Smt. Lalitha Bai Vs Sri. Durgoji Rao @ Durgappa

BOTH ARE RESIDING AT PRATHAP SINGH COMPOUND, DODDA KURUBARA BEEDI Digitally signed OLD TOWN, BHADRAVATHI by DEVIKA M SHIVAMOGGA DISTRICTRICT-577227. Location: HIGH COURT OF KARNATAKA

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…APPELLANTS (BY SRI. PARAMESHWARAPPA M.V., ADVOCATE)

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AND:

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SRI. DURGOJI RAO @ DURGAPPA S/O. LATE. RANOJI RAO AGED ABOUT 62 YEARS AGRICULTURIST R/O. THATTEHALLI CAMP HOLEHONNURU HOBLI BHADRAVATHI TALUK SHIVAMOGGA DISTRICTRICT-577 227.

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SRI. SHIVAJI RAO @ SHIVAPPA S/O. LATE RANOJI RAO AGED ABOUT 59 YEARS AGRICULTURIST R/O. THATTEHALLI CAMP HOLEHONNARU HOBLI BHADRAVATHI TALUK SHIVAMOGGA DISTRICT-577227.

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SMT. LAKSHMI BAI W/O. LATE KARIYOJI RAO @ KARIYAPPA AGED ABOUT 69 YEARS

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SMT. SUDHA W/O. ESHWAR RAO AGED ABOUT 49 YEARS

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SMT. SUMITHRA W/O. SHIVAJI RAO AGED ABOUT 40 YEARS

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RESPONDENTS 3 TO 5 ARE RESIDING AT THATTEHALLI VILLAGE HOLEHONNUR HOBLI BHADRAVATHI TALUK SHIVAMOGGA DISTRICT-577227.

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SMT. KAMALA BAI W/O. CHANDROJI RAO @ CHANDRAPPA AGED ABOUT 67 YEARS

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SRI. RAJU S/O CHANDROJI RAO AGED ABOUT 44 YEARS

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SRI. SURESH S/O. CHANDRAJI RAO AGED ABOUT 44 YEARS

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SMT. SUDHA BAI W/O. RAMESH RAO AGED ABOUT 38 YEARS

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RESPONDENTS 6 TO 9 ARE RESIDING AT KANASINAKATTE VILLAGE HULEHONUURU HOBLI BHADRAVATHI TALUK SHIVAMOGGA DISTRICT-577 227.

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SRI. RAMESHA, S/O LATE CHANDROJI RAO AGED ABOUT 39 YEARS AGRICULTURIST RESIDING AT MARASHETTIHALLI-KALLIHAL HOLEHONNUR HOBLI BHADRAVATHI TALUK SHIVAMOGGA DISTRICT-577 227.

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SMT. THEERTHA BAI W/O. SHIVANANDAPPA D/O. LATE. RAMOJI RAO AGED ABOUT 54 YEARS

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SMT. LAKSHMI BAI W/O. GANESHAPPA @ GANESH RAO D/O. LATE. RANOJI RAO AGED ABOUT 67 YEARS

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RESPONDENTS 11 AND 12 ARE RESIDING AT THATTEHALLI VILLAGE HOLENNURU HOBLI, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-7577 227.

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…RESPONDENTS

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(BY SRI. BALARAJ K.N., ADVOCATE FOR C/R)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.11.2024 PASSED IN R.A.NO.5024/2022 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.06.2022 PASSED IN O.S.NO.96/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI.

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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 H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned counsel for the appellants.

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This second appeal is filed against the concurrent finding. The factual matrix of case of plaintiffs before the Trial Court while seeking the relief of partition and separate possession in respect of the suit schedule property as 1/7^th share, it is contended that the plaintiffs and husband of defendant No.1, father of defendant Nos.2 and 3, the husband of defendant No.4, father of defendant Nos.5 to 8, husband of defendant No.9 and father of defendant Nos.10 and 11 and defendant Nos.12 and 13 are the children of late Sri.Ranoji Rao and Sri. Ranoji Rao died on 16.07.1993. The suit schedule property was inherited by Sri.Ranoji Rao from his ancestors through the family settlement and then he has enjoyed the same as

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the owner without any interruption. During lifetime of Sri.Ranoji Rao, he has filed the suit before the Civil Judge in O.S.No.51/1989 against the defendants for the relief of declaration and mandatory injunction. In the year 1992, Ranoji Rao and his sons have partitioned their joint family properties except the suit schedule property. During the pendency of the suit in O.S.No.51/1989, the said Ranoji Rao died leaving behind five sons and two daughters as his legal heirs. Subsequently, children of Ranoji Rao have contested the case and the said suit came to be decreed. An appeal is filed against the said judgment and decree in R.A.No.43/2000 and the same also disposed of on 23.07.2010 by confirming the judgment of the learned trial Judge.

