IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA R.S.A. NO. 1762/2013 (PAR) BETWEEN:
GIRIYAPPA DEAD BY LRs.
1. NAGAMMA W/O LATE GIRIYAPPA AGED ABOUT 53 YEARS 2. RANGANATH G S/O LATE GIRIYAPPA AGED ABOUT 34 YEARS BOTH ARE RESIDENTS OF LINGAPURA, SASUVEHALLI HONNALLI – 577 217 DAVANAGERE DISTRICT … APPELLANTS (BY SRI. CHANDRAKANTH R GOULAY, ADV.,) AND:
1. SMT. GOWRAMMA W/O LATE RANGAPPA AGED ABOUT 84 YEARS C/O MANJUNATHA VINAYAKA NAGARA NEAR BLOOD BANK 100 FEET ROAD SHIMOGA – 577 201 2. HANUMANTHAPPA DEAD BY HIS LR SMT. NAGAMMA W/O HANUMANTHAPPA AGED ABOUT 47 YEARS R/O AINOORU HONNALI – 577 217 DAVANAGERE DISTRICT … RESPONDENTS (BY SRI. K.N.PUTTEGOWDA, ADV. FOR R1; R2 SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.08.2013, PASSED IN R.A.NO.94/2011 ON THE FILE OF ADDITIONAL DISTRICT JUDGE, SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.02.2011 PASSED IN OS.NO.339/2006 ON THE FILE OF I-ADDITIONAL SENIOR CIVIL JUDGE & CJM SHIMOGA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING JUDGMENT This appeal is filed by the plaintiff - appellant challenging the concurrent judgments and decrees passed by the Courts below whereby the suit of the plaintiff has been dismissed.
2. The plaintiff – appellant had brought the suit seeking for partition and separate possession of his share in the suit property by contending that his father – Ningappa had a brother by name Rangappa (husband of the first defendant). Item No.1 of the suit property is a joint family property which originally belonged to Giriyappa father of Ningappa (father of plaintiff) and Rangappa (husband of defendant). After the death of Rangappa (husband of defendant) khatha of item No.1 of the suit schedule property was jointly mutated in the name of Ningappa (father of plaintiff) and first defendant. After the death of Ningappa, the same stands in the name of Ningappa’s wife – Kariyamma and first defendant. Out of the income derived from the 1st item, the 1st defendant has acquired items 2 and 3 of the suit properties and she has no independent source of income. The first defendant has refused to partition the suit properties and allot a share in favour of the plaintiff and therefore, he has brought the suit for partition and separate possession of his share in the suit properties.
3. The first defendant after entering appearance in the suit, filed written statement contending that her father- in-law Giriyappa had 8.19 acres of land in Sy.No.15/1 of Lingapura village and a residential house, where Ningappa resided with his family. After Ningappa’s death, his wife Kariyamma and his children i.e., the plaintiff and the 2nd defendant are residing therein. Giriyappa died long back leaving behind his sons Rangappa and Ningappa. Except the land in Sy.No.15/1 and a house property, the family was not in possession of any other properties. As per oral partition between Rangappa and Ningappa, the southern portion of land measuring 4.10 acre in Sy.No.15/1 was allotted to Rangappa and northern portion of land measuring 4.09 acre and the residential house at Lingapura were allotted to Ningappa’s share. Ningappa during his lifetime sold one acre of land on the northern side to one Panduranga through registered sale deed dated 06.10.1969 and the remaining 3.09 acre to one L.K.Chandrappa under two separate sale deeds dated 09.11.1977 and 31.3.1980. Thereby, Ningappa and his sons sold entire 4.09 acres bit by bits. Defendant after the death of her husband Rangappa, is in possession and cultivation of southern portion of 4.17 acres of land with assistance of one Onkarappa she also used to sell butter in Shivamogga and acquired vacant site bearing No.39 of Angalaiahnakere by virtue of allotment by the Karnataka Slum Clearance Board. The certificate has also been issued in her favour. She has also built a Mangalore tiled residential house and residing there by building two small RCC premises in the front to carry out business in selling butter. Out of her income, she has also purchased a vacant site described as item no.3. The persons who purchased the property from Ningappa, have made out separate khata and phani pursuant to the sale deeds dated 06.10.1969, 09.11.1977 and 31.02.1980. However, the plaintiff by taking advantage of the joint khata, have filed the suit at the instance of Thimmappa who has an eye over her property and hence a suit is not maintainable and is time barred and accordingly she sought for dismissal of the suit.
4. The second defendant died during the pendency of the suit, his wife Nagamma got impleaded herself as defendant and she has also filed written statement supporting the claim of the 1st defendant and also contends that plaintiff is residing in Lingapura and has managed to get the joint khata in collusion with the Village Accountant. Item No.1 as detailed in the schedule allotted to the share of 1st defendant long back at an oral partition and the 1st defendant is an absolute owner there of. With these averments, the 2nd defendant has prayed for dismissing of the suit.
5. The trial Court based on the rival pleadings of the parties has framed the following issues for its consideration:
a) Whether the plaintiff proves that suit item No.1 property is joint family properties?
b) Whether plaintiff further proves that items 2 and 3 properties are acquired out of the income of joint family properties?
c) Whether defendant No.1 proves that already there was a partition in the family properties?
d) Whether the plaintiff is entitled for 1/3rd share in the suit properties?
e) What Order or Decree?
