Dismissed

B G Chowdappa v. B G Nagaraj

Karnataka HC16 Jan 2023RSA/109/2022

Case brief

AI extract

What is this about?

This order dismisses an appeal under Section 100 CPC against a judgment modifying a partition decree. The High Court rejected the contention that an unregistered palupatti and attesting witness evidence required interference, finding no merit in the challenge to the lower courts' findings on property nature and oral partition.

What did the court decide?

The appeal is dismissed, and consequently, the pending IA is also dismissed.

B G Chowdappa Vs B G Nagaraj — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.109/2022 (PAR)

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BETWEEN:

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B.G. CHOWDAPPA, S/O LATE B.K. GUNDAPPA, AGED ABOUT 65 YEARS, BASETTIHALLI VILLAGE AND HOBLI, SIDLAGHATA TALUK, CHIKKABALLAPURA DISTRICT-586 001. BY HIS SPA HOLDER B.C. RAVINDRANATH, AGED ABOUT 29 YEARS, S/O B.G. CHOWDAPPA, BASETTIHALLI VILLAGE AND HOBLI, SIDLAGHATA TALUK, CHIKKABALLAPURA DISTRICT-586 001.

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...APPELLANT

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(BY SMT. SHRUTHI S.P., ADVOCATE)

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AND:

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B.G. NAGARAJ, S/O LATE B.K. GUNDAPPA, AGED ABOUT 59 YEARS.

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GOWRAMMA,

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W/O LATE GUNDAPPA, AGED ABOUT 80 YEARS.

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BOTH ARE R/O BASETTIHALLI VILLAGE AND HOBLI,

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...RESPONDENTS

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SIDLAGHATTA TALUK, CHIKKABALLAPURA DISTRICT – 586 001.

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THIS R.S.A. IS FILED UNDER SECTION 100 READ WITH ORDER XLII OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 23.01.2019 PASSED IN RA.NO.49/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SIDLAGHATTA PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 29.10.2010 PASSED IN OS No.208/2006 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC, SIDLAGHATTA.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission today. Heard the learned counsel for the appellant.

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This appeal is filed challenging the judgment and

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decree dated 23.01.2019, passed in R.A.No.49/2010, on the file of the Senior Civil Judge and JMFC, Sidlaghatta.

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The factual matrix of the case of the plaintiff

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before the Trial Court is that the suit schedule properties are the joint family properties and hence he made a claim before the Trial Court that he is entitled for partition and separate

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possession. In pursuance of the notice issued against the

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defendants, the defendants appeared and filed the written statement contending that there was a oral partition. The defendant No.2 took the contention that item No.1 of the property is the self-acquired property and hence the suit is not maintainable. The plaintiff in order to prove the case examined himself as P.W.1 and also examined two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to 18. The defendants examined four witnesses as D.W.1 to D.W.4 and got marked the documents at Exs.D.1 to 12. The Trial Court after considering both oral and documentary evidence placed on record decreed the suit in coming to the conclusion that the plaintiff is entitled for 1/3^rd share in the plaint schedule properties by metes and bounds.

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Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed before the Appellate Court in R.A.No.49/2010 and the Appellate Court on re-appreciation of both oral and documentary evidence placed on record, modified the judgment declaring that the plaintiff is entitled for 4/9^th share in the plaint schedule properties by metes and

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bounds and directed to draw the decree and hence defendant No.2 has filed this appeal before this Court.

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The main contention of the learned counsel for the

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appellant is that both the Trial Court and the Appellate Court have not considered the unregistered palupatti, which is marked as Ex.D.8 and also not considered the attesting witnesses evidence who have been examined as D.W.2 and D.W.3 to the said palupatti. Apart from that, even though the suit is not maintainable, both the Courts have committed an error and substantial question of law arises in view of the judgment of the Trial Court and the Appellate Court that both the Courts have not considered the documentary evidence of Ex.D.8 palupatti and the evidence of D.W.2 and D.W.3 who are the attesting witnesses. Both the Courts have committed an error that item No.1 of the suit schedule properties is also a joint family property, even though both oral and documentary evidence placed on record demonstrates that the same is the self-acquired property of the appellant. Hence, it requires interference of this Court to admit the appeal and frame substantial question of law.

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Having heard the learned counsel for the appellant

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and also on perusal of the claim made by the plaintiff before the Trial Court, it is the contention that all the suit schedule properties are the ancestral properties and the plaintiff and the defendants are the members of Hindu undivided joint family. It is the contention of the defendants that already there was a partition and item No.1 of the suit schedule property is the self-acquired property of the defendants. The Trial Court having considered the evidence of P.W.1 to P.W.3 and D.W.1 to D.W.4 comes to the conclusion that in the crossexamination of P.W.1, specific question was put with regard to item No.1 of the suit schedule property and the same has been denied. It is an admitted fact that only on account of the death of the father, item No.1 of the suit schedule property was transferred to the defendants. No material is placed with regard to the property exclusively belongs to the defendants. The fact is that the property was purchased in the name of the defendants, but when they were together and these are the materials which have been considered by the Trial Court in paragraph Nos.20 to 34 and in detail discussed

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the evidence of D.W.1 to D.W.4 and P.W.1 to P.W.3. The defendant No.2 relied upon the document Ex.D.8 and the same is an unregistered document of palupatti alleged to have been executed by the father of the plaintiff on 06.05.1985 in favour of defendant No.2 as per partition before the panchayatdars and he has been in possession of half of the partitioned suit item Nos.2 to 4 and 6 of the suit schedule and the genuineness of Ex.D.8 is not accepted. When both the Courts have given the reasoning with regard to the document of Ex.D.8, the question of invoking Section 100 of CPC to frame the substantial question of law with regard to document Ex.D.8 as contended by the learned counsel for the appellant cannot be accepted. Admittedly, the said document is not a registered document and both the Courts have rightly come to the conclusion that oral partition has not been proved. When there is no dispute with regard to the property is the ancestral property, the contention of defendant No.2 that oral partition has not been accepted by the Trial Court and the First Appellate Court cannot be accepted. Hence, I do not find any

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merit in the appeal to admit the appeal and frame the substantial question of law.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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Consequently, pending I.As. are also dismissed.

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Sd/JUDGE

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B G Chowdappa v. B G Nagaraj

Case brief

What is this about?

What did the court decide?

B G Chowdappa v. B G Nagaraj

Case brief

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