Dismissed

Sri P Subba Rao v. Sri P Rama Rao

Karnataka HC5 Oct 2023RSA/1233/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the second appeal filed by defendants challenging a partition suit decree. The court upheld the lower courts' finding that the properties were joint family assets without a prior partition and rejected claims of lack of evidence opportunity.

What did the court decide?

The second appeal was dismissed, and the judgments and decrees of the courts below were confirmed.

Sri P Subba Rao Vs Sri P Rama Rao — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:36018 RSA No. 1233 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1233 OF 2015 (PAR)

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BETWEEN:

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SRI P SUBBA RAO S/O LATE RAJU AGED ABOUT 73 YEARS

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SRI P SUBRAMANI S/O SRI P SUBBA RAO AGED ABOUT 52 YEARS

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R/AT BAPANNA CAMP MALLIGENAHALLI MYDOLALU POST HOLEHONNUR HOBLI BHADRAVATHI TALUK SHIMOGA DISTRICT 577 243

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Digitally signed by R DEEPA Location: High Court of Karnataka

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(BY SRI. PRAKASH K A., ADVOCATE)

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AND:

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…APPELLANTS

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SRI P RAMA RAO S/O POWTHI RAJU AGED ABOUT 67 YEARS R/AT BEHIND COURT BUILDING SINDHANUR RAICHUR DISTRICT - 584 128

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SRI M B MANJUNATH S/O SRI M B BASAVE GOWDA AGED ABOUT 55 YEARS

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NC: 2023:KHC:36018 RSA No. 1233 of 2015

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AGRICULTURIST R/AT ASHOK NAGAR HOLEHONNUR HOBLI BHADRAVATHI TALUK SHIMOGA DISTRICT 577 227

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…RESPONDENTS

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(RESPONDENT Nos. 1 AND 2 ARE SERVED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DAED 13.04.2015 PASSED IN R.A.NO.219/2012 ON THE FILE OF IV ADDL. DISTRICT AND SESSIONS JUDGE, SHIMOGA SITTING AT BHADRAVATHI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.09.2012 PASSED IN O.S.NO.17/2006 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI.

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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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This second appeal is filed by the appellants challenging the judgment and decree dated 15.09.2012, passed in O.S.No.17/2006 by the Principal Senior Civil Judge & JMFC, Bhadravathi, confirmed by the judgment and decree dated 13.04.2015, passed in R.A.No.219/2012 by the IV Addl. District & Sessions Judge, Shimoga, sitting at Bhadravathi.

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3 - NC: 2023:KHC:36018 RSA No. 1233 of 2015

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants No.1 and 2 are defendants No.2 and 5; respondent No.1 is the plaintiff and respondent No.2 is defendant No.6. Defendants No.1(a) to 1(c), 3 and 4 are not made parties before the First Appellate Court and hence they are not made parties in this appeal.

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The brief facts leading rise to filing of this appeal are as under:

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Plaintiff filed a suit for partition and separate possession. It is the case of the plaintiff, that plaintiff and defendants 1 to 4 are the children of Late Raju. Defendant No.5 is the son of defendant No.2. They are the members of undivided Hindu joint family and the suit properties are the joint family properties which were acquired by the father of plaintiff and defendants No.1 to 4, as per the grant order dated 01.09.1977, passed by the Tahsildar of Bhadravathi. The father of plaintiff died leaving behind the plaintiff and defendants No.1 to 4 as his

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4 - NC: 2023:KHC:36018 RSA No. 1233 of 2015

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legal heirs. Defendant No.2 colluding with the revenue authorities, got entered his name in the revenue record and on the strength of the revenue records, defendant No.2 and his son-defendant No.5 estranged item No.2 of the suit schedule properties in favour of defendant No.6 under registered sale deed dated 28.04.1994. Defendants No.2 and 5 have executed the said sale deed in gross violation of ex parte temporary injunction order passed in O.S.No.129/1994. It is contended that defendants No.2 and 5 have no right, title or interest to alienate item No.2

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of the suit property. The sale deed executed by defendants No.2 and 5 is null and void and not binding on the share of the plaintiff. It is contended that there is no partition effected between the plaintiff and defendants No.1 to 4. Plaintiff demanded for partition and separate possession, but the defendants denied to effect partition. Hence cause of action arose for the plaintiff to file the suit for partition and separate possession.

