Dismissed

Sri.Eshwarappa v. Smt.Paramma

Karnataka HC8 Sept 2023RSA/1050/2014

Case brief

AI extract

What is this about?

Second appeal in a partition suit. The court held that since both lower courts reasonably found the property to be joint family assets without prior partition, no substantial question of law arose to interfere with the concurrent findings under Section 100 of the CPC. The appeal was dismissed at the admission stage.

What did the court decide?

The appeal is dismissed at the stage of admission itself.

Sri.Eshwarappa Vs Smt.Paramma — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:32477 RSA No. 1050 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO. 1050 OF 2014 (PAR)

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BETWEEN:

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SRI.ESHWARAPPA D/O GIRIYAPPA HALAPPA AGED ABOUT 46 YEARS RESIDING AT HALAKNAL VILLAGE NOW RESIDING AT KAGATHUR VILLAGE, CHANNAGIRI TALUK-577 213 DAVANAGERE DISTRICT

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…APPELLANT

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(BY SRI SHIVAKUMAR FOR SRI SIDDAPPA B M, ADVOCATES)

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AND:

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SMT.PARAMMA W/O ONKARAPPA SINCE DECEASED REP. BY L.Rs:-

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Digitally signed by C K LATHA Location: HIGH COURT OF KARNATAKA

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a) SMT. SUDHA W/O VIJIYAPPA AGED ABOUT 45 YEARS, R/O CHIRUNALLIYAVARA MANE, GOPENAHALLI (POST), CHANNAGIRI TALUK, DAVANAGERE DISTRICT.

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b) SMT. ANASUYAMMA

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W/O THAMMAJJARA THAMMAIAH AGED ABOUT 43 YEARS R/O CHIRUNALLI (POST), CHANNAGIRI TALUK, DAVANAGERE DISTRICT.

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c) AMBIKA W/O SOMANNA KATHANURU, AGED ABOUT 41 YEARS, R/O BELEYARA SOMMANNARAVARA MANE, KAKANURU (POST), CHANNAGIRI TALUK, DAVANAGERE DISTRICT.

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d) SRI HALESHAPPA S/O OMKARAPPA GIRIYALAMANE AGED ABOUT 39 YEARS R/O HALAKANAL VILLAGE, PONDOMATTI (POST), CHANNAGIRI TALUK, DAVANAGERE DISTRICT.

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e) SRI OMKARAPPA S/0 SIDDAPPA AGED 70 YEARS R/O HALAKANAL VILLAGE PONDOMATTI (POST) CHANNAGIRI TALUK, DAVANAGERE DISTRICT

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[R1(a) to (e) amended vide court order dated 28.1.2021]

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SMT LALITHAMMA W/O B S CHANDRAPPA AGED ABOUT 53 YEARS RESIDING AT KRUSHINAGARA BEHIND VINAYAKA TEMPLE SHIMOGGA-577 201.

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SMT SHANKARAMMA W/O SHARANAPPA MAJOR RESIDING AT HALAKNAL VILLAGE CHANNAGIRI TALUK- 577 217 DAVANAGERE DISTRICT

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SMT YASHODAMMA W/O H B BASAVARAJAPPA MAJOR RESIDING AT HODIGERE CHANNAGIRI TALUK DAVANAGERE DISTRICT-577 213

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SRI JAYAPPA S/O GIRIYAPPA HALAPPA MAJOR RESIDING AT HALAKNAL VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT-577 213.

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…RESPONDENTS

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(BY SRI. N K SIDDESWARA, ADVOCATE)

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THIS RSA FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DTD 27.06.2014 PASSED IN R.A.NO.14/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C, CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 12.12.2012 PASSED IN O.S.NO.252/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., CHANNAGIRI.

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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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Heard Sri Shivakumar, learned counsel appearing on

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behalf of Sri B.M.Siddappa for appellant and Sri N.K.Siddeswara, learned counsel for respondents.

