This court dismissed the appeal preferred by defendant Nos. 3 and 4 challenging the trial court's judgment in a partition suit held in 2005. The trial court had partially decreed the plaintiffs' claim for a 1/6th share in suit properties.
Appeal dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REGULAR FIRST APPEAL No.727/2006(PAR)
BETWEEN
ARSIKERE TALUK-573 103
S/O HANUMANTHEGOWDA AGED ABOUT YEARS RESIDING AT BAGESHPUR VILLAGE GANDSI HOBLI
ARSIKERE TALUK-573 103
...APPELLANTS
(BY SMT. SUKANYA H D, ADVOCATE FOR A1; SRI M.V.V.RAMANA, ADVOCATE FOR A2)
AND
ARSIKERE TALUK-573 103
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W/O HANUMANTHEGOWDA AGE 53 RESIDING AT BAGESHPUR VILLAGE GANDSI HOBLI ARSIKERE TALUK
…RESPONDENTS (SRI CHETHAN .B, ADVOCATE FOR R1 TO R3; VIDE ORDER DATED 11.12.15, APPELLANTS AND R1 TO R3 ARE TREATED AS LEGAL REPRESENTATIVES OF DECEASED R4 AND R5)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE JUDMENT AND DECREE DATED 21.12.2005 PASSED IN O.S.No.5/2000 ON THE FILE OF THE CIVIL JUDGE (SR.DN), ARSIKERE, PARTLY DECREEING THE SUIT FOR PARTITION.
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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The present Appeal is directed against the judgment
and decree dated 21.12.2005 passed in O.S.No.5/2000 on
the file of the Civil Judge (Sr.Dn.) Arasikere.
“SUIT SCHEDULE PROPERTIES
Properties situated at Bageshpura village, Gandsi
Hobli, Arasikere Taluk:
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Both the lands bounded on the East by : Road, West by : Hill, North by: land belonging to Hanumegowda, South by: land belonging to Nagathihalli Byrashetty.
East by : Rangegowda’s land, West by : Nandihalli Boregowda’s land, North by : Donegowda’s land, South by : Nandihalli Boregowda’s land.
(4) 1 acre 22 guntas in Sy.No.4/2A (6) 1 acre 02 guntas in Sy.No.4/2B (7) 2 acre 05 guntas in Sy.No.5/2, bounded on the-
East by : Krishnegowda’s land,
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West by : Rangaswamy’s land, North by: Krishnegowda’s land, South by: Krishnegowda’s land.
East by : Donegowda’s land,
West by : Millina Mariyanna’s land,
North by: Sannathammegowda’s land,
South by: Rangappa’s land.
East by : Boregowda’s land,
West by : Mayappa’s land,
North by: Rangaiah’s land,
South by: Chikkappa’s land.
East by : Nigadi Borappa’s House,
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West by : Rangegowda’s House,
North by: Borappa’s land, South by: Hanumanthegowda’s House.
East by : Gangegowda’s site, West by : Manjegowda’s land, North by: Gangegowda’s land, South by:---
East by : Railway Road,
West by : Gundegowda’s site,
North by: Javeregowda’s site,
South by: Halagegowda’s land.
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East by : Thimmegowda’s site,
West by : Ramegowda’s house,
North by: Eregowda’s land,
South by: Ballary Gowda’s house.
‘B’ SCHEDULE
| (1) | One tractor and a trailor | Rs.3,40,000/- |
|---|---|---|
| (2) | A pair of Bullock | Rs.10,000/- |
| (3) | A pair of buffalo | Rs.2,000/- |
| (4) | One Sindhi cow | Rs.9,000/- |
| (5) | 20 tholas gold | Rs.1,00,000/- |
| (6) | 10 tholas silver | Rs.10,000/- |
| (7) | Fixed deposit in Cauvery Grameena Bank, Bageshpura |
Rs.55,000/- |
| (8) | Iron almirah | Rs.10,000/- |
| (9) | Five thousand coconut | Rs.30,000/- |
| (10) | Ragi, Horse gram and other cereals |
Rs.12,000/-“ |
being son of Thimmegowda had five sons who are plaintiffs and defendant Nos.3 and 4, and second defendant is the wife of first defendant. It is contended that when the parents of first defendant died, first defendant was very
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young and therefore, maternal uncle of first defendant by name Ijjegowda had sold few properties of the family which were situated at Belaguli village on 08.05.1945 and took the first defendant to Bageshpura village. It is further contended that from out of sale consideration of the properties which were sold in Belaguli village, Ijjegowda purchased land in Sy.No.5/2 of Bageshpura village. On attaining the age of majority, first defendant married second defendant and, plaintiffs and defendants 3 and 4 were born in the said marriage. First plaintiff worked as a driver in KSRTC and other parties to the suit were managing the agricultural land.
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agricultural operations and in that regard, they approached the Kaveri Grameena Bank for obtaining loan and at that juncture, the bank wanted security. It is further contended that the joint family properties were given as security for purchase of tractor and trailor. The first plaintiff also contributed to the joint family from his salary earnings and the efforts put by other plaintiffs and defendants 3 and 4 were all put in a common hotchpotch and family was maintaining the expenses from the common hotchpotch.
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filed a suit in O.S.No.361/1999 against defendants 1 and 2 on the file of the Civil Judge (Jr.Dn.), Arasikere and on 29.11.1999 the said suit ended in a compromise decree and plaintiffs were not parties to the said compromise decree and therefore contended that the compromise decree passed in O.S.No.361/1999 would not be binding on them and sought for their share in the suit properties.
it is contended that there was no land of the first defendant in Belaguli village as contended in the plaint and on account of death of parents of first defendant in his young age, Ijjegowda acted as minor guardian and sold the land belonging to first defendant through registered
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sale deed to Honnegowda and from the sale consideration derived from the said property, property in Bageshpura village has been purchased, is denied. Defendants 3 and 4 also denied that plaintiffs 2 and 3 also worked in the agricultural land belonging to defendant No.1 in Bageshpura village and they are the members of joint family.
