Dismissed

Smt Chikkatayamma v. Smt Chikkamma

Karnataka HC5 Sept 2024RSA/525/2018

Case brief

AI extract

What is this about?

Appeal against second appeal dismissing a partition suit filed by plaintiffs challenging a sale of family property by one member to a third party. The court found the suit barred by limitation and suspecting collusion, dismissing the second appeal.

What did the court decide?

The regular second appeal filed under Section 100 of the Code of Civil Procedure was dismissed.

Smt Chikkatayamma Vs Smt Chikkamma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:37932 RSA No. 525 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^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.525 OF 2018 (PAR)

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BETWEEN:

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SMT. CHIKKATAYAMMA W/O MUDI GOWDA, AGED ABOUT 73 YEARS, BONTAKALLI HUNDI, KASABA HOBLI, SRIRANGAPATNA TALUK, MANDYA DISTRICT - 571 415.

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SMT. CHIKKAMMA W/O MAHADEVA, AGED ABOUT 54 YEARS, NO.31, J.C.NAGAR, MAHALAKSHMIPURAM, BENGALURU - 560086.

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…APPELLANTS

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(BY SRI. VENKATESH ARABATTI, ADVOCATE

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Digitally signed by SHARMA ANAND CHAYA

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Location: High Court of Karnataka

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SRI. K.S.HARISH, ADVOCATE)

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AND:

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SMT. CHIKKAMMA W/O LATE CHIKKE GOWDA, AGED ABOUT 62 YEARS,

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SMT. RAJAMMA W/O MALLANNA, AGED ABOUT 37 YEARS,

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SMT. MANGALA GOWRI W/O DODDAMADE GOWDA, AGED ABOUT 37 YEARS,

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2 - NC: 2024:KHC:37932 RSA No. 525 of 2018

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SRI. NAGARAJU S/O LATE KARICHIKKE GOWDA, AGED ABOUT 57 YEARS,

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SMT. RATHNAMMA W/O SRI NAGARAJU, AGED ABOUT 50 YEARS,

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SRI. MANJUNATH S/O SRI NAGARAJU, AGED ABOUT 31 YEARS,

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SMT. GOWRAMMA D/OF LATE DYAVARE GOWDA, AGED ABOUT 53 YEARS,

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SRI. CHIKKANNA S/O LATE MUNI GOWDA, AGED ABOUT 47 YEARS,

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RESPONDENTS NO.1 TO 8 ARE R/OF BONTHAGAHALLI, KASABA HOBLI, SRIRANGAPATNA TALUK, MANDYA DISTRICT -571 415.

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SRI. M.L. NAVEEN KUMAR S/O SRI M P LAKSHMINARAYANA SHETTY, NO.420/1, 11^TH MAIN ROAD, SARASWATHIPURAM EXTENSION, CHAMARAJA MOHALLA, MYSURU CITY - 570 009.

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SRI. M. LOKESH S/O SRI. MAHADEVAIAH, AGED ABOUT 53 YEARS, HOUSE 1497, 15^TH CROSS, KYATHAMANA HALLI, NAZABAD MOHALLA, MYSURU CITY - 570 010.

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…RESPONDENTS

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(RESPONDENTS NO.1 TO 8 ARE SERVED; V/O DATED 29.05.2024 NOTICE TO R9 AND R10 IS HELD SUFFICIENT)

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3 - NC: 2024:KHC:37932 RSA No. 525 of 2018

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 27.10.2017 PASSED IN R.A.NO.47/2015, ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.12.2014 PASSED IN O.S.NO.715/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & CJM, MYSURU.

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

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

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ORAL JUDGMENT

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This second appeal is preferred by the plaintiffs challenging the Judgment and Decree dated 27.10.2017 in R.A.NO.47/2015 on the file of IV Addl. District Judge at Mysuru, confirming the Judgment and Decree dated 03.12.2014 in O.S.No.715/2010 on the file of the II Addl. Senior Civil Judge & CJM, Mysuru, dismissing the suit of the plaintiffs.

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For the sake of convenience, parties are referred as per their status before the Trial Court.

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NC: 2024:KHC:37932 RSA No. 525 of 2018

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It is the case of the plaintiffs that plaintiffs, father-in-law of defendant No.1, and defendant No.4 are children of late Karichikkegowda who died on 08.10.2002. It is also stated in the plaint that the said Karichikkegowda died intestate and the mother of the plaintiffs pre-deceased their father and therefore, it is the case of the plaintiffs that plaintiffs requested defendant No.4 to have partition in the joint family property of their father - Karichikkegowda. However, the plaintiffs came to know that a sale deed dated 20.01.2005 has been made by defendant No.4 in favour of defendant No.9 and as such, the plaintiffs presented O.S.No.715/2010 seeking relief of partition and separate possession of 1/4^th share in respect of the suit schedule properties.

