Dismissed

Sri Prashantha Gowda v. Smt Puttalakshmamma

Karnataka HC22 Feb 2024RSA/91/2018

Case brief

AI extract

What is this about?

Regular second appeal in a suit for partition and declaration. The High Court held that previous suits regarding the same properties attained finality. Res judicata binds the current plaintiffs who are descendants of the previous suit parties.

What did the court decide?

Appeal dismissed; judgment and decree dated 02.05.2015 in O.S.No. 8/2013 and Order dated 09.10.2017 in R.A.No.42/2015 confirmed.

Sri Prashantha Gowda Vs Smt Puttalakshmamma — Partition | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF FEBRUARY, 2024

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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R.S.A.NO. 91 OF 2018

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BETWEEN:

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1 . SRI. PRASHANTHA GOWDA S/O RAMALINGAIAH AGED ABOUT 13 YEARS

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2 . KUM. KAVYASHREE D/O RAMALINAGAIAH AGED ABOUT 11 YEARS

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SL.NO.1 AND 2 ARE

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MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN

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SMT. SUNITHA, W/O RAMALINGAIAH, AGED ABOUT 34 YEARS, R/AT AKKUR VILLAGE, VIRUPAKSHAPURA HOBLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT-562 159.

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… APPELLANTS (BY SRI. H.P. LEELADHAR, ADVOCATE)

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AND:

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1 . SMT PUTTALAKSHMAMMA W/O LATE GOVINDARAJU D/O LATE CHIKKALINGEGOWDA AGED ABOUT 57 YEARS R/AT VIRUPAKSHAPURA VILLAGE AND HOBLI CHANNAPATNA TALUK RAMANAGARA DISTRICT-562 159.

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2 . SMT. LAKSHMAMMA W/O LATE LINGARAJU AGED ABOUT 42 YEARS.

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3 . SRI.MOHAN S/O LATE LINGARAJU, AGED ABOUT 24 YEARS.

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4 . KUM. CHAITRA D/O LATE LINGARAJU, AGED ABOUT 20 YEARS

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5 . SRI. CHANDRASEKHAR S/O LATE LINGARAJU AGED ABOUT 18 YEARS

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SL.NO.2 TO 5 ARE RESIDING AT DOOR NO.446, 4TH CROSS, GANGONDANAHALLI, BENGALURU CITY-560 039.

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6 . SRI. NAGARAJU S/O LATE CHIKKALINGEGOWDA AGED ABOUT 52 YEARS R/AT NO.14, 6TH CROSS 6TH MAIN, KENGERI UPANAGARA, VIJAYANAGARA, BENGALURU-560 060.

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7 . SMT. JAYALAKSHMAMMA W/O LATE LINGAIAH D/O LATE CHIKKALINGEGOWDA AGED ABOUT 44 YEARS R/AT NO.67, 2ND CROSS HOSA GUDDADAHALLI MYSURU ROAD

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BENGALURU CITY - 560 060.

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8 . SRI. RAMALINGAIAH S/O LATE CHIKKALINGEGOWDA AGED ABOUT 41 YEARS VIRUPAKSHAPURA HOBLI CHANNAPATNA TALUK RAMANAGARA DISTRICT-560 026.

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9 . SRI. RAMEGOWDA S/O GIRIYAPPA AGED ABOUT 52 YEARS R/AT AKKUR VILLAGE VIRUPAKSHAPURA HOBLI CHANNAPATNA TALUK RAMANAGARA DISTRICT-560 026.

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10 . SRI. ESHWARAIAH S/O LATE MARIGOWDAM AGED ABOUT 54 YEARS

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11 . SMT. PUTTACHANDRAMMA W/O ESHWARAIAH AGED ABOUT 47 YEARS

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SL NO.10 AND 11 ARE R/AT AKKUR VILLAGE, VIRUPAKSHAPURA HOBLI, CHANNAPATNA TALUK RAMANAGARA DISTRICT-560 026.

