High Court dismissed a second appeal challenging a partition suit judgment. The Court held appellants failed to prove a prior partition was acted upon and found no ground to invoke Section 100 CPC.
Appeal dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 999 OF 2023 (PAR)
BETWEEN:
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
…APPELLANTS
(BY SRI MANOHAR N., ADVOCATE)
AND:
b) CHITHRA AGED ABOUT 40 YEARS, D/O. LATE CHINNAKKA, R/O. VITHANAKUPPAM VILLAGE, GUDIYATHAM TALUK, VELLORE -632 602.
R/O. GOLLAHALLI VILLAGE, HEBBANI POST, MULBAGAL TALUK-563 131.
AGED ABOUT 52 YEARS, W/O. NARASIMHAPPA, D/O. YERRAPPA, R/O. K. N. EMMANATHA VILLAGE, MOTAKAPALLI POST, MULBAGAL TALUK-563 136.
…RESPONDENTS
(BY SRI. NOOR UL HUSSAIN, ADVOCATE FOR C/R R1[a - c] R2, R3 [b – c], R4 TO R9)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.04.2023 PASSED IN R.A.NO.156/2022 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, KGF, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.07.2022 PASSED IN O.S.NO.340/2013 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, K.G.F.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission.
Heard the appellants counsel and also the counsel appearing for the respondents.
contention of the defendant that already there was a partition is not accepted and the same is answered as negative and hence comes to the conclusion that the plaintiffs are entitled for a share and also considered the right of defendants, also granting 1/7th share each in respect of item Nos.1 and 2 of suit schedule properties. Being aggrieved by the judgment and decree of the Trial Court an appeal is filed in R.A.No.156/2022. The First Appellate Court having considered the grounds urged in the appeal memo formulated the points, whether the Trial Court committed an error in coming to the conclusion that properties are the joint family properties of plaintiffs and defendants and whether the Trial Court has committed an error in decreeing the suit and whether the judgment and decree of the Trial Court is perverse, capricious and call for interference. The First Appellate Court also on re-appreciation of both oral and documentary evidence, confirmed the judgment and decree of the Trial Court and comes to the conclusion that the Trial Court has not committed any error in appreciating both oral and documentary evidence.
NC: 2023:KHC:27913 RSA No. 999 of 2023
have committed an error and finding recorded by the Trial Court is perverse and also the conclusion of both the Courts that defendants are not established the genuineness of the partition and parties have not acted upon, is erroneous. The material evidence placed on record has not properly appreciated in a proper perspective based on both oral and documentary evidence and hence granting of 1/7th share is erroneous.
NC: 2023:KHC:27913 RSA No. 999 of 2023
9 SCC 1 , the oral partition is not acted upon and the same does not confer any right and not committed any error.
NC: 2023:KHC:27913 RSA No. 999 of 2023
record and when such being the case, the very contention of the appellants counsel that this Court has to frame the substantial question of law that both the Courts comes to the conclusion that defendants have not established the genuineness of the partition and acted upon and the same has not been considered, cannot be a substantial question of law as contended by the appellants counsel and both the Courts have not ignored the material available on record. When such being the case, I do not find any grounds to invoke Section 100 of CPC to admit the appeal and to frame the substantial questions of law.
ORDER
Appeal is dismissed.
Sd/JUDGE
AP
List No.: 1 Sl No.: 60
3 issues framed by the court
Whether the Trial Court committed an error in concluding that the suit properties are ancestral joint family properties.
Whether the defendants successfully proved an existing oral partition with act of partition.
Whether the Present Second Appeal satisfies the requirements of Section 100 of the Code of Civil Procedure to be admitted.
Colour shows how this judgement treated each authority
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As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
H.P. Sandesh
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