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5 - NC: 2023:KHC:36018 RSA No. 1233 of 2015

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Defendants No.2 and 5 filed written statement admitting the relationship between the parties and also admitted that the father of the plaintiff acquired the suit properties under grant order dated 01.09.1977. It is denied that the plaintiff and defendants No.1 to 4 are the members of undivided Hindu joint family and the suit properties are the joint family properties. It is contended that defendant No.2 by pursuing the matter before the revenue authorities and by making payment of consideration amount of Rs.385/- obtained the grant of suit properties in the name of his father Sri.P.Raju. It is further contended that in view of the payment of consideration amount made by defendant No.2, the suit properties were granted and the family members have treated the said properties as his personal properties. It is contended that after the death of their father Sri.P.Raju, with the consent of his widow, the revenue records were

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mutated in the name of defendant No.2 and he has effected vast and valuable improvements in the suit properties by planting trees, constructing cowshed, etc. It

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6 - NC: 2023:KHC:36018 RSA No. 1233 of 2015

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is contended that neither the plaintiff nor defendants No.1, 3 and 4, have objected for change of revenue records in the name of defendant No.2. It is contended that the plaintiff and defendants No.1, 3 and 4 are not entitled to claim a share in the suit properties. It is contended that defendants No.2 and 5 have executed a registered sale deed in respect of item No.2 of the suit schedule properties in favour of defendant No.6 for a valuable consideration and they have put defendant No.6 in possession of item No.2 of the suit schedule properties. It is contended that the plaintiffs have filed a suit at the instigation of others and in order to blackmail them and to extract money. It is contended that the plaintiff and defendants No.1 to 4 are not the members of Hindu joint family and further the suit properties are not the joint family properties of plaintiff and defendants No.1 to 4. Plaintiff is not entitled for share in the suit schedule properties. On these grounds, sought for dismissal of the suit.

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7 - NC: 2023:KHC:36018 RSA No. 1233 of 2015

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Defendant No.6 filed written statement

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contending that defendants No.2 and 5 have sold item No.2 of the suit schedule properties in favour of defendant No.6 for a valuable consideration. Defendants No.2 and 5 put defendant No.6 in possession of item No.2 of the suit schedule properties. Further, defendant No.6 after verifying the records, purchased the suit property under registered sale deed dated 28.04.1994, and he is a bonafide purchaser. Hence, it is contended that the suit filed by the plaintiffs is barred by limitation and prayed to dismiss the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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ªÁ¢ ªÀÄvÀÄÛ 1 jAzÀ 5£ÉÃ ¥ÀæwªÁ¢AiÀÄgÀÄ MlÄÖ PÀÄlÄA§zÀ ¸ÀzÀ¸ÀågÉAzÀÄ ªÁ¢ gÀÄdÄªÁvÀÄ¥Àr¸ÀÄvÁÛ£ÉÆÃ ºÉÃUÉ?.

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zÁªÁ ¸ÀévÀÄÛUÀ¼ÀÆ MlÄÖ PÀÄlÄA§zÀ ¦vÁæfðvÀ ¸ÀéwÛUÀ½zÀÄÝ zÁªÁ ¢£ÁAPÀzÀAzÀÄ ¥Á®Ä »¸ÉìUÉ ®¨sÀå EgÀÄvÀÛªÉAzÀÄ ªÁ¢ gÀÄdÄªÁvÀÄ¥Àr¸ÀÄvÁÛ£ÉÆÃ ºÉÃUÉ?.