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12 . SRI.C. NINGEGOWDA S/O CHANNEGOWDA

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AGED ABOUT 57 YEARS R/AT AKKUR VILLAGE VIRUPAKSHAPURA HOBLI CHANNAPATNA TALUK RAMANAGARA DISTRICT-560 026.

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13 . SRI. PUTTABHADRE GOWDA S/O SAMANDIGOWDA AGED ABOUT 62 YEARS R/AT HOSAHALLI VILLAGE VIRUPAKSHAPURA HOBLI CHANNAPATNA TALUK RAMANAGARA DISTRICT-560 026.

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… RESPONDENTS

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(BY SRI. S.B. HALLI, ADVOCATE FOR R1 & R6 TO R8; SRI. SHASHI KUMAR R., ADVOCATE FOR R9 & R12; R2 TO R5, R10, R11 & R13 - SERVED & UNREPRESENTED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.10.2017 PASSED IN R.A.NO.42/2015 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.05.2015 PASSED IN O.S.NO.8/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAPATNA.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 03.01.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the plaintiffs aggrieved by the

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judgment and decree dated 02.05.2015 passed in O.S.No.08/2013 on the file of Senior Civil Judge and JMFC, Channapatna (Trial Court) which is confirmed by the judgment and Order dated 09.10.2017 passed in R.A.No.42/2015 on the file of I Additional District and Session Judge, Ramanagara (First Appellate Court).

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The above suit is filed by the appellants/plaintiffs

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represented by their mother and natural guardian Smt.Sunitha for reliefs of declaration, partition and separate possession contending i nter-alia;

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(a) that they are the children of Ramalingaiah, the

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defendant No.8 and that the suit schedule properties originally belonged to their great grandfather Doddabettegowda who had four sons namely (1) Chikkalingamma, (2) Bettegowda, (3) Chikkalingegowda and (4) Kalamma.

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(b) The second son of the Doddabettegowda namely aforesaid Chikkalingegowda had six children namely:

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(1) Jayamma, who is no more.

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(2) Puttalakshmamma, who is the defendant No.1.

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(3) Lingaraju, who died leaving behind his wife Lakshmamma and children Mohan, Chaitra and Chandrashekar who are defendant Nos.2 to 5 respectively.

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(4) Nagaraju, who is the defendant No.6.

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(5) Jayalakshmamma who is defendant No.7.

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(6) Ramalingaiah who is the defendant No.8 and he is the father of the plaintiffs.

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(1) Sy.No.195/3 measuring 14 guntas,

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(2) Sy.No.197/4 measuring 27 guntas including karab land,

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(3) Sy.No.197/5 measuring 27 guntas including karab land,

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(4) property bearing Khaneshumari No.159 measuring east to west 40 feet and north to south 40 feet and

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(5) property bearing khaneshumari No.160 measuring east to west 20 feet and North to south 20 feet.

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All situated at Akkur Village, Virupakshapura Hobli, Channapatna Taluk, Ramanagara District (Suit Schedule Properties).

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(d) That land in Sy.No.195/3 measuring 14 guntas is an ancestral property standing in the name of Doddabettegowda from the year 1968-69. The said land was sold to Puttabadregowda, the defendant No.13 in the present suit by Chikkalingegowda. Land bearing Sy.No.197/4 measuring 26 guntas was originally standing in the name of one Lingegowda son of Ningegowda. Subsequently, the grandfather of the plaintiffs Doddabettegowda obtained the said land and khatha was made in his name to an extent of 13 guntas. Similarly, land in Sy.No.195/7 totally measuring 27 guntas was standing in the name of Doddabettegowda which was mortgaged to Puttabadregowda and later transferred in the name of Chikkelingegowda the grand father of the plaintiffs.

