Sanna Kariyappa Vs Kariyappa Kottehall

PASSED IN R.A.NO.51/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HARIHAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.03.2015 PASSED IN O.S.NO.157/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, HARIHAR AND ETC.

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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 second appeal filed against the concurrent finding of the trial court as well as the first appellate court.

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This matter is listed for admission. Heard the learned counsel appearing for the appellant.

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The factual matrix of case of the plaintiffs before the Trial Court while seeking the relief of partition and separate possession is that the suit property is the joint family property of themselves and the defendants. But the defendants are making an attempt to dispose of the property. Hence, filed the suit. In pursuance of suit summons, defendants appeared and filed written statement wherein defendant No.2 contend that there is a prior partition in respect of the suit property and that

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partition is binding on the plaintiffs. The defendants took the contention that suit is barred by time.

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The Trial Court having considered the pleadings of the parties, framed the Issues and allowed the parties to lead evidence. The Trial Court having considered both oral and documentary evidence placed on record taken note of the fact that the property belongs to the Bharamavva and Bharamavva passed away in the year 2009. It was pleaded that there was a prior partition in the year 2009 and plaintiffs are not the parties to the said partition. Hence, the trial court granted the relief of partition to the extent of 1/3^rd share in respect of the suit property.

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Being aggrieved by the said judgment of the Trial Court, an appeal was preferred before the First Appellate Court in R.A.No.51/2017. The First Appellate Court having considered the grounds which have been urged in the appeal, formulated the points and having considered both oral and documentary evidence available on record comes to the conclusion that the partition dated 23.09.2009 not binds the plaintiffs and name of defendant Nos.1 and 2 were separately shown in the RTC

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extract consequent upon the partition. It is not in dispute that property originally belongs to the Bharamavva who is the absolute owner of the suit property till her death and no any testamentary document executed by her. Thus, confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the courts, the present second appeal is filed before this Court.

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The learned counsel appearing for the appellants would vehemently contend that both the Courts failed to consider the gift deed which was made in favour of Bharamavva and the children but Pakeeravva was not born at the time of gift deed dated 11.12.1961. When such being the case, the Trial Court ought to have examined the said gift deed in a proper perspective and the same is not considered and the Appellate Court also not exercised appellate power in a proper manner. Hence, both the courts have committed an error. The counsel also vehemently content that already there was a oral partition in year 1987 and the same was reduced into writing in the year 2009 and the same was registered with the consent of

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the Bharamavva. Hence, prayed this court to admit the appeal

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and frame the substantial question of law.

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Having heard the counsel for the appellants and also on perusal of the material on record as well as the reasoning of the trial Court, it discloses that though it is pleaded that earlier there was a partition in the year 1987, but the same is not supported by any materials. It is not in dispute that document of registered partition came into force in the year 2009 and the plaintiffs are not the parties to the said partition. It is not in dispute that originally, the property belongs to the Bharamavva and she also died intestate. In the absence of any testamentary document and the plaintiffs are not parties to the said partition and the same has been pleaded by the defendants, the very contention of the counsel for the appellants cannot be accepted. Hence, both the Courts have rightly taken note of material available on record and granted the relief. Unless there is a perversity in the finding of both the Courts, the question of invoking Section 100 of CPC does not arise since, both the Courts have rightly considered the question of facts and also the question of law. Hence, I do not

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