Dismissed

Dr S v. Narayanaswamy v Smt Nanjamma

Karnataka HC14 Oct 2022RFA/1847/2010

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against a partition decree. The court upheld the Trial Court's finding that the appellant was impliedly accepted to hold title by adverse possession while simultaneously recognizing the respondent's status as his daughter, confirming the lower court's judgment and decree.

What did the court decide?

The appeal was dismissed with costs; the impugned judgment and decree by the Additional City Civil and Sessions Judge was confirmed.

Dr S v Narayanaswamy Vs Smt Nanjamma — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF OCTOBER 2022

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PRESENT

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THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR

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AND

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THE HON’BLE MR. JUSTICE UMESH M ADIGA

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REGULAR FIRST APPEAL No.1847 OF 2010 (PAR)

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BETWEEN:

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DR. S V NARAYANASWAMY PRESENTLY AGED ABOUT 79 YEARS S/O LATE SRI VENKATAPPA RESIDING AT No.88, 2^ND MAIN, 3^RD CROSS GANGANAGAR, BENGALURU - 560 032.

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....APPELLANT

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(BY SRI K M JAGANATH, ADVOCATE)

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AND:

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1 . SMT. NANJAMMA

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SINCE DCEASED BY HER L.R's.

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1(a) Mrs.K MANJULA D/O LATE SMT. NANJAMMA AGED ABOUT 44 YEARS.

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1(b) Mrs.K SUMA D/O LATE SMT. NANJAMMA AGED ABOUT 41 YEARS.

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1(c) Mr.K SRINIVAS D/O LATE SMT.NANJAMMA AGED ABOUT 39 YEARS.

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RFA 1847/2010

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ALL RESIDING AT 'SAMRUDDHI' NO.5, 2^ND CROSS, 'A' SECTOR, MUNESHWARA BLOCK AMRUTHNAGAR, BENGALURU - 560 092.

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2 . SRI N SATISH KUMAR PRESENTLY AGED ABOUT 57 YEARS

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3 . SRI N MADHUSUDHANA PRESENTLY AGED ABOUT 55 YEARS

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4 . SRI M ARUN KUMAR PRESENTLY AGED ABOUT 53 YEARS

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ALL SONS OF B S NARASINGHA RAO R/O. "PARVATHI PARIVAR" No.22/Y/5, 14^TH MAIN, 58^TH 'B' CROSS, 14^TH MAIN, III Y BLOCK, RAJAJINAGAR, BENGALURU - 560 010.

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...RESPONDENTS

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(BY SMT. NALINI VENKATESH, ADVOCATE FOR R1 (a to c); SRI PRADEEP KUMAR R H, ADVOCATE FOR SRI SHANMUKHAPPA, ADVOCATE FOR R2 TO R4)

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THIS REGULAR FIRST APPEAL FILED U/S 96, OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:19.02.2010 PASSED IN O.S.6858/2004 ON THE FILE OF THE 17^TH ADDL. CIVIL JUDGE, BANGALORE (CCH-16), PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 2^ND SEPTEMBER, 2022 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, UMESH M ADIGA, J, DELIVERED THE FOLLOWING:

RFA 1847/2010

JUDGMENT

Defendant No.1 in O.S.No.6858/2004 on the file of 17^th Additional City Civil and Sessions Judge, [CCH No.16], Bengaluru City, has preferred this appeal challenging the judgment and decree passed in the said suit dated 19.02.2010.

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For the sake of convenience, the parties are

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referred to as per their ranking before the Trial Court.

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The case of both the parties before the Trial Court is as under:

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Plaintiff-Respondent No.1's case is her father, Munishamappa had four wives; she was born to the fourth wife of Munishamappa by name Smt.Lakshmamma. The suit schedule properties were self-acquired properties of late Munishamappa. Late Munishamappa during his lifetime had executed a registered Will dated 06.07.1955. According to the said Will late Munishamappa bequeathed 'A' Schedule Property jointly in the name of defendant No.1 and late

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RFA 1847/2010

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Lakshmamma, i.e., the mother of the plaintiff.

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Munishamappa died in the year 1961. Smt.Lakshmamma died in the year 1964, leaving behind plaintiff who has to succeed to her estate.

