Mahadevegowda Vs Smt Siddarajamma

SRI NAGARAJU S/O LATE KALEGOWDA @ SANNEGOWDA AGED ABOUT 51 YEARS, R/AT C/O RAJANNA HOSA ANANDUR, BELAGOLA POST SRIRANGAPATNA TALUK MANDYA DISTRICT-571606.

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SRI. T.K. SUDHEERA S/O T.V. KRISHNAMURTHY AGED ABOUT 52 YEARS NO.1044/H, JAYALAKSHMI VILASA ROAD CHAMARAJAPURA, MYSURU MYSURU DISTRICT-570005.

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SRI JAVAREGOWDA S/O LATE BASAVEGOWDA @ HALLIGOWDA BASAVEGOWDA AGED ABOUT 85 YEARS, RESIDING AT D SALUNDI VILLAGE JAYAPURA HOBLI MYSURU TALUK MYSURU DISTRICT-570008.

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…RESPONDENTS

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3 - NC: 2025:KHC:19518 RSA No. 697 of 2022

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HC-KAR

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.09.2021 PASSED IN R.A.NO.373/2019 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU, PARTLY ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 18.07.2019 PASSED IN O.S.NO.1014/2007 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MYSURU.

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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

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learned counsel for the appellants.

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The suit is filed for the relief of partition and

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separate possession claiming 1/6^th share in the suit schedule property. It is the case of the plaintiffs that the plaintiffs and defendant Nos.1 to 3 are the children of deceased Kalegowda @ Sannekoda and his wife Kadamma who constitute joint family and suit schedule properties are their ancestral and joint family properties and they are in joint possession and enjoyment of the same. They have succeeded to the estate of their father and no partition has

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4 - NC: 2025:KHC:19518 RSA No. 697 of 2022

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HC-KAR

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been effected between them. The plaintiff had approached the defendants several times, but his effort made to get the partition was became vain and hence, filed the suit. In the first instance filed the suit against only defendant Nos.1 to 3 in respect of suit schedule item Nos.1 to 4 and later on defendant Nos.4 and 5 came to be impleaded as parties to the suit and also included suit item Nos.5 and 6 in the plaint and claimed their share. It is the claim of defendant Nos.1 and 3 that plaintiffs have been married much earlier to 1994 and their marriage was performed by defendant No.1 by giving cash on gold ornaments. Hence, they are not entitled for any share and they are relinquished their share.

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It is also the contention that the defendant Nos.1 and 3 have disputed the survey number and measurement of the suit schedule properties. The suit schedule item No.3 bearing Sy.No.188/1 measuring 2 acres 26 guntas out of which 1 acre 8 guntas belong to defendants and not 27 guntas has averred in the plaint.

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5 - NC: 2025:KHC:19518 RSA No. 697 of 2022

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HC-KAR

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The suit schedule item No.6 is the absolute property of defendant No.3, the said property was in a delirogated condition and the same was renovated by defendant No.5 by investing more than Rs.4,00,000/-. It is also the contention that there was already a partition earlier to the institution of the suit and same has been suppressed by the plaintiffs and also suit is barred by limitation. The 2^nd defendant also filed a separate written statement and he claims that partition was taken place among the plaintiffs and defendant Nos.1 to 3 and suit item No.5 was allotted to the share of defendant No.1 and he has sold the same in favor of defendant Nos.4 by executing a sale deed and suit item Nos.1, 3 and 4 were allotted to the share of defendant Nos.2 and 3 since they have performed the marriage of plaintiffs and they looked after the welfare of the plaintiffs. It is also the contention of the defendant No.2 that father and mother died on 25.06.1980 and in the year 2003 respectively and therefore defendant Nos.1 to 3 have performed the marriage of plaintiff and got

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NC: 2025:KHC:19518 RSA No. 697 of 2022

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HC-KAR

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partitioned the family properties and in view of already there was a partition, question of granting any share doesn't arise.

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The Trial Court having considered the pleadings of the parties, framed the issues and also in view of defense taken by defendant No.5 that suit is not maintainable against him in respect of item No.3. The Trial Court having considered the evidence available on record, particularly the evidence of witnesses that is P.W.1 and P.W.2 and also D.W.1 to D.W.7 and document at Ex.P.1 to Ex.P.11 and Ex.D.1 to Ex.D.76 answered the issue Nos.1,2 and 5 partly in the affirmative and addl issue Nos.1 and 3 as affirmative in coming to the conclusion that suit schedule properties are ancestral and joint family properties and also though claimed 1/6^th share in the suit schedule property, granted the relief of partition 1/24^th share each in suit schedule item Nos.1, 2, 4 and 6 and defendant Nos.1 to 3 are entitled for 7/24^th share each in the suit item Nos.1, 2, 4 and 6. Being aggrieved by

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NC: 2025:KHC:19518 RSA No. 697 of 2022

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HC-KAR

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granting of the share only in respect of item Nos.1, 2, 4 and 6, an appeal is filed by the plaintiffs before the First Appellate Court and Appellate Court also having re-assessed both oral and documentary evidence available on record and also the grounds which have been urged in

