Dismissed

Eramma v. Kempamma

Karnataka HC12 Sept 2023RSA/1511/2021

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court upheld the dismissal of a suit for declaration and permanent injunction. The bench found that documentary evidence, including sale deeds executed in 1970 and 1973, precluded acceptance of the plaintiffs' claim of a 1984 partition and established the defendants' title.

What did the court decide?

The appeal filed under Section 100 CPC was dismissed, confirming the judgment and decree of the First Appellate Court dismissing the suit for declaration and injunction.

Eramma Vs Kempamma — Partition | Karnataka HC (2023)

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NC: 2023:KHC:33003 RSA No. 1511 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 1511 OF 2021 (INJ)

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BETWEEN:

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ERAMMA

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W/O. CHIKKABOREGOWDA, AGED ABOUT 76 YEARS, R/O. NEAR CORPORATION SCHOOL, 9^TH MAIN, VIJAYANAGAR, BENGALURU-560 040.

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SHIVANNA DEAD BY LRS

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SUDHA W/O. LATE SHIVANNA, AGED ABOUT 50 YEARS, R/O. NO.5/1, 3^RD MAIN ROAD, 6^TH CROSS, KASTURBA WEST, BENGALURU-560 026.

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VARUN KUMAR

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S/O. LATE SHIVANNA, AGED ABOUT 19 YEARS, R/O. NO.5/1, 3^RD MAIN ROAD, 6^TH CROSS, KASTURBA WEST, BENGALURU-560 026.

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ARUN KUMAR

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S/O. LATE SHIVANNA, AGED ABOUT 16 YEARS, R/O. NO.5/1, 3^RD MAIN ROAD, 6^TH CROSS, KASTURBA WEST, BENGALURU-560 026.

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NC: 2023:KHC:33003 RSA No. 1511 of 2021

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SINCE THE APPELLANT NO.4 IS MINOR, HE IS BEEN REPRESENTED BY HIS NARURAL GUARDIAN APPELLANT NO.2 MOTHER.

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5. GANGADHAR

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S/O. LATE CHIKKABOREGOWDA, AGED ABOUT 52 YEARS, R/O. NEAR CORPORATION SCHOOL, 9^TH MAIN, VIJAYANAGAR, BENGALURU-560 040.

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…APPELLANTS

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(BY SRI SYED AKBAR PASHA, ADVOCATE FOR SRI MAHANTESH S. HOSMATH, ADVOCATE)

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AND:

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1. KEMPAMMA

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W/O. LATE DODDEGOWDA, AGED ABOUT 81 YEARS, R/O. LINGAPATNA VILLAGE, HALAGUR HOBLI, MALAVALLI TALUK, MANDYA DISTRICT-571 430.

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SHIVARAJU S/O. LATE DODDEGOWDA, AGED ABOUT 51 YEARS, R/O. LINGAPATNA VILLAGE, HALAGUR HOBLI, MALAVALLI TALUK, MANDYA DISTRICT-571 430.

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GANGADHAR S/O. LATE DODDEGOWDA, AGED ABOUT 46 YEARS, R/O. LINGAPATNA VILLAGE, HALAGUR HOBLI, MALAVALLI TALUK, MANDYA DISTRICT-571 430.

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…RESPONDENTS

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3 - NC: 2023:KHC:33003 RSA No. 1511 of 2021

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.11.2020 PASSED IN R.A.NO.4/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE, MALAVALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.10.2017 PASSED IN O.S.NO.82/2018 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MALAVALLI.

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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 the learned counsel for appellants. This matter is listed for admission.

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The factual matrix of the case of the plaintiff before the Trial Court under the first instance the suit is filed for the permanent injunction and late on amended for declaration. The very contention of the plaintiff that one Moogasiddegowda had two sons i.e., original defendant Doddegowda and Chikkaboregowda. Both have divided the joint family properties under paalupatti dated 20.03.1984 and in this partition the suit schedule properties had fallen other share of Chikkaboregowda and the defendant Doddegowda got other properties. The said

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Chikkaboregowda got changed the khata in his name and

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he was in exclusive possession of the suit properties. He had constructed residential house in Sy.No.163/1F by leaving vacant site measuring 35 x 35 feet out of 4 guntas of land.

