial Court on the ground that, Ex.D1 partition deed dated 04^th June, 1997 is an unregistered document and there are certain discrepancies

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in the said documents. Accordingly, the First Appellate Court interfered with judgment and decree passed by the trial Court. Having considered the submission advanced by the learned counsel appearing for the cross-objectors, I have noticed in the application filed by the cross-objectors under order XLI 41 Rule 27 of the Code of Civil Procedure, wherein document-E indicates that, original Survey No.268 has been modified and new Survey number is re-numbered as Sy.No.354. Perusal of the document C and D No.1 in the aforesaid application reflects that, the Sy.No.268 has been granted by the Government to one Sidda S/o Machanna of Kattemalavadi village, Hunsur taluk, Mysore Dist. However, thereafter Assistant Director, Land Records passed an order of change of Survey number and pursuant to the same, the Assistant Commissioner has passed on order dated 30^th March, 2007 in RRT No.332/2006-07. In that view of the matter, taking into consideration the said land has been granted to some third party, I am of the view that, finding recorded by the First Appellate Court with regard to the land bearing Sy.No.354 requires interference. The plaintiff has produced the notice dated: 03^rd March,

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1997 issued by the Taluk Panchayath Hunsur and perusal of the same would substantiate the fact that the house property has been granted in favour of the plaintiff under Jawahar Rojgar Yojana scheme and pursuant to the same Kattemalavadi Gram panchayath issued demand register in favour of the plaintiff. The house property bearing Sy.No.354 is self acquired property of plaintiff and same cannot be blend into joint family property of the Kunchagani Manchayya and as such, to this extent, the cross-objection filed by the plaintiff required to be allowed and as such, modify the judgment and decree passed by the First Appellate Court. Hence following;

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ORDER

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RSA Crob No.11/2006 is allowed.

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The judgment and decree dated 31.03.2006

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passed in R.A No.8 of 1995 passed by Civil

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Judge (Sr.Dvn) is modified.

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Sd/-

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JUDGE

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UN

Smt Cheluvamma v. Sri Chikkaiah

Case brief

What is this about?

What did the court decide?

Smt Cheluvamma v. Sri Chikkaiah

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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