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On service of notice, defendant Nos.1 to 8 entered appearance, however they have not contested the matter. Defendant No.9 has contested the matter by filing written statement. It is the specific contention of defendant No.9 that the suit itself is not maintainable as the suit schedule property is the self acquired property of father of the plaintiffs late Karichikkegowda, who had purchased the same as per registered Sale Deed dated 29.11.1950. It is further contended

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by defendant No.9 that Karichikkegowda died intestate on 08.10.2002 leaving behind his only son defendant No.4 who had sold the property in favour of defendant No.9 as per registered Sale Deed dated 20.01.2005 and accordingly, sought for dismissal of the suit.

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The Trial Court, based on the pleadings on record has formulated issued for its consideration. In order to establish their case, plaintiff No.1 was examined as P.W.1 and produced six documents, which were marked as Exs.P1 to P6. Defendant No.9 was examined as D.W.1 and produced 26 documents which were marked as Exs.D1 to D26. The Trial Court, after considering the materials on record, by Judgment and Decree dated 03.12.2014, dismissed the suit. Feeling aggrieved by the same, plaintiffs preferred R.A.No.47/2015 before the First Appellate Court and same was resisted by defendant No.9.

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The First Appellate Court after considering the material on record by its Judgment and Decree dated 27.10.2017 dismissed the appeal and consequently confirmed the Judgment and Decree passed by the Trial Court in O.S. No.715/2010 and being aggrieved by the same, the plaintiffs have preferred this Regular Second Appeal.

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NC: 2024:KHC:37932 RSA No. 525 of 2018

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Heard Sri. Venkatesh Arbatti, learned counsel appearing for the appellants/plaintiffs.

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Sri. Venkatesh Arbatti, learned counsel appearing for the appellants contended that, item No.1 of suit schedule property is the self acquired property of the father of the plaintiffs and therefore after the demise of the father of the plaintiffs, the plaintiffs have share in the suit schedule properties and accordingly he sought for interference of this Court. He also contended that both the Courts below have not properly appreciated the fact that the suit schedule properties are the joint family properties and therefore, without the consent of the plaintiffs, defendant No.4 sold the property in favour of defendant No.9 and as such, sought to make interference with the Judgment and Decree of the Trial Court. He also submitted that the Trial Court has not properly framed the issues with regard to the partial partition said to have taken place as urged in the pleadings and therefore, he sought for interference by this Court.

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NC: 2024:KHC:37932 RSA No. 525 of 2018

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In the light of the submissions made by learned counsel appearing for appellants, I have carefully examined the Judgment and Decree passed by both the Courts.

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In order to understand the relationship between the parties genealogical tree of the parties is set out as under:

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“²æÃ. PÀjaPÉÌÃUËqÀ ©£ï ¯ÉÃmï aPÉÌÃUËqÀ gÀªÀgÀ PÀÄlÄA§zÀ ªÀA±ÀªÀÈPÀë PÀjaPÉÌÃUËqÀ -¥Ëw ²æÃªÀÄw. gÁªÀÄªÀÄä - ¥Ëw (PÉÆÃA.¯ÉÃmï. PÀjaPÉÌÃUËqÀ) ªÀÄPÀÌ¼ÀÄ 1) aPÉÌÃUËqÀ(.¯ÉÃmï) 2) aPÀÌvÁAiÀÄªÀÄä 3)£ÁUÀgÁdÄ(CfðzÁgÀgÀÄ) 4) aPÀÌªÀÄä ªÀÄUÀ ªÀÄU À ¼ÀÄ 65 ªÀµÀð ªÀÄU À 50 ªÀµÀð ªÀÄU À ¼ÀÄ 45 ªÀµÀð aPÀÌªÀÄä PÉÆÃA.¯ÉÃ||aPÉÌÃUËqÀ «ªÁ»vÉ gÀvÀßªÀÄä PÉÆÃA.£ÁUÀgÁdÄ «ªÁ»vÉ ( 55 ªÀµÀð) (43 ªÀµÀð) ªÀÄPÀÌ¼ÀÄ ªÀÄPÀÌ¼ÀÄ 1) gÁdªÀÄä – 30 ªÀµÀð- ªÀÄUÀ¼ÀÄ 1) ªÀÄAdÄ£ÁxÀ-24 ªÀµÀð-ªÀÄUÀ 2) ªÀÄAUÀ¼ÀUËj-25 ªÀµÀð- ªÀÄUÀ¼ÀÄ 2) ªÀ¸ÀAvÀ - 23 ªÀµÀð- ªÀÄUÀ¼ÀÄ 3) ¸Áé«Ä -¥Ëw 3) £ÁUÀªÉÃtÂ - 21 ªÀµÀð- ªÀÄUÀ¼ÀÄ”

