Dismissed

Smt Vedavathi v. Smt Bhagirathi

Karnataka HC1 Aug 2024RSA/418/2020

Case brief

AI extract

What is this about?

This regular second appeal concerned the allocation of shares in suit schedule property where the trial court awarded a share only in one item. The High Court found the parties were a joint family with joint properties. It dismissed the appeal for lack of a substantial question of law under Section 100 of CPC at the admission stage, upholding the trial court's error and the first appellate court's

What did the court decide?

The Regular Second Appeal was dismissed at the admission stage due to the absence of a substantial question of law under Section 100 of CPC.

Smt Vedavathi Vs Smt Bhagirathi — Partition | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:30360 RSA No. 418 of 2020

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF AUGUST, 2024

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.418 OF 2020 (PAR)

¶6

BETWEEN:

¶7

SMT. VEDAVATHI D/O LATE SHESHAPPA NAIK V.G., W/O SRI. PURUSHPTHAM K K, AGED ABOUT 42 YEARS, RESIDING AT M.CHEMBU VILLAGE, MADIKERI TALUK, KODAGU DISTRICT-571201.

¶8

…APPELLANT

¶9

(BY SRI. JAGADISH BALIGA N., ADVOCATE)

¶10

AND:

¶11

Digitally signed by ARUNKUMAR M S Location: High Court of Karnataka

¶12

SMT. BHAGIRATHI D/O SHESHAPPA NAIK V.G., W/O SRI.V PUTHANNA, AGED ABOUT 39 YEARS, RESIDING AT M.CHEMBU VILLAGE, MADIKERI TALUK, KODAGU DISTRICT - 571201.

¶13

SMT. THIMMAKKA W/O LATE SHESHAPPA NAIK V.G., AGED ABOUT 61 YEARS, RESIDING AT CHEMBU VILLAGE, MADIKERI TALUK, KODAGU DISTRICT - 571201.

¶14

…RESPONDENTS

¶15

(BY SRI. G.B. NANDISH GOWDA, ADVOCATE FOR SRI. R.B. SADASHIVAPPA ADVOCATE FOR R1; R2 SERVED AND UNREPRESENTED)

¶16

2 - NC: 2024:KHC:30360 RSA No. 418 of 2020

¶17

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100(1) OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 17.12.2019 PASSED IN R.A.NO.46 OF 2014 ON THE FILE OF THE SENIOR CIVIL JUDGE & CJM, KODAGU, MADIKERI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 31.01.2013 PASSED IN O.S.NO.106 OF 2011 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, MADIKERI.

¶18

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶19

CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

¶20

ORAL JUDGMENT

¶21

This appeal is filed by the defendant No.1 challenging the judgment and decree dated 17.12.2019 passed in RA No.46/2014 on the file of the

¶22

Senior Civil Judge at Madikeri, setting aside the judgment and decree dated 31.01.2013 passed in OS No.106 of 2011 on the file of the Additional Civil Judge, Madikeri, in respect of Item No.1 of the suit schedule property and decreeing the suit of the plaintiff in part.

¶23

3 - NC: 2024:KHC:30360 RSA No. 418 of 2020

¶24

For the sake of convenience, the parties in

¶25

this appeal shall be referred to in terms of their status

¶26

and ranking before the trial Court.

¶27

The plaint averments are that, the plaintiff is the daughter of defendant No.2 and defendant No.1 is the sister of the plaintiff. It is the case of the plaintiff that the father of the plaintiff was owner in possession of two items of suit schedule property and father of the plaintiff died on 13.12.2010 leaving behind the plaintiff and defendants as the legal representatives to succeed to the estate left by the father. It is further stated in the plaint that, the plaintiff has made request to the defendants seeking equal share in respect of the suit schedule property and same was not accepted by the defendants and as such, plaintiff has field OS No.106 of 2011 seeking relief of partition and separate possession in respect of the suit schedule property.

¶28

4 - NC: 2024:KHC:30360 RSA No. 418 of 2020

¶29

After service of summons, defendants

¶30

entered appearance and filed written statement contending that the father of the plaintiff and defendant No.1, died on 13.12.2011, however, has taken specific contention that Item No.1 of the suit schedule property is land bearing Sy No.155/65, measuring 1.5 acres, of Chembu Village, Madikeri Taluk and the said land belongs to the plaintiff and defendant No.1 and as such, during life time of her father, the defendant No.1 has got property as per registered Partition Deed and accordingly, sought for dismissal of the suit in respect of the item No.1 of the suit schedule property and however, pleaded that, Item No.2 of the suit schedule property is liable for partition and plaintiff and defendant No.1 are entitled for half share each in Item No.2 of the suit schedule

¶31

property. Accordingly, sought for dismissal of the suit.

¶32

¶33

NC: 2024:KHC:30360 RSA No. 418 of 2020

¶34

On the basis of the rival pleadings, the trial Court has formulated the issues for its consideration.

