Second appeal challenging dismissal of petition for declaration of ancestral property shares and mesne profits. High Court upheld lower courts' finding that plaintiffs failed to prove properties were ancestral due to absence of documentary evidence of generational status and father's continued survival.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 6 OF 2023 (PAR)
BETWEEN:
BOTH ARE RESIDING AT NO.3 BYALALU, CHUNCHANAKUPPE POST TAVAREKERE HOBLI BENGALURU SOUTH TALUK BENGALURU - 562 130.
…APPELLANTS
(BY SRI SARAVANA S., ADVOCATE)
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
AND:
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.09.2022 PASSED IN RA.NO.25/2020 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.12.2019 PASSED IN O.S.NO.352/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JDUGE AND JMFC, RAMANAGARA.
THIS APPEAL, COMING ON FOR ADMISSON, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the appellants counsel. This appeal is listed for admission.
the Trial Court seeking the relief of declaration of 2/3rd share
NC: 2023:KHC:29643 RSA No. 6 of 2023
out of 1/5th share of their father in the suit schedule property and for mesne profits and contend that Shivanna S/o Rajegowda @ Rachegowda are the propositous of the family. Defendant No.1 is widow of Shivanna, defendants No.2 to 6 are children of defendant No.1 and Shivanna. The plaintiffs are the children of defendant No.2. The defendant No.7 is the wife of defendant No.4. Late Shivanna during his life time owned suit schedule properties which are Hindu undivided joint family properties. ‘A’ schedule property was granted in favour of Shivanna during his life time by the Land Grant Committee. ‘B’ schedule property is the ancestral property of Shivanna which was acquired by him under the partition effected after the death of his father Rajegowda. ‘C’ schedule property is the house property, which is the family property of Shivanna and ‘D’ schedule property is the house property constructed out of the joint family funds in the name of defendant No.7.
NC: 2023:KHC:29643 RSA No. 6 of 2023
considered both oral and documentary evidence comes to the conclusion that the plaintiffs have not proved the fact that the suit schedule properties are ancestral properties and also not proved that they are the joint owners and in joint possession and except the documents of genealogical tree, RTC extract, Certified Copies of mutation register extract and copies of the tax demand register extract and tax paid receipts, no documents are placed before the Court to show that the properties are ancestral properties and hence, the Trial Court has answered all the issues as negative.
NC: 2023:KHC:29643 RSA No. 6 of 2023
affidavit filed in view of oral evidence has deposed that her grand-father Shivanna died very long ago, as on the date of examination she was aged about 23 years, nowhere in the plaint or in her evidence, the date of death of Shivanna is also mentioned, whether he died before plaintiffs were born or after the birth of the plaintiffs, is also not mentioned. Without the said particulars, the contention of the plaintiffs that they are entitled for partition of the suit properties based on notional partition cannot be considered at all. The First Appellate Court also taken note of the principles laid down in the case of (2016) 4 SCC 68 (Uttam Vs. Saughag Singh) and in the absence of any material before the Court that the properties are ancestral properties, the First Appellate Court also on appreciation comes to the conclusion that no material is placed before the Court to grant the relief and dismissed the appeal. Hence, the present second appeal is filed before the Court.
NC: 2023:KHC:29643 RSA No. 6 of 2023
hence, the Court has to admit the appeal and frame the substantive question of law.
NC: 2023:KHC:29643 RSA No. 6 of 2023
following:
ORDER
Appeal is dismissed.
Sd/JUDGE
AP
List No.: 1 Sl No.: 58
3 issues framed by the court
Whether plaintiffs proved the suit properties are ancestral properties given father is alive and lack of documentary evidence concerning generational status.
Whether High Court can interfere with lower courts' findings on quantum of evidence regarding ancestral property status under Section 100 CPC.
Whether the appellants are entitled to declaration of 2/3rd share in joint family property based on notional partition without proof of grandfather's death relative to plaintiffs' birth.
Kum. Sushmitha D/o. Raju
Sri. Manoj Kumar S/o. Raju
Smt. Puttathayamma W/o. ShivanNA
Sri Raju S. S/o. ShivanNA
Sri Channabasaviah S/o. ShivanNA
Sri Satish S/o. ShivanNA
H.P. Sandesh
As recorded by the court registry
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