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Prior to filing of the suit, plaintiff came to know that defendant No.1 was misusing the trust and faith of the plaintiff and trying to alienate the suit properties and even he sold one of the suit properties in favour of defendants No.2 to 4 under registered Sale Deed dated 24.05.2004. Plaintiff demanded for partition and defendant No.1 refused to effect partition. Hence, she filed suit for partition and separate possession as his 1/2 share.

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Defendant No.1 has admitted genealogy of the

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family. He denied that plaintiff was daughter of Munishamappa and Lakshmamma and having share in suit properties. He further contended that he has perfected his title by adverse possession and prayed for dismissal of the suit.

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RFA 1847/2010

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6. The Trial Court framed following issues:

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"1. ªÁ¢AiÀÄ zÁªÉAiÀÄ£ÀÄß ¨sÁUÀ±À:ªÁV rQæ ªÀiÁqÀ¯ÁVzÉ. Rað£À §UÉÎ AiÀiÁªÀÅzÉÃ DzÉÃ±À«®è.

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zÁªÉ LlA £ÀA.1, 2, 5, 6, 7 ºÁUÀÆ 10 gÀ°è ªÁ¢UÉ CzsÀð »¸Éì EzÉAiÉÄAzÀÄ WÉÆÃ¹¸À¯ÁVzÉ.

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zÁªÉ LlA £ÀA.3, 4, 8 ºÁUÀÆ 9 gÀ°è »¸Éì PÉÆqÀ¨ÉÃPÉA§ ªÁ¢AiÀÄ ¨ÉÃrPÉAiÀÄ£ÀÄß wgÀ¸ÀÌj¸À¯ÁVzÉ.

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¢£ÁAPÀ: 24.05.2004 gÀAzÀÄ 1£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ zÁªÉ LlA £ÀA.10 £ÀÄß ªÀiÁgÁl ªÀiÁrzÀÄÝ, CzÀÄ ªÁ¢AiÀÄ CzsÀð »¸ÉìUÉ §AzsÀ£ÀPÁjAiÀÄÄAmÁUÀÄªÀÅ¢®è.

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¹«¯ï ¥ÀæQæAiÀÄ ¸ÀAQævÀAiÀÄ PÁ®A. 54 gÀ°è ºÉÃ½zÀAvÉ zÁªÉ LlA £ÀA. 1.-3, 5, 6, 7 ºÁUÀÆ 10£ÀÄß ¸ÀgÀ¸À¤gÀ¸ÀªÁV «¨sÀf¹ ¸Áé¢üÃ£À PÉÆr¸À®Ä DzÉÃ²¸À¯ÁVzÉ.

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zÁªÉ LlA £ÀA. 10(PÁl£ï ¥ÉÃmÉAiÀÄ°ègÀÄªÀ ªÀÄ£É ¸ÀévÀÄÛ) gÀ°ègÀÄªÀ 1£ÉÃ ¥ÀæwªÁ¢AiÀÄ CzsÀð »¸ÉìAiÀÄ£ÀÄß 2 jAzÀ 4£ÉÃ ¥ÀæwªÁ¢AiÀÄjUÉ ºÀAZÀ®Ä DzÉÃ²¸À¯ÁVzÉ.

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CzÀgÀAvÉ ¥ÁægÀA©üPÀ rQæAiÀÄ£ÀÄß §gÉAiÀÄ®Ä DzÉÃ²¸À¯ÁVzÉ."

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The plaintiff to prove her case examined PWs-

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1 to 3 and got marked Exs.P1 to P16 and closed her evidence. Defendants examined DWs-1 and 2 and got marked Exs.D1 to D10 and closed their evidence.

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The learned Trial Judge, appreciating the pleadings and evidence of both the parties, answered

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RFA 1847/2010

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Issue Nos.1 to 5 in the affirmative, Issue No.6 partly in the affirmative and partly decreed the suit by judgment and decree dated 19.02.2010.

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We have heard the arguments of the learned Advocates on both sides.

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determination:

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i) Whether the learned Trial Judge erred in holding that plaintiff appellant was daughter of late Munishamappa and late Smt.Lakshmamma?

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ii) Whether the learned Trial Judge erred in granting the relief of partition in respect of the suit properties in favour of the appellant?

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iii) Whether interference with the findings of the learned Trial Court is called for?