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(e) The property bearing Khaneshumari No.160 and 161 wrongly shown as Khaneshumari No.162, was standing in the name of Chikkalingegowda the grand father of the plaintiffs. The property in Khanesumari No.160 is still in the occupation of the plaintiffs. The portion of property in Khanesumari Nos.160 and 161 were sold to Ningegowda and remaining portion was acquired by the Public Works Department for formation of road and for the Office of Panchayat. In lieu of the said acquisition property in K.S.No.159 was handed over to the families of the plaintiffs and defendants.

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(f) That the father of the plaintiffs was puppet in the hands of his brothers and sisters who in collusion filed a suit in O.S.No.45/1992 suppressing the facts and to legalize the illegal transfer and obtained a fraudulent judgment and decree. Against the said judgment and decree father of the

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plaintiffs and brother had filed an appeal before the First Appellate Court in R.A.No.30/2004 which was

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dismissed on 26.03.2007. The father of the plaintiffs and brother thereafter filed Regular Second Appeal in R.S.A.No.2028/2007 which is also dismissed by order dated 29.11.2011.

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(g) That despite having knowledge of the aforesaid properties being the family properties the proceedings in O.S.No.45/1992 and R.A.No.30/2004 and R.S.A. No.2028/2007 were not

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properly prosecuted in the manner protecting the interest of the appellants/plaintiffs resulting in wasting of the ancestral properties depriving the rights of the appellants/plaintiffs.

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(h) Therefore the plaintiffs were constrained to file

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the present suit seeking:

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a. Reopening the partition and for further partition and separate possession.

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b. Declaration that the decree obtained in aforesaid suit in O.S.No.45/1992 by defendant Nos.2 to 6 and 8 to 13 not binding on the plaintiffs.

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c. For declaration that deed of sale dated 11.05.1992 executed by Chikkalingegowda in favour of Ramegowda-defendant No.9 in respect of item No.5 of the suit schedule property is not binding on the plaintiffs.

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d. For declaration that deed of sale dated 23.06.1987 executed by Chikkalingegowda in favour of Eshwariah-defendant No.10 in respect of item No.4 of the suit schedule property is not binding on the plaintiffs.

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e. For declaration that deed of sale dated 17.09.1991 executed by Chikkalingegowda in favour of C.Ningegowda-defendant No.12 in respect of item No.4 of the suit schedule property is not binding on the plaintiffs. f. For declaration that deed of sale dated 23.01.1985 executed by Chikkalingegowda in favour of Puttabadregowda-defendant No.14 in respect of item No.3 of the suit schedule property is not binding on the plaintiffs.

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g. For declaration that deed of sale dated 07.03.1984 executed by Chikkalingegowda in favour of Puttabadregowda-defendant No.14 in respect of item No.1 of the suit schedule property is not binding on the plaintiffs. (i). For permanent injunction restraining the defendants from interfering with the possession of the plaintiffs.

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Written statement is filed only by the defendant No.9 disputing the plaint averments. It is contended that the suit schedule properties are the self acquired properties of the Chikkalingegowda who sold the portion of properties in K.S.No.159 New No.160 measuring 20X20 in favour defendant No.9 under deed of sale dated 11.05.1992. It is further contended that the father of the plaintiffs and his brothers had filed the suit in O.S.No.45/1992 in which the suit schedule properties were also the part of, wherein it has been held that the properties in K.S.No.160 and 159 are the self acquired properties of Chikkalingegowda and not the family properties. That the judgment and decree passed in said suit has attained finality as the same has been confirmed by the First Appellate Court as well as this Court as such the present suit filed by the plaintiffs is not maintainable.

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Based on the pleading the Trial Court framed the following issues:

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1. Whether the plaintiffs prove that the suit schedule properties are joint family property of themselves and the defendants?

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2. Whether the plaintiffs prove that the judgment and decree in O.S.No.45/1992 dated:21.06.2004 in not binding on them?

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3. Whether the plaintiffs prove that the sale Deeds dated:11.05.1992, 23.06.1987, 17.09.1991, 23.01.1985 and 07.03.2004 are not binding on them?

