Second appeal against a decree confirming that plaintiffs, heirs of Bommaiah, obtained a partition share of ancestral property and were rightly entitled to possession after dispossession by defendants. Court found no substantial question of law.
Appeal dismissed; plaintiffs remain entitled to possession per lower courts.
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.
RSA No. 929 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 929 OF 2020 (DEC)
BETWEEN:
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
APPELLANT NOS.1(a) TO 1(f) ARE RESIDENTS OF TROOP LANE
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R.C.CHURCH ROAD, RAMANAGARA.
2(j) SHIVAMMA AGED ABOUT 33 YEARS, ALL ARE RESIDING AT KEREMEGALA DODDI VILLAGE, KYLANCHA HOBLI, RAMANAGARA TALUK, RAMANAGARA DIST.
…APPELLANTS
(BY SRI. VARADARAJ R. HAVALDAR., ADVOCATE)
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AND:
RESPONDENTS NOS.1 TO 3 ARE RESIDENTS OF NO.3444, TROOP LANE, R.C.CHURCH ROAD, 2ND CROSS, RAMANAGARA.
…RESPONDENTS
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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.07.2018 PASSED IN RA.NO.74/2012 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.08.2012 PASSED IN O.S.NO.84/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the learned counsel for the appellants.
before the Trial Court while seeking the relief of declaration and possession is that, one Mudda, S/o. Jogi was the propositus had two wives by name Kempamma and Manchamma. Through, 1st wife Kempamma, Mudda had three children by name Dodda Boramma, Bommaiah (father of plaintiff Nos.1 to 5) and Chikkaboramma. Through 2nd wife-Manchamma, Mudda had three children by name Ningamma, Jogaiah and Mudda Boramma @ Chikkathayamma. The daughters of Mudda are all married. Sy.No.89 measuring 2 acres 27 guntas and Sy.No.60 measuring 19 guntas situated at Kothipura Village, Kasaba Hobli, Ramanagara Taluk are ancestral joint family properties of
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Mudda, Bommaiah and Jogaiah. After the death of Mudda, his sons Bommaiah and Jogaiah have partitioned the property through a registered partition deed dated 03.09.1965. As per
the above partition, Sy.No.89 measuring 1 acre 27 guntas and Sy.No.60/3 measuring 19 guntas was the subject matter of partition. Under the said partition, in Sy.No.89, 34 guntas and Sy.No.60, 9 guntas fell to the share of Bommaiah. Sy.No.60 measuring 9 guntas was later phoded as 60/1, which is the suit schedule property. According to the partition, Sy.No.89 measuring 33 guntas and Sy.No.60 measuring 10 guntas fell to the share of Jogaiah, who is the defendant No.1 herein. Sy.No.60, which fell to the share of Jogaiah, was phoded as 60/2. The said Jogaiah and Bommaiah were enjoying the properties in terms of partition. Bommaiah died on 20.03.2007 and after the death of Bommaiah, plaintiffs continued possession of the property left behind by Bommaiah and six months back, defendants being powerful persons came with money and muscle power and dispossessed the plaintiffs from suit schedule property. The plaintiffs have filed RRT CR 120/1989-90 before Assistant Commissioner in respect of the suit property in which the revenue documents in the name of
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defendant No.1 was cancelled and parties are instructed to resolve their dispute. Accordingly, suit is filed for the relief of declaration and possession.
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appeal memo, formulated the points whether the plaintiffs prove that they are the absolute owners of suit schedule property in Sy.No.60/1 by virtue of partition deed dated 03.09.1965 and also formulated the point whether the plaintiffs prove that they are dispossessed from the suit schedule property and whether the plaintiffs are entitled for possession of the suit schedule property.
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who is the son of said Mudda through the second wife and the question of blending the property to the common hotchpot does not arise and the question of partitioning the property by the parties also does not arise.
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contention, the plaintiffs have examined the witnesses as P.Ws.1 and 2 and got marked the documents as Exs.P1 to P13. On the other hand, the defendant No.1 examined himself as D.W.1 and got marked the documents as Exs.D1 to D7.
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and purchase under Exs.D1 and D2 were prior to Ex.P2. When Jogaiah is a party to the said partition deed of the year 1965 and got divided the property along with his brother Bommaiah and the plaintiffs are the sons of Bommaiah, claims that in the said partition of document-Ex.P2, the suit property was put into hotch pot and later it was divided among Jogaiah and Bommaiah. This aspect has been considered by the Trial Court in paragraph No.8 while answering issue No.1 and also taken note of the admission given by D.W.1 in the cross-examination, wherein, he categorically admitted that in Sy.No.60, 9 guntas of land was given to Bommaiah, the same is on the northern portion and 10 guntas of land, which came to his share, which is on the southern portion. These are the admissions extracted by the Trial Court in paragraph No.8. The Trial Court has given the reasoning in paragraph No.9 that the suit schedule property fell to the share of Bommaiah and also with regard to the issue of dispossession discussed in paragraph No.10, wherein, the Trial Court also taken note of the documents - Ex.P3 and Ex.P5, which shows that Bommaiah was in possession of the suit property at relevant point of time. It is their claim that they were dispossessed recently by the defendants. In order to
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prove the said fact examined P.W.2. P.W.2 also stated that the plaintiffs were in possession of the suit schedule property but the defendants have dispossessed them. Taking into note of the evidence of PWs.1 and 2 and also in the evidence of PWs.1 and 2, even not questioned the dispossession of the plaintiffs by the defendants during the course of cross-examination and the same is also considered and came to the conclusion that the property was fallen to the share of father of plaintiff Nos.1 to 5 in the partition of the year 1965 and the defendants have recently dispossessed the same.
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the year 1965 and the very contention of the learned counsel appearing for the appellants is that in the said documents and also in the pleading nowhere it is stated that the property is put into the common hotch pot and the fact that there was a Partition Deed among them in the year 1965 is also the registered document, which came into existence subsequent to the documents – Exs.D1 and D2. This aspect also had been considered by the First Appellate Court in paragraph No.22. In paragraph No.23, regarding the cross-examination of D.W.1 with regard to inclusion of two properties in the Partition Deed dated 03.09.1965 and considering the cross-examination of D.W.1 came to the conclusion that the answer elicited from the mouth of D.W.1 would support the contention of the plaintiffs that the property left behind by Mudda, though it was sold and subsequently both of them had got partitioned the property in the year 1965 in terms of Ex.P2 and the suit schedule property fallen to the share of the father of plaintiff Nos.1 to 5 and also taken note of the reasoning given by the Trial Court with regard to the documents - Exs.D1 and D2 and also Ex.P2, which came into existence subsequently in paragraph No.26 of the judgment.
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examination of P.W.1 and the same is also taken note of by the Trial Court as well as the First Appellate Court.
ORDER
The appeal is dismissed.
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In view of disposal of the appeal, I.As, if any do not survive for consideration, the same stand disposed of.
Sd/JUDGE
ST, CP List No.: 1 Sl No.: 40
2 issues framed by the court
Whether plaintiffs are absolute owners of the suit schedule property by virtue of a partition deed and entitled to possession after being dispossessed.
Whether the present appeal requires interference or if substantive questions of law are raised under Section 100 of CPC.
INDIRAMMA AND OTHERS
KRISHNAPPA AND OTHERS
H.P. SANDESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