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11. Genealogy of the family and the Will executed

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by late Munishamappa dated 06.07.1955 are not in dispute. It is also not in dispute that the properties were belonging to Munishamappa.

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RFA 1847/2010

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Respondent No.1-P.W.1 has stated about her relationship with Smt.Lakshmamma and Munishamappa. She has examined her maternal uncle as PW-2 who was aged about 80 years at the time of leading the evidence. PW-3 is none other than the daughter of Munishamappa, who was aged about 72 years at the time of her evidence. PWs-2 and 3 appear to be well acquainted with the relationship of Munishamappa with others. In their cross-examination, nothing has been elicited to discard their evidence. PW-2 and 3 are competent persons to depose about relationship of plaintiff with Munishamappa and Smt.Lakshmamma.

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Plaintiff-Respondent No.1 has produced Exs.P1 and P2. They disclose name of her father as "Munishamappa" and she was resident of Sathanuru. At an undisputed point of time, name of father of Respondent No.1 was shown as Munishamappa.

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The learned Advocate for the appellant tried to point out some of the mistakes in Ex.P1. It was written by the School Authority. Therefore, if there is any

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RFA 1847/2010

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mistake, it does not affect the rights of the plaintiff. In Ex.P2, name of plaintiff's father is properly shown. Both appellant and Respondent No.1 were brought up in the same village; appellant has not suggested name of parents of Respondent No.1, if really, Munishamappa and Lakshmamma were not her parents. No such case was made out. By oral and documentary evidence, Respondent No.1 has been able to prove before the Trial Court that she was born to Munishamappa through his fourth wife, Smt.Lakshmamma.

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The learned Trial Judge has considered the evidence in this regard and come to right conclusion.

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The main contention of the appellant is that name of Respondent No.1 was not mentioned in Ex.P3, though late Munishamappa mentioned name of all other heirs in Ex.P3 and that, it creates doubt about relationship of Respondent No.1 with Munishamappa. As per to Exs.P1 and P2, she was born on 10.09.1954. The Will was executed on 06.07.1955. Respondent No.1 might be seven to eight months old at that point of time.

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RFA 1847/2010

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Merely the fact that her name is mentioned in Ex.P3, does not lead to an inference that she is not the daughter of late Munishamappa.

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The other contentions of the learned

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Advocate for the appellant are not sustainable.

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In the written statement, appellant has made out an alternative case that he has perfected his title over the suit properties by adverse possession. It is pertinent to note that to prove his claim of adverse possession, the appellant has to admit the title of plaintiff over the suit properties. Thus, appellant impliedly accepted the title of plaintiff. The learned Trial Judge having properly appreciated the pleadings and evidence on record has come to right conclusion. Hence, there are no grounds for interference in this appeal.

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The appellant has filed an application under Order 6 Rule 17 of C.P.C. seeking amendment in the Written Statement. Appellant wants to plead some more

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RFA 1847/2010

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facts about the relief of adverse possession and that the suit was barred by time. Defendant-Appellant had already taken a contention in the Written Statement that he has perfected his title by adverse possession. Therefore, the amendment as sought for in para No.14(a) is not required. Moreover in the affidavit filed in support of the said application, appellant has not disclosed as to why he was unable to take the said defence before the Trial Court. The said amendments are not just and necessary to decide real dispute between the parties. Hence, the application is liable to be rejected.

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The appellant has filed another application under Order 41 Rule 2 of CPC to take additional grounds in the appeal. Arguments on main appeal were heard including the proposed grounds sought to be urged in the said interlocutory application. In view of our finding that respondent No.1 is the daughter of Munishamappa and appellant has impliedly accepted her title, the application does not merit any consideration.

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RFA 1847/2010

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In view of the above discussion, we pass the following:

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ORDER

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i) The appeal is dismissed with costs. ii) The impugned judgment and decree passed by the learned 17^th Additional City Civil and Sessions Judge, Bengaluru in O.S.No.6858/2004 dated 19.02.2010 is confirmed.

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iii) The application filed by the appellant under Order 6 Rule 17 of CPC and under Order 41 Rule 27 of CPC are rejected.

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Sd/JUDGE

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Sd/JUDGE

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Dr S v. Narayanaswamy v Smt Nanjamma

Case brief

What is this about?

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Dr S v. Narayanaswamy v Smt Nanjamma

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