Dismissed

Thimmappagowda v. Oadorangaiah

Karnataka HC3 Nov 2023RSA/1584/2007

Case brief

AI extract

What is this about?

The court dismissed a second appeal challenging a decree in a partition suit. The High Court held that the appellant failed to prove the execution of a document (palupatti) alleging a prior partition, as it was unpaid and had no attesting witnesses examined, thus confirming the lower court's judgment.

What did the court decide?

The second appeals were dismissed and the judgment and decree dated 30.03.2007 passed by the Additional District and Sessions Judge were confirmed.

Thimmappagowda Vs Oadorangaiah — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:39292 RSA No. 1584 of 2007 C/W RSA No. 1583 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF NOVEMBER, 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. 1584 OF 2007 (PAR) C/W REGULAR SECOND APPEAL NO. 1583 OF 2007

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IN RSA No.1584 OF 2007 BETWEEN:

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THIMMAPPAGOWDA S/O ISHAMIGOWDA AGED ABOUT 56 YEARS R/AT YELLAPURA, GULUR HOBLI TUMKUR – 572 101

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…APPELLANT

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(BY SRI. S.N. SAMEER, ADVOCATE FOR SRI. B V PUTTE GOWDA, ADVOCATE)

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Digitally signed by SUNITHA GANGARAJU

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Location: HIGH COURT OF KARNATAKA

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AND:

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OADORANGAIAH

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S/O ISHAMIGOWDA SINCE DECEASED BY LR'S

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Y O PRAKASH S/O LATE OADORANGAIAH AGED ABOUT 31 YEARS R/AT YELLAPURA, GOOLURU HOBLI, CHIKKASARANGI POST, TUMKUR – 572 101

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PUTTARAJU S/O LATE OADORANGAIAH AGED ABOUT 26 YEARS

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NC: 2023:KHC:39292 RSA No. 1584 of 2007 C/W RSA No. 1583 of 2007

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R/AT YELLAPURA, GOOLURU HOBLI CHIKKASARANGI POST, TUMKUR – 572 101

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MAYAMMA W/O ISHAMIGOWDA AGED ABOUT 75 YEARS

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THIMMAKKA W/O ISHAMIGOWDA AGED ABOUT 71 YEARS

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RANGASWAMAIAH S/O ISHAMIGOWDA AGED ABOUT 48 YEARS

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ALL ARE R/AT YELLAPURA, GULUR HOBLI TUMKUR – 572 101

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Y T KRISHNAMURTHY S/O ISHAMIGOWDA AGED ABOUT 45 YEARS TELEPHONE EXCHANGE GUBBI

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TUMAKURU DISTRICT – 572 101

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SMT THAYAKKA W/O HANUMANTHAIAH AGED ABOUT 40 YEARS R/AT CHIKKASARANGI GULUR HOBLI, TUMKUR – 572 101

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…RESPONDENTS

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(BY SRI. MAHANTESH S HOSMATH, ADVOCATE FOR R5 SMT. NALINA K., ADVOCATE FOR R4, R6 & R7 SRI. CHANDRASHEKAR, ADVOCATE FOR SRI. B.V. MALLA REDDY, ADVOCATE FOR R1 & R2 R3 SERVED)

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THIS RSA IS FILED U/S 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 30.3.2007 PASSED IN RA.NO.

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3/1995 ON THE FILE OF THE ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-II, TUMKUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 21.9.1994 PASSED IN OS.NO.65/1991 ON THE FILE OF THE PRL.CIVIL JUDGE, TUMKUR.

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IN RSA No.1583 OF 2007 BETWEEN:

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THIMMAPPAGOWDA S/O ISHAMIGOWDA AGED ABOUT 56 YEARS R/AT YELLAPURA, GULUR HOBLI TUMKUR – 572 101

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…APPELLANT

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(BY SRI. S.N. SAMEER, ADVOCATE)

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AND:

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OADORANGAIAH S/O ISHAMIGOWDA SINCE DECEASED BY LR'S

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Y O PRAKASH

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1. S/O LATE OADORANGAIAH AGED ABOUT 31 YEARS R/AT YELLAPURA, GOOLURU HOBLI, CHIKKASARANGI POST, TUMKUR – 572 101

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PUTTARAJU

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S/O LATE OADORANGAIAH AGED ABOUT 26 YEARS R/AT YELLAPURA, GOOLURU HOBLI CHIKKASARANGI POST, TUMKUR – 572 101

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MAYAMMA

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W/O ISHAMIGOWDA, AGED ABOUT 75 YEARS

