Sri Ashoka Vs Smt Gangamma

NO.1 IS THE WIFE AND NO.2 TO 7 ARE THE CHILDREN OF LATE GURUVAPPA ALL ARE RESIDING AT KAMA KARIYA, MANI THOTA, BAJAL VILLAGE AND POST, MANGALURU - 575 007.

¶29

…RESPONDENTS

¶30

THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.07.2023 PASSED IN RA NO.87/2021 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K., DISMISSED THE APPEAL

¶31

3 - NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶32

HC-KAR

¶33

AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.03.2021 PASSED IN OS NO.531/2015 ON THE FILE OF IST ADDITIONAL CIVIL JUDGE, MANGALURU, D.K.

¶34

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

¶35

ORAL JUDGMENT

¶36

Hear d Sri. Y. Rajendra Prasad Shetty, learned

¶37

counsel for the appellants.

¶38

This Court did not deem it fit to issue notice to

¶39

the respondents having regard to the issue involved in the appeal and substantial questions of law raised in the appeal memorandum.

¶40

Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:

¶41

3.1 Appellants being the plaintiffs, filed a suit in O.S.No.531/2015 in respect of the following immovable

¶42

4 - NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶43

HC-KAR

¶44

property (hereinafter referred to as 'suit schedule

¶45

property' for short):

¶46

SCHEDULE

¶47

Immovable property held on Warg right, situated in Bajal Village of Mangaluru Taluk, D.K. and comprised in

¶48

SY.NO.	EXTENT
	A-C
25/1P3	0-23
23/P11	0-03
	0-26

¶49

Together with improvements, residential buildings and with all mamool and easementary rights appurtenant thereto.

¶50

3.2 It is the contention of the appellants that the

¶51

suit properties were acquired by late B. Babbu as per the Order of the Land Tribunal dated 10.01.1978 in LRC No.1136/1976-77.

¶52

3.3 Babbu died leaving behind two sons namely Angara Maistri and Guruvappa.

¶53

5 -

¶54

NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶55

HC-KAR

¶56

3.4 Angara Maistri and Guruvappa died leaving behind their respective wives and children. Plaintiffs are the wife and children of Angara Maistri and defendants are the wife and children of Guruvappa. Thus, plaintiffs claim that they are entitle for half share in the suit schedule property.

¶57

Pursuant to the suit summons, defendants entered appearance and engaged a counsel and filed common written statement denying the plaint averments in toto except admitting the relationship.

¶58

They contended that Babbu was only a name lendor in land reforms proceedings; neither Babbu nor his another son Angara Maistri did not cultivate the land prior to 01.03.1974 and sought for dismissal of the suit. Defendants also made a counterclaim to the effect that the property mentioned in the written statement needs to be divided in two equal shares.

¶59

6 -

¶60

NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶61

HC-KAR

¶62

In the written statement, following property

¶63

was included (hereinafter referred to as 'written statement schedule property':

¶64

SCHEDULE

¶65

Immovable property situated at Kadri Village of Mangaluru Taluk, D.K. and comprised in

¶66

SY.NO.	EXTENT
	A.C
98/27A	0.08

¶67

With residential building and with all other mamool and easementary rights of way, watner and improvements appurtenant thereto.

¶68

BOUNDARIES:

¶69

North : Main Road South : Portion of the same sy.no. West : Portion of the same sy.no. East : Portion of the same sy.no.

¶70

Plaintiffs filed rejoinder as against the counter

¶71

claim to the effect that the counter claim is frivolous in nature. Property bearing Sy.No.98/27A measuring 0-08 cents situated in Kadri Village Mangaluru Taluk, Dakshina Kannada District is the absolute property of Angara Maistri

¶72

7 - NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶73

HC-KAR

¶74

and thereafter it is the plaintiffs who were enjoying the property on account of the 'Darkasth Order' dated TTR 914/1980-81 and sought for dismissal of the counterclaim.

¶75

Learned Judge after raising necessary issues recorded the evidence of the parties and decreed the suit of the plaintiffs granting half share in the suit schedule property and also decreed the counterclaim filed by the defendants and granted half share in the 'written statement schedule property' as well.

¶76

Operative portion of judgment of Trial Court reads as under:

¶77

" The suit of the plaintiffs and counter-claim of the defendants is decreed.

¶78

The plaintiff No.1 as wife and plaintiff No.2 to 7 as children of Angara Maistry are entitled to half share in the suit schedule property and the written statement schedule property.

¶79

The defendant No.1 as wife and defendant No.2 to 7 as children of Guruvappa are entitled to half share in the

¶80

8 - NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶81

HC-KAR

¶82

suit schedule property and written statement schedule property.

¶83

Draw preliminary decree accordingly."