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4. Whether the defendant No.9 proves that the suit is barred by principle of res-judicata?

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5. Whether the defendant No.9 is a bonafide purchaser?

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6. Whether the plaintiffs are entitled for the relief as sought for?

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7. What order or decree?".

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Mother of the plaintiffs Smt.Sunitha examined

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herself as PW.1 and has produced as many as 54 documents marked as Ex.P1 to Ex.P54. Defendant No.9

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Sri.Ramegowda has examined himself as DW.1 and has marked 7 documents as exhibits Ex.D1 to Ex.D7. On appreciation of evidence the Trial Court decreed the suit in part only in respect land in Sy.No.197/5 and claim of

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the plaintiffs in respect of the rest of the properties were rejected by its judgment and decree dated 02.05.2015.

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Being aggrieved by the same, plaintiffs preferred

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regular appeal in R.A.No.42/2015 on the file of the I Additional District and Sessions Judge, Ramanagara. First appellate Court considering the grounds urged in the memorandum of appeal framed the following points for its consideration:

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"1. Whether the appellants prove that, the impugned judgment and decree are illegal, unlawful, perverse, vexatious and capricious, opposed to all cannons of law, facts and circumstances, as such untenable under the law?

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2. Whether the appellant proves that, the interference of this court is quite necessary?

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3. What order?".

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On re-appreciation of evidence the first

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Appellate Court dismissed the appeal filed by the plaintiffs and confirmed the judgment and decree passed

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by the Trial Court. Being aggrieved by the same, plaintiffs are before this Court in this present appeal.

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8. This Court by Order dated 23.04.2018

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admitted the appeal for consideration of following substantial question of law:

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"Whether the both the courts below have not appreciated the evidence in their proper perspective which has resulted in both of them holding that it is only Sy.No.197/5 which is the joint family property, but not the remaining suit schedule properties?"

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Sri. Leeladhar H.P, learned counsel for the appellants reiterating the grounds urged in the

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memorandum of the appeal submitted that there is no dispute with regard to lands in Sy.Nos.195/3, 197/4, 197/5 and property bearing K.S.Nos.159 and 160 being the ancestral properties. He submitted that merely because a decree was obtained in O.S.No.45/1992, the trial court and the First Appellate Court declined to look into the material evidence placed on record by the plaintiffs which would demonstrate that the suit schedule

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properties are the ancestral properties still available for partition. He further submitted that the trial court and

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the first appellate court erred in holding that there is severance in the joint family status and that the joint family properties were not available merely because certain joint family properties were alienated. He submitted that the trial court and first appellate court have not adverted to the case of the plaintiffs with regard to land bearing Sy.Nos.195, 197/4 indicating lack of application of mind. Hence he submitted that substantial question of law framed, has to be answered in favour of appellants.

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Sri.S.B.Halli, learned counsel for the respondents on the other hand justifying the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court submitted that since the dispute raised in the present suit having been dealt with and determined in the previous suit in O.S.No.45/1992 and same having attained finality, appellants cannot be allowed to reagitate the matter. He further submitted that there has been categoric finding in the judgment

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and decree passed in suit in O.S.No.45/1992 for the schedule properties were the absolute properties of the Chikkalinge Gowda and alienations made by him were in accordance with law. That being the fact, the present litigation reagitating the concluded issued cannot be sustained. Hence, sought for dismissal of the appeal.

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Heard. Perused the records.

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Present suit by the minor plaintiffs represented by their mother, though filed seeking their share in the suit schedule properties, is essentially one for declaration that the Judgment and decree dated 21.06.2004 passed in O.S.No.45/1992 as not binding on them. The plaintiffs have also sought for declaration that the deeds of sale dated 11.05.1992, 23.06.1987, 17.09.1991, 23.01.1985, 07.03.1984 under which suit schedule properties were purchased by defendants 9 to 14 were not binding on them.