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It is also contention of the plaintiffs that the defendant has requested to lease the said house on rent basis and accordingly, Chikkaboregowda had rented the said house to Doddegowda on monthly rent of Rs.50/during the year 1989 and until the death of said CHikkaboregowda, the defendant Doddegowda used to pay the rent regularly.

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It is also the contention of the plaintiffs that 1^st plaintiff is the wife of CHikkabaoregowda and the plaintiff Nos.2 and 3 are the sons and said Chikkaboregowda was died on 12.11.1991 and after his death also, the plaintiffs have continued the joint family status and katha of the properties have been changed into her name with the consent of all the joint family members.

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NC: 2023:KHC:33003 RSA No. 1511 of 2021

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It is further contended that the defendant is a stranger to suit schedule properties and he was never in possession and enjoyment of suit schedule properties except the residential house on rent basis. After the death of Chikkaboregowda, the defendant was not paying any rent to the plaintiffs with respect to the house leased to him and on 20.05.1998 the defendant trespassed over the suit schedule trees in the suit schedule property but the same was resisted by the plaintiffs.

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It is also the contention of the plaintiffs that the defendants are alleging that the husband of the plaintiff No.1 and father of plaintiff Nos.2 and 3 i.e., Chikkaboregowda had executed a registered sale deed dated 09.031970. The said Chikkaboregowda is drunkard, vagabond and he was not looking after the family and taking undue advantage of the same, the defendant had created the sale deed with respect to the land in Sy.No.No.163/1F measuring 4 guntas though there was any legal necessity for the joint family. There are many

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valuable trees are standing in the suit schedule properties and the defendant is attempting to cut and remove the same. Hence, the plaintiffs have filed the suit.

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The defendant No.3 has appeared and filed written statement and denied the all the plaint averments except the relationship of plaintiffs and defendants and totally denied the averments made in the plaint with regard to the fact that he was a tenant and instead of it is contended that after the death of Moogasiddegowda, his three sons have orally got divided the properties prior to 1970 and enjoying their respective shares and Chikkaboregowda and his family were permanently residing at Bengaluru and they never lived at Lingapatna village and after the death of said Chikkaboregowda, the plaintiffs are residing at Bengaluru. During the life time of the Chikkaboregowda, he sold the land in Sy.No.163/1F measuring 4 guntas i.e., item No.5 of suit schedule properties of the suit schedule properties through registered sale deed dated 09.031970 in favour of the

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defendant and also sold suit item No.s.1 and 2 through the registered sale deed dated 15.01.1973 in favour of Doddegowda i.e., the defendant and prior to said sale, the said property was mortgaged by Chikkaboregowda in favour of the Channappa and on 22.04.1974 the said mortgage was redeemed by the defendant and contend that the plaintiffs have no right, title or interest over the suit schedule properties. Hence, prayed the Court to dismiss the suit.

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The Trial Court having considered the pleadings

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and earlier only issues are framed with regard to the alleged interference and also with regard to the lawful possession as on the date of filing of suit. Subsequently additional issues are also framed as whether the plaintiffs are the absolute owners and they are in possession and entitle for the relief. The Trial Court has given an opportunity to both the parties and they have led the evidence, the Trial Court having considered both oral and documentary evidence placed on record particularly

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considered the document of sale deed as well as lease deed and demand register extract and also the partition deed which is marked as Ex.P6 comes to conclusion that the plaintiffs have not produced any document with regard to the that they are the owners of the suit schedule properties and also not produced any documents showing that they are in possession of the suit schedule properties and also taken note of the admission given by P.W.1 in her cross-examination that she is in possession of the suit schedule properties. Hence, dismissed the suit.

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Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.4/2018 and the First Appellate Court on re-appreciation of both oral and documentary evidence placed on record and also the grounds urged in the appeal, formulated the point whether the Trial Court committed an error and illegality by not properly appreciating the evidence on record and whether the judgment and decree of the Trial Court requires interference.

