Dismissed

Sri Prabhakar v. Smt Janakamma

Karnataka HC2 Sept 2024RSA/548/2018

Case brief

AI extract

What is this about?

Defendant in a suit for declaration and possession based on partition deed, exchange deed, and commissioner's report sought review via second appeal. The court found no substantial question of law or perversity in the concurrent findings and dismissed the appeal at admission stage.

What the court decided

AI extract

Sri Prabhakar Vs Smt Janakamma — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:35592 RSA NO.548 OF 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND 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.548 OF 2018(DEC)

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BETWEEN:

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SRI. PRABHAKAR S/O LATE ANNI POOJARI AGED ABOUT 46 YEARS, OCC: COOLIE, R/AT TOTADAMAKKI, MALLANDUR POST, CHIKKAMAGALURU TALUK CHIKKAMAGALURU DISTRICT - 577 130.

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…APPELLANT

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(BY SRI. GURURAJ R., ADVOCATE FOR SRI. SANTOSH R. NELKUDURI, ADVOCATE)

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AND:

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Digitally signed by SHARMA ANAND CHAYA Location: High Court

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of Karnataka

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SMT. JANAKAMMA W/O LATE RAMACHAR AGED ABOUT 65 YEARS, R/AT THOTADAMAKKI, MALLANDUR POST, CHIKKAMAGALURU - 577 130.

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SMT. BHAGYA W/O RAVIYACHAR D/O LATE RAMACHAR AGED ABOUT 44 YEARS, R/AT THOTADAMAKKI, MALLANDUR POST

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CHIKKAMAGALURU - 577 130.

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SMT. LALITHA W/O SOMASHEKAR

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NC: 2024:KHC:35592 RSA NO.548 OF 2018

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D/O LATE RAMACHAR, AGED ABOUT 42 YEARS, R/A KUMARAGIRI, MALLENAHALLI POST, CHIKKAMAGALURU - 577 131.

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SRI. RAGHAVENDRA S/O LATE RAMACHAR, AGED ABOUT 41 YEARS, OCC: AGRICULTURIST, R/AT THOTADAMAKKI, MALLANDUR POST, CHIKKAMAGALURU - 577 130.

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SRI. RAGHU S/O LATE RAMACHARI AGED ABOUT 39 YEARS OCC: AGRICULTURIST, R/A THOTADAMAKKI, MALLANDUR POST, CHIKKAMAGALURU - 577 130.

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SRI. RAMESH GOWDA S/O EREGOWDA, AGED ABOUT 51 YEARS, OCC:AGRICULTURIST, R/AT THOTADAMAKKI, MALLANDUR POST, CHIKKAMAGALURU - 577 130.

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…RESPONDENTS

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(NOTICE TO R1 TO R5 IS HELD SUFFICIENT V/O DATED 02.04.2019; R6 - SERVED AND UNREPRESENTED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 18^TH AUGUST, 2016 PASSED IN REGULAR APPEAL NO.42 OF 2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, CHIKKAMAGALURU,

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3 - NC: 2024:KHC:35592 RSA NO.548 OF 2018

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DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04^TH MARCH, 2015 PASSED IN ORIGINAL SUIT NO.150 OF 2006 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKAMAGALURU.

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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 preferred by the defendant No.1, challenging the judgment and decree dated 18^th August, 2016 passed in Regular Appeal No.42 of 2015 on the file of the II Additional Senior Civil Judge, Chikkamagaluru (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 04^th March, 2015 passed in Original Suit No.150 of 2006 on the file of the I Additional Civil Judge and JMFC., Chikkamagaluru (for short, hereinafter referred to as 'Trial Court), wherein the suit filed by plaintiffs came to be decreed in-part, holding that the plaintiffs are absolute owners of Schedule 'A' property and further, direction has been issued to the appellant/defendant No.1 to handover the vacant possession of 'B' schedule property to the plaintiffs within three months.