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This appeal is preferred by defendant No.1 being aggrieved by the judgment and decree passed by the learned Senior Civil Judge and JMFC, Channagiri, in R.A.No.14/2013 dated

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27.6.2014 which confirmed the judgment and decree passed in O.S. No. 252/2008 dated 12.12.2012 by the learned Principal Civil Judge and JMFC, Channagiri.

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The parties shall be referred to as per their status before the trial Court.

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Brief facts of the case : -

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Plaintiff Nos.1, 2, 4 and 5 and defendant Nos.1 and 2 are the children of plaintiff No.3. It is the case of the plaintiffs that the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendants. After the death of father of plaintiffs No.1, 2, 4 and 5, the defendants with a view to defeat the plaintiffs' right, got changed the katha and pahani in their names as per M.R.32/2005-06 without the knowledge of the plaintiffs. Thereafter the defendants also got changed the katha in their names on 4.9.2007. When the defendants were trying to get a survey conducted and bifurcate the properties, the plaintiffs demanded 1/7^th share in the suit schedule properties which they are rightfully entitled to by law, but the same was refused by the defendants. Hence, left with no other alternative, the plaintiffs filed the suit for partition and separate possession.

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Defendant No.1 appeared before the court, filed his written statement denying the entire averments made in the plaint and contended that the said properties are the properties of Halappa who was the father of plaintiffs and defendants and that during the life time of Halappa, plaintiffs 1, 2, 4 and 5 were got married and they started living with their respective husbands in their respective residences. It is also contended that the properties were disposed of by the father of plaintiffs and defendants, in favour of the defendants. Therefore, the defendants and their father were only the joint family members enjoying the properties, subsequent to which, defendant Nos.1 and 2 got divided the properties and they are in peaceful possession and enjoyment of the same. It was also pleaded by the defendants that this fact is very much aware to the plaintiffs and they have colluded with each other to file this false suit to cause undue hardship and financial loss to the defendants.

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5.1. It is further pleaded by defendant No.1 in the written statement that one of the properties which is a joint family property has not been included in the suit by the plaintiffs. Therefore the suit is bad for mis-joinder and non-joinder of necessary parties and the property. It is contended that

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Sy.No.44/1 measuring 2 acres 32 guntas was purchased jointly by the mother of plaintiff Nos.1, 2, 4 and 5 and the defendants. Hence, the suit is liable to be dismissed for not bringing this property into the suit schedule properties and not making necessary parties.

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On the basis of the pleadings, the trial court framed the following issues for consideration : -

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1. Whether the plaintiffs prove that the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants?

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2. Whether the defendants prove that they are in the possession of suit schedule properties by partition?

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3. Whether the defendants prove that suit is bad for non-joinder necessary parties and properties?

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4. Whether the plaintiffs are entitled for 1/7th share in the suit schedule properties?

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5. What order or decree?

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In order to substantiate the issues and prove the

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case, the plaintiffs got examined plaintiff No.4 as PW1 and another witness as PW2 and got marked Exs. P1 to P4, whereas

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defendant No.1 examined himself as DW1 and got marked Exs. D1 to D21 in support of his case.

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On the basis of the material evidence produced, both oral and documentary, and after hearing the learned counsel for both the parties, by perusing the entire materials on record, the trial Court decreed the suit of the plaintiffs and awarded 1/7^th share each in the suit schedule properties by holding that it is a joint family and the properties are joint family properties.

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Being aggrieved by the judgment and decree passed by the trial Court in O.S.252/2008, defendant No.1 preferred Regular Appeal No.14/2013 before the Appellate Court under section 96 and Order 41 Rule 1 of CPC. The first Appellate Court after going through the entire materials and in order to reconsider and re-appreciate the materials, both oral and documentary, formulated the following points for consideration : -

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1) Whether the plaintiffs prove that the suit schedule properties are the joint family ancestral properties?

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2) Whether the defendants prove that the suit is bad for non-joinder of necessary parties and properties?

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3) Whether the plaintiffs are entitled for 1/7th share in the suit schedule properties?

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4) Whether the defendants prove that the Judgment and decree of the trial court is not in accordance with law and facts by the case?

