This second appeal challenges a partition suit judgment. The High Court held the properties were joint family assets. It rejected an additional evidence application due to delay and dismissed the appeal, confirming the lower decrees.
Appeal dismissed; judgments and decrees of lower courts confirmed; application for additional evidence rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:38834 RSA No. 320 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 320 OF 2012 (PAR)
BETWEEN:
ESHWARAPPA
S/O. LATE KANKARE DURGAPPPA, AGED ABOUT 74 YEARS, R/O. JATPATNAGAR, 7TH CROSS, SHIMOGA - 577 201.
…APPELLANT
(BY SRI. CHINMAY KULKARNI, ADVOCATE FOR SRI. R. GOPAL, ADVOCATE)
AND:
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
S/O. LATE KANKARE DURGAPPA, AGED ABOUT 49 YERFS,
BOTH ARE R/O. 1ST CROSS, DURGAMMANA KERI, DURGIGUDI, SHIMOGA CITY - 577 201.
R/O. 1ST CROSS,
DURGAMMANE BEEDI,
DURGIGUDI, SHIMOGA CITY - 577 201.
SINCE DEAD BY LRS:
4(b) SHIVAKUMAR S/O LATE EERAPPA, AGED ABOUT 38 YEARS,
S/O LATE EERAPPA, AGED ABOUT 35 YEARS,
4(d) BHAGHYA
D/O LATE EERAPPA, AGED ABOUT 30 YEARS, W/O MADHU, KASHIPURA, 3RD CROSS, SHIMOGGA -577 202.
D/O LATE EERAPPA, W/O RANGASWAMY, AGED ABOUT 27 YEARS, R/O UPPARGERI, OLD LAKKAVALLI, TARIKERE TALUK, CHIKKAMAGALUR DISTRICT - 577 228.
THE ABOVE LRS 4(a) 4(c) ARE R/O 1ST CROSS,
*Corrected vide Chamber order dated 11.09.2024
NC: 2023:KHC:38834 RSA No. 320 of 2012
NEAR SIDDESHWARA CIRCLE, BOMMANAKATTE,
SHIMOGGA - 577 201.
S/O. LATE KANKARE DURGAPPA, AGED ABOUT 67 YEARS, R/O 4TH CROSS, VENKATESHA NAGAR (DHOBI KATTE), NEAR CHANNEL, SHIMOGA - 577 202.
S/O. LATE KANKARE DURGAPPA, AGED ABOUT 49 YEARS, MASON, R/O DURGIGUDI, 1ST CROSS, DURGAMMANA BEEDI, SHIMOGA CITY - 577 201.
7. DIVAKARA
SINCE DEAD BY LRS:
RESPONDENTS 7(a) TO 7(c) ARE R/O DOOR NO.A/50/1, OFFICIAL COLONY,
NC: 2023:KHC:38834 RSA No. 320 of 2012
K.R.NAGAR, BEHIND PRIMARY SCHOOL, SREERANGAPATTANA,
MANDYA DISTRICT - 571 438.
…RESPONDENTS
(BY SRI. UMESH MOOLIMANI, ADVOCATE FOR SRI. S.V.PRAKASH, ADVOCATE FOR R1 TO R3; SRI. PRUTHVI WODEYAR, ADVOCATE FOR R5; SRI. CHANDRASHEKAR, ADVOCATE FOR R6 & R7(A & B), R4, R7(C), R4(A) TO R4(E) ARE SERVED )
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.10.2011 PASSED IN R.A.NO.62/2008 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AT SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 19.9.2006 PASSED IN O.S.NO.60/2003 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN) & CJM, SHIMOGA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant
challenging the judgment and decree dated 31.10.2011 passed in R.A.No.62/2008 by the Additional District Judge, Shimoga, confirming the judgment and decree dated 19.09.2006 passed in O.S.No.60/2003 by the I Additional Civil Judge (Sr.Dn.) and C.J.M., Shimoga.