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It is necessary at the outset to refer to the aforesaid suit in O.S.No.45/1992. The said suit was filed by Lingaraju (husband of defendant No.5 and father of defendant No.3 to 5 in the present suit), Nagaraju (the defendant No.6 in the present suit) and Ramalingaiah (defendant No.8 in the present suit), sons of Chikkalingegowda, against said Chikkalingegowda, Ramegowda (defendant No.9 in the present suit), Eshwaraiah (defendant No.10 in the present suit), Puttachandramma (defendant No.11 in the present suit) and Ningegowda (defendant No.12 in the present suit) for relief of partition and separate possession. The subject matter of the said suit in O.S.No.45/1992 are the following properties:

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(i) Property bearing K.No.159 situated at Akkur Grama, Virupakshapura Hobli, Channapatna Taluk measuring 40 ft x 40 ft.(Item No.1)

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(ii) Property bearing K.Nos.160 and 161 situated at Akkur Grama, Virupakshapura Hobli, Channapatna Taluk. (Item No.2)

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(iii) Property bearing Sy.No.197/4 measuring 13 guntas and Sy.No.197/5 measuring 27 guntas (item No.3).

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Plaintiffs in the said suit being the sons of Chikkalingegowda had challenged the following alienation made by Chikkalingegowda;

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a) Sale dated 11.05.1992 in respect of portion measuring 20x20 of the property in item No.1 in favour of defendant No.2 namely, Sri.Ramegowda.

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b) Sale dated 17.09.1991 in respect of another extent of 16x20 in the suit item No.4 in favour of defendant No.5 -Sri.Ningegowda.

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c) Sale dated 28.07.1969 in respect of land bearing Sy.No.71/2 in favour of Sri.Chamegowda.

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d) Sale dated 22.05.1968 in respect of land bearing Sy.No.179/4 in favour of Sri.Chamegowda.

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e) Sale dated 23.06.1987 in respect of item No.4 in favour of Sri.Eshwaraiah.

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f) Sale dated 07.03.1984 in respect of land bearing Sy.No.195/3 in favour of one Puttabhadregowda.

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g) Mortgage dated 23.01.1985 in respect of land bearing Sy.No.197/5 in favour of Puttabhadregowda.

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h) Suit item No.3 land bearing Sy.No.197/4 measuring 13 guntas and Sy.No.197/5 measuring 27 guntas stood in the name of defendant No.1.

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The trial Court in the said suit in

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O.S.No.45/1992 on appreciation of evidence held that all

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the suit items of the properties were the self acquired properties of Chikkalingegowda who was defendant No.1

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and grand father of the present plaintiffs and upheld all the alienations made by him in favour of aforesaid persons. Since during the pendency of the said suit defendant No.1 Chikkalingegowda passed away leaving behind three sons namely Lingaraju, Nagaraju and Ramalingaiah and two daughters namely, Puttalakshmma and Jayalakshamma, it was declared that they are

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entitled for 1/5^th share in the said suit item Nos.1, 2 and

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3 properties. The operative portion of the decree is extracted hereunder;

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" Suit is decreed in part. It is declared that the plaintiffs are entitled for partition and separate possession of 1/5^th share each in suit item No.2, 13 guntas of land in Sy.No.197/4 out of suit item No.3 and 640 sq.ft. area excluding the properties purchased by the defendants 2 to 5 out of suit item No.1. The suit inrespect of other properties and mesne profits stands dismissed."

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The aforesaid Judgment and decree dated 21.06.2004 passed in O.S.No.45/1992 was carried in appeal by the plaintiffs therein (the defendants 6 and 8 and deceased Lingaraju the husband and father of defendant Nos.2 to 5 in the present suit) in R.A.No.30/2004. By Judgment and order dated 26.03.2007 the said appeal was dismissed confirming the Judgment and decree passed in the said O.S.No.45/1992. Being aggrieved by the same, a regular second appeal in RSA No.2028/2007 was filed. This Court by order dated 29.11.2011 dismissed the said regular second appeal

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confirming the Judgment and decree passed by the trial Court and confirmed by the first appellate Court.