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5) What order or decree?

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Upon reconsideration of the entire materials, both oral and documentary, and on perusal of the judgment of the trial Court, the first Appellate Court after re-analysing the entire materials placed on record did not agree with the case made out by the defendants and concurred with the findings and reasonings of the trial Court and came to the conclusion that the plaintiffs and defendants are Joint Hindu Family and the properties described in the suit schedule are joint family ancestral properties and did not agree with the defendants with regard to oral partition and mutation entries made in their favour and confirmed the judgment and decree passed by the trial Court decreeing the partition suit equally in favour of the plaintiffs as well as the defendants.

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Aggrieved by the concurrent findings of the trial Court and the first Appellate Court, the defendant No.1 is before this Court in Second Appeal.

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It is the vehement contention of the appellant/ defendant No.1 that the judgment and decree passed by the Courts below are illegal, arbitrary and erroneous and the same requires to be set aside and the appeal to be allowed in favour of defendant No.1. It is also contended by learned counsel for defendant No.1 that the grant of equal share to plaintiffs and defendants are arbitrary and against the materials placed on record by the defendants which is conveniently ignored by the courts below and therefore the judgments of the courts below are contrary to the material available on record. He further contends that the plaintiffs who are the daughters of Late Halappa were born prior to the Hindu Succession Amendment Act and they are not entitled to equal right in the suit schedule properties. Therefore, granting equal share to the plaintiffs who are the daughters of deceased Halappa who was the Kartha of the joint family properties is bad in law. Hence, interference of this Court is required in the facts and circumstances of the case. It is also the further contention of learned counsel for appellant/defendant

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No.1 that PW1 in the cross-examination has admitted to the fact that the partition has taken place 10 years back and that the partition is binding on the plaintiffs and the defendants, as such the judgment and decree passed by both the Courts is contrary, opposed to the material placed on record and admitted fact of PW1. Therefore it is contended that in view of the admission made by PW1 in the evidence, the trial Court and the first Appellate Court ought not to have decreed the suit by granting equal shares.

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12.1. It is further contended by learned counsel for defendant No.1 that as per Ex.D3, their father Hallappa died on 10.10.2003 prior to coming into force of the Hindu Succession (Amendment) Act. Therefore, the judgment of both the Courts granting equal share to the plaintiffs with the defendants is bad in law and the same requires to be set aside as it is contrary to the materials on record and also the law laid down by the Courts in several judgments. On these grounds, learned counsel for appellant/defendant No.1 contends that substantial question of law arise for consideration before this Court which requires to be formulated and adjudicated by this Court as both the Courts have committed an error in granting equal share to the plaintiffs and

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the defendants when the amendment to Hindu Succession Act which came into force in 2005 does not apply to the facts and circumstances of the present case and that PW1 having admitted in the cross-examination with regard to there being a partition prior to the filing of the suit. The question of second partition granted by the Court would not arise. The same is flawed. Under these circumstances, he seeks the leave of this Court to formulate substantial question of law and thereafter set aside the judgment and decree passed by both the Courts and allow the Second Appeal in favour of the defendants.

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Learned counsel for the respondents Sri N.K.Siddeswara vehemently opposes the arguments put forth by learned counsel for defendant No.1. He contends that admittedly the plaintiffs and the defendants belong to the family of Sri Giriyappara Halappa. It is also contended by the learned counsel for the plaintiffs that there is no dispute with regard to the joint family status of the parties, namely the plaintiffs and the defendants. So also there is no dispute with regard to the properties described in the suit schedule being the joint ancestral of the plaintiffs and defendants father Sri Halappa. He further contends that in order to establish and prove a share to be

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entitled for partition in a suit by the plaintiffs, the primary requirement of law is, firstly it has to be proved that there is a joint family status and the properties sought to be partitioned are joint family properties or ancestral of the ancestors of the plaintiffs and the defendants. The third thing required to be proved is that no partition has taken place earlier and in view of the same the suit schedule properties are required to be partitioned in favour of the plaintiffs and the defendants equally in the manner known to law. In order to establish these three necessary ingredients in a partition suit, the plaintiffs have entered into the witness box in the form of PWs.1 and 2, produced documentary evidence in the form of Exs.P1 to P4, so also defendants have entered into the witness box in the form of DW1 and marked Exs. D1 to D21.