NC: 2023:KHC:38834 RSA No. 320 of 2012
appellant is defendant No.1, respondent Nos.1 to 3 are the plaintiffs and respondent Nos.4 to 7 are the defendant Nos.2 to 5.
Plaintiffs filed a suit for partition and separate possession in respect of the suit schedule property. It is the case of the plaintiffs that Kankare Durgappa was the propositor and the plaintiffs and defendants are the children of Kankare Durgappa who died on 15.04.1969 and the mother of plaintiffs and defendants named Smt.Savitramma also died on 20.04.2000. The suit schedule properties comprised of agricultural lands, house and sites and compensation amount as shown in 'A', 'B' and 'C' schedule. It is contended that the suit schedule properties were acquired by Late Durgappa, the father of
the plaintiffs and defendants, out of his hard earning. He
died intestate in the year 1969, the plaintiffs and defendants jointly inherited the estate of their father. The
NC: 2023:KHC:38834 RSA No. 320 of 2012
plaintiffs and defendants are the joint owners and in possession of the suit schedule properties and they constitute Hindu undivided joint family. There have been no disruption or division effected in the family in respect of suit schedule properties. It is contended that the father of the plaintiffs was a tenant of land bearing Sy.No.81 measuring 7 acres 16 guntas situated within the limits of Basavanagangur village in Shimoga Taluk and after his demise, the defendant Nos.1 and 3 being the elder male members of the family filed an application in Form No.7
for grant of occupancy right before the Land Tribunal, Shimoga. The Land Tribunal granted occupancy right in favour of defendant No.1. The said land was acquired for
the Upper Tunga Project, Shimoga. The compensation amount awarded in respect of the said land was withdrawn by defendant No.1. The plaintiffs demanded for partition and separate possession, but the defendant refused to effect the partition. Hence, cause of action arose for the plaintiff to file the suit for partition and separate possession.
NC: 2023:KHC:38834 RSA No. 320 of 2012
admitting the averment made in the plaint and prayed to decree the suit of the plaintiffs.
2. Whether the plaintiffs are entitled for partition and separate possession of total 3/8th share in the suit schedule properties?
3. Whether the defendant No.4 proves that he is entitled for 1/8th share in the suit schedule properties?
4. What Order or Decree?"
plaintiff No.3 was examined as PW.1 and marked 23
documents as per Exs.P.1 to P.23. The Trial Court on the basis of oral and documentary evidence, answered issue
Nos.1 to 3 in the affirmative and consequently, decreed the suit of the plaintiffs with cost and it is ordered and decreed that the plaintiff Nos.1 to 3 are entitled for 3/8th share (1/8th each) in 'A' to 'C' Schedule properties and defendant No.4 is also entitled for 1/8th share in all the suit schedule properties and directed the defendants to pay the court fee.
NC: 2023:KHC:38834 RSA No. 320 of 2012
2. Whether the plaintiffs prove that the suit properties are the joint family properties of themselves and all the defendants?
3. Whether the judgment and decree under attack granting the preliminary decree in favour of the plaintiffs for partition and separate possession is justified?
4. What order or decree?"
material on record, answered point Nos.1 and 2 in the affirmative and point No.3 also in the affirmative subject to modification and consequently, dismissed the appeal vide judgment dated 31.10.2011 confirming the judgment
and decree passed by the Trial Court subject to the modification that the suit of the plaintiffs is decreed with costs. Plaintiff Nos.1 and 2 together are entitled for 3/8th share (1/8th share in 'A' to 'C' Schedule properties and defendant No.4 is also entitled to 1/8th share in all the suit schedule properties and defendant Nos.1 to 3 and 5 are also entitled to 1/8th share each in all the suit schedule
properties. The defendant No.1 aggrieved by the
judgments and decrees passed by the courts below filed this second appeal.
