Dismissed

Sri. S. Mahadevaiah v. Smt. Mahadevamma @ Sheshamma

Karnataka HC9 Aug 2024RSA/829/2024

Case brief

AI extract

What is this about?

Defendants appealed a first appellate court's decision granting the plaintiff a share in joint family property, contending a 1977 written partition occurred. The court found no partition deed was produced, the plaintiff was not party to the mutation changes under Ex.D1, and dismissed the second appeal at admission for lack of substantial question of law.

What the court decided

AI extract

Sri. S. Mahadevaiah Vs Smt. Mahadevamma @ Sheshamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:31916 RSA No. 829 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 09^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.829 OF 2024 (PAR)

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BETWEEN:

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SRI. S. MAHADEVAIAH S/O LATE ANGADI SANNANAIKA AGED ABOUT 75 YEARS,

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SRI. CHIKKAMADANAIKA S/O LATE ANGADI SANNANAIKA AGED ABOUT 70 YEARS,

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SMT. NAGAMMA W/O LATE SANNAPPA AGED ABOUT 58 YEARS,

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SRI. MAHADEVA S/O LATE SANNAPPA AGED ABOUT 45 YEARS,

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

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SRI. MAHESHA S/O LATE SANNAPPA AGED ABOUT 42 YEARS,

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SRI. SHESHANNA S/O LATE SANNAPPA AGED ABOUT 38 YEARS,

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SHIVANNA

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DEAD BY HIS LRS

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SMT. LAKSHAMAMMA W/O LATE SHIVANNA ALIAS ANGADI SHIVANNA AGED ABOUT 43 YEARS,

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NC: 2024:KHC:31916 RSA No. 829 of 2024

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SRI. KUMAR S/O LATE SHIVANNA @ ANGADI SHIVANNA AGED ABOUT 38 YEARS,

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SL. NOS. 1 TO 8 ARE R/AT SINDHUVALLI VILLAGE, JAYAPURA HOBLI, MYSURU TALUK-570 001.

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SHIVI ALIAS SHIVAMMA W/O MANJU (PHOTOGRAPHER) D/O LATE SHIVANNA @ ANGADI SHIVANNA AGED ABOUT 36 YEARS, R/AT BEHIND NAYAKA SAMUDAYA BHAVAN, FTS CIRCLE, VEERANGERE, MYSURU - 560012.

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SRI. BASAVARAJU S/O LATE ANGADI SANNANAIKA AGED ABOUT 58 YEARS, R/AT SINDHUVALLI VILLAGE, JAYAPURA HOBLI, MYSURU TALUK-570 001.

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…APPELLANTS

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(BY SRI. B.S. NAGARAJ, ADVOCATE)

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AND:

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SMT. MAHADEVAMMA @ SHESHAMMA W/O LATE MAHADEVA NAIKA, D/O LATE SANNANAIKA AGED ABOUT 55 YEARS, R/AT KALLAHALLI VILLAGE, CHIKKAIAHNACHATRA HOBLI, NANJANGUD TALUK, MYSURU DISTRICT - 570 001.

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SMT. DEVAMMA W/O LATE RANGAPPA, AGED ABOUT 60 YEARS,

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3 - NC: 2024:KHC:31916 RSA No. 829 of 2024

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SRI. DEVARAJU S/O LATE RANGAPPA, AGED ABOUT 48 YEARS,

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SRI. SHESHA S/O LATE RANGAPPA, AGED ABOUT 42 YEARS,

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SRI. RANGASWAMY S/O LATE RANGAPPA, AGED ABOUT 38 YEARS,

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SRI. SHESHANNA S/O LATE ANGADI SANNANAIKA AGED ABOUT 62 YEARS,

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RESPONDENTS NO.2 TO 6 ARE R/AT SINDHUVALLI VILLAGE, JAYAPURA HOBLI MYSURU TALUK - 570 001.

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…RESPONDENTS

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 23.01.2024 PASSED IN R.A. NO.138/2019 ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU., PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 02.01.2019 PASSED IN O.S. NO.695/2014 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, 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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NC: 2024:KHC:31916 RSA No. 829 of 2024

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ORAL JUDGMENT

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This appeal is filed by the defendants challenging the

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judgment and decree dated 23.01.2024 passed in RA No.138 of 2019 on the file of the Principal District and Sessions Judge, Mysuru, allowing the appeal in part and setting aside the judgment and decree dated 02.01.2019 in on the file of II Additional Senior Civil Judge and CJM, Mysuru, dismissing the suit of the plaintiff.