¶84

Being aggrieved by the same, it is the plaintiffs No.2 to 6 who filed an appeal before the First Appellate Court in R.A.No.87/2021, as admittedly first plaintiff who is the wife of Angara Maistri died during the pendancy of the suit as against defendants N.1 to 7 challenging the decree of counterclaim in respect of 'written statement schedule property'.

¶85

Learned Judge in the First Appellate Court, after

¶86

securing the records, re-appreciated the material evidence on record and dismissed the appeal of the plaintiffs insofar as granting half share in the written statement schedule property.

¶87

9 - NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶88

HC-KAR

¶89

Being further aggrieved by the same, plaintiffs

¶90

are before this Court in this present second appeal on the following grounds and substantial questions of law:

¶91

GROUNDS

¶92

That the judgment and decree in so far as decreeing the counter claim of the respondents/defendants O.S.No.531/2015 and which is confirmed in R.A.No.87/2021 passed by the both the Courts below are illegal and unsustainable in law and hence liable to be set aside by this Hon'ble court.

¶93

That the Hon'ble Courts below have failed to appreciate the evidence/documentary evidence and pleadings of the parties while passing the impugned judgment in so far as decreeing the suit of the counter claim of the respondents/defendants in the suit.

¶94

That the Hon'ble Courts below have failed to consider that, Mr. Angara Maistri had several time requested the revenue officer by filing an application regularizing the unauthorized occupation and grant the same in respect of the counter claimed property by the respondents/defendants.

¶95

That the Hon'ble Courts below have failed to consider that the property in question counter claim schedule property is granted land in his personal capacity in favour of Mr. Angara Maistri and he had paid the auction amount to the concerned authority in his personal capacity. The

¶96

10 - NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶97

HC-KAR

¶98

respondents/defendants do not have any share/s right in the counter claim schedule property as claimed in the counter claim.

¶99

That the Hon'ble Courts below have failed to consider that, the respondents/defendants are not entitled half share in the counter claim schedule property as claimed in the counter claim by the respondents/defendants in the suit. The respondents/defendants are not entitled any shares and they are not co-owners of the counter claim schedule property which is not the joint family property. That aspect is not considered by the Hon'ble Court/s below while passing the Impugned judgment in so far as counter claim is concerned by the Hon'ble trial court/s.

¶100

That the Hon'ble Courts below have falled to consider that undisputedly late Mr. Angara Maistri the husband of the plaintiff No.1 Late Smt. Bhavani and plaintiff No.2 to 7/appellants were in undisturbed possession of the counter claim schedule property and constructed residential building and he himself filed an application before Tahasildar, Mangaluru for regularizing unauthorized occupation and after enquiry, the Tahasildar Mangaluru granted certificate of Saguvali Chit-Ex.P.6 in favour appellants father Late Mr. Angara Maistri in respect of the counter claim schedule property, which is absolute property of the appellants after the death of Mr. Angara Maistri. The respondents/ defendants or anybody has no right, share over the said property, hence, the said property is not available for partition and it is not a family

¶101

11 -

¶102

NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶103

HC-KAR

¶104

property. The Hon'ble both the courts over looked the said aspect while passing the impugned judgment by allowing the counter claim in the suit..

¶105

That the Hon'ble Courts below have not at all consider the Ex.P.6 and 7 and totally over looked while passing the impugned judgment in so far as counter claim is concern. The Hon'ble both the courts could not have consider the documents produced by the respondents/defendants Ex.D.2 to 5, 7 and 8, 11 to 40 while passing the impugned judgment.

¶106

� That the Courts below have not at all consider that the respondents/defendants produced the documents Ex.D.1, 9 and 10. Which shows that late Angara Maistri had the absolute owner of the counter claim schedule property and both the courts completely over looked and not considered at the time of passing impugned judgment. The court below ought to held that the documents produced by the respondents/defendants Ex.D.2 to 5, 7 and 8, 11 to 40 are not in respect of the counter claim schedule property. The Hon'ble both the courts ought to have held that, late Bhagi had not given any application for regularization of counter claim schedule property in her favour. Both the Hon'ble courts ought to have held that, late Angara had given the application before the Revenue authority and on his application the counter claim schedule property was granted to him and late Angara Maistri was the title holder of the counter claim schedule property and after his death the

¶107

12 - NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶108

HC-KAR

¶109

appellants/plaintiffs are the absolute joint owners of the counter claim schedule property. The respondents/defendants do not have any share, right and title in the counter claim schedule property as claimed by the respondents/defendants in the suit.

¶110

That the Hon'ble Courts below ought to have held that, respondents/defendants do not have any right, share in the counter claim schedule property ought to have dismiss the counter claim of the respondents/defendants holding that, the counter claim schedule property is not a family property. Both the Hon'ble courts ought to have held that, the issue No.2 and 4 against the respondents/defendants. The Hon'ble trial court observation made by the lower court with regard to Ex.D.38 is not correct and observation made with regard to Ex.D.4 and 8 is also not correct while passing the impugned judgment.