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NC: 2024:KHC:35592 RSA NO.548 OF 2018

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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 the Schedule 'A' property is the joint family property of late Ramachar (husband of plaintiff No.1) and his brother Bhadrachar; and as per the family partition held on 25^th May, 1996 between the Ramachar and his brother Bhadrachar, Schedule 'A' property was fallen to the share of Bhadrachar. Thereafter, the said Bhadrachar sold Schedule 'A' property in favour of one Ningegowda and inturn Ningegowda got exchanged the land with the land of Ramachar through registered Exchange Deed dated 12^th November, 1997. Therefore, the Plaintiffs have stated that, late Ramachar (husband of Plaintiff No.1) became owner of Schedule 'A' property as per registered exchange deed stated above. It is also the case of the plaintiffs that, late Ramachar had permitted the defendant No.1 to reside in the house built in Schedule 'A' Property. Further, it is stated in the plaint that, late Ramchar died on 24^th October, 2003 and thereafter, the defendant No.1, despite request made by the plaintiffs, refused to vacate the said house and also encroached 3 guntas of land, which is

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NC: 2024:KHC:35592 RSA NO.548 OF 2018

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described as Schedule 'B' property and as such, plaintiffs have filed Original Suit No.150 of 2006, seeking relief of declaration and permanent injunction with consequential relief of vacant possession of Schedule 'B' and 'C' property.

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On service of notice, defendants entered appearance. Defendant No.1 has filed written statement and the defendant No.2 has adopted the written statement filed by the defendant No.1. The defendant No.1 in his written statement contended that, his father Annapoojari was in possession of 5 guntas of land for more than 65 years and he had taken electricity and telephone connection showing that the schedule property belongs to him. Accordingly, he sought for dismissal of the suit.

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Based on the pleadings on record, the Trial Court framed issues and additional issue for its consideration.

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In order to prove their case, plaintiff No.4 examined himself as PW1 and got marked 12 documents as Exhibits P1 to P12. On the other hand, defendants examined two witnesses as DW1 and DW2 and got marked 13 documents as Exhibits D1 to D13.

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NC: 2024:KHC:35592 RSA NO.548 OF 2018

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The Trial Court, after considering the material on record, by judgment and decree dated 04^th March, 2015, decreed the suit in-part, declaring that the plaintiffs are the absolute owners of Schedule 'A' property and as such, directed the defendant No.1 to vacate the Schedule 'B' property. Being aggrieved by the same, the defendants have filed Regular Appeal No.42 of 2015 before the First Appellate Court and same was resisted by the plaintiffs. The First Appellate Court, after re-appreciating the material on record, dismissed the appeal on the ground that the appeal preferred by the defendants is at belated stage and barred by time. Being aggrieved by the same, the defendant No.1 has preferred this Regular Second Appeal.

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I have heard Sri. Gururaj R., learned counsel on behalf of Sri. Santosh R. Nelkuduri, appearing for the appellant.

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Sri. Gururaj R., learned counsel appearing for the appellant/defendant No.1 contended that, both the Courts below have failed to consider the fact that the defendants were in possession of the schedule property, though the said aspect has been proved by producing the Demand Register extract

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NC: 2024:KHC:35592 RSA NO.548 OF 2018

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issued by Byaravalli Grama Panchayath, accordingly, he sought for interference of this Court.

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In the light of the submission made by learned counsel appearing for the appellant/defendant No.1 and on careful examination of finding record by both the Courts below, the same would indicate that the plaintiffs have produced Exhibit P1-Partition Deed dated 25^th May, 1996 and Exhibit P2Exchange Deed dated 12^th November, 1997 executed between Ningegowda and Ramachar. The said documents makes it clear that, late Ramachar, husband of the plaintiff No.1 got right over the schedule property. That apart, the Trial Court has appointed the Tahsildar, Chikkamagaluru Taluk as Court Commissioner and the Court Commissioner in the report clearly mentioned that the area marked as ABCD in the sketch 'A' Schedule property is 15 guntas in Survey No.359/P. In that view of the matter, the finding recorded by Trial Court is just and proper and same cannot be interfered with in this appeal. The appellant/defendant No.1 has failed to show sufficient cause for delay in filing the appeal before the First Appellate Court and therefore, the First Appellate Court considered the Point No.1 in detail and arrived at a conclusion that the reasons

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NC: 2024:KHC:35592 RSA NO.548 OF 2018

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stated by the defendant No.1 are not sufficient to condone the delay in filing the appeal. In that view of the matter, I do not find any material illegality or perversity in the judgment and decree passed by the Courts below. As the appellant was failed to make out a case for framing of substantial question of law as required under Section 100 of the Code of Civil Procedure, this appeal deserves to be dismissed at the stage of admission itself. Accordingly, Regular Second Appeal is dismissed.

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SD/(E.S.INDIRESH) JUDGE

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ARK

Sri Prabhakar v. Smt Janakamma

Case brief

What is this about?

What the court decided

Sri Prabhakar v. Smt Janakamma

Case brief

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What the court decided

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