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Being satisfied with documentary evidence produced by the plaintiffs so also the defendants, the trial Court decreed the suit by awarding equal shares to the plaintiffs and the defendants in the form of 1/7^th shares to each of the parties. Therefore, the matter was taken-up to the first Appellate Court by defendant No.1. The first Appellate Court, upon re-appreciation and reconsideration of entire materials on

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record, both oral and documentary, agreed with the finding and conclusion arrived at by the trial Court with regard to the status of the parties as they belong to joint family and the suit schedule properties being the joint family properties and there being no earlier partition between the parties, the parties are entitled for the same and accordingly, confirmed the judgment and decree of the trial Court. However, modified the shares with regard to each of the parties as 1/6^th share instead of 1/7^th share, due to the death of the mother of the parties namely, Smt.Basamma, who was plaintiff No.3 before the trial Court.

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It is relevant to note here that the defendants have

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taken a defence in their written statement and in their arguments that the plaintiffs have not included the property bearing Sy.No.44/1 in the suit schedule properties and that the suit be dismissed for non-joinder of said property in the suit schedule properties. The trial Court, in para-20 of its judgment has held that defendant No.1 has not proved that the said property is the joint family property and that the sale deed is prior to the amendment to Section 6 of the Hindu Succession Act. On perusal of Ex.D4, it has also held that defendant No.1 and his father sold the property in the year 1990 itself.

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Nevertheless, defendant No.1 who has made such a pleading, was supposed to establish the same, but he has failed to prove and establish that the said property, which is claimed by him, was a joint family property and it is the subject matter of the partition between the parties.

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While considering the second appeal, Section 100 of CPC has got a very narrow and limited scope for consideration, when both the Courts i.e. the trial Court and the first Appellate Court have together come to a conclusion, on appreciation of material facts, that there existed the status of joint family and the properties are the joint family properties and the partition having not occurred earlier, the plaintiffs and the defendants would be entitled to partition of the suit schedule properties. In normal and general circumstances, this Court in second appeal under Section 100 of CPC should be circumspect in interfering with such concurrent finding of fact arrived at by both the Courts. It is only in extraordinary circumstances, this Court can interfere with the finding of fact and formulate the substantial question of law, when both the Courts have ignored, misinterpreted and not taken into consideration the materials placed on record, which apparently glares at the Court. Even if

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there is some error committed in the finding of fact given by both the Courts, Section 100 of CPC does not permit the correction of facts and inclusion of new property in the second appeal. It is seen from the records that both the trial Court as well as the first Appellate Court have appreciated the material evidence, both oral and documentary and arrived at a well reasoned order by considering all the materials placed on record and decreed the suit by granting equal shares to all the parties.

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In view of the above circumstances, this Court does not find any illegality or perversity in the orders passed by both the Courts. As stated earlier, this Court under Section 100 of CPC should only interfere, when there is perversity committed by both the Courts. Having perused the impugned orders of both the Courts and on hearing learned counsel for the parties, nothing is pointed out by learned counsel for appellant to show that both the Courts have committed any perversity or illegality in not appreciating the materials placed on record. Hence, this Court is of the opinion that learned counsel for appellant has not made out any ground to formulate substantial question of law to be considered in the second appeal. I do not find any

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need to interfere with the concurrent finding passed by both

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the Courts. Accordingly, I proceed to pass the following:

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ORDER

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The appeal is dismissed , at the stage of admission itself.

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Sd/JUDGE

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CKL/LB

Sri.Eshwarappa v. Smt.Paramma

Case brief

What is this about?

What did the court decide?

Sri.Eshwarappa v. Smt.Paramma

Case brief

What is this about?

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