Item No.2 of 'B' schedule property as a tenant in his individual capacity. He submits that the plaintiffs and defendant Nos.2 to 5 have no right to claim a share in item No.2 of 'B' schedule property. He submits that the Courts below have committed an error in granting the share in Item No.2 of 'B' schedule property. Hence, the judgments and decrees passed by the courts below are arbitrary and erroneous and hence, on these grounds, prays to allow the appeal.
NC: 2023:KHC:38834 RSA No. 320 of 2012
submissions of learned counsel for the defendant No.1.
the father of the plaintiffs and defendants was the propositor and he acquired the schedule 'A' and 'B' property. He died intestate. The plaintiffs and defendants have succeeded schedule 'A' and 'B' property. The land bearing Sy.No.81 was acquired by the Government for Upper Tunga Project. As the revenue records were standing in the name of defendant No.1, defendant No.1 has withdrawn the compensation amount in respect of item No.2 of 'B' schedule property. The plaintiffs being the coparcener are entitled for share in the suit schedule properties. The plaintiffs demanded for partition and separate possession in respect of schedule 'A' to 'C' properties. The defendants refused to effect a partition.
NC: 2023:KHC:38834 RSA No. 320 of 2012
order to prove that the suit schedule properties are the properties acquired by the father, the plaintiffs have produced the original registered sale deeds which are marked as Exs.P.1 and P.2; Ex.P.3 is the pahani extract for the year 1957-58 to 1967-68 which discloses that the land bearing Sy.No.81 was cultivated by father of plaintiffs and his name was appearing in the records; Ex.P.4 is the death certificate of father of the plaintiffs; Ex.P.5 is the death certificate of mother of plaintiffs; Ex.P.6 is the RTC Extract in respect of land bearing Sy.No.81 which discloses
the name of the father of the plaintiffs and he is in possession of the suit schedule property; Exs.P.7 to 10 are the mutation register extract; Exs.P.11 and P.12 are the tax paid receipts; Ex.P.13 is the encumbrance certificate; Ex.P.14 is the objection copy filed by the plaintiffs before
the Special Land Acquisition Officer, Upper Tunga Project, Shimoga; Ex.P.15 is the copy of notice issued by Land Acquisition Officer; Ex.P.16 is the copy of the legal notice issued to the defendants by the plaintiffs calling upon the defendants to effect the partition in the suit schedule
NC: 2023:KHC:38834 RSA No. 320 of 2012
properties; Exs.P.17 to P.19 are the sealed postal covers; Exs.P.20 to P.22 are the postal acknowledgments and Ex.P.23 is the postal receipt. After the demise of the father of plaintiffs, the defendant No.1 being a elder member of the family had submitted an application for grant of occupancy right in his favour. The Land Tribunal granted occupancy right in favour of defendant No.1 for the welfare of the family and not in his individual capacity. The said item No.2 of 'B' schedule property is the joint family property of plaintiffs and defendants. Though the defendant No.1 entered appearance, but did not choose to file a written statement and further the counsel appearing for defendant No.1 did not cross examine PW.1.
NC: 2023:KHC:38834 RSA No. 320 of 2012
defendant Nos.1 to 4 have succeeded to the properties left by their father. The plaintiffs being the coparceners are entitled for share in the suit schedule properties. The defendant No.1 has failed to establish that in the item No.2 of 'B' schedule property, the occupancy right was granted in favour of defendant No.1 in his individual capacity. The Trial Court considering the oral evidence of PW.1 and documents produced by the plaintiffs i.e., Exs.P.1 to P.23 held that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and the plaintiffs are together entitled for 3/8th share (1/8th share each in schedule 'A' to 'C' properties) and further the defendant No.4 filed written statement consenting the written statement and also sought for counter claim for partition and separate possession. The Trial Court awarded 1/8th share to the defendant No.4 in the suit schedule properties. The defendant No.1 aggrieved by the judgment passed by the Trial Court preferred an appeal in R.A.No.62/2008. The First Appellate Court on re-appreciating the oral and documentary
evidence, dismissed the appeal and modified the judgment and decree passed by the Trial Court decreeing the suit of the plaintiffs with cost. The defendant No.1 has failed to establish that the occupancy right of the said land in item No.2 of schedule 'B' property was granted in his favour in an individual capacity. Both the courts below have concurrently reported the finding of fact against the defendants.
