Plaintiff sought partition of 3 acres 31 guntas in Sy.No.14/2, which he and defendant No.1 were declared joint owners of via a compromise decree in RSA.No.675/1991. Trial and first appellate courts upheld his equal share; no substantial question of law arose.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1247 OF 2015 (PAR)
BETWEEN:
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
DAVANAGERE DIST - 577213.
APPELLANTS
(BY SRI. SANTHOSH KUMAR M B .,ADVOCATE)
AND:
RESPONDENT
(BY SRI. K RAGHAVENDRA RAO.,ADVOCATE)
THIS RSA FILED UNDER SEC. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.03.2015 PASSED IN R.A. NO.6/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C. CHANNAGIRI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.09.2010PASSED IN O.S. NO. 198/2008 ON THE FILE OF THE PRL. CIVIL JUDGE AND J.M.F.C. CHANNAGIRI AND ETC,.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular second appeal is filed by the appellants challenging the judgment and decree dated 05.03.2015, passed in RA.No.6/2011 by the Senior Civil Judge and JMFC, Channagiri and the judgment and decree dated 16.09.2010 passed in OS.No.198/2008 by the Prl. Civil Judge and JMFC, Channagiri.
NC: 2024:KHC:33643 RSA No. 1247 of 2015
Plaintiff filed a suit for relief of partition and separate possession. It is the case of the plaintiff that, defendant No.1 is the distant relative and also seems to be grandmother of the plaintiff. It is contended that, as per the compromise between the parties on the appeal preferred by one Shivappa against the plaintiff and defendant No.1 in RSA.No.675/1991, the plaintiff and the defendant are in the joint possession of the suit property. It is contended that there is no partition effected between the plaintiff and defendant No.1. Hence, the plaintiff requested for partition and separate possession, for which the defendant did not give any heed to the request of the plaintiff. Hence, cause of action arose for the plaintiff to file suit for partition and separate possession.
she is an agriculturist and household women. The plaintiff and
the defendant had a relationship of grand mother and grand son and she admits that they are of the same community. The defendant also admits the proceedings of RSA.No.675/1991 and ended with the compromise in respect of the land measuring 5 acre 31 guntas in Sy.No.14/2 of Honnanayakanahalli. She denied that the southern 3 acre 31 guntas was allotted to the joint share of the plaintiff and defendant. She contends that the plaintiff is not in possession of the suit schedule property. On these grounds, sought for dismissal of the suit. During the pendency of the suit the defendant reported to be dead and her LRs brought on record as per defendant Nos.1(a) to 1(h).
pleadings, framed the following issues:
PW.1 and marked documents as Ex.P.1 to 4 on the other hand
defendants did not adduced any oral evidence, but got marked 3 documents as Ex.D.1 to Ex.D.3.
preliminary decree passed in OS.No.198/2008 preferred an appeal in RA.No.6/2011 on the file of Senior Civil Judge and JMFC, Channagiri.
points for consideration:
NC: 2024:KHC:33643 RSA No. 1247 of 2015
11. Heard learned counsel for the defendants.
property under a compromise decree in OS.No.675/1991 and they are the joint owners of the suit schedule property and there is no partition effected between the plaintiff and the defendant. The plaintiff is entitled for ½ share in the suit schedule property. In order to prove that the plaintiff and the defendant are the joint owners of the suit schedule property, the plaintiff has produced the certified copy of the judgment passed in RSA.No.675/1991 which is marked as Ex.P.1 which reads as under “In the compromise, appellant has restricted his right only to an extent of 2 acres situated on the northern side of Sy.No.14/2 and that the appellant along with Hanumantha S/o Bheemappa have been declared to be the owner of 2 acres and that respondent Nos.2 and 3 shall be declared to be the owners of the remaining extent of land viz., 3.31 acres situated on the southern side of the said portion.”
NC: 2024:KHC:33643 RSA No. 1247 of 2015
plaintiff and defendant did not partition in the suit schedule property and they are the co-owner of the suit property.
copy of the RTC extract which discloses the name of plaintiff and defendant in respect of the suit schedule property. Ex.P.3 and Ex.P.4 are the certified copies of the mutation register extract which discloses that on the basis of the judgment passed in Regular Second Appeal, name of the defendant was entered in the revenue records. The defendant has not laid any oral evidence and marked 3 documents as Exs.D1 to D3. Defendant has produced certified copy of the compromise petition field under Order 23 Rule 3 of CPC filed in RSA.No.675/1991. Ex.D.2 is the certified copy of the judgment passed in RSA.No.675/1991 and Ex.D.3 is the certified copy of the decree passed in RSA.No.675/1991. From the perusal of judgment of RSA.No.675/1991, it was declared that the plaintiff and the defendant are the joint owners of the suit schedule property. There is no partition effected between the plaintiff and the defendant. The Trial Court considering the judgment passed in RSA.No.675/1991, held that the suit schedule property was the joint family property between the plaintiff and
the defendant No.1 and held that the plaintiff and defendant No.1 are entitled to equal share in the suit schedule property. Neither defendant No.1 nor her Lrs have entered into the witness box to deny the case of the plaintiff. The Trial court was justified in recording a finding that, the suit schedule property is the joint family property of the plaintiff, and the defendant and plaintiff are entitled to equal share in the suit schedule property and decreed the suit with cost. The Lrs of the defendant aggrieved by the judgment and decree passed in OS.No.198/2008 preferred an appeal in RA.No.6/20011. The First Appellate Court on re-assessment of oral and documentary evidence has held that, the judgment and decree passed by the Trial Court is in accordance with law and it is not perverse, and there is no necessity for any interference by the First Appellate Court with the judgment and decree of the Trial Court.
judgments. I do not find any substantial question of law that
arise for consideration or any error in the impugned judgments.
ORDER
i) The appeal is dismissed; ii) The judgments and decrees passed by the Courts below are confirmed; iii) No order as to the cost; iv) As the main matter is dismissed the IA.No.1/2015 does not survive for consideration. Hence, IA.No.1/2015 is dismissed.
Sd/(ASHOK S.KINAGI) JUDGE
PNV
List No.: 1 Sl No.: 25
1 issue framed by the court
Whether the plaintiff is entitled to a 1/2 share by partition in the suit property declared jointly owned under the compromise decree in RSA.No.675/1991.
2 provisions across 1 enactments
Kenchappa
Smt. Rangamma
Smt. Siddamma
Nagendrappa
Kallappa
Hanumanthappa
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