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the appeal, formulated the point as whether Trial Court committed an error in not granting the relief in respect of item Nos.3 and 5 and whether they are entitled for equal share with defendant Nos.1 to 3 and First Appellate Court having re-assessed both oral and documentary evidence available on record, not accepted the case of appellant claiming of the share in respect of item Nos.3 and 5. However, answered the point No.2 as affirmative in coming to the conclusion that appellants are entitled for equal share along with defendant Nos.1 to 3 and modified the share as 1/6^th share in item Nos.1, 2, 4 and 6 of the suit schedule property along with defendant Nos.1 to 3 since they are the legal heirs of Kalegowda and Kalamma and equal share was given by the appellant. Being

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8 - NC: 2025:KHC:19518 RSA No. 697 of 2022

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HC-KAR

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aggrieved by the judgment of Trial Court and also the judgment of the Appellate Court, present second appeal is filed before this Court by the defendants/appellant contending that though an application is filed under Order 41 Rule 27 of CPC to receive additional documents that is Gramasthara Helike dated 14.12.2019 and copy of the order in R.A.No.238/2016 dated 03.02.2021 passed by the Assistant Commissioner not considered the I.A in a proper perspective and ought to have been allowed the same and given an opportunity to adduce the evidence and also contend that granting of 1/6^th share in item Nos.1, 2, 4 and 6 of suit schedule property along with defendant Nos.1 to 3 by First Appellate Court is also erroneous and it requires interference of this court. The counsel would contend that this Court has to frame the substantive question of law for granting of 1/6^th share in respect of defendant Nos.1 to 4 and 6 and it requires interference.

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Having heard the learned counsel for the appellants and also reasoning given by the Trial Court,

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9 - NC: 2025:KHC:19518 RSA No. 697 of 2022

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HC-KAR

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there is no dispute with regard to the relationship between the parties that the plaintiff and defendant Nos.1 to 3 are the children of Kalegowda and Kalamma. The Trial Court taken note of in paragraph No.29 that the nature of properties which are subject matter of the partition also ancestral properties and also the reasoning was given while granting the share in respect of item Nos.1, 2, 4 and 6, the entitlement of share was also discussed but granted the share of 1/4^th share over 1/24^th share which comes to 7/24^th share each in the properties and also taken note of relationship and father of the defendant Nos.1 to 3 died in the year 1980 and comes to the conclusion that plaintiffs are entitled for notional partition and as observed by the First Appellate Court in R.A.No.173/2013 and granted 1/24^th share and the same was challenged before the Appellate Court and Appellate Court having re-assessed the material on record and though an application is filed under Order 41 Rule 27 of CPC and only document produced before the Court is Gramasthara Helike and this

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10 - NC: 2025:KHC:19518 RSA No. 697 of 2022

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HC-KAR

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document is not an admissible document and also the same is not the document of partition or settlement. Hence, the First Appellate Court rightly comes to the conclusion that the said document cannot be relied upon and also another document relied upon is R.A.No.238/2016 only an order passed by the Assistant Commissioner that is only setting aside the order passed by the Tahasildar and rights of the parties has to be decided in Civil Court subject to the decision of the Civil Court and when reason was assigned in paragraph No.39 in detail in rejecting the application filed under Order 41 Rule 27 of CPC while considering an application under Order 41 Rule 27 of CPC, it is also settled law that if any issues involved between the parties and the additional documents which were produced touches the germane issues between the parties, then Court can consider the same, but in the case on hand, the document which has been relied upon admittedly, the document is not a registered document and also not an admissible document

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NC: 2025:KHC:19518 RSA No. 697 of 2022

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HC-KAR

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and neither a partition deed nor a deed of settlement and when such being the case and also the counsel appearing for the appellant would contend that already there was a partition and in order to prove the factum of earlier there was a partition between the plaintiff and defendants, nothing is placed on record except pleading that after the death of the parents, the defendant No.1 only performed the marriage of the appellants. The fact that appellants are the sisters of the defendant Nos.1 to 3 is not in dispute. when such material available on record and there is no dispute with regard to the relationship between the parties, the First Appellate Court rightly answered the point No.2 as affirmative that they are equally entitled for share in the property left by their parents and when such reasoning was given by the appellate Court, the question of interfering with the finding of the Appellate Court in coming to the conclusion that they are entitled for 1/6^th share and same is also considered by the Trial Court, both question of fact and question of law. Hence, question of

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NC: 2025:KHC:19518 RSA No. 697 of 2022

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HC-KAR

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framing of any substantive question of law doesn't arise. Hence, I do not find any grounds to admit and frame any substantive question of law to decide the issue in this second appeal.

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

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ORDER

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Second appeal is dismissed .

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Sd/(H.P.SANDESH) JUDGE

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RHS List No.: 1 Sl No.: 48

Mahadevegowda v. Smt Siddarajamma

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Mahadevegowda v. Smt Siddarajamma

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