Dismissed

Javaregowda Since Dead by Lrs v. Lakshmegowda

Karnataka HC13 Jul 2023RSA/653/2013

Case brief

AI extract

What is this about?

This second appeal against a revision order in a partition suit was dismissed. The High Court found no substantial question of law arising as the first appellate court correctly rejected the appellant's claim due to lack of documentary evidence regarding joint family ownership of specific properties.

What did the court decide?

The appeal was dismissed with no substantial question of law arising for consideration.

Javaregowda Since Dead by Lrs Vs Lakshmegowda — Partition | Karnataka HC (2023)

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NC: 2023:KHC:24396 RSA No. 653 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 653 OF 2013 (PAR)

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BETWEEN:

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JAVAREGOWDA SINCE DEAD BY LRS

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HANUMAMMA W/O LATE JAVAREGOWDA

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HANUMANTHE GOWDA

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S/O LATE JAVAREGOWDA

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JAYAMMA D/O LATE JAVAREGOWDA

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MAHADEVAMMA D/O LATE JAVAREGOWDA

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INDIRAMMA

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D/O LATE JAVAREGOWDA

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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ALL ARE RESIDENTS OF KODALA VILLAGE CHINAKURALI HOBLI, PANDAVPURA TALUK.

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…APPELLANTS

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(BY SRI V. SRINIVAS, ADVOCATE)

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AND:

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LAKSHMEGOWDA S/O HANUMANTHEGOWDA

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SINCE DECEASED BY HIS LRS

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a) SRI KRISHNEGOWDA S/O LATE LAKSHME GOWDA AGED ABOUT 45 YEARS

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NC: 2023:KHC:24396 RSA No. 653 of 2013

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b) SHIVANNGOWDA S/O LATE LAKSHME GOWDA AGED ABOUT 42 YEARS

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BOTH ARE RESIDING AT LAKSHMISAGARA VILLAGE, MELUKOTE HOBLI, PANDAVAPURA TALUK

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KULLEGOWDA

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S/O HANUMANTHEGOWDA,

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SINCE DECEASED BY LRS

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a) DEVARAAJU S/O LATE KULLEGOWDA AGED ABOUT 56 YEARS RESIDING AT LAKSHMISAGARA VILLAGE MELUKOTE HOBLI PANDAVAPURA TALUK.

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DODDA CHALUVEGOWDA S/O HANUMANTHEGOWDA

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SINCE DECEASED BY LRS

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a) KEMPAMMA

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W/O DODDA CHALUVEGOWDA

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b) LOKESHA

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S/O LATE DODDA CHALUVEGOWDA

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c) MOGANNA GOWDA

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S/O LATE DODDA CHALUVEGOWDA

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d) YASHODA D/O LATE DODDA CHALUVEGOWDA W/O RAJEGOWDA

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ALL ARE RESIDENTS OF LAKSHMI SAGARA VILLAGE, PANDAVAPURA TALUK – 571 434.

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…RESPONDENTS

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(BY SRI SRINIVASA D.C, ADVOCATE FOR R3(A,C AND D), R3(B) – NOTICE H/S, R1(A&B) – NOTICE H/S, R2(A) – NOTICE H/S)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 31.01.2013 PASSED IN R.A.NO.354/2010 ON THE FILE OF PRESIDING OFFICER, FAST

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TRACK COURT, SRIRANGAPATNA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD 19.10.2010 PASSED IN O.S.NO.3/2010 OLD 68/95 ON THE FILE OF CIVIL JUDGE (SR.DN.) JMFC & MACT, PANDAVAPURA.

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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 appeal has been filed praying to set-aside the judgment and decree dated 31.01.2013 passed in R.A.No.354/2010 by the Presiding Officer, Fast Tract Court, Srirangapatna and confirm the judgment and decree dated 19.10.2010 passed in O.S.No.3/2010 by the Civil Judge (Sr.Dn.) and J.M.F.C, Pandavapura.

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Heard the learned counsel for the appellants on admission.

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The parties will be referred to by their rankings as in the Trial Court.

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The appellants are the legal representatives of the plaintiff and respondent Nos.1 to 3 are the defendant

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Nos.1 to 3 in O.S.No.3/2010 (Old No.68/1995).

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The plaintiff filed a suit for relief of partition and separate possession in respect of 10 items of the suit schedule properties. The plaintiff and defendant Nos.1 to 3 are the brothers.

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It is the case of the plaintiff that in the suit schedule properties, some are the ancestral and some are the self acquired properties. As the defendants attempted to change the revenue records in their names, the plaintiff filed a suit claiming his 1/4^th share in the suit schedule properties.

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The defendant No.1 contended that the plaintiff has been adopted by one Sri.Rajegowda and

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Smt.Hanumamma by a deed dated 19.03.1942. They contended that the plaintiff has not at all participated in the Joint Family business, cultivation of the properties. They contended that the plaintiff has not been given the share in the partition deed dated 10.12.1975, as he has been an adopted son and there was earlier partition deed dated 20.09.1965. They contended that the plaintiff has

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included the properties which are not belonging to the Joint Family and included self acquired properties of the defendants. The plaintiff has not included house of Kodala village and the land in Sy.No.144/2 and therefore, the suit is not maintainable.