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*SINCE DEAD, REPRESENTED BY LR'S WHO ARE ALREADY ON RECORD

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THIMMAKKA W/O ISHAMIGOWDA, AGED ABOUT 71 YEARS

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*Inserted vide Court order dated 27.03.2024

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RANGASWAMAIAH S/O ISHAMIGOWDA AGED ABOUT 48 YEARS

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ALL ARE R/AT YELLAPURA, GULUR HOBLI TUMKUR – 572 101

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Y T KRISHNAMURTHY S/O ISHAMIGOWDA AGED ABOUT 45 YEARS TELEPHONE EXCHANGE GUBBI

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TUMAKURU DISTRICT – 572 101

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SMT THAYAKKA W/O HANUMANTHAIAH AGED ABOUT 40 YEARS R/AT CHIKKASARANGI GULUR HOBLI, TUMKUR – 572 101

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…RESPONDENTS

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(BY SRI. CHANDRASHEKAR, ADVOCATE FOR

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SRI. B.V. MALLA REDDY, ADVOCATE FOR R1 & R2

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SRI. S.K. VENKATA REDDY, ADVOCATE FOR

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C/R3, R4, R6 & R7

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SRI. MAHANTESH S HOSMATH, ADVOCATE FOR R5)

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THIS RSA IS FILED U/S 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 30.3.2007 PASSED IN RA.NO. 16/1994 IN THE FILE OF THE ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-II, TUMKUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 21.9.1994 PASSED IN OS.NO.65/1991 ON THE FILE OF THE PRL.CIVIL JUDGE, TUMKUR.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These second appeals are filed by the appellants challenging the judgment and decree dated 30.03.2007, passed in R.A.No.16/1994 and R.A.No.3/1995 by the Additional District and Sessions Judge, FTC-II, Tumkur.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is defendant No.3 and respondent No.1 is the legal representatives of deceased plaintiff and other respondents are defendant Nos.1 and 2 and 4 to 6.

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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 against the defendants. It is the case of the plaintiff that one Ishamigowda was the original propositus. He married to Mayamma (1^st wife) and Thimmakka (2^nd wife). Thimmakka died issueless. Mayamma begotten five children through Ishamigowda. Defendant No.1 is the first wife and plaintiff and the defendant Nos.3 to 6 are the

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children of late Ishamigowda through his first wife. It is the case of the plaintiffs that the suit schedule properties are the ancestral joint family properties of the plaintiff and defendants. The plaintiff and defendants are in joint possession of the suit schedule properties. The defendants attempted to cut and remove the various valuable trees situated in the suit land with an intention to commit an act of waste and damage to diminish the share value of the plaintiff. The plaintiff demanded for partition and separate possession of his legitimate 1/5^th share. But the defendants refused to effect a partition. Hence, cause of action arose for the plaintiff to file a suit for partition and separate possession.

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Defendant No.1 filed written statement denying

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the averments made in the plaint. It is contended that only item Nos. 1 to 5, 8, 11, 14 to 22 and 25 to 30 of the suit properties are the ancestral joint family properties of the plaintiff and defendants and there was no partition of the said items and all are in joint possession of the said

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properties and defendant No.1 is entitled for 1/10^th share in the suit schedule properties. It is further contended that item Nos.6, 7, 9, 10, 12, 13, 23 and 24 of the suit schedule properties are the self acquired properties of defendant No.1 and defendant No.1 is the absolute owner in exclusive possession and enjoyment of the said items of the suit properties. The plaintiff and defendant No.2 to 6 have no right, title and possession over the said items of the suit properties. Hence, on these grounds, he sought for dismissal of the suit in party in respect of the item Nos.6, 7, 9, 10, 12, 13, 23 and 24 of the suit properties

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and decree the suit in respect of item Nos. 1 to 5, 8, 11, 14 to 22 and 25 to 30 of the suit properties.

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Defendant No.3 filed written statement

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admitting the relationship of the plaintiff and defendants. It is denied that the plaintiff and defendants are in joint possession of the suit schedule properties. Further it is denied that the defendants are very powerful persons and making an attempt to cut and remove the standing trees

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8 - NC: 2023:KHC:39292 RSA No. 1584 of 2007 C/W RSA No. 1583 of 2007

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situated in the schedule properties with an intention to commit an act of waste and damage and to diminish the share value of the plaintiff. It is submitted that the suit schedule properties are the ancestral joint family properties of the plaintiff and defendants. There was a partition between the plaintiff and defendants and same was reduced in to writing on 30.04.1990. The parties were put in possession of their respective shares. The plaintiff has got share in the family properties i.e., 'D' schedule in the said palupatti dated 30.04.1990. Hence, the suit filed by the plaintiff against defendant No.3 is in collusion with the other defendants. It is further contended that the suit filed by the plaintiff is not maintainable and prayed to dismiss the suit.