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The First Appellate Court also, on reconsidering the material available on record, though there was delay, delay was condoned and point Nos.2 and 3 were answered together in ‘negative’ taking note of the admitted facts and also taken note of the admission as well as the documents which have been produced. The First Appellate Court also comes to the conclusion that plaintiffs have not disputed the sale deeds at Exs.D1 and D2 in the name of Doddegowda nor placed any material to rebut the oral partition in the family prior to 1970 and so also the allotment of item Nos.1, 2, 3 and 5 to the husband of P.W.1-Chikkaboregowda. But, their only contention is that, Chikkaboregowda is a drunkard, vagabond and was not looking after the family and the same was not accepted by both the Courts and dismissed the appeal. Hence, the present second appeal is filed before this Court.

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The main contention of the learned counsel for

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the appellants before this Court is that both the Courts

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have mainly relied upon the document of Exs.D1 and D2 since, the same is executed including their undivided share

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in respect of item Nos.1 to 3 of the suit schedule properties without their knowledge and consent and both the Courts have ignored the settled principle of law that one of the coparcener without the consent of the other coparcener cannot sell the ancestral property and the very approach of both the Courts is erroneous and hence, this Court has to frame substantial question of law whether both the Courts are justified in presuming that the partition had taken place between Chikkaboregowda and Doddaboregowda in the year 1970 merely because Chikkaboregowda had executed sale deeds at Exs.D1 and D2 in favour of Doddegowda though the defendant miserably failed to prove the partition of plea set up by him and whether both the Courts are justified in holding that sale deeds at Exs.D1 and D2 executed by Chikkaboregowda are valid. Hence, it requires interference.

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Having heard the learned counsel for the appellants and also on perusal of the material on record, the very contention of the plaintiffs is that there was a partition in the year 1984 and as a result of partition, the property has fallen to the share of the husband of the plaintiff No.1 and the father of plaintiff Nos.2 and 3, who have become the absolute owners. On the other hand, it is the contention of the defendants that there was partition prior to 1970 and the defendant No.1 had purchased the property from the husband of the plaintiff No.1 and father of the plaintiff Nos.2 and 3 and those sale deeds are executed in the year 1970 and 1973 and subsequent to the sale deed, defendant No.1 herself got redeemed the mortgage in the year 1974.

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The Trial Court as well as the First Appellate Court taken note of the material available on record and also considered the fact that there is no dispute with regard to the relationship between the parties and the only dispute is with regard to the fact that there was partition

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in the year 1984 in terms of the averments of the plaint. On the other hand, the defendants contend that there was partition prior to 1970 and consequent upon partition, sale deeds were executed and no dispute with regard to the execution of sale deeds of the year 1970 and 1973 and also no dispute with regard to redemption of mortgage in the year 1974. The only contention of the plaintiffs is that the husband of the plaintiff No.1 was drunkard and vagabond and he was not taking care of the family and the sale deeds were made in the year 1970 and 1973 and the same were not challenged and suit was filed in 1998 claiming that there was partition in 1984 and when the documentary evidence discloses that properties were sold by the husband of plaintiff No.1 and father of the plaintiff Nos.2 and 3 in the year 1970 and 1973, the very contention that partition has taken place in the year 1984 cannot be accepted and both the Courts have not accepted the fact that there was partition in the year 1984. Having considered the documentary evidence, both the Courts comes to the conclusion that partition had taken place in

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the year 1970 and the same was sold by the father of the plaintiff Nos.2 and 3 and husband of plaintiff No.1 in 1970 and 1973 and also taken note of the admission given by P.W.1 that they are not in possession. Hence, suit for declaration and possession is dismissed considering the material on record. Therefore, I do not find any ground to admit the appeal and frame any substantial question of law.

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In view of the discussions made above, I pass the following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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RHS, ST List No.: 1 Sl No.: 78

Eramma v. Kempamma

Case brief

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Eramma v. Kempamma

Case brief

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