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Thus, as seen above challenge to the

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alienation of properties as made by Chikkalingegowda in favour of respondents 9, 10, 12 and 13 under the aforesaid deeds of conveyance has attained finality.

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When the above being the factual position

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present suit is filed by the plaintiffs claiming to be son and daughter respectively of Ramalingaiah, the defendant No.8 questioning the very same Judgment and decree dated 21.06.2004 seeking to declare the same as not binding on them and to reagitating the sale transactions yet again in the present suit which have already attained finality.

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The trial Court and First appellate Court having appreciated aforesaid factual aspects of the matter have come to the conclusion that once the issue with regard to the ownership of Chikkalingegowda over

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the suit schedule properties and alienations made by him as noted above having attained finality the plaintiffs in the present suit being children of Ramalingaiah, who was the plaintiff No.3 in the said suit in O.S.No.45/1992, are bound by the said Judgment and decree and accordingly have declined the effort of plaintiffs herein to reinvent the wheel. It is necessary to note though allegations have been made by the plaintiffs in the present suit that their father Ramalingaiah, the defendant No.8 and his brothers did not prosecute the earlier suit in a manner protecting their interest, nothing is brought on record to justify the said allegation. Further, records reveal that the very suit in O.S.No.45/1992 was filed challenging the alienation made by Chikka Lingegowda which was declined. The said judgment and decree was questioned in regular appeal in R.A.No.30/2004 which was also dismissed and again in RSA No.2028/2007 which was also dismissed. In the light of these aspects of the matter, the plea of interest of the present plaintiffs not

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having been protected by their father cannot be countenanced. No infirmity or illegality can be found with the said reasoning arrived at by the trial Court and first appellate Court.

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As already noted above, in the aforesaid suit in O.S.No.45/1992 the trial Court held that the plaintiffs therein were entitled for 1/5^th share each in the following properties;

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a) an extent of 640 sq. ft area in item No.1 of the property in K.No.159 excluding the area sold to defendant Nos.2 to 5 therein,

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b) property in K.Nos.160 and 161 which was item No.2 in the said suit.

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c) 13 guntas of land in Sy.No.197/4.

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The trial Court in the instant case has found

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that land in Sy.Nos.195/3 and 197/5 which are item Nos.1 and 3 in the present suit were not included in the earlier suit in O.S.No.45/1992. However as regards land in Sy.No.195/3 it is held that the same was sold in favour

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of defendant No.13 on 07.03.1984 as such the said land

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was not available for partition. As regards land in Sy.No.197/5 the trial Court has found that though the said land was mortgaged by defendant No.1 in favour of defendant No.13 same got released by defendant No.8 from defendant No.13 as such only the said property was available at the hands of defendant No.8 capable of partition. Accordingly the trial Court declared the shares of the parties in the impugned Judgment and decree.

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The first appellate Court on reappreciation of the aforesaid evidence has confirmed the Judgment and decree passed by the trial Court. As such, no infirmity or illegality can be found with the reasonings and conclusion arrived at by the trial Court and first appellate Court in holding that only land in Sy.No.197/5 is available for partition and that all other contentious issues having been adjudicated and determined in the earlier suit in O.S.No.45/1992 were binding on the plaintiffs in the present suit. The substantial question of law is thus answered accordingly.

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Appeal is dismissed confirming the judgment and decree dated 02.05.2015 passed in O.S.No.08/2013 by the Trial Court and judgment and Order dated 09.10.2017 in R.A.No.42/2015 passed by the First Appellate Court.

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Sd/JUDGE

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RL/SBN/RU

Sri Prashantha Gowda v. Smt Puttalakshmamma

Case brief

What is this about?

What did the court decide?

Sri Prashantha Gowda v. Smt Puttalakshmamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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