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The plaintiff filed a re-joinder to the written statement filed by defendant No.3 denying the averments made in the written statement and denied the alleged partition between the plaintiff and defendants and

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9 - NC: 2023:KHC:39292 RSA No. 1584 of 2007 C/W RSA No. 1583 of 2007

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execution of alleged palupatti dated 30.04.1990 and prayed to decree the suit.

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Defendant Nos.2, 4, 5 and 6 filed a consenting

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written statement and prayed to decree the suit of the plaintiff and also prayed to allot legitimate shares to the defendants.

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The Trial Court, on the basis of the above said pleadings, framed the following issues:

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1. Whether the plaintiff proves that all the suit schedule properties are the joint undivided family properties?

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2. Whether the defendant No.1 proves that suit schedule item Nos.6, 7, 9, 10, 12, 13, 24, are her self acquired properties?

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3. Whether the plaintiff entitles 1/5^th share in all the properties?

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4. Whether the defendant No.3 proves the partition dated 30.04.1990 as per para 5 of the written statement?

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5. What order or decree?

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10 - NC: 2023:KHC:39292 RSA No. 1584 of 2007 C/W RSA No. 1583 of 2007

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In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got marked 29 documents as Exs.P1 to P29. Defendant No.1 was examined herself as DW-1 and defendant No.3 was examined as DW-2 and examined five witnesses as DW-3 to DW-7 and got marked 23 documents as Exs.D1 to D23. The trial Court after considering the oral and documentary evidence of the parties, answered issue Nos.1 to 3 in negative, issue No.4 in affirmative and issue No.5 as per the final order. The trial Court dismissed the suit of the

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plaintiff. The trial Court while dismissing the suit of the plaintiff has recorded a finding that there was a prior partition of the joint family properties between the plaintiff and defendants and the properties of defendant No.1 was also subject matter of palupatti dated 30.04.1990. The plaintiff and defendant No.1 aggrieved by the judgment and decree passed by the trial Court, preferred the appeals in R.A.No.16/1994 by the plaintiff and R.A.No.3/1995 by defendant No.1 on the file of Additional District and Sessions Judge, FTC-II, Tumkur. The First

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11 - NC: 2023:KHC:39292 RSA No. 1584 of 2007 C/W RSA No. 1583 of 2007

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Appellate Court clubbed both the appeals preferred against

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the common judgment and decree of the trial Court.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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ªÁådåzÀ LlA 7, 9, 10, 12, 13, 23, 24, 1£ÉÃ ¥ÀæwªÁ¢AiÉÄÃ ¸ÀéAiÀiÁfðvÀªÀ®èªÉAzÀÄ «ZÁgÀuÁ £ÁåAiÀiÁ®AiÀÄ 2£ÉÃ «ªÁzÁA±ÀzÀ°è vÉUÉzÀÄPÉÆAqÀ ¤zsÁðgÀzÀ°è ªÀåvÀåAiÀÄ«zÉAiÉÄÃ?

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ªÁådåzÀ ¸ÀévÀÄÛUÀ¼ÀÄ ¢: 30.4.90 gÀAzÀÄ «¨sÀd£ÉAiÀiÁVªÉAiÉÄAzÀÄ 4£ÉÃ «ªÁzÁA±ÀzÀ°è GvÀÛj¹, ªÁ¢AiÀÄgÀ ¥Á®Ä zÁªÉAiÀÄ£ÀÄß ªÀeÁ ªÀiÁr «ZÁgÀuÁ £ÁåAiÀiÁ®AiÀÄ vÀ¥Éà¸ÀVzÉAiÉÄÃ?

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The First Appellate Court, on re-appreciating the oral and documentary evidence, answered point No.1 and 2 in affirmative. The First Appellate Court allowed the appeals filed by plaintiff and defendant No.1 vide common judgment dated 30.03.2007 and consequently decreed the suit of the plaintiff in part and dismissed the suit in respect of item Nos.6, 7, 9, 10, 12, 13, 23 and 24. The defendant No.3 aggrieved by the common judgment and decree passed in the aforesaid appeals filed these second appeals.

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This court admitted the appeals on the following substantial question of law:

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"Whether the appellate Court was justified in reversing the findings of the trial Court in the light of Ex.D22?"

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Heard learned counsel for defendant No.3.

