Disposed

Smt Thippamma v. Sri Badasappa

Karnataka HC12 Sept 2024RSA/1595/2018

Case brief

AI extract

What is this about?

Plaintiffs' second appeal over rival claims of declaration and injunction regarding ancestral property of Sanna Badappa was disposed of without expressing opinion on merits, since respondents had already filed a pending partition suit (OS 179/2018); parties were left free to agitate all grounds there.

What did the court decide?

Liberty reserved to parties to contest title in pending OS No.179 of 2018; no opinion expressed on merits.

Smt Thippamma Vs Sri Badasappa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:37502 RSA NO.1595 OF 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.1595 OF 2018 (DEC/INJ)

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BETWEEN:

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SMT. THIPPAMMA W/O LATE SANNABALAPPA AGED ABOUT 63 YEARS.

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SMT. BADAMMA W/O SHRI HANUMAPPA AGED ABOUT 40 YEARS.

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SRI. BADAPPA S/O LATE SANNABALAPPA AGED ABOUT 38 YEARS.

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SRI. CHANDRAPPA S/O LATE MUTTAPPA AGED ABOUT 55 YEARS.

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Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka

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BALAPPA J. S/O LATE SANNATHIMMAPPA AGED ABOUT 65 YEARS

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G.B. BALAPPA S/O LATE BALAPPA, AGED ABOUT 75 YEARS.

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SMT. CHANDRAMMA W/O LATE BADAPPA AGED ABOUT 70 YEARS.

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ODU NAGAPPA SINCE DECEASED REP. BY LR'S.

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NC: 2024:KHC:37502 RSA NO.1595 OF 2018

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8(a). BALAPPA S/O LATE ODU NAGAPPA AGED ABOUT 60 YEARS.

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8(b). NAGAPPA S/O LATE ODU NAGAPPA AGED ABOUT 55 YEARS.

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8(c). RAJAMMA W/O LATE MELLAPPA AGED ABOUT 35 YEARS.

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8(d). MANU S/O LATE MELLAPPA AGED ABOUT 18 YEARS.

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8(e). KAVYA D/O LATE MELLAPPA AGED ABOUT 22 YEARS.

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8(f). GURU

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S/O LATE MELLAPPA AGED ABOUT 16 YEARS.

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REP. BY HIS NATURAL GUARDIAN/ MOTHER - RAJAMMA.

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8(g). JAYAMMA W/O SIDDAPPA

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D/O LATE ODU NAGAPPA AGED ABOUT 57 YEARS.

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8(h). BALAMMA D/O LATE ODU NAGAPPA AGED ABOUT 57 YEARS.

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8(i). PALAMMA D/O LATE ODU NAGAPPA AGED ABOUT 59 YEARS.

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8(j). O.N. KAMLAMMA D/O LATE ODU NAGAPPA AGED ABOUT 38 YEARS.

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3 - NC: 2024:KHC:37502 RSA NO.1595 OF 2018

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8(k). O.N. BADAPPA S/O LATE ODU NAGAPPA

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AGED ABOUT 40 YEARS.

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ALL APPELLANTS 8(a) TO 8(k) ARE R/AT THORANGATTE VILLAGE, JAGALUR TALUK,

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DAVANAGERE DISTRICT - 577 528.

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THIPPAYYA S/O LATE BADAPPA AGED ABOUT 60 YEARS.

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MALLAPPA

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SINCE DECEASED REP. BY LR'S.

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10(a). RATHNAMMA

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W/O LATE M.T. MELLAPPA AGED ABOUT 35 YEARS.

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10(b). NANDAN KUMAR

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S/O LATE M.T. MELLAPPA AGED ABOUT 13 YEARS. REP. BY HIS NATURAL GUARDIAN/ MOTHER RATHNAMMA.

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ALL APPELLANTS 10(a) AND 10(b) ARE R/AT THORANGATTE VILLAGE, JAGALUR TALUK, DAVANAGERE DISTRICT - 577 528.

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ALL APPELLANTS ARE R/AT THORANAGATTE VILLAGE, JAGALUR TALUK, DAVANAGERE DISTRICT - 577 528.

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…APPELLANTS

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(BY SRI. SHOWRI H.R., ADVOCATE FOR APPELLANT NOS.1, 2 AND 6; SRI. AMBRISH B.N., ADVOCATE FOR SRI. SANTOSH S. NAGARALE, ADVOCATE FOR APPELLANT NOS.3, 4, 5, 7, 8(a) TO 8(k) 9 AND 10(a) AND (b).

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4 - NC: 2024:KHC:37502 RSA NO.1595 OF 2018

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AND:

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SRI. BADASAPPA S/O LATE THIMMAPPA AGED ABOUT 70 YEARS, R/AT THORANAGATTE VILLAGE, JAGALUR TALUK, DAVANAGERE DISTRICT - 577 528.

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SRI. BALAPPA S/O LATE SHIVAPPA AGED ABOUT 65 YEARS, R/AT THORANAGATTE VILLAGE, JAGALUR TALUK, DAVANAGERE DISTRICT - 577 528.