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Defendant Nos.2 and 3 contended that the plaintiff

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has been adopted as contended by defendant No.1. They also contended that the plaintiff is in possession of the house of Kodala village and 26 guntas of land in Sy.No.24/2. They contended that during the life time of Sri.Hanmunathe Gowda, there was a division of the family properties and a document came to be executed on 20.05.1964 and on that basis they got prepared the record on 10.12.1975. Defendant No.1 set up the plaintiff to file a suit as defendant Nos.2 and 3 refused to sell their properties to him. Defendant Nos.2 and 3 denied that the plaintiff is having 1/4^th share in the suit schedule properties. They contended that half portion in item No.1 was given to defendant No.1 and Western half to

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defendant No.3, item No.2 belongs to defendant No.1 and item No.3 was constructed by defendant No.2 on the vacant site purchased by him in the year 1967. Item No.4 was divided as per the documents executed by their mother on 03.11.1979, item No.5 is the self acquired property of defendant No.3, item Nos.6 and 7 belongs to defendant No.1 and item No.8 does not belong to any of the defendants, item No.9 is the self acquired property of defendant No.1, item No.10 was divided equally among the defendants. The defendants are living separately and enjoying their separate shares from the year 1964 and they improved the properties allotted to their shares. With this, they prayed to dismiss the suit.

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The Trial Court after appreciating the evidence on record has negatived the contention of the defendants that the plaintiff is an adopted son of Sri.Rajegowda and Smt.Hanumamma. The Trial Court held that the plaintiff is entitled to a share in item Nos.1 to 7 and 9 and 10 and dismissed the suit in respect of item No.8. The Trial Court

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held that the defendants failed to prove that item Nos.5, 6, 7, 9 and 10 are their self acquired properties. Aggrieved by the said findings of the Trial Court, the defendant Nos.1 and 2 and legal representatives of defendant No.3 filed an appeal in R.A.No.354/2010 on the file of Fast Track Court, Srirangapatna. The First Appellate Court has allowed the appeal in part and held that the plaintiff is entitled to 1/4^th share in item Nos.4, 6, 7 and 10 of the suit schedule properties and reversed the findings of the Trial Court and dismissed the suit in respect

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of item Nos.1 to 3, 5, 8 and 9. It also declared that item No.5 is the self acquired property of defendant No.3. Aggrieved by the judgment and decree of the First Appellate Court, the plaintiff has filed this second appeal.

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The First Appellate Court has held that the plaintiff has not produced any document pertaining to item Nos.1 to 3 of the suit schedule properties.

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Learned counsel for the appellants has filed I.A.No.1/2023 seeking production of two documents

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contending that they pertains to item Nos.1 and 2. Among the said documents, document No.1 pertains to the house property bearing No.266/174 in the name of Sri.Hanumanthe Gowda, S/o Sri.Muduge Gowda. The said document does not pertain to item No.1 of the suit schedule properties. Item No.1 of the suit schedule properties bears Khata No.290/174. Therefore, the said documents sought to be produced in this appeal does not pertain to item No.1 of the suit schedule properties. The second document sought to be produced is one photocopy of the extract of tax demand register in respect of the property bearing No.221-131 standing in the name of Sri.Mudugana Lakshme Gowda, S/o Sri.Hanumanthe Gowda. The said document is not admissible in evidence as it is a photocopy. Even though the said document pertains to item No.2, but it is standing in the name of one Sri.Mudugana Lakshme Gowda S/o Sri.Hanumanthe Gowda. Therefore, the said document cannot be considered as an additional evidence, since it is a photocopy and it is also not standing in the name of any of

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the parties to the suit. Hence, I.A.No.1/2023 deserves to be dismissed. Even in this appeal, the appellants have not produced any other document pertaining to item No.3 of the suit schedule properties.

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Learned counsel places reliance on Ex.D5 – building licence issued in respect of item No.3 in the name of defendant No.2. The plaintiff has not produced any extract of tax demand register pertaining to item No.3 of the suit schedule properties to show that the said properties belongs to Joint Family.

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Considering the said aspect, the First Appellate Court rightly held that the plaintiff has not produced any document regarding item Nos.1 to 3 of the suit schedule properties. The First Appellate Court has held that item No.5 is the self acquired property of defendant No.3. Defendant No.3 purchased item No.5 under the sale deed dated 23.06.1962 as per Ex.D4 and he is enjoying it separately. Even the plaintiff has purchased two properties under the sale deeds Exs.D2 and D3 and he is

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enjoying the same separately, but he has not included those properties purchased under Exs.D2 and D3 in the suit. Therefore, the plaintiff is estopped from contending that item No.5 purchased by defendant No.3 under Ex.P4 is the Joint Family Property.

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The First Appellate Court considering the said aspect has held that there is no blending of properties purchased by the plaintiff and defendant Nos.2 and 3. Therefore, the First Appellate Court has rightly held that item No.3 of the suit schedule properties is the self acquired property of defendant No.3. The First Appellate Court has also held that the plaintiff has not produced any R.T.C or Mutation regarding item No.9 of the suit schedule properties and dismissed the claim of the plaintiff seeking share in it. Item No.9 is stated to be an agricultural land bearing Sy.No.56 of Thonnuru village. In the description of the property, extent of said property is not mentioned. The

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plaintiff has not produced any R.T.C in respect of item No.9 of the suit schedule properties. Therefore, the First

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NC: 2023:KHC:24396 RSA No. 653 of 2013

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Appellate Court has rightly rejected the claim of the plaintiff seeking share in item No.9 of the suit schedule properties.

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Considering al these aspects, no substantial question

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of law arises for consideration. Hence, the appeal is

dismissed.

Sd/JUDGE

List No.: 1 Sl No.: 25

Javaregowda Since Dead by Lrs v. Lakshmegowda

Case brief

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Javaregowda Since Dead by Lrs v. Lakshmegowda

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