The High Court of Karnataka sanctioned this regular second appeal against findings that suit property was joint family property and partitioned. The court affirmed lower courts, holding grant enures to family benefit and dismissing the appeal.
No relief granted; appeal dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2022
BEFORE
THE HON’BLE MR.JUSTICE M.G.S. KAMAL
RSA No.576 OF 2009 (PAR)
BETWEEN:
N.L. RANGEGOWDA SINCE DEAD BY LRS
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| 1(e) | SMT. N.R. SHUBHA | |
|---|---|---|
| W/O M. LOKESH AGED ABOUT 30 YEARS SATTEGALA AGRAHARA SATTEGALA POST KOLLEGALA TALUK CHAMARAJANAGAR DISTRICT. |
||
| 1(f) | SMT. SUMA W/O B. CHANNAKESHAVA AGED ABOUT 30 YEARS D/O LATE N.L. RANGEGOWDA NO.549, 2ND MAIN ROAD KAMATAGERI, NAZARBAD MYSORE - 10. |
|
| 1(g) | SRI. R. KUMAR S/O LATE N.L. RANGEGOWDA AGED ABOUT 27 YEARS NAVILURU, GANAGANURU POST SANTHEMARALLI HOBLI CHAMARAJANAGAR DISTRICT. |
... APPELLANTS |
| (BY S S |
RI. RAHUL, ADVOCATE FOR RI. T.N. RAGHUPATHY, ADVOCATE) |
|
| AND: | ||
| 1. | N.L. VIJAYAKUMAR S/O LATE LAKSHMIPATHI GOWDA AGED ABOUT 48 YEARS R/AT NAVILURU GRAMA SANTHEMARAHALLI HOBLI CHAMARAJANAGAR TALUK. |
|
| 2. | N.T. NAGARAJU S/O LATE LAKSHMIPATHI GOWDA AGED ABOUT 70 YEARS R/AT NAVILURU GRAMA SANTHEMARAHALLI HOBLI CHAMARAJANAGAR TALUK. |
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…RESPONDENTS
(BY SRI. P. MAHESH, ADVOCATE FOR R1, R2, R3, R8 SERVED V/O DATED:20.04.2010 R4 TO R7 ARE DELETED)
THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 31.01.2009 PASSED IN R.A. NO. 31/2001 ON THE FILE OF THE PRESIDING OFFICE, FTC-1, MYSORE (CONCURRENT CHARGE), DISMISSING THE APPEAL AND UPHOLDING THE JUDGEMENT AND DECREE DATED:20.10.2001 PASSED IN O.S.NO.57/1993 ON THE FILE OF THE CIVIL JUDGE (SR. DN.), NANJANGUD.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Present regular second appeal is filed by the appellant/second defendant against the concurrent findings rendered in O.S.No.57/1993 on the file of the Civil Judge (Sr.Dn.) Nanjanagud (hereinafter referred to as the 'Trial Court') and in
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R.A.No.31/2001 on the file of the Presiding Officer,
Fast Track Court-I, Mysore (hereinafter referred to as the 'First Appellate Court'), decreeing the suit for partition, allotting 1/3rd share in the suit schedule property in favour of the respondent/plaintiff.
ranking before the trial Court.
are the children of Late Lakshmipathi Gowda. The plaintiff, defendants and their said father constituted a joint Hindu Family and were enjoying the family property jointly. The suit schedule properties bearing Sy.No.357/1 measuring 25 guntas, Sy.No.362 measuring 1 acre 38 guntas, Sy.No.363 measuring 1 acre 33 guntas, Sy.No.364 measuring 1 acre 23 guntas totally measuring 5 acres 35 guntas of Thayoor village, Biligere Hobli, Nanjangudu Taluk
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originally belonged to one Sri. Basavegowda s/o Bore Gowda, Mysore. That Sri. Lakshmipathi Gowda, the father of the plaintiff and defendant Nos.1 to 4 was cultivating said land. Upon his demise, appellant/second defendant filed declaration under Section 48A of the Karnataka Land Reforms Act, 1961 before Land Tribunal, Nanjanagudu on 28.06.1976. In the said declaration it was specifically stated that the Lakshmipathi Gowda- the father of the plaintiff and defendant Nos.1 to 4 being kartha of the joint family was cultivating the land and that upon his demise, appellant/second defendant continue to cultivate the land on behalf of the family. The Land Tribunal granted the said land in the name of the appellant/second defendant. That there was a palupatti dated 03.09.1983 in terms of which all the joint family properties including suit property were partitioned dividing the same into three equal shares. The plaintiff, second and forth defendants
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were allotted 1/3rd share each equally. Though after partition, appellant/second defendant agreed to deliver the 1/3rd share to the plaintiff, he failed to deliver the possession constraining the plaintiff to file the suit for partition and separate possession.
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interest in the suit schedule property. That the palupatti dated 03.09.1983 was a created document. It was further contended that if at all there was a partition, the plaintiff ought to have sought for the possession instead of filing the suit for partition. Hence, sought for dismissal of the suit.
for its consideration.
"(1) Whether the plaintiff proves that the suit schedule property was cultivated by joint family of plaintiff and defendants as tenants?
(2) Whether the plaintiff proves that the schedule property was partitioned under the partition on 03.09.1983?
(3) Whether the 2nd defendant was the sole tenant of the schedule properties?
(4) Whether the plaintiff is entitled to 1/3rd share in the schedule property?