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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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The plaint averments are that, the plaintiff and the defendant Nos. 1, 2, 11 to 13 are the children of late Sannanaika. Defendant Nos.3 to 10 are the legal representatives of brother of the plaintiff-late Rangappa and Sannappa. It is the case of the plaintiff that, the suit schedule properties are the ancestral and undivided joint family properties of the plaintiff and defendants and the plaintiff has made a demand for her legitimate share in the

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5 - NC: 2024:KHC:31916 RSA No. 829 of 2024

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suit schedule property and said request was considered, however, despite a Panchayat was convened on 10.07.2014 and no share was allotted to the plaintiff and as such, the plaintiff has filed suit in OS No. 695 of 2014 on the file of the Trial Court, seeking partition and separate possession in respect of the suit schedule property.

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After service of summons, defendants 1 to 12 entered appearance, however, defendant No.13 remained absent and accordingly, he was placed ex-parte. It is the specific contention of defendant No.1 that, the suit schedule properties are not the joint family properties and Item No.3 of the suit schedule property was purchased by their mother-Lingamma, and Item Nos.1, 2, 4 to 7 were purchased by their father-Sannanaik and after their demise, partition had taken place on 07.03.1977 in the presence of Panchayathdars and as the plaintiff was minor at the time of partition, her share was jointly allotted along with her mother-Lingamma and therefore, it is

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NC: 2024:KHC:31916 RSA No. 829 of 2024

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contended by the defendant No.1 that claim made by he plaintiff cannot be accepted and accordingly, sought for dismissal of the suit.

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

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In order to establish their case, plaintiff was examined himself as PW1 and got marked 8 documents as Exs.P1 to P8. On the other hand, defendants examined two witnesses as DW1 and DW2 and got marked 12 documents as Exs.D1 to D12.

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The trial Court, after considering the material on record, by its judgment and decree dated 02.01.2019 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA No. 138 of 2019 on the file of First Appellate Court. The said appeal was resisted by the defendants. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 23.01.2024 allowed the appeal in part and thereby, set aside the judgment and

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NC: 2024:KHC:31916 RSA No. 829 of 2024

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decree passed by the trial Court in OS No.695 of 2014 in respect of Item Nos.1 to 7 of the suit schedule properties.

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Being aggrieved by the judgment and decree passed by the Courts below the defendants/appellants have preferred this Regular Second Appeal under Section 100 of CPC.

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I have heard Sri.B.S.Nagaraj, learned counsel for the appellants and perused the records.

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Sri.B.S.Nagaraj, learned counsel for the

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appellants contended that both the courts below have not considered the partition said to have been held on 07.03.1977 and the division of the property was deduced into writing and in that view of the matter, as there is partition took place in respect of the suit schedule properties between the parties and as such, the First Appellate Court has committed an error in interfering with the judgment and decree passed by the Trial Court.

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8 - NC: 2024:KHC:31916 RSA No. 829 of 2024

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Having heard the learned counsel appearing for both the appellants, I have carefully examined the finding recorded by the both the courts below. Perusal of the appeal papers would indicate that, it is not in dispute with regard to relationship between the parties, as the plaintiff and defendant Nos.1, 2, 11 to 13 are the children of late Sannanaik and late Lingamma. Defendant Nos.3 to 10 are the legal representatives of her deceased brothers-late Rangappa and Sannappa. It is the case of the plaintiff that, the suit schedule properties are the joint family properties and same is required to be devolved among the plaintiff and defendants. The case of the defendants before the Trial Court is that, there was partition during the year 1977 and same was reduced into writing and pursuant to the same the mutation has been changed as per Exs.D1 to D4. Having taken note of the finding recorded by both courts below, the defendants have not produced Partition Deed before the Trial Court said to have been executed on 07.03.1977. The First Appellate Court, after reappreciating the material on record as required under

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NC: 2024:KHC:31916 RSA No. 829 of 2024

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Order XLI Rule 31 of CPC, re-appreciated the facts on record and arrived at a conclusion that, as per Ex.D1, the plaintiff was not party to the change of mutation at the instance of the defendants. In that view of the matter, as the defendants have failed to prove that there was a partition earlier, and same is not binding on the plaintiff and defendants and as such, I do not find acceptable grounds to interfere with the judgment and decree passed by the First Appellate Court as I do not find material illegality or perversity in the judgment and decree passed

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by the First Appellate Court and accordingly, the Regular Second Appeal is liable to be dismissed . Since, the defendants/appellants have not made out grounds 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, accordingly, appeal is dismissed .

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SD/- (E.S.INDIRESH) JUDGE

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SB:List No.: 1 Sl No.: 47

Sri. S. Mahadevaiah v. Smt. Mahadevamma @ Sheshamma

Case brief

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Sri. S. Mahadevaiah v. Smt. Mahadevamma @ Sheshamma

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