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Learned counsel for defendant No.3 submits that

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the suit filed by the plaintiff is not maintainable as there was a partition between the plaintiff and defendants and the same was reduced into writing on 30.04.1990. He submits that the parties were put in possession of their respective shares. He submits that in order to prove that there was a prior partition, defendant No.3 has produced the document marked as Ex.D22. He submits that the First Appellate Court has failed to consider Ex.D22 and came to a wrong conclusion that there was no prior partition between the plaintiff and defendants. He further submits that the properties stood in the name of defendant No.1 are not the joint family properties of the plaintiff and

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defendants and the same are not purchased out of joint nucleus in the name of defendant No.1. Hence, the First Appellate Court has committed an error in holding that item Nos.6, 7, 9, 10, 12, 13, 23 and 24 are the self acquired properties of defendant No.1. Hence, the common judgment and decree passed by the First Appellate Court is arbitrary and erroneous. Hence, on these grounds, prays to allow the appeal.

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Smt. Nalina.K, learned counsel for defendant No.2, 5 and 7 supports the impugned judgment.

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These second appeals are arising out of the

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common judgment passed by the First Appellate Court. Hence, both the appeals are clubbed and common judgment is passed.

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Perused the records and considered the submissions of learned counsel for the parties.

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Substantial question of law: The plaintiff

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examined himself as PW.1. He has deposed that the suit

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schedule properties are the ancestral properties of the plaintiff and defendants and the plaintiff and defendants are the members of the Hindu Undivided Family. There is no partition between the plaintiff and defendants. The plaintiff demanded for partition and separate possession, but the defendants refused to effect the partition. The plaintiff in order to establish that the suit schedule properties are the ancestral joint family properties, produced the documents i.e., Ex.P1 is the RTC extract in respect of land bearing Sy. No.308/1 stands in the name

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of father of plaintiff, Ex.P2 RTC extracts in respect of land bearing Sy.No.309, Ex.P3 is the RTC extract in respect of land bearing Sy.No.289, Ex.P4 is the RTC extract in respect of land bearing Sy.No.102/1, Ex.P5 is the RTC extract in respect of land bearing Sy.No.43/2, Ex.P6 is the RTC extract in respect of land bearing Sy.No.34/1, Ex.P7 is the RTC extract in respect of land bearing Sy.No.33/12, Ex.P8 is the RTC extract in respect of land bearing Sy.No.35/7, Ex.P9 is the RTC extract in respect of land bearing Sy.No.35/5, Ex.P10 is the RTC extract in respect

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of land bearing Sy.No.35/4, Ex.P11 is the RTC extract in respect of land bearing Sy.No.35/3, Ex.P12 is the RTC extract in respect of land bearing Sy.No.35/6a, Ex.P13 is the RTC extract in respect of land bearing Sy.No.1/2, Ex.P14 is the RTC extract in respect of land bearing Sy.No.4/7, Ex.P15 is the RTC extract in respect of land bearing Sy.No.4/8, Ex.P16 is the RTC extract in respect of

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land bearing Sy.No.4/9, Ex.P17 is the RTC extract in respect of land bearing Sy.No.6/1, Ex.P18 is the RTC extract in respect of land bearing Sy.No.6/5, Ex.P18 is the

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RTC extract in respect of land bearing Sy.No.6/6, Ex.P19 is the RTC extract in respect of land bearing Sy.No.6/3, Ex.P20 is the RTC extract in respect of land bearing Sy.No.8/1, Ex.P21 is the RTC extract in respect of land bearing Sy.No.8/3, Ex.P22 is the RTC extract in respect of land bearing Sy.No.9/2, Ex.P23 is the RTC extract in respect of land bearing Sy.No.10/2, Ex.P24 is the RTC extract in respect of land bearing Sy.No.11/1, Ex.P25 is the RTC extract in respect of land bearing Sy.No.16/2, Ex.P26 is the RTC extract in respect of land bearing

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16 - NC: 2023:KHC:39292 RSA No. 1584 of 2007 C/W RSA No. 1583 of 2007

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Sy.No.26/2, Ex.P27 is demand register copy, Ex.P28 is the voter list and Ex.P29 is the original sale deed. In the cross-examination PW.1 has specifically denied the alleged partition between the plaintiff and defendants and also the execution of palupatti dated 30.04.1990 and he has denied his signature on the said palupatti.