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…RESPONDENTS

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 13^TH APRIL, 2018 PASSED IN REGULAR APPEAL NO.22 OF 2017 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30^TH NOVEMBER, 2016 PASED IN ORIGINAL SUIT NO.133 OF 2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, DAVANAGERE.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the plaintiffs, challenging the judgment and decree dated 13^th April, 2018

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5 - NC: 2024:KHC:37502 RSA NO.1595 OF 2018

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passed in Regular Appeal No.22 of 2017 on the file of the Principal District and Sessions Judge, Davanagere (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 30^th November, 2016 passed in Original Suit No.133 of 2013 on the file of the II Additional Senior Civil Judge, Davanagere (for short, hereinafter referred to as 'Trial Court'), wherein the suit filed by plaintiffs came to be dismissed.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court.

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It is the case of the plaintiffs that, Original Suit No.133 of 2013 was filed against the defendants seeking relief of declaration with permanent injunction. Defendants have also filed Original Suit No.217 of 2014 against the plaintiffs seeking identical relief. Perusal of the plaint would makes it clear that, plaintiffs and defendants in both the suits claiming right over the suit schedule property through their original propositus-Sanna Badappa. The case of the plaintiffs is with regard to dispute of relationship with the parties. Both the

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6 - NC: 2024:KHC:37502 RSA NO.1595 OF 2018

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suits were clubbed together and dismissed by the Trial Court, by judgment and decree dated 30^th November, 2016. The Trial Court, at paragraph 30 of the judgment, reserved liberty to the parties to file suit seeking relief of partition. The judgment and decree passed by the Trial Court in Original Suit No.217 of 2014 and Original Suit No.133 of 2013 was assailed before the First Appellate Court in Regular Appeal Nos.15 of 2017 and 22 of 2017. The First Appellate Court, after re-appreciating the material on record, by judgment and decree dated 13^th April, 2018, dismissed both the appeals. Being aggrieved by the same, the plaintiffs in Original Suit No.133 of 2013 have preferred this Regular Second Appeal.

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I have heard Sri. Showri H.R., learned counsel appearing for appellants 1, 2 and 6; Sri. Ambrish B.N. and Sri. Santosh S. Nagarale, learned appearing for appellants 3, 4, 5, 7, 8(a) to 8(k), 9 and 10(a) & 10(b).

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Sri. Santhosh S. Nagarale, learned counsel appearing for appellants 3, 4, 5, 7, 8(a) to 8(k) and 10(a) & 10(b) contended that both Courts below have committed an error in arriving at a conclusion that the respondents herein have failed

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7 - NC: 2024:KHC:37502 RSA NO.1595 OF 2018

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to prove the relationship with the original propositus-Sanna Badappa. On the other hand, the genealogical tree produced at Exhibit P13 was rejected by the Trial Court and therefore, he submitted that the finding recorded by both the courts below requires to be interfered with in this appeal.

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Having heard Sri. Santhosh S. Nagarale, learned counsel appearing for respective appellants and perusal of the appeal papers, the same would indicate that, two suits in Original Suit No.217 of 2014 and 133 of 2013 are filed by the parties seeking relief of declaration and permanent injunction in respect of the suit schedule property. The claim made by the parties is with regard to share of Sanna Badappa, and it is stated in the respective plaints that the Sanna Badappa had two wives namely Kari Nagamma and Mariyamma. Appellants herein claims to be the legal heirs of Kari Nagamma and Sanna Badappa and the respondents claims to be the legal heirs of Mariyamma and Sanna Badappa. The Trial Court after considering the material on record, at paragraph 30 has held that, both the parties have failed to prove their title and their exclusive possession over the property in question. The First Appellate Court, after taking into consideration the fact that the

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8 - NC: 2024:KHC:37502 RSA NO.1595 OF 2018

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parties are seeking relief through a common ancestor-Sanna Badappa, had directed the parties to avail the relief of partition and separate possession in respect of the suit schedule property and accordingly, liberty was also reserved to the parties to establish their case in a separate proceedings.

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It is also forthcoming from the arguments advanced by learned counsel appearing for appellants that the respondents herein have filed Original Suit No.179 of 2018 and same is pending consideration before the competent Civil Court. The copy of the plaint in Original Suit No.179 of 2018 is produced by the respondents in objections filed to application IA No.1 of 2018. On careful examination of the averments made in the plaint and the prayer made in the said suit, same would indicate that, the said suit is one filed seeking half share in the suit schedule property and partition and separate possession accordingly. In that view of the matter, taking into consideration the fact the Original Suit No.179 of 2018 is pending consideration before the Competent Civil Court and any finding that may be made in this appeal is having bearing on the disposal of Original Suit No. 179 of 2018, without

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NC: 2024:KHC:37502 RSA NO.1595 OF 2018

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expressing any opinion on merits of the case, this Regular Second Appeal is disposed of.

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Accordingly, liberty is reserved to the parties to agitate their title before the competent Civil Court in a pending suit in Original Suit No.179 of 2018. In view of the fact that the Trial Court has not given finding on the rights of the parties in the aforementioned two suits, it is open for the parties to urge all the grounds in the existing suit.

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SD/(E.S. INDIRESH) JUDGE

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ARK

Smt Thippamma v. Sri Badasappa

Case brief

What is this about?

What did the court decide?

Smt Thippamma v. Sri Badasappa

Case brief

What is this about?

What did the court decide?

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