¶35

In order to establish their case, plaintiff examined himself as PW1 and produced 07 documents as Exs.P1 to P7. On the other hand, defendants examined two witnesses as DW1 and DW2 and produced 03 documents as Exs.D1 to D3.

¶36

The trial Court, after considering the material on record, by its judgment and decree dated 31.01.2013 decreed the suit of the plaintiff in part holding that, the plaintiff is entitled for 1/3^rd share in Item No.2 of the suit schedule property, however, rejected the claim made by the plaintiff regarding Item No.1 of the suit schedule property and being aggrieved by the same, plaintiff has preferred Regular Appeal in RA No.46 of 2014 on the file of First Appellate Court. The said appeal was resisted by the respondent therein. The First Appellate Court, after re-

¶37

6 - NC: 2024:KHC:30360 RSA No. 418 of 2020

¶38

appreciating the facts on record, by its judgment and decree dated 17.12.2019 allowed the appeal and as such set aside the judgment and decree passed by the trial Court in OS No.106 of 2011 with regard to item No.1 of the suit schedule property and held that, the plaintiff/defendants are entitled for 1/3^rd share each in the suit schedule property. Being aggrieved by the judgment and decree passed by the Court below the defendant No.1 has preferred this Regular Second Appeal under Section 100 of CPC.

¶39

I have heard Sri. Jagadish Baliga .N., learned counsel for the appellant and Sri. G.B. Nandish Gowda, learned counsel appearing on behalf of Sri. R.B. Sadashivappa, for the respondent.

¶40

Sri. Jagaidsh Baliga .N., learned counsel for the appellant submitted that, the finding recorded by the First Appellate Court, with regard to allotment of share in respect of the Item No.1 of the suit schedule

¶41

7 - NC: 2024:KHC:30360 RSA No. 418 of 2020

¶42

property is per-se illegal as the Item No.1 of the suit schedule property was granted to the grandfather of the appellant and the respondent No.1 and further, the appellant alone is entitled for share in item No.1 of the suit schedule property as there was Partition Deed effected in respect of the same, and therefore, he contended that, the finding recorded by the First Appellate Court with regard to Item No.1 of the suit schedule property requires to be interfered with in this appeal.

¶43

Sri. G.B.Nandish Gowda, learned counsel

¶44

appearing for the respondent sought to justify the allotment of share made in favour of plaintiff and defendants and further argued that, as the plaintiff and defendant No.1 are the children of Sheshappa Naik and therefore, he contended that, all the parties to the suit are entitled for 1/3^rd share in the suit

¶45

¶46

NC: 2024:KHC:30360 RSA No. 418 of 2020

¶47

schedule property. Accordingly, sought for dismissal of the appeal.

¶48

Having heard the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the courts below. Perusal of the Genealogical Tree would indicate that there is no dispute with regard to the relationship between the parties. Genealogical Tree reproduced as under:

Guddappa Naik

Sheshappa Naik

Thimmakka (wife)(D2)

Bhagirathi Vedavathi

(Plaintiff) (1^st Defendant)

¶54

Perusal of the Genealogical Tree would indicate that, plaintiff and defendant No.1 are the children of deceased Sheshappa Naik and defendant No.2. It is also not in dispute that both the items of

¶55

9 - NC: 2024:KHC:30360 RSA No. 418 of 2020

¶56

the suit schedule properties are coparcenary property of plaintiff, defendant No.1 and defendant No.2. In that view of the matter, the finding recorded by the Trial Court that the plaintiff is entitled for 1/3^rd share in Item No.2 of the suit schedule property only and not in Item No.1 of the suit schedule property is incorrect as the parties to the suit constitute joint family and as the properties are joint family properties, plaintiff and defendants are entitled for 1/3^rd share each in the suit schedule properties and therefore, the finding recorded by the First Appellate Court is just and proper by interfering with the erroneous judgment and decree passed by the Trial Court in respect of the Item No.1 of the suit schedule property. Therefore, I do not find material illegality or perversity in the judgment and decree passed by the First Appellate Court and accordingly, the Regular Second Appeal is liable to be dismissed . Since, the

¶57

10 -

¶58

NC: 2024:KHC:30360 RSA No. 418 of 2020

¶59

defendant/appellant has not made out a ground for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, appeal is liable to be dismissed at the Admission stage itself

¶60

and accordingly, appeal is dismissed .

¶61

Sd/(E.S.INDIRESH) JUDGE

¶62

¶63

List No.: 1 Sl No.: 43

Smt Vedavathi v. Smt Bhagirathi

Case brief

What is this about?

What did the court decide?

Smt Vedavathi v. Smt Bhagirathi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri. Ankaiah Vs the Tahasildar

Sri Ugra Narasimhaiah Vs Sri Siddappa

Sri. Krishnappa Vs Smt. Narayanamma

Satheesh Vs Latha

K S Udayakumar Vs the Karnataka State

Smt. Gangamma Vs Sri Narayanamma