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Defendant No.1 was examined as DW.1. It is admitted that defendant No.1 is the mother of plaintiff and defendant Nos.2 to 6. She has deposed that item Nos.6, 7, 9, 10, 12, 13, 23 and 24 are her self acquired properties. As the said properties are purchased by her under the registered sale deeds, the plaintiff and defendant Nos.2 to 6 have no right to claim a share in the aforesaid properties. In order to establish that the aforesaid properties are purchased, DW.1 produced the original registered sale deeds marked as Exs.D1 to D10. Further, she has deposed that there is no partition effected in between the plaintiff and defendants as contended by defendant No.3. DW.1 supported the case of the plaintiff in

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respect of other items of the suit schedule properties. It is suggested to DW.1 that the properties purchased under Ex.D1 to D10 are purchased out of joint family funds and the said suggestion was denied by DW.1. Further suggested by learned counsel for defendant No.3 that there was a partition between the plaintiff and defendants and the properties purchased under Ex.D1 to D10 were put in hot potch and the said properties were allotted to the different parties as per Ex.D22 and the parties were put in possession of their respective shares. The said suggestion was denied by DW.1 and she also denied the execution of Ex.D22.

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Defendant No.3 examined himself as DW.2. He

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has reiterated that there was a oral partition in the year 1988 and the said partition was reduced in to writing in the year 1990 and the plaintiff and defendants have affixed their signatures on palupatti. He submits that on

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the basis of the partition, the parties were put in possession of their respective shares. In order to establish

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NC: 2023:KHC:39292 RSA No. 1584 of 2007 C/W RSA No. 1583 of 2007

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that there was a partition between the plaintiff and defendants, defendant No.3 produced carbon copy of palupatti which was written on the white paper and is marked as Ex.D22 and he has deposed that item Nos.6, 7, 9, 10, 12, 13, 23 and 24 purchased in the name of defendant No.1 are out of joint family income and submits that defendant No.1 is not the absolute owner of item Nos.6, 7, 9, 10, 12, 13, 23 and 24. In the course of crossexamination, it is denied that there was no such partition between the plaintiff and defendants. Further, defendant No.3 examined S.N.Narasegowda in order to prove that

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there was a oral partition between the plaintiff and defendants in the year 1988 and the said partition was reduced into writing in the year 1990. In the course of cross examination DW.2 deposed that he do not remember the month in which partition was effected between the plaintiff and defendants. He further stated that he do not

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know the date, month in which Ex.D22 was executed. Further, defendant No.3 examined five witnesses as DW.3

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to DW.7, who have deposed in the same line of DW.2. DW.4 is the close relative of defendant No.3.

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From the perusal of the evidence and records produced by the parties, it is clear that the suit schedule item Nos. 1 to 5, 8, 11, 14 to 22 and 25 to 30 were standing in the name of Ishamigowda. The parties have also admitted that the said properties were in the name of the father of plaintiff and defendant Nos.2 to 6. The said properties are the joint family properties of the plaintiff and the defendants. Insofar, the item Nos.6, 7, 9, 10, 12, 13, 23 and 24 are the properties purchased in the name of defendant No.1 and she produced the original registered sale deeds marked as Exs.D1 to D10. As per Section 14(1) of the Hindu Succession Act, 1956 she becomes the absolute owner of the said item of suit schedule properties. The case of defendant No.3 is that there was a oral partition between the plaintiff and defendants in the year 1988 and the same was reduced into writing on 30.04.1990 styled as 'Palupatti'. The burden of proving

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that there was prior partition is on the defendant No.3, the plaintiff denied the execution of Ex.D22 i.e., palupatti. Ex.D22 is typed on white paper and defendant No.3 has not paid any duty and penalty on Ex.D22. The said document is inadmissible in evidence. Further, defendant No.3 has not confronted the said document to PW.1. In order to prove that the said palupatti bears the signature

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of the plaintiff, defendant No.3 has not produced any materials. Further, none of the attesting witnesses to Ex.D22 are examined to prove the contents of Ex.D22 . It

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is well established principle of law that mere marking of documents does not dispense its proof. In the instant case, defendant No.3 has failed to prove the execution of Ex.D22. The First Appellate Court considering the evidence on record rightly passed the impugned judgment holding that defendant No.3 has failed to prove the execution of Ex.D22 and prior partition as alleged in the written statement. The First Appellate Court was justified in reversing the findings of the trial Court. In view of the

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above discussion, I answer substantial question of law in affirmative.

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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 appeals are dismissed.

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Consequently, the common judgment and decree dated 30.03.2007, passed in R.A.No.16/1994 and R.A.No.3/1995 by the Additional District and Sessions Judge, FTC-II, Tumkur is hereby confirmed.

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No order as to the costs.

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Sd/JUDGE

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SSB

Thimmappagowda v. Oadorangaiah

Case brief

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Thimmappagowda v. Oadorangaiah

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