Partition suit over lands granted as Darkast land to one brother. First Appellate Court reversed the trial decree holding the grant certificate showed personal grant on payment of upset price. High Court found no substantial question of law and dismissed the second appeal at admission.
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NC: 2024:KHC:36378 RSA No. 850 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL No. 850 OF 2020 (PAR)
BETWEEN:
W/O LATE N K BASAVAIAH AGED ABOUT 90 YEARS NITTUR, GUBBI TALUK - 571 112.
N R SARVAMANGALA DEAD BY HER LR’s
Digitally signed by SHARMA ANAND CHAYA
Location: High Court of Karnataka
R/O BEHIND SIDDESWARA STORES
ARALIMARADAPALYA, HOUSING BOARD COLONY, SIRA GATE TUMAKURU -571 112.
CHANNABASAVAIAH
DEAD BY HIS LR’S
TUMAKURU DISTRICT – 571 112.
…APPELLANTS
(BY SRI NATARAJ BABA K,
SRI SHANMUKHAPPA, ADVOCATES)
AND:
NC: 2024:KHC:36378 RSA No. 850 of 2020
NITTURU HOBLI, GUBBI TALUK TUMAKUR DISTRICT PIN CODE – 572 223.
…RESPONDENTS
(BY SRI THYAGARAJA S, ADVOCATE FOR SRI T G MARKANDAIAH, ADVOCATE FOR R1 & R2 R3 - SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.11.2019 PASSED IN RA No.113/2012 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, TUMAKURU ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 19.04.2012 PASSED IN OS No.280/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AT GUBBI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
representatives of plaintiff No. 1 and legal representatives of defendant No. 1 challenging the judgment and decree dated 18.11.2019 in R.A. No.113/2012 by the VII Additional District Judge, Tumakuru, allowing the appeal
NC: 2024:KHC:36378 RSA No. 850 of 2020
and setting aside the judgment and decree dated 19.04.2012 in O.S. No. 280/2006 on the file of Senior Civil Judge and JMFC at Gubbi, decreeing the suit of the plaintiffs.
propositor Patel Kallegowda had 3 children, namely, (1) N.K. Karibasavaiah (father of defendant No. 1), (2) N.K.Shivananjaiah (husband of defendant No. 2 and father of defendant Nos.3 and 4) and (3) N.K. Basavaiah (husband of defendant No. 1(b). It is the case of the plaintiffs that the schedule properties are the joint family properties of late Patel Kallegowda and his three children and the second son of late Patel Kallegowda - N.K. Shivananjaiah was granted schedule property as Darkasth land in his favour and therefore, the said property has to be considered as the joint family property of plaintiffs and
NC: 2024:KHC:36378 RSA No. 850 of 2020
defendants and as such, the plaintiffs have filed suit in O.S. No.280/2006 seeking the relief of partition and separate possession of suit schedule properties.
and contended that, the children of Patel Kallegowda never lived as joint family status and Patel Kallegowda had no joint family or ancestral property. It is the specific case of
NC: 2024:KHC:36378 RSA No. 850 of 2020
defendant No. 3 that, defendant No. 3 had filed O.S. No. 167/1984, seeking declaration of her title in respect of schedule property which was given to her under gift and plaintiff No. 1 the present case was arrayed as defendant No.1 in the said case and in the said suit, the plaintiff had claimed 1-1/4 guntas in survey No. 235 and she had been given up contention with regard to the same and therefore, as the said suit has reached finality, and therefore, the suit itself is not maintainable and accordingly, sought for dismissal of the suit.
6. Defendant No. 4 had filed written statement
admitting the relationship between the parties, however, supported the view of defendant No. 3 and as such, sought for dismissal of the suit.
marked 27 documents and same were marked as Ex.P.1 to Ex.P.27. Three witnesses were examined on behalf of defendants as D.W.1 to D.W.3 and got marked 45 documents and same were marked as Ex.D.1 to Ex.D.45.
the appeal, consequently set aside the judgment and decree in O.S. No. 280/2006. Feeling aggrieved by the same, the legal representatives of the plaintiffs and legal representatives of defendant No.1 have preferred this Regular Second Appeal.
NC: 2024:KHC:36378 RSA No. 850 of 2020
on behalf of Sri. Shanjukhappa for the appellants and Sri. Thyagaraja S., learned counsel appears on behalf of respondent Nos.1 and 2.
has been erroneously reversed by the First Appellate Court without considering the fact that land has been granted in favour of joint family of late Patel Kallegowda and therefore, contended that the finding recorded by the trial Court requires interference by this Court. He also submitted that the finding recorded by the First Appellate Court with regard to Ex.D.43 – grant certificate is contrary to law and as such, sought for interference by this Court.
NC: 2024:KHC:36378 RSA No. 850 of 2020
NC: 2024:KHC:36378 RSA No. 850 of 2020
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NC: 2024:KHC:36378 RSA No. 850 of 2020
NC: 2024:KHC:36378 RSA No. 850 of 2020
paid upset price in respect of schedule properties and therefore, it is the contention of defendant Nos. 3 and 4 that, schedule properties are not joint family properties of children of late Patel Kallegowda. In this regard having taken note of the finding recorded by the First Appellate Court, the First Appellate Court, after re-appreciating the entire material on record, particularly, with regard to Ex.D.43, wherein, the land has been granted in favour of N.K. Shivananjaiah not as a tenant of the said land but land was granted at upset price which is clear from the reading of grant certificate Ex.D.43. In that view of the matter, as the land in question has been granted as Darkast land in favour of father defendant Nos. 3 and 4, the First Appellate Court has properly re-appreciated the material on record as per the procedure contemplated under Order 41 Rule 31 of CPC. It is also to be noted that plaintiffs have not produced any material to prove that
nature of grant was being made in favour of N.K. Shivananjaiah is for the benefit of the joint family. No contribution has been made on behalf of plaintiffs or the
NC: 2024:KHC:36378 RSA No. 850 of 2020
other brother of N.K. Shivananjaiah – Sri. N.K. Basavaiah. In that view of the matter, as grant certificate at Ex.D.43 discloses that grant was made in favour of N.K. Shivananjaiah on payment of upset price and therefore, the finding recorded by the First Appellate Court reversing the judgment and decree passed by the trial Court is just and proper and as the plaintiffs have failed to establish that the schedule properties are the joint family properties of late Patel Kallegowda and therefore, I do not find any merit in the appeal. Accordingly, Regular Second Appeal is dismissed at the stage of admission itself as the appellants have not made out any grounds for formulation of any substantial question of law as required under Section 100
of CPC.
LRS
Sd/(E.S.INDIRESH) JUDGE
List No.: 1 Sl No.: 27
1 issue framed by the court
Whether the suit schedule properties granted as Darkast land to N.K. Shivananjaiah on payment of upset price were joint family properties of Patel Kallegowda's children.
2 provisions across 1 enactments
Shivarathnamma
N B Girijamba
Puttagangaiah
Pallavi
Darshan
N B Kallesha
E.S. Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
