Chowdappa @ Chikkapaiah Vs Sri Chikka Chowdappa

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NC: 2025:KHC:31626 RSA No. 548 of 2022

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF AUGUST, 2025 BEFORE

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THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 548 OF 2022 (PAR)

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BETWEEN:

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CHOWDAPPA @ CHIKKAPAIAH S/O LATE DODDA MUNISHAMAPPA AGED ABOUT 78 YEARS, R/AT MAVAHALLI VILLAGE, NANDI HOBLI, CHIKKABALLAPURA TALUK, CHIKKABALLAPUR DISTRICT 562103

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…APPELLANT

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(BY SRI. JAI PRAKASH REDDY M., ADVOCATE)

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AND:

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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SRI CHIKKA CHOWDAPPA S/O LATE DODDA MUNISHAMAPPA AGED ABOUT 78 YEARS, R/AT MAVAHALLI VILLAGE, NANDI HOBLI, CHIKKABALLAPURA TALUK, CHIKKABALLAPURA DISTRICT 562103

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SRI NARAYANAPPA DEAD BY LRS

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SMT NANJAMMA W/O NARAYANAPPA AGED ABOUT 62 YEARS

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SMT RATHNAMMA

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D/O NARAYANAPPA , W/O RAJAPPA AGED ABOUT 43 YEARS

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NC: 2025:KHC:31626 RSA No. 548 of 2022

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HC-KAR

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4. BABU S/O NARAYANAPPA, AGED ABOUT 41 YEARS

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SUBRAMANI S/O NARAYANAPPA AGED ABOUT 38 YEARS,

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RESPONDENTS 2 TO 5 ARE ALL R/O SRINIVASAPURA VILLAGE BAGEPALLI TALUK 561207 CHIKKABALLAPURA DISTRICT

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…RESPONDENTS

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THIS RSA FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 02.12.2021 PASSED IN RA.No.80/2020 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHIKKABALLAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.07.2020 PASSED IN OS No.385/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHIKKABALLAPURA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:31626 RSA No. 548 of 2022

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.Jai Prakash Reddy M., learned counsel for the appellant.

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Unsuccessful plaintiff is the appellant who is challenging the dismissal of the suit filed for partition passed in O.S.No.385/2012 which was confirmed in RA No.80/2020.

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

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3.1. Plaintiff filed a suit for partition and separate

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possession in respect of the suit properties more fully described as suit properties hereunder and hereinafter referred to as suit schedule property:

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1. Sy.No.39/1 measuring 1-11 guntas bounded on: East by land of Reddappanavara Munishamappa and Kere

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West by Koomannanavara Aswathappa’s land North by Shankarappa’s Honge Thopu South by land allotted to Chikkamunishamappa

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HC-KAR

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2. Sy.No.2/1 measuring 1 acre bounded on East by land of Pillanna West by land of Talari Sathyamma Northy by Talari inamthi land South by land of Munisathyappa

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3. Sy.No.2/6 extent of 0-38 guntas

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4. Sy.No.2/7 measuring 0-26 guntas Item Nos.3 and 4 are commonly bounded on: East by land of Nanjundappanavara Narayanamma and Ashwathappa West by A.P.Byregowda and Mavahalli border North by road South by land of Ashwathappa

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5. Sy.No.20 to an extent of 0-02.08 guntas

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6. Sy.No.21 to extent of 0-08 guntas

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7. Sy.No.22 to an extent of 0-10.08 guntas Item No.5 to 6 are commonly bounded on East by Marave halla West by Kerekatte North by land of Muninarayanappa South by land of Muninarayanappa

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All the above properties are situated at Mavahalli village, Nandi Hobli, Chikkaballapura Taluk.

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3.2. Plaintiff contended that Honnappa is the

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common prepositus who had two sons namely Dodda Munishamappa and Chikka Munishamappa, who succeeded

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to the estate of Honnappa, who died intestate.

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3.3. Defendant No.1 – Chikka Munishamappa

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partitioned the suit property through registered partition deed dated 24.12.1980 wherein schedule ‘A’ property is allotted to defendant No.1. Further, in the said partition, defendant No.1 has represented with regard to the share of the plaintiff on and from the date of said partition. Plaintiff and defendant No.1 are in joint possession and enjoyment over the same and there is no further partition between them.

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3.4. Taking undue advantage of the innocence of the plaintiff, defendant No.1 attempted to create third party rights over the suit property and demanded his share. When he obtained RTC extract, he came to know that some of the properties are in the name of defendant No.2 and therefore, he filed the suit for partition.