(5) Whether the suit is bad for nonjointer of parties?
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(6) Whether the plaintiff is entitled to partition and separate possession?
(7) Whether the plaintiff is entitled to order for mesne profits?
(8) To what relief?"
exhibited 11 documents marked as Ex.P.1 to Ex.P.11. Appellant/second defendant got himself examined as D.W.1 and one Rajegowda examined as D.W.2.
Court by its judgment and decree dated 20.10.2001 concluded that suit schedule property was the joint family property having been granted in favour of the second defendant, for on behalf of the family and that since the parties had entered into partition on 03.09.1983 in terms of Ex.P.11-Palupatti, the plaintiff was entitled for 1/3rd share, right, title and interest and also mesne profit to the extent of 1/3rd
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share in the suit schedule property. Accordingly, preliminary decree came to be drawn.
"(1) Whether the plaintiff proves that the suit schedule property was cultivated by joint family of plaintiff and defendants as tenants?
(2) Whether the plaintiff proves that the schedule property was partitioned under the partition on 03.09.1983?
(3) Whether the 2nd defendant was the sole tenant of the schedule properties?
(4) Whether the plaintiff is entitled to 1/3rd share in the schedule property?
(5) Whether the suit is bad for nonjointer of parties?
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(6) Whether the plaintiff is entitled to partition and separate possession?
(7) Whether the plaintiff is entitled to order for mesne profits?
(8) To what relief?"
and by its judgment and order dated 31.01.2009 concurred with the findings of the facts
and conclusion arrived at by the trial Court, consequently dismissed the appeal. Being aggrieved by the same, second defendant is before this Court by way of this regular second appeal.
consideration.
"1) Whether the judgment and Decree of the Courts below are perverse in misreading the material
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evidence on record with regard to the status of the properties?
(a) the trial Court and First Appellate Court grossly erred in relying upon the Ex.P.1 and Ex.P.11 to hold that the grant was for the benefit of the family, while there is no such material evidence made available by the plaintiff.
(b) that the grant of land in favour of the one member of the family enuring to the benefit of the other members of the family cannot be presumed, unless the same is specifically mentioned in the
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order of the grant. That in the instant case, since there is no such order that the grant was made for and on behalf of the family, the Courts below erred in holding that the suit property was the joint family property.
(c) that the Courts below ought not to have decreed the suit for partition as it is the contention of the plaintiff that partition had already taken place as per Ex.P.11-Palupatti. If that be the case, question of filing the suit for partition would not arise. Hence, he submits that there is perversity in the judgments of the trial Court and First appellate Court.
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The relationship of the plaintiff and defendant Nos.1 to 4 being sons of Lakshimpathi Gowda is admitted. It is also admitted that Sri. Lakshmipathi Gowda was cultivating the land 20 years prior to filing of declaration under Section 48A of the Karnataka Land Reforms Act, 1961. Perusal of Ex.P.1 -column under the heading "period for which the applicant has been cultivating the land as tenant" categorically refers to Lakshmipathi Gowda- father of plaintiff and defendant Nos.1 to 4 cultivating the land over 20 years prior to filing of the application. The records of rights, Index of land and the RTC extracts-Ex.P.5 to Ex.P.8 reflects the name of the Lakshmipathi Gowda. Ex.P.11 is the palupatti in terms of which 1/3rd share in the property referred to therein has been allotted to the plaintiff. The trial Court and the First appellate court have read the said document for collateral purposes along with other documents referred to above. The trial Court
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and First appellate Court taking into consideration the material evidence, facts and circumstances of the case have come to the conclusion that the suit schedule property was being cultivated by Lakshmipati Gowda and upon his demise, appellant/second defendant had applied and obtained the rights for and on behalf of the family. Plaintiff and defendant Nos.1 to 4 being children of the said Lakshmipathi Gowda had constituted joint family. In view of the law settled by the Apex Court in the case of B.L. SREEDHAR RAO AND OTHERS vs. K.M. MUNIREDDY AND OTHERS reported in (2003) 2 SCC 355, wherein if grant is made infavour of one member of the family, benefit enures to the whole family unless the members relinquish right by word or conduct infavour of other members. No infirmity, illegality can be found in the appreciation of the evidence, reasoning and conclusion arrived at by the trial Court and first
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appellate Court. The substantial question of law formulated above are answered accordingly.
Hence, the appeal is dismissed.
Sd/JUDGE
RU
3 issues framed by the court
Whether the judgment and Decree of the Courts below are perverse in misreading the material evidence on record with regard to the status of the properties?
Whether the judgment and decree of the Courts below are perverse in misreading Ex.P.11 (Palupatti)?
Whether grant of land in favour of one member of the family cannot be presumed to enure to the benefit of other members unless specifically mentioned in the grant order?
Colour shows how this judgement treated each authority
B.L. Sreedhara Rao and Others vs. K.M. Munireddy and OthersExplained¶88
B.L. Sreedhara Rao and Others vs. K.M. Munireddy and Others, (2003) 2 SCC 355 · Who else cites this
1 provisions across 1 enactments
1(a) SMT. GOWRAMMA
1(b) SMT. VISHALAKSHI
1(c) SMT. NALINI
1(d) SRI. R. NAGENDRA
1(e) SMT. N.R. SHUBHA
1(f) SMT. SUMA
M.G.S. KAMAL
As recorded by the court registry
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