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ªÁ¢UÉ zÁªÁ ¸ÀévÀÄÛUÀ¼À°è 1 jAzÀ 5£ÉÃ ¥ÀæwªÁ¢AiÀÄgÀ MqÀ£É ¸ÀªÀÄ CzsÀð ¨sÁUÀ »¸Éì EzÉAiÉÄAzÀÄ ªÁ¢ gÀÄdÄªÁvÀÄ¥Àr¸ÀÄvÁÛ£ÉÆÃ ºÉÃUÉ?

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NC: 2023:KHC:36018 RSA No. 1233 of 2015

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6£ÉÃ ¥ÀæwªÁ¢UÉ §gÉzÀÄPÉÆlÖ PÀæAiÀÄ¥ÀvÀæ ªÁ¢UÉ §AzsÀ£ÀPÁjAiÀÄ®è JAzÀÄ ªÀÄvÀÄÛ C¹AzsÀÄ EgÀÄvÀÛzÉ JAzÀÄ ªÁ¢ gÀÄdÄªÁvÀÄ¥Àr¸ÀÄvÁÛ£ÉÆÃ ºÉÃUÉ?

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F zÁªÉ PÁ®«ÄwAiÀÄ°è EzÉAiÉÆÃ ºÉÃUÉ?.

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MlÄÖ PÀÄlÄA§zÀ J¯Áè ¸ÀévÀÄÛUÀ¼ÀÄ zÁªÉAiÀÄ°è CqÀPÀªÁV®èªÉÇÃ ºÉÃUÉ?

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zÁªÉAiÀÄ°è PÉÃ½zÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄÄªÀ CºÀðvÉ ªÁ¢UÉ EzÉAiÉÆÃ ºÉÃUÉ?

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1. AiÀiÁªÀ DzÉÃ±À CxÀªÁ rQæ?

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In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got marked 9 documents as Exs.P1 to P9. Defendants have not lead either oral or documentary evidence. The trial Court after considering the oral and documentary evidence of the plaintiff, answered issue Nos.1 to 7 in affirmative and decreed the suit of the plaintiff with cost. It is ordered and decreed that the plaintiff and defendants 3 and 4 are each entitled for 1/5^th share and defendants 1(a) to (c) are together each entitled for 1/5^th share in the suit schedule

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properties. It is further ordered and decreed that the sale deed dated 28.04.1994, executed by defendants No.2 and 5 in favour of defendant No.6 in respect of item No.2 of

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NC: 2023:KHC:36018 RSA No. 1233 of 2015

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the suit schedule properties is not binding on the plaintiff and that plaintiff and defendants No.1, 3 and 4 are entitled

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for mesne profits from defendant No.6 in proportionate to

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their share in item No.2 of the suit schedule properties.

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Defendants No.2 and 5 aggrieved by the

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judgment and decree passed in the above said suit, filed an appeal in R.A.No.219/2012. The First Appellate Court,

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after hearing the parties, has framed the following points

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for consideration:

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1) Whether the impugned judgment under appeal is erroneous, illegal, arbitrary, contrary to evidence and material on record and there is a need for interference by this Court?

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2) What order?

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The First Appellate Court, on re-appreciating the

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oral and documentary evidence, answered point No.1 in negative and consequently dismissed the appeal filed by the defendants No.2 and 5, confirming the judgment and decree passed by the trial Court. The defendants No.2 to 5

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10 - NC: 2023:KHC:36018 RSA No. 1233 of 2015

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aggrieved by the judgments and decrees passed by the courts below, have filed this second appeal.

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Heard learned counsel for defendants No.2 and 5.

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Learned counsel for defendants No.2 and 5 submits that though defendants No.2 and 5 filed written statement, the trial Court has not provided sufficient opportunity to lead oral evidence. He further submits that there was a prior partition between the plaintiff and defendants No.1 to 4. In the said partition, the suit schedule properties fell to the share of defendant No.2. The said aspect was not properly appreciated and considered by the courts below. The courts below have committed an error in passing the impugned judgments. He further submits that the judgment and decree passed by the trial Court is in violation of principles of natural justice. On these grounds, prays to allow the appeal.