NC: 2023:KHC:38834 RSA No. 320 of 2012
documents relevant for the purpose of adjudication of controversy between the parties and the said documents were not produced despite due diligence in the Court below and the counsel asked the defendant No.1 to secure the RTC and pahanis and his counsel advised him to file the additional evidence. The plaintiffs have not filed any objections to the said application. From the perusal of the application filed by the defendant No.1, though the said documents were available during the pendency of the suit. First of all defendant No.1 has not filed a written statement and not cross examined PW.1 and further the said documents were available during the pendency of the suit. The defendant No.1 has not shown the cause for not filing the proposed document before the Trial Court and further the defendant No.1 has also not made any attempt to produce the said documents before the First Appellate Court. The present appeal was filed in the year 2012 and
the present application was filed on 21.09.2023. The defendant No.1 has filed an application for production of additional evidence only with an intention to fill up a
NC: 2023:KHC:38834 RSA No. 320 of 2012
lacuna. Further, even if the said records were taken on record, the plaintiff has produced the order passed by the Land Tribunal and further produced the RTC extract in respect of land bearing Sy.No.81 from the year 1969-70 to 1983-84 which discloses that the defendant No.1 is in possession of the suit schedule property. Prior to 1969-70, the plaintiffs have produced Ex.P.3 which discloses that
the father of the plaintiffs and defendants was in possession of Sy.No.81. The proposed documents does not come to the aid of defendant No.1. In order to establish
that the defendant No.1 was in possession of item No.2 of 'B' schedule property as a joint family tenant. Further, the Hon'ble Apex Court in the case of N. Kamalam (Dead)
and Another vs. Ayyasamy and Another reported in (2001) 7 SCC 503 has held that Order XLI Rule 27 of
CPC are not designed to help the parties to patch up a weak point and omission earlier made and jurisdiction of the First Appellate Court is restricted to permitting such an additional evidence as would unable to pronounce the judgment and further held that the oral evidence after
long gap and the Court must always be cautious about allowing application seeking to adduce additional evidence particularly in the form of oral evidence after long interval between the decree and the application. As observed above, the judgment and preliminary decree passed by the Trial Court was on 19.09.2006 and the application is filed by the defendant No.1 in the year 2023. There is an inordinate delay in filing an application for production of additional evidence and further the defendant No.1 has not fulfilled the requirements of Order XLI Rule 27 of CPC. Hence, the application is deserves to be dismissed.
I proceed to pass the following:
ORDER
The appeal is dismissed .
The judgments and decrees passed in
R.A.No.62/2008 dated 31.10.2011 and O.S.No.60/2003 dated 19.09.2006 are hereby confirmed.
I.A.No.1/2023 filed by the defendant No.1 under Order XLI Rule 27 read with Section 151 of CPC for production of additional evidence is rejected.
No order as to the costs.
s
Sd/JUDGE
GBB List No.: 1 Sl No.: 17 CT:SK
3 issues framed by the court
Whether the schedule properties are joint family properties of the plaintiffs and defendants?
Whether the First Appellate Court erred in granting share to the plaintiffs regarding item No.2 of B schedule property?
Whether the application for production of additional evidence under Order XLI Rule 27 CPC should be allowed given the delay?
Colour shows how this judgement treated each authority
N. Kamalam (Dead) and Another vs. Ayyasamy and AnotherFollowed¶132
N. Kamalam (Dead) and Another vs. Ayyasamy and Another (2001) 7 SCC 503 · Who else cites this
3 provisions across 1 enactments
Eshwarappa
SOMALINGA
SMT. TUNGAMMA
SMT. INDIRAMMA
SUNANDAMMA
SHIVAKUMAR
Ashok S.Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Ashok S.Kinagi
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