Regular second appeal by defendants against concurrent findings decreeing partition of suit properties to the plaintiffs. The High Court found the unregistered prior partition deed unsupported by revenue entries, non-joinder contentions baseless, no substantial question of law arising.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1131 OF 2019
BETWEEN:
BOTH ARE AGRICULTURISTS, R/O AGASANAHALLI VILLAGE, ANAVATTI HOBLI, SORABA TALUK, SHIVAMOGGA DISTRICT - 577 413.
…APPELLANTS
(BY SRI. MAHESH R UPPIN, ADVOCATE)
Digitally signed by SUMA B N Location: High Court of Karnataka
AND:
SRI. BASAVANNEPPA S/O SHIVAPPA CHOUTER, SINCE DEAD BY HIS LEGAL HEIRS..
ANAVATTI HOBLI, SORABA TALUK, SHIMOGGA DISTRICT - 577 413.
KALAMMA
W/O MAHADEVAPPA GADIYANNANAVAR, DEAD BY LEGAL HEIRS.
NAGAPPA, S/O NAGAPPA CHOUTER DEA BY LEGAL HEIRS
SMT. PUSHPA, W/O RUDRAPPA ALUR DEAD BY LEGAL HEIRS
R/O YAMMIGANURU VILLAGE, HIREKERUR TALUK, HAVERI DISTRICT - 581 120.
SRI DYAVAPPA, DEAD BY LEGAL HEIRS
SRI. VEERAPPA @ ERAPPA DEAD BY LEGAL HEIRS.
RESPONDENTS 21 - 24 ARE R/O AGASANAHALLI VILLAGE, ANAVATTI HOBLI, SORABA TALUK, SHIMOGGA DISTRICT - 577 413.
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.01.2019 PASSED IN RA.No.06/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SORABA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.01.2017 PASSED IN OS.No.148/06 ON THE FILE OF THE CIVIL JUDGE AND JMFC, SORABA.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for orders, it is taken up
for admission.
Plaintiffs, defendant Nos.1 to 4 are only persons, entitled to the share in the suit schedule properties. Defendant No.5 and other defendants are included as formal parties in the suit. Father of plaintiffs and defendant Nos.1 and 2 by name Shankarappa passed away on 08.06.1986. Gangamma, wife of Shankarappa, who is the mother of plaintiff No.1 and defendant Nos.1 and 2 passed away on 22.11.2004. One Mahadevamma, who was the daughter of Shankarappa is no more. Suit 'A' schedule property was granted to one Eeramma by the Land Grant Tribunal, Sorabha. Eeramma was the mother of Gangamma. After the death of Eeramma, katha was transferred in the name of Shankarappa and after the death of Shankarappa, katha was transferred in the name of said Gangamma. Upon the demise of Gangmma, plaintiffs and defendant Nos.1 and 2 are having equal share in the suit 'A' schedule property. 'B' schedule property was acquired by Shankarappa as per the family partition dated 14.08.1986. Based on which the name of Shankarappa was mutated in the revenue records as per MR No.61/91-92 dated 26.08.1991. As such,
plaintiffs are having share in 'B' schedule property. Suit 'C' Schedule property bearing Khaneshumari No.140 is also an ancestral property and plaintiffs are having share in the said property. That upon the request of the plaintiffs for partition of the property, defendants denied constraining them to file the suit.
the summons issued in the suit. Defendant Nos.1 and 2 have filed their written statement. Defendant No.1 disputed the genealogical tree as described in the plaint. It is contended that children of Mahadevamma viz., Savitha and Veerabhadrappa were not made as parties to the suit. However, it is admitted that suit 'B' schedule property is acquired by Shankarappa on 14.08.1985 in the family partition and the same is ancestral property. However, as regard to suit 'A' schedule property, grant made in favour of Eeramma is denied. Defendants also
denied suit 'C' schedule property to be the ancestral property. According to defendant No.1 property bearing
Sy.No.60 (item No.1) is the self acquired property of the father of Shankarappa which was acquired by him through a Will dated 18.11.1981 executed by Eeramma. Item No.2 of 'A' Schedule property was granted in the name of Shankarappa by the Land Tribunal. As such, the said properties are the ancestral properties. Item Nos. 3 to 5 are admitted to be ancestral properties. It is contended that plaintiff No.1 has already received the property situated at Agasanahalli Village from the father of the plaintiffs. As such, plaintiffs are not entitled for any share.
following issues and additional issues for its consideration:
2. If so, whether the plaintiffs are entitled for its separate possession?
3. Whether the plaintiffs further prove the genealogy mentioned in the plaint to be true and correct?
4. Whether the defendants prove the suit is bad for non-joinder of the parties as per the written statement?
5. Whether the plaintiffs are entitled to seek partial partition?
6. Whether the defendants prove the plaintiffs are not entitled to seek partition?
7. What order or decree?
Additional Issue No.1 framed on 08.07.2011
"Whether the suit of the plaintiff is hit by noninclusion of necessary properties?"
Additional issue No.2 framed on 16.01.2015
"Whether the plaintiff proves that defendant No.5-7B have no right over the suit schedule properties?"
plaintiff No.2 was examined as P.W.2 and exhibited 10 documents which are marked as Ex.P1 to Ex.P10. In order
to prove their defence, defendant No.1 is examined as
D.W.1, one Shivappa was examined as D.W.2, defendant
No.11 was examined as D.W.3, defendant No.2 was
NC: 2024:KHC:11004 RSA No. 1131 of 2019
examined as D.W.4 and exhibited 60 documents which are marked as Ex.D.1 to Ex.D.60.
2. Whether the trial Court was justified in holding that the suit was not bad for partial partition?
NC: 2024:KHC:11004 RSA No. 1131 of 2019
3. Whether the impugned judgment and decree is perverse, capricious and therefore, calls for interference of this Court? If so, to what extent?
4. What order ordirection?"
Further, he submits that appellants/defendant Nos.1 and 2 contended that the plaintiffs had not included all the properties. Thus, he submits that these two contentions have not been appreciated either by the Trial Court or by the First Appellate court. As such, he submits that suit for partition could not have been entertained giving raise to substantial question of law.
that except the first page, rest of the pages were not in original. Thus, the Trial Court and the First Appellate
NC: 2024:KHC:11004 RSA No. 1131 of 2019
Court declined to rely upon the said document to accept the contentions of the appellants with regard to the prior partition. The Trial Court has taken note of the fact that in the written statement, defendants have admitted that suit 'A' schedule property to be the self acquired property of Shankarappa the father of plaintiffs and defendants. As such, plaintiffs and defendants being the children are entitled for the share therein. As regard to other properties as admitted by the defendants being the ancestral property, the Trial Court has allotted 1/5th share.
Though, the Trial Court has granted 1/5th share to the plaintiffs, there has been no appeal by the plaintiffs in that
regard. As regard to the contention of plaintiffs not including all the family properties, the defendants have not furnished the details of the properties which according to them have been left out by the plaintiffs from the plaint. As such, the contentions raised by the defendants have been found one without basis and merit by both the Trial Court and the First Appellate Court.
NC: 2024:KHC:11004 RSA No. 1131 of 2019
of law would arise of consideration in this appeal.
confirming the judgment and decree passed by the Trial Court and the First Appellate Court.
Sd/JUDGE
KAV List No.: 2 Sl No.: 13
1 issue framed by the court
Whether a substantial question of law arose regarding the alleged prior partition deed (Ex.D.8) and non-inclusion of all family properties in the suit for partition?
1 provisions across 1 enactments
Bhojaraj
Phalakshappa
Vinodamma
Nirmala @ Jayamma
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
