The court dismissed a second appeal regarding a suit declaration of joint family property rights. The Court held that an unregistered partition deed was inadmissible and not acted upon, rejecting new evidence produced belatedly without previous pleading.
Appeal dismissed; no substantive question of law framed; belated evidence rejected.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.117 OF 2023 (PAR)
BETWEEN:
…APPELLANT
(BY SRI D. GANGADHARA, ADVOCATE)
AND:
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
SHARAVANABELAGOLA HOBLI CHANNARAYAPATNA TALUK-573135.
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.11.2022 PASSED IN R.A.NO.39/2021 ON THE FILE OF THE 4TH
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT, CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.08.2021 PASSED IN O.S.NO.124/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHANNARAYAPATNA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is listed for admission.
I have heard the learned counsel for the appellant.
NC: 2023:KHC:29454 RSA No. 117 of 2023
Court. The Trial Court having considered both oral and documentary evidence available on record negatived the contention of the plaintiffs that there was a Will dated 7.11.2012, however, given a finding that suit schedule properties are ancestral and joint family properties. The Trial Court also disbelieved the contention of the defendant that there was already a previous partition dated 8.8.1993 and granted 1/7th share to each of the children of Sombegowda. Being aggrieved by the said judgment and decree, appeal is filed in R.A.No.39/2021. In the said appeal, the grounds urged before the Appellate Court is that the plaintiffs failed to prove that properties are joint family properties and also when the contention was taken that defendant has proved that there was a partition between himself and his father on 8.8.1993 as per Ex.P1 and whether the same was acted upon and whether the Trial Court has committed an error in not considering the same and also whether the judgment and decree of the Trial Court requires interference. The First Appellate Court on reappreciation of both oral and documentary evidence comes to the conclusion that the suit schedule properties are joint family properties and Trial Court has not committed any error.
NC: 2023:KHC:29454 RSA No. 117 of 2023
NC: 2023:KHC:29454 RSA No. 117 of 2023
included in the schedule item Nos.8 and 9 and both the Courts committed an error and hence this Court has to frame substantive question of law.
NC: 2023:KHC:29454 RSA No. 117 of 2023
only cleared the loans and due to enmity, they have filed the suit.
NC: 2023:KHC:29454 RSA No. 117 of 2023
that Ex.D11 is not acted upon and also taken note of the contents of document Ex.D11 of the joint family properties of the plaintiffs and defendant and hence they are equally entitled for the share.
written statement before the Trial Court and for the first time in the second appeal produced those documents and even not made any efforts in the First Appellate Court also to produce such documents and when there is no pleading and also no material is placed before the Court to that effect, in a second appeal in the absence of any pleading and any such contention, the question of considering the same in a second appeal does not arise. Hence, I do not find any ground to entertain such an application filed belatedly before this Court, in the absence of any pleadings before the Trial Court as well as the First Appellate Court and question of both the Courts committed an error in not considering the material on record, does not arise in a second appeal and hence, I do not find any ground to consider the same.
ORDER
Appeal is dismissed.
AP
Sd/JUDGE
List No.: 1 Sl No.: 67
2 issues framed by the court
Whether the partition deed dated 8.8.1993 being unregistered and not acted upon negates the plaintiffs' claim to joint family properties.
Whether additional documents produced in the second appeal without prior pleading can be considered.
1 provisions across 1 enactments
Sri K.S. Ramachandra
Smt. Kamalamma
Smt. Anasooyamma
Smt. Rukmini
Smt. Chandraavathi
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
