Dismissed

Karabasappa S/O Shekhappa Doddalli, v. Jayamma W/O Basavaraj Maliyappanavar

Karnataka HC1 Jul 2022RSA/100036/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka, Dharwad Bench disposed of a regular second appeal filed by a defendant challenging a partition suit decree. The court held that since the appellant failed to prove the properties were not joint family assets, the lower courts' finding of equal 1/4 shares was correct. The appeal was dismissed as it did not raise a substantial question of law under Section 100 CPC.

What the court decided

AI extract

Karabasappa S/O Shekhappa Doddalli, Vs Jayamma W/O Basavaraj… — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 01^ST DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100036 OF 2015 (PAR-)

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BETWEEN:

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KARABASAPPA S/O SHEKHAPPA DODDALLI, AGE: 38 YEARS, OCC: AGRICULTURE, R/O. HADRIHALLI, TQ: HIREKERUR DIST: HAVERI-581116

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…APPELLANT

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(BY SRI. AVINASH BANAKAR, ADVOCATE)

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AND:

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SMT.JAYAMMA W/O BASAVARAJ MALIYAPPANAVAR, AGE: 44 YRS, OCC: AGRICULTURE, R/O. HEDIYAL, TQ: RANEBENNUR, DIST: HAVERI-581115

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SMT.MALIGEVVA @ MALIGEVVA W/O GADIGEPPAGOUDA DODDAGOUDRA AGE: 42 YRS, OCC: AGRICULTURE, R/O. CHIKKAYADACHI, TQ: HIREKERUR, DIST: HAVERI-581116

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SHANTAMMA W/O SHEKHAPPA DODDALLI AGE: 62 YRS, OCC: AGRICULTURE, R/O. HADRIHALLI, TQ: HIREKERUR, DIST: HAVERI-581116

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…RESPONDENTS

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(BY SRI.SURABHI KULKARNI, ADVOCATE FOR R1; R2 AND R3 – SERVED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DTD:14.11.2014 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC, HIREKERUR IN R.A.NO.2/2012, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD:22.11.2011 PASSED BY THE COURT OF PRINCIPAL CIVIL JUDGE (JR.DN.) & JMFC., HIREKERUR IN OS NO.248/2004, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY. THE COURT DELIVERED THE FOLLOWING.

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JUDGMENT

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This Regular Second Appeal is filed by defendant No.2 challenging the judgment and decree dated 14.11.2014 passed in R.A.No.2/2012 on the file of the Senior Civil Judge and JMFC, Hirekerur (hereinafter referred to as ‘the First Appellate Court’, for brevity), confirming the judgment and decree dated 22.11.2011, passed in O.S.No.248/2004 on the file of the Civil Judge and JMFC, Hirekerur (hereinafter referred to as ‘the trial Court’, for brevity) decreeing the suit in part.

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For the sake of convenience, the parties to 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 plaintiffs that, plaintiffs are the daughters of Shekhappa and Shantamma (defendant No.1) and defendant No.2 is the brother of plaintiffs. It is the case of the plaintiffs that, father of the plaintiffs died on 19.02.1991, leaving behind the joint family properties and as such, plaintiffs are entitled for share in the suit schedule property and the same was denied by defendants and accordingly, plaintiffs have filed O.S.No.248/2004 before the trial Court seeking relief of partition and separate possession in respect of suit schedule property.

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On service of notice the defendants entered appearance. Defendant No.1 supported the contention of the plaintiffs. Defendant No.2 filed a written statement denying the averments made in the plaint and accordingly sought for dismissal of the suit.

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Considering the pleadings on record, the trial Court framed issues for its consideration. In order to prove their case, plaintiff No.1 was examined herself as PW1 and produced 4 documents and same were marked as Exs.P1 to P4. Defendant No.2 was examined himself as DW1 and no documents were produced on the behalf of the defendants. The trial Court after

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considering the material on record by its judgment and decree dated 22.11.2011, decreed the suit holding that the plaintiffs and defendants are entitled for ¼ share each in the suit schedule property. Feeling aggrieved by the same, defendant No.2 has preferred R.A.No.2/2012 and the same was resisted by the plaintiffs. The First Appellate Court, after considering the material on record by its judgment and decree dated 14.11.2014, dismissed the appeal, consequently, confirmed the judgment and decree passed by the trial Court. Being aggrieved by the same, defendant No.2 has preferred this appeal.

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I have heard Sri. Avinash Banakar, learned counsel appearing for the appellant and Ms.Surabhi Kulkarni, learned counsel appearing on behalf of respondent No.1.

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Sri. Avinash Banakar, learned counsel appearing for the appellant argued that, both the Courts below have not assessed the fact that the schedule properties are not the joint family properties and there was a partition between the parties during 1991 and the said aspect has not been considered by the Courts below. Accordingly, he sought for interference of this Court.

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Per contra, Ms. Surabhi Kulkarni, learned counsel

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appearing for respondent No.1 sought to justify the impugned judgment and decree passed by the Courts below.

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In the light of the submissions made by the learned counsel appearing for the parties, as the suit is filed seeking the relief of partition and separate possession, it is relevant to extract the pedigree of the parties which reads as under:

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Shekhappa (Dead)

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Shantamma (Wife) (defendant No.1)

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Jayamma Maligevva Karabasappa (Plaintiff No.1) (Plaintiff No.2) (Defendant No.2)

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Perusal of the aforementioned pedigree would indicate that Shekhappa and Shantamma (defendant No.1) are the parents of plaintiffs and defendant No.2. It is the case of the plaintiffs that the suit schedule properties are the agricultural properties and those properties are the joint family properties as the same stands in the name of the father of the plaintiffs. In this regard, though defendant No.2 has raised a plea that the said properties cannot be

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considered to be joint family properties, however, the said presumption insofar as nucleus of the property was not proved by defendant No.2 to say that those properties are not the joint family properties and In that view of the matter, the finding recorded by both the Courts below is just and proper. Following the language employed under Section 8 of Hindu Succession Act, plaintiffs and defendants are entitled for ¼ share each in the suit schedule properties and as such, the appellant has not made out a case for formulation of substantial question of law as required under Section 100 of the Code of Civil Procedure and accordingly the appeal fails.

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The appeal is dismissed at the stage of admission.

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Ms. Surabhi Kulkarni, learned counsel appearing for the respondent No.1 seeks 4 weeks time to file power on behalf of the respondent No.1.

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Karabasappa S/O Shekhappa Doddalli, v. Jayamma W/O Basavaraj Maliyappanavar

Case brief

What is this about?

What the court decided

Karabasappa S/O Shekhappa Doddalli, v. Jayamma W/O Basavaraj Maliyappanavar

Case brief

What is this about?

What the court decided

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