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It is further case of the plaintiffs that till 2000, Khata of the said property stands in the name of Smt.Sundara Bai who is the 1^st defendant in O.S.No.51/1989. After the death of Ranoji Rao, children of Sri Ranoji Rao have intended to partition the suit schedule

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property among themselves and to get change the khata of the respective shares to their individual names. It is further stated that after the order passed in R.A.No.43/2000, parties have intended to partition and get their legitimate share and the same was postponed. In the meanwhile, defendant No.9-Smt.Lalitha Bai got change the katha of the scheduled property in her name and secretly tried to alienate the said property and when the same came to the knowledge of the plaintiffs, they have filed an application before the concerned authorities to remove the name of Lalitha Bai and made the entry in the joint name of all the legal heirs of Ranoji Rao. The plaintiffs demanded the share and fails to give any share and hence, the suit is filed. The defendant No.9 filed the written statement contending that herself and her children have perfected the title over the suit schedule property by way of adverse possession since the property is in exclusive possession of her and her family members and possession of the defendant No.9 and her children is

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exclusive, open and continuous and without interruption of the knowledge of the plaintiffs and hence they have perfected the title. It is also contended that suit is bad for non-joinder of party and also not entitled for any relief. The Trial Court having considered both oral and documentary evidence in respect of this property is concerned, comes to the conclusion that there was no any partition in respect of the suit schedule property and the contention of partial partition is also answered as negative except this property, all other properties were partitioned earlier and hence, granted the relief of 1/7^th share in respect of the suit schedule property.

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The First Appellate Court having considered the grounds which have been urged in the first appeal, formulated the point whether the judgment and decree requires interference and the Appellate Court on perusal of both oral and documentary evidence placed on record and also considering the relationship between the parties which is discussed in paragraph Nos.34, 35 and 36 and also

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taken note of the fact that except the present suit schedule property in respect of the ancestral property, all the properties are partitioned between them and during 1964-65 based on the false document created by Nanjundappa, the suit schedule property was out of possession and hence, father had filed earlier suit in O.S.No.51/1989 and the same is decreed and confirmed. The First Appellate Court in paragraph No.37 comes to the conclusion that this property was not part and parcel of earlier partition in view of pendency of the suit and hence, the plaintiffs are entitled for 1/7^th share and also taken note of partial partition and defence was taken by the defendant No.9 and same is also considered in paragraph Nos.39, 40, 41 and 42 and confirmed the judgment of the Trial Court.

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Being aggrieved by the concurrent finding, the present second appeal is filed before this Court and the main contention of the counsel appearing for the appellants before this Court is that both the Courts failed

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to consider that suit is filed after 9 years and there was no any existence of joint family. Both the Courts misdirected in considering the factual aspects and question of law and when the appellant is in possession of the property and the said property is exclusive possession and perfected the title by adverse possession and the same has not been considered. Hence, matter requires re-consideration.

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Having heard the learned counsel for the appellants and also the pleadings of the parties and specific case of the plaintiffs that in respect of the suit schedule property, there was no any partition and earlier there was a partition and also specific pleading is made that earlier father had filed a suit and the same was decreed in favour of the father and an appeal was filed and the same was also confirmed. Hence, when an attempt was made to change the property in the name of defendant No.9 and also an attempt made to sell the property an application was given to make the katha in the name of all of the family members and also when the

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partition is demanded, postponed the same. Hence, filed the suit. Having taken note of the material on record, it is not in dispute that the property is an ancestral property and only contention is taken that the defendant No.9 had perfected the title since he has been in exclusive possession of the property and the same was taken note of by the Trial Court and also in detail considered the material particularly with regard to the documents which have been relied upon in paragraph No.22 of the Trial Court judgment. The defendant Nos.1 to 7 and 11 have not participated in the proceedings. It is not the case of the defendant No.9 that there is a partition in respect of this property is concerned. But, in paragraph No.23 also, discussion was made with regard to the change of katha is concerned and only contention that he had perfected the title in view of his long standing possession and the same is also discussed in paragraph No.23. In paragraph No.32 also taken note of the fact that it will be seen that when the possession may be adverse to others, it is necessary

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that there should be an ouster or something equivalent to it. In paragraph No.34 also taken note of the contention of adverse possession and comes to the conclusion that unless the pleadings are complete and all the necessary ingredients to constitute ouster by adverse possession are set-out in the written statement and the same cannot be accepted and hence, answered the Issue No.2 as negative against the defendants.

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The First Appellate Court having re-assessed both oral and documentary evidence particularly in paragraph No.34 taken note of the nature of the property and also in paragraph Nos.35 and 36 documents were also taken note of and comes to the conclusion that the suit schedule property is an ancestral property and also earlier proceedings of the father initiated in O.S.No.51/1989 and also the dismissal of the appeal was also taken note of and with regard to the specific defense that suit is for partial partition also taken note of by both the Trial Court as well as First Appellate Court and the reason for the non

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inclusion of this property was also considered. When such

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material is considered by the Trial Court and First Appellate Court, question of admitting and framing of substantive question of law does not arise. Both question of fact and question of law also considered by both the

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Courts. Hence, not a case to invoke Section 100 of CPC.

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In view of the discussions made above, I pass the following:

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OR DER

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i) Second appeal is dismissed . ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.

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Sd/(H.P.SANDESH) JUDGE

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RHS List No.: 1 Sl No.: 57

Smt. Lalitha Bai v. Sri. Durgoji Rao @ Durgappa

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Smt. Lalitha Bai v. Sri. Durgoji Rao @ Durgappa

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