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After service of suit summons, defendant No.1

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appeared before the Court and filed written statement admitting the relationship between the plaintiff and himself but denied other averments of plaint.

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He has taken a specific contention that there

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was an oral partition between himself and Chikka Munishamappa with respect of suit item Nos.1, 2, 4 to 7, 20, 21 and 22 and he also submitted that he has purchased item No.3 out of his own income and he is in possession and enjoyment of the property.

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He also contended that there was a partition between plaintiff and Chikka Munishamappa wherein the property bearing Sy.No.34/1, 120/3, 120/4 were allotted to the share of the plaintiff and submitted that pendency of the revenue proceedings ended in his favour.

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It is also contended that suit in O.S.No.234/1989 was filed seeking relief of permanent injunction wherein plaintiff has admitted oral partition and allotment of the shares.

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It is also contention of defendant No.1 that suit

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is bad for non-joinder of necessary parties who are the purchasers of portions of the suit property.

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HC-KAR

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Defendant No.2 though appeared before the Court did not chose to contest the suit by filing a written statement.

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Learned Trial Judge after raising necessary issues, held an enquiry and dismissed the suit of the plaintiff noting the fact of the earlier partition.

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Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in RA No.80/2020.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the factual and legal aspects of the matter, dismissed the appeal filed by the plaintiff.

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While so dismissing the appeal, learned Judge took into consideration the answers elicited in the crossexamination of the plaintiff stating that apart from the suit items of the property, Chikka Munishamappa had other

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properties as well and they have not been included in the

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present suit.

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Plaintiff also admits that there was an oral partition between defendant No.1 and Chikka Munishamappa. He further admits that in respect of suit item Nos.1, 4 to 7, there was a partition but he has explained that the properties are in the joint names of plaintiff and defendant No.1.

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Being further aggrieved by the same, plaintiff

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has filed the present appeal on following grounds and raising substantial questions of law:

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GROUNDS

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That both the Judgment and Decree passed by

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the lower appellate court and Trial court are illegal, arbitrary and without assigning proper and cogent reasons.

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The courts below have failed to see that the

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plaintiff is not a party to the alleged unregistered partition deed and in the said partition deed no share is allotted to the plaintiff. Hence relying

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upon such document and coming to the conclusion that there is earlier partition is illegal. Hence the Judgment and Decree passed by the courts below is illegal and arbitrary.

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The courts below have failed to see that other

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properties which were not included in the suit are not the joint family properties and are not the ancestral properties. Hence non inclusion of such properties will not take away the right of the plaintiff for partition and separate possession of the suit schedule properties.

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The courts below have failed to properly

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appreciate the oral and documentary evidence produced by the plaintiff and heavily relied upon evidence produced by the defendant and also erred in admitting the unregistered documents. Hence the marking of the Xerox copy of unregistered partition deed is illegal. Hence the judgment and decree are liable to be set aside.

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The courts below have failed to assign proper and

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cogent reasons and has passed the impugned judgment which is not sustainable in the eye of law.

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SUBSTANTIAL QUESTIONS OF LAW

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a. Whether the courts below are justified in relying upon the unregistered Xerox copy of

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partition deed to which the plaintiff is not a party and come to the conclusion that there is a partition as per the said document?

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b. Whether the courts below are justified in relying upon a Xerox copy of an unregistered partition deed without compounding the said document and without imposing duty and penalty ?

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c. Whether the courts below are justified in coming to the conclusion the suit is bad for non joinder of other joint family properties, when they give a finding that there is earlier partition?

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Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that since the relationship is admitted and previous partition is not properly established by defendant No.1, suit of the plaintiff ought to have been decreed by the learned Trial Judge.

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He also argued that dismissal of the suit by the learned Trial Judge and mechanical dismissal by the First

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Appellate Court has resulted in miscarriage of justice and sought for admitting the appeal for further consideration.

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In the light of the appeal grounds and the substantial questions of law raised in the appeal, this Court perused the material on record meticulously.

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On such perusal of the material on record, there is a clear and categorical admission by P.W.1 in his crossexamination about the oral partition that took place between Chikka Munishamappa and defendant No.1.

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In fact, items of the property which were allotted to the plaintiff are not part of the suit schedule properties. When the said factual aspect of the matter was confronted to P.W.1 in his cross-examination, P.W.1 has given an evasive answer that those properties are self acquired properties. Therefore, they are not included in the suit.

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Taking note of the fact that there was an admission with regard to the earlier oral partition and

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properties were already divided, plaintiff has failed to prove that the suit properties are the joint family properties and plaintiff had a share in the suit properties.

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