Second appeal by legal representatives of defendant Kullaiah in a partition suit where the plaintiff and defendants 5 and 6 were each allotted one-fourth shares. The court clarified the remaining fourth share stands with Kullaiah's heirs and dismissed the appeal for want of substantial question of law.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1755 OF 2022 (PAR)
BETWEEN:
APPELLANTS NO.1 TO 3 ARE R/AT CHANTNAHALLI VILLAGE VARUNA HOBLI MYSURU TALUK AND DISTRICT
Digitally signed by SUMA B N Location: High Court of Karnataka
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APPELLANTS NO.6 AND 7 ARE R/AT CHANTNAHALLI VILLAGE VARUNA HOBLI MYSURU TALUK AND DISTRICT
…APPELLANTS
(BY SMT. ROOPAVATHY M.H., ADVOCATE FOR SRI. VINAYACHANDRA, ADVOCATE)
AND:
LINGAIAH @ THAMMANA SINCE DEAD BY HIS LRS
RESPONDENTS NO.1 TO 7 ARE R/AT CHATNAHALLI VILLAGE VARUNA HOBLI MYSURU TALUK MYSURU DISTRICT
MYSURU DISTRICT
S/O LATE NINGAIAH ALIAS SATHE MADAIAH AGED ABOUT 57 YEARS
S/O LATE NINGAIAH ALIAS SATHE MADAIAH AGED ABOUT 55 YEARS
S/O LATE RACHAIAH ALIAS BOGGAIAH AGED ABOUT 57 YEARS
RESPONDENTS NO.9 TO 12 ARE R/AT CHATNAHALLI VILLAGE VARUNA HOBLI MYSURU TALUK MYSURU DISTRICT
NC: 2024:KHC:13674 RSA No. 1755 of 2022
W/O LATE RACHAIAH ALIAS BOGGAIAH AGED ABOUT 67 YEARS R/AT TAYOR VILLAGE BILIGERE HOBLI NANJANGUD TALUK MYSURU DISTRICT
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.01.2020 PASSED IN RA.NO.214/2017 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU. DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 13.08.2015 PASSED IN O.S.NO.862/2014 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the legal representatives of the original defendant No.1 - Kullaiah being aggrieved by the judgment and decree dated 16.11.2010 passed in O.S.No.1834/2007 on the file of I Additional Senior Civil Judge and CJM, Mysuru, which is confirmed by the judgment and decree dated 31.01.2020 in R.A.No.214/2017 on the file of IV Additional District and Sessions Judge, Mysuru.
NC: 2024:KHC:13674 RSA No. 1755 of 2022
SCHEDULE
Wet lands bearing Sy.No.41, measuring 2 acres 14 guntas, Sy.No.42, measuring 2 acres 38 guntas, Sy.No.31/1 measuring 2 acres 18 guntas of land and Sy.No.31/2 measuring 1 acre 27.08 guntas of land in total 9 acres 15.08 guntas of land, situated at Chatnahalli village, varuna Hobli, Mysuru Taluk, bounded on:
East by: Land of Ghante Jogaiah, Chunchaiah,
West by: Land of Shivanna, Nagaraja and Puttalingamma,
North by: Voni (Hadda Halla),
South by: Landed property of Siddaiah, Neeli Siddaiah and Channajaiah, S/o. Kotti Siddaiah.
as Boggaiah died leaving behind defendant Nos.2 to 6. Defendant No.2 is the wife of late Lingaiah also known as Sathemadaiah and defendant Nos.3 and 4 are the sons of defendant No.2. Defendant No.5 is the son of late Rachaiah.
Defendant No.1 is the first wife son of Late Rachaiah and defendant No.6 is the 2nd wife of Late. Rachaiah. Plaintiff, defendant Nos.1 to 5 are the residents of Chatnahalli Village, Varuna Hobli, Mysuru Taluk. Defendant No.6 is residing at Thayur Village, Biligere Hobli, Nanjangud Taluk.
Nos.1 to 6. Defendant No.1 in the written statement denied the schedule properties are the joint family properties of the plaintiffs and defendants. Defendant No.1 contended that there was already a partition between the plaintiff and defendants in respect of suit schedule properties about 50 years ago.
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Defendant Nos.5 and 6 in the written statement supported the case of the plaintiff and also made a counter claim seeking for separate possession of their 1/4th share. Based on which, the trial Court framed the following issues:
appreciation of evidence answered issue Nos.1 and 3 in the ‘Affirmative’ and issue No.2 in the ‘Negative’, consequently, decreed the suit holding that the plaintiff, defendant Nos.5 and 6 are entitled for 1/4th share in the suit schedule properties.
the suit, defendant No.1 passed away, as such, his wife and children filed the appeal in RA.No.214/2017. There was a delay
of 2496 days in filing the First Appeal. The First Appellate Court, taking note of the fact that subsequent to passing of preliminary decree, Final Decree Proceedings were initiated by the plaintiffs in FDP.No.25/2011 and the orders there on were passed on 07.09.2012 and thereafter plaintiff had initiated execution proceedings in E.P.No.763/2013, in which the delivery of possession of warrant was issued by the trial Court for handing over the possession pursuant to the final decree proceedings and also considering no reason having been assigned by the plaintiff for the inordinate delay of 2496 days, which is more than six years from the date of passing the final decree, declined to condone the delay and consequently dismissed the appeal. Being aggrieved by the same, the present appeal is filed.
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10. Submission is taken on record.
the original defendant Kullaiah was contesting the suit, setting up plea of prior partition, which has not been proved. The trial Court has passed the preliminary decree holding that the plaintiff is entitled for the 1/4th share and defendant Nos.5 and 6 are entitled for 1/4th share each in the suit schedule property. Thereafter, in the Final Decree Proceedings, by order dated 07.09.2012 pursuant to the report of the Court Commissioner,
suit schedule properties have been divided into four shares, in which, 1/4th share is directed to be allotted to the plaintiff and 1/4th share each is directed to be allotted to defendant Nos.5 and 6. Needless to state that the 1/4th share remaining would go to the share of Kullaiah now represented by his legal representatives. It is not that the schedule property has been divided into only three shares depriving any share to Kullaiah. Since plaintiff and defendant Nos.5 and 6 had sought for decreeing of the suit allotting their share, in the preliminary decree shares have been expressly allotted to them. That does not mean that defendant No.1 – Kullaiah has not been allotted
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any shares. Needless to state, that the appellants being the legal representatives of deceased defendant No.1 had to work out the remedy to initiate the appropriate proceedings seeking allotment of their 1/4th shares, and on payment of requisite fee there on.
With the above clarification, the appeal is dismissed as no substantial question of law would arise for consideration.
Sd/JUDGE
AG List No.: 1 Sl No.: 7
1 issue framed by the court
Whether the appellants' grievance that the trial court did not specify their share in the family properties raises a substantial question of law warranting a second appeal.
1 provisions across 1 enactments
Smt Puttamadamma
Sri Nagaraju
Sri Kempalingaiah
Smt Marilingamma
Smt Sannathayamma
Lingaiah @ Thammana since dead by his LRS and others
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