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11 -

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NC: 2023:KHC:36018 RSA No. 1233 of 2015

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Perused the records and considered the

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submissions of learned counsel for defendants No.2 and 5.

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It is the case of the plaintiff that the suit schedule properties were acquired by the father of plaintiff and defendants No.1 to 4 vide grant order dated 01.09.1977. The father of the plaintiff died leaving behind the plaintiff and defendants No.1 to 4 as his legal heirs. There is no partition effected between the plaintiff and defendants No.1 to 4. They are the members of undivided Hindu joint family and the suit schedule properties are the joint family properties of plaintiff and defendants No.1 to 4. After the death of the father of plaintiff and defendants No.1 to 4, the said properties were got transferred in the name of defendant No.2. Defendant No.2, taking undue advantage of the entries in the revenue record, along with defendant No.5, sold item No.2 of the suit schedule properties in favour of defendant No.6 for a valuable consideration. Thereafter, the plaintiff demanded for

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12 - NC: 2023:KHC:36018 RSA No. 1233 of 2015

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partition and separate possession, but the defendants refused to effect partition.

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The plaintiff in order to substantiate his case, examined himself as PW-1 and reiterated the plaint averments in the examination-in-chief. In the course of cross-examination, it is suggested that the suit schedule properties were acquired by the father of plaintiff. The occupancy right was granted in favour of father of the plaintiff. Ex.P7 is the mutation register extract and Ex.P8 is the RTC which shows that on the basis of grant order dated 01.09.1977, the revenue records were changed in the name of father of plaintiff. It was suggested to PW-1 that the said properties were transferred in the name of defendant No.2. It is contended that during the lifetime of the father of plaintiff, he has sold portion of land.

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In rebuttal, defendants have not entered in to the witness box. From the perusal of the evidence of PW1 and also the documents produced, it discloses that the said lands were granted in favour of father of the plaintiff.

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NC: 2023:KHC:36018 RSA No. 1233 of 2015

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It is the case of the defendants that there was partition effected. The defendants have neither adduced any oral evidence nor produced any records to show that there was prior partition between the plaintiff and defendants No.1 to 4. Further, the plaintiff has produced documents to show

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that the suit land was standing in the name of father of plaintiff. Admittedly, the suit schedule properties are the joint family properties of plaintiff and defendants No.1 to 4 and they are the members of undivided Hindu joint family and there is no partition effected. Further the defendants have failed to establish that there was prior partition. The plaintiff has established that there was no partition effected in between the plaintiff and defendants No.1 to 4. Hence, the trial Court, considering the oral and documentary evidence adduced on behalf of the plaintiff, has rightly passed the judgment.

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Defendants No.2 and 5, aggrieved by the

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judgment and decree passed by the trial Court, preferred an appeal. The main ground raised by defendants No.2

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NC: 2023:KHC:36018 RSA No. 1233 of 2015

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and 5 is that no opportunity was provided to the defendants by the trial Court to adduce evidence. From

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the perusal of records, it discloses that the trial Court has provided sufficient opportunities to the defendants to lead evidence. The defendants have not utilized the opportunities provided by the trial Court. The trial Court was justified in taking the evidence of the defendants as 'nil'. The First Appellate Court has also considered the oral and documentary evidence of PW-1 and rightly dismissed the appeal. Hence, I do not find any error in the impugned judgments and decrees passed by the courts below and I do not find any substantial questions of law that arise for consideration in this appeal.

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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Consequently, the judgments and decrees passed by the courts below are confirmed.

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NC: 2023:KHC:36018 RSA No. 1233 of 2015

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In view of dismissal of the appeal, pending I.As., if any, do not survive for consideration and are accordingly disposed of.

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Sd/JUDGE

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Sri P Subba Rao v. Sri P Rama Rao

Case brief

What is this about?

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Sri P Subba Rao v. Sri P Rama Rao

Case brief

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