ISSUES
1. Whether the plaintiffs prove that the suit schedule ‘A’
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they are in joint possession of plaintiffs and defendants?
2. Whether the plaintiff further proves that the defendants 3 and 4 have obtained the collusive decree in O.S.No.361/99 dated 29.11.1999 in the court of Civil Judge (Jr.Dn), Arsikere, and the same is not binding on the share of the plaintiffs?
3. Whether the defendants prove that the suit schedule properties of channarayapatna taluk Belaguli village bearing Sy.No.145:26, 174:1, 374:8, 181:2, 200:3 and 215:2 are not in existence?
4. Whether the plaintiffs are entitled for a partition and separate possession of their 1/6th share each in the suit schedule properties as prayed?
5. Whether the plaintiffs are entitled for declaration stating that the decree obtained in O.S.No.361/99 dated 29.11.1999 is not binding on their shares?
6. Whether the plaintiffs are also entitled to the decree for an enquiry of mesne profits?
7. To what decree or order?”
Addl. Issues:
1. Whether the suit schedule properties are selfacquired and stridhana properties of 1 and 2nd defendants?
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2. Whether suit schedule properties have been gifted in favour of 3rd and 4th defendant by 1st and 2nd defendants?”
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copy of the notice issued by Canara Bank, Hassan, at Ex.P.32, CPO at Ex.P.33, copy of the sale deed at Ex.P.34.
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That the relationship between the parties is admitted. However, Hanumanthegowda has got other two daughters and they were not made parties to the proceedings. That apart Hanumanthegowda was not owning any property either in Belagali or any other village. Therefore the theory set up by the plaintiff to the effect that the land was sold by Ijjegowda and in turn Ijjegowda has purchased property Sy.No.5/2 of Bageshpur village is not at all proved. Therefore holding that all the items of the properties are joint family properties is against the records of the case.
That Hanumanthegowda was working in Mysore Minerals. In this regard three witnesses have spoken regarding his employment. Further, more a co-worker has entered the witness box and deposed that Hanumanthegowda was earning Rs.9/- per day initially and his income was increased by his hard work. This portion of the oral evidence was not considered in its proper perspective. Only on the ground that no documentary evidence is produced in support of
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employment of Hanumanthegowda the court below has erred in this regard. That the land sy.no.195/ 10 was purchased by Honnamma w/o Hanumanthegowda. Therefore this property cannot be included into a joint family property. Likewise by virtue of a will executed by Guddegowda s/o Bette Gowda dated 3.10.1991 4 acres of land in sy.no.195 was given to Hanumanthegowda. This property cannot be included into the joint family property. Likewise a Darakast land wherein the government has given certain land to Hanumanthegowda, at any stretch of imagination does not fall into the ambit of joint family property. This aspect of the matter was lost sight of by the court below. The H.No.279 and Sy.No. 15/2 were also not standing in the name of Hanumanthegowda. Therefore decreeing the suit in respect of these items is also bad in law.
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property mentioned are joint family property. Hence the findings recorded calls for interference.”
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the defendants 1 and 2 including filing a criminal case and therefore, defendants 1 and 2 agreed to grant share only to defendants 3 and 4 excluding the share of the plaintiffs.
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property at Belaguli and same being sold to Honnegowda by Ijjegowda acting as minor guardian of first defendant is proved by placing necessary evidence on record and same has been rightly appreciated by the learned Trial Judge while passing the impugned judgment and decreeing the suit of the plaintiffs in part.
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Court in the impugned judgment is just and proper and sought for dismissal of the appeal.
(iii) What Order?
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Ijjegowda. Claim of the defendants is that suit properties are the self acquired properties of the first defendant. The material evidence on record, especially cross-examination of plaintiff witnesses, on cumulative consideration would establish that the suggestion made to the witnesses that Ijjegowda did not sell the property belonging to the first defendant in Belaguli village is denied.
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bring the first defendant to Bageshpura, but it is his senior uncle of first defendant by name Gurubasavegowda who brought him to Bageshpura. They also admit in crossexamination that they do not have any documents to show that first defendant was working in the house of Bakkappa as a bonded labour for 12 years and earned the suit properties. Likewise, they admit that they do not have any documentary evidence to show that first defendant was earning Rs.200/- to Rs.250/- per month in a Company.
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first defendant was working in Mysore Minerals Factory and had sufficient income after meeting family necessities to purchase the suit properties from the said income.
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of this Court is called for in respect of the impugned judgment.
ORDER
(ii)No order as to costs.
Sd/JUDGE
3 issues framed by the court
Whether the appeal should be allowed or dismissed on merits given the lack of documentary evidence establishing the self-acquired nature of the disputed property.
Whether the impugned judgment of the trial court dividing the property is suffering from legal infirmity or perversity warranting interference.
Whether the principle that documents do not lie applies to sustain the trial court's findings against appellants' oral denials.
PUTTATHIMMEGOWDA S/O HANUMANTHE GOWDA
VENKATASWAMY S/O HANUMANTHEGOWDA
HANUMEGOWDA S/O HANUMANTHEGOWDA
MANJUNATH S/O HANUMANTHEGOWDA
GOVINDEGOWDA S/O HANUMANTHEGOWDA
HANUMANTHEGOWDA S/O THIMMEGOWDA
V. SRISHANANDA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