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NC: 2024:KHC:37932 RSA No. 525 of 2018

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A perusal of the genealogical tree would indicate that Sri. Karichikkegowda – original propositus had four children, namely, Chikkegowda (husband of defendant No.1 and father of defendant Nos.2 and 3), plaintiff No.1, defendant No.4 and plaintiff No.2. A perusal of the finding recorded by both the Courts below would indicate that, father of plaintiffs had purchased the suit schedule property as per registered sale deed dated 29.11.1950 and he died on 08.10.2002. Defendant No.4 has sold the schedule property in favour of defendant No.9 as per registered sale deed dated 20.01.2005. Defendant No.9 has entered appearance and also given the list of other properties which are belonging to the joint family of plaintiffs along with defendant No.4. For the reasons best known to the appellants/plaintiffs, those properties were not included as the subject matter of the suit and the property which has been made subject matter of the suit is one which is sold by defendant No. 4 in favour of defendant No. 9. It is also forthcoming from the finding recorded by the Trial Court that defendant Nos.1 to 8 have not contested the matter to say whether there was oral partition prior to the filing of suit or not. Therefore, defendant No.9 alone has contested the matter who

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9 - NC: 2024:KHC:37932 RSA No. 525 of 2018

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is a purchaser of suit schedule property from defendant No. 4. In that view of the matter, since the plaintiffs have not included all the properties which had been mentioned by defendant No.9, the said aspect itself makes it clear that it is a collusive suit between plaintiff and defendant Nos.1 to 8 to target defendant No.9 who has purchased the schedule property as per registered sale deed referred to above.

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In this regard taking into consideration the factual aspects on record, though the learned counsel appearing for the appellants submitted that appropriate issue has not been framed by the Trial Court, however, said aspect has not been raised before the First Appellate Court. In that view of the matter, taking into consideration the factual aspects on record and the finding recorded by the Trial Court, I am of the view that the Trial Court has rightly dismissed the suit of the plaintiffs. It is also to be noted that the sale deed has been executed in favour of defendant No.9 by defendant No.4 during the year 2005 and suit has been filed after five years and explanation has not been given in so far as delay of five years in challenging the said sale deed said to have been made in

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favour of defendant No.9 and therefore suit is barred by limitation.

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In the backdrop of above aspects, I have carefully examined the finding recorded by the First Appellate Court. The First Appellate Court after re-appreciating the material on record, dismissed the appeal and confirmed the Judgment and Decree passed by the Trial Court in O.S.No.715/2010. Before the First Appellate Court also, defendant Nos.1 to 8, who were the members of the joint family of plaintiffs have not contested the matter and they have been placed ex-parte which makes it clear that the suit filed by the plaintiffs is a collusive suit to deprive the right of defendant No.9. Though the First Appellate Court has arrived at a conclusion that there is no pleading or evidence as to whether the plaintiffs were parties in the said partition, however, in the absence of pleadings and evidence on behalf of defendant Nos.1 to 8, though represented before the trial Court, remained absent, the said finding cannot come in the way of the Appellate Court to consider the pleading which was available on record. It is also forthcoming from the finding recorded by the First Appellate Court in paragraph No.22 of its Judgment, that plaintiffs have not included those properties

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which have been mentioned in paragraph No. 11(a) of amended written statement filed by defendant No.9 which is self-explanatory. In that view of the matter, the First Appellate Court after re-appreciating the material on record as required under Order XLI Rule 31 of CPC, has rightly confirmed the Judgment and Decree passed by the Trial Court in O.S.No.715/2010. Before this Court also defendant Nos.1 to 8 have been served and they have remained absent. Perusal of the, said aspect makes it clear that defendant Nos.1 to 8 have deliberately restrained from appearing before the Court to make submission before the Court regarding oral partition said to have been made between the children of late Karichikkegowda.

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In that view of the matter, I do not find any merit in the appeal and accordingly it is dismissed as appellants have not made out any grounds to formulate substantial question of law as required under Section 100 of CPC.

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SD/(E.S.INDIRESH) JUDGE

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sac, lrs List No.: 1 Sl No.: 23

Smt Chikkatayamma v. Smt Chikkamma

Case brief

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Smt Chikkatayamma v. Smt Chikkamma

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