¶111

That the Hon'ble Courts below ought have held that the counter claim for partition by the respondents/defendants barred by limitation of law.

¶112

The Hon'ble trial court has no pecuniary jurisdiction to entertain the counter claim of the property the value of the counter claimed property in question is more than Rs.5,00,000/-(Five Lakhs). Therefore the Hon'ble trial court Civil Judge has no jurisdiction to entertain the counter claim petition since, it is not maintainable before the Hon'ble Civil judge court (Junior Division). The

¶113

13 -

¶114

NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶115

HC-KAR

¶116

Hon'ble both the courts below failed to considered regarding question of jurisdiction while passing the impugned judgments in so far as pecuniary jurisdictions of Hon'ble court.

¶117

That the courts below have falled to consider that, the respondents/defendants have not at all in joint possession of the counter claim schedule property. Hence, the respondents/defendants have to pay proper court fee U/s.35(1) of Karnataka court Fees and Suits Valuation Act for market value on the counter claim schedule property.

¶118

That the courts below have falled to appreciate that if but the respondents with ulterior motive under the guise of the allotment of share under the partition suit, the respondents have created a false story to knock of the counter claim schedule property as claimed in the counter claim in which suit counter claim has been wrongly decreed by the Hon'ble court/s below.

¶119

SUBSTANTIAL QUESTIONS OF LAW :

¶120

(a) Whether the Courts below have concurrently committed an error in assessing and re-assessing material evidence on record and thereby have come to a erroneous conclusion while decreeing the counter claim of the respondents/defendants in the suit?

¶121

(b) Whether the Courts below have justifying decreeing counter claim of the respondents/defendants in

¶122

14 -

¶123

NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶124

HC-KAR

¶125

respect of counter claim schedule property even though which is self acquired property of Late Angara Maistri, even though the respondents/defendants do not have any right, share in respect of counter claim schedule property as claimed in the counter claim?

¶126

(c) Whether the courts below have justifying that, decreeing the counter claim in respect of counter claim schedule property in the suit claimed in the counter claim by the respondents/defendants which is not the joint family property?

¶127

(d) Whether the Courts below have concurrently committed an error without framing proper issues that, whether the counter claim schedule property which is the self acquired property or joint family property ?

¶128

(e) Whether the Courts below have concurrently committed an error without framing proper issues regarding limitation of the counter claim, the court below decreeing the counter claim without looking into the limitation point, the counter claim is barred by limitation?

¶129

(f) Whether the Courts below have concurrently committed an error that, without having pecuniary jurisdiction the property value of the counter claim schedule property is more than Rs.5,00,000/-(Five Lakhs), the Hon'ble trial court has no pecuniary jurisdiction to decide the counter claim in the suit ?

¶130

15 - NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶131

HC-KAR

¶132

Sri. Y. Rajendra Prasad Shetty, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have not properly appreciated the factual aspects of the matter that the 'written statement schedule property' was granted to Angara Maistri exclusively under 'Darkasth'. Therefore the said property ought not to have been subject matter of the suit for partition filed by the plaintiffs against defendants resulted in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law.

¶133

Having heard the arguments of Sri. Y. Rajendra Prasad Shetty, learned counsel for the appellant, this Court perused the material on record meticulously.

¶134

On such perusal of the material on record, admittedly, it is the Babbu who got the suit property in the land reforms proceedings.

¶135

16 - NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶136

HC-KAR

¶137

When the plaintiffs claim right, title and interest in respect of the suit properties on the ground that they are all members of the joint family property along with Babbu and Guruvappa branch, it should not lie in the mouth of the plaintiffs that Angara Maistri separately got the title over the 'written statement schedule property'.

¶138

When the suit schedule properties are to be construed as joint family properties even though it was granted in the name of Babbu which has been denied by the defendants in the written statement, same logic would apply in respect of the 'written statement schedule property' as well.

¶139

Therefore, even though the written statement schedule property is in the name of Angara Maistri by way of 'Darkasth Order', since it was also granted to him being member of joint family, after the death of Angara Maistri and Guruvappa, it is the plaintiffs and defendants were entitled for half share in all the properties were framed by

¶140

17 -

¶141

NC: 2025:KHC:38364 RSA No. 1576 of 2023

¶142

HC-KAR

¶143

joint family i.e., Babbu as well as 'written statement schedule property' in the name of Angara Maistri.

¶144

Learned Trial Judge and the learned Judge in the First Appellate Court have rightly appreciated the said aspect of the matter and decreed the counterclaim which requires no interference by this Court in this appeal.

¶145