Plaintiff sought re-partition of joint family properties alleging his earlier oral partition was fraudulent, allotting him only 14 guntas instead of an equal share. Both lower courts found no fraud and upheld the partition. The High Court found no substantial question of law arose and dismissed the second appeal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.745 OF 2018 (PAR)
BETWEEN:
…APPELLANT
(BY SRI SIDDAPPA B.M., ADVOCATE)
AND:
ALL ARE RESIDING AT BELAGURU VILLAGE, SRIRAMAPURA TALUK, CHITRADURGA DISTRICT-577501.
…RESPONDENTS
(BY SRI VIJAYAKUMAR S.C., ADVOCATE [ABSENT] & SMT. SANDHYA, ADVOCATE FOR C/R3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.01.2018 PASSED IN R.A.NO.162/2016 (OLD NO.47/2014) ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOSADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.07.2014 PASSED IN O.S NO.41/2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, HOSADURGA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission. Heard the learned
counsel for the appellant.
appeared and filed the written statement admitting the relationship and earlier partition between the parties and in the said partition, suit schedule properties were partitioned equally in between the plaintiff and the defendants and prayed for dismissal of the suit. The defendant No.3 filed the written statement admitting the relationship between the parties and partition and contended that the mother of the plaintiff by name, Parvathamma had one brother by name Siddappa, who is residing in the same village and he had one daughter by name Basamma. Siddappa died leaving behind his only daughter Basamma. At that moment, the plaintiff and the defendants looked after the affairs of Basamma and thereafter her family was looked after by the plaintiff. He was enjoying the property of the said Basamma and he married Basamma and got the entire property belonging to her mother and deceased Siddappa. In view of the same, panchayathdars decided to allot only 14 guntas of land in the suit schedule property to the plaintiff instead of 1 acre. Furthermore, the said land was a fertile land and the plaintiff has got the property of his wife and his mother. There is no fraud and mischief took place as alleged by the plaintiff.
the Trial Court, R.A.No.162/2016 is filed. Having considered the grounds urged in the appeal memo, the First Appellate
Court formulated the points as to whether the pleadings and evidence are sufficient to prove that the partition was obtained by fraud and misrepresentation and same is unjust and unfair and whether the judgment and decree of the Trial Court requires interference. The First Appellate Court considering the material available on record comes to the conclusion that fraud and misrepresentation has not been proved and extracted the admission on the part of P.W.1, which was elicited in the cross-examination and comes to the conclusion that question of re-partition does not arise. The material discloses that already there was a partition and dismissed the appeal.
shown as 14 guntas instead of 1 acre and the share of defendant No.3 is shown as 1 acre 26 guntas and hence both the Courts failed to take note of the said fact into consideration. The very approach of the First Appellate Court that there is no fraud and misrepresentation as contended by the plaintiff is erroneous and hence this Court has to frame substantial question of law as to whether both the Courts have committed an error in dismissing the suit for the relief of partial partition and hence it requires interference of this Court.
conclusion that the allegation of mischief and fraud has not been proved. In the absence of proving of the factum of fraud and mischief, the question of ordering for re-partition does not arise. The First Appellate Court also considered both oral and documentary evidence placed on record and also extracted the answers elicited from the mouth of P.W.1 during the course of cross-examination in paragraph No.18 of the judgment. The First Appellate Court also taken note of unequivocal admissions which substantiate the contention of defendant No.3 that the plaintiff was allotted lesser extent than himself and other defendants as the latter has been enjoying the properties of in-laws. It has also come in evidence that the family of the plaintiff and defendants was having no sufficient properties other than two landed properties and the said aspect would fortify the contention of defendant No.3 as to why the plaintiff was allotted 14 guntas of land and the defendants were allotted higher extent and a reasoned order has been passed. When such being the case, I do not find any ground to interfere with the findings of the Trial Court and the First Appellate Court in the absence of fraud and mischief as alleged in the plaint while seeking for
the relief of re-partition of the property, which was taken place 20 years ago and no substantial question of law arises for consideration and no ground is made out to invoke Section 100 of CPC.
following:
ORDER
The second appeal is dismissed.
Sd/JUDGE
MD
List No.: 1 Sl No.: 82
2 issues framed by the court
Whether the courts below erred in dismissing the suit for re-partition despite the alleged unequal allotment of 14 guntas to the plaintiff?
Whether fraud and misrepresentation in the earlier oral partition was proved so as to warrant re-partition?
1 provisions across 1 enactments
B.C. Thammaiah
Malleshappa
B.C. Halappa
Shivanna
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