6. The plaintiff in support of his case, has examined his General Power of Attorney holder by name Ranganatha as PW1 and has produced certain documents which were marked as Ex.P1 to Ex.P11.
7. On behalf of defendants, first defendant herself was examined as DW1 and witnesses by name Gowramma as DW2 and Onkarappa as DW3 and documents produced by her were marked as Exs D1 to Ex.D6.
8. The trial court after hearing the arguments advanced by learned counsel for both the parties and perusing the oral and documentary evidence available on record, has held issue No.1, 2 and 4 in the Negative and consequently dismissed the suit. Even the regular appeal preferred by the appellant (plaintiff) in R.A.No.94/2011 also came to be dismissed by the first appellate Court. By challenging these concurrent judgment and decree of the Courts below, plaintiff has preferred this second appeal.
9. I have heard the learned counsel for the appellant and for the first respondent. The second respondent though was served with the notice of appeal, has remained unrepresented. Perused the judgments and decrees passed by the Courts below.
10. Sri Chandrakanth R Goulay, learned counsel for the appellant/plaintiff submits that the Courts below have committed an error in relying upon the oral partition set up by the first defendant. He submits that the sale deeds Ex.D1 to D3 and D6 do not establish the oral partition set up by the first defendant and the Courts below have committed an error in relying upon those sale deeds and dismissing the suit filed by the plaintiff. The learned counsel further submits that though the first appellate Court has allowed the application filed by the plaintiff/appellant for production of certain documents by way of additional evidence, has failed to consider those documents. He submits that there are substantial questions of law arise for consideration in the appeal and therefore, he prays for admitting the appeal for consideration of those substantial questions of law.
11. Per contra Sri K.N.Puttegowda, learned counsel for first respondent submits that there is no any infirmity or illegality in the judgments and decrees passed by the Courts below warranting interference of this Court. He further submits that no substantial question of law arises for consideration in the appeal and therefore he prays for dismissal of the appeal.
12. It is not in dispute that the propositor Giriyappa had two sons namely Rangappa (husband of first defendant) and Ningappa (father of the plaintiff).
13. The dispute between the parties is, whether item No.1 i.e. landed property of suit Sy.No.15/1 of Lingapura village measuring 3.20 acres was ancestral joint family property of the parties and item No.2 i.e. RCC building having two `maliges’ and Mangalore tiled roof situated in Angalaiahnakere, Shankar Mutt road, bearing Sy.No. 39 measuring 22 x 36 feet and suit item No.3 i.e. house property situated in Gundappa shed, Shimoga, are properties acquired in the name of first defendant from the nucleus of the joint family properties, as contended by the plaintiff or item No.1 of suit schedule property is remaining portion of property land in item No.1 of the suit survey No.15/1 property allotted to the share of the husband of first defendant under oral partition effected between her husband Rangappa and his brother Ningappa (father of the plaintiff) and item Nos. 2 and 3 of the suit properties are self acquired properties of the first defendant as contended by the defendants.
14. Plaintiff in order to prove his case though has examined himself as P.W.1 and has produced 11 documents which were marked as Exs. P.1 to P.11, has not proved and established his case, as rightly held by the Courts below.
15. The specific case of the first defendant is that item No.1 of the suit survey No.15/1 of Lingapura village totally measures 8 acres 19 guntas. That after the death of the propositor (Giriyapa), 8 acres 19 guntas of land was divided between his two sons – Rangappa (husband of dependant) and Ningappa (father of plaintiff), 4 acres 10 guntas on the Northern side of suit Sy.No.15/1 was fallen to the share of Ningappa, father of the plaintiff and 4 acres 9 guntas on the southern side of the suit Sy.No.15/1 was fallen to the share of the husband of the 1st defendant. After the partition the plaintiff’s father Ningappa during his life time had sold 1 acre of land on the northern side of the suit Sy.No.15/1 in favour of one Panduranga Rao Tengal M under sale deed dated 6.10.1969 (Ex.D1) and the remaining 3.09 acres to one L.K. Chandrappa under two separate registered sale deeds dated 09.11.1977 - (Ex.D2) and 31.03.1980 (Ex.D3). Thereby, Ningappa and his sons, had sold entire 4.09 acres fell to the share of Ningappa(father of plaintiff) bit by bit. In all these sale deeds there was a specific recital that the properties that plaintiff’s father had sold were of his absolute properties. If suit survey No.15/1 had not been divided between plaintiff’s father - Ningappa and first defendant’s husband - Rangappa, it would not be recited in those sale deeds that plaintiff’s father and his children were selling property situated on the northern side of suit survey describing them as their absolute properties in their possession and enjoyment. Similarly first defendant had also sold 2 acres 5 guntas of land on the southern side of suit Sy.No.15/1 through registered sale deed dated 10.07.1972 marked as Ex.D6 in favour of Somashekarappa. In the said sale deed also it was recited that schedule property belonged to her husband. One more point that is required to be considered is that the plaintiff is having a house at Lingapura. It that house property had not been given to the share of the plaintiff’s father under the oral partition, the plaintiff certainly would have included it in the schedule of the suit. Further in the cross-examination of PW1 it is elicited that the property was acquired by his grand father Giriyappa. It is relevant to note that plaintiff’s father Ningappa did not dispute the division of suit land between him and his brother Rangappa (husband of first defendant) during his life time. Plaintiff has brought this suit after the death of his father and after the death of first defendant’s husband. It is to be noted that though the second defendant is none other than the brother of the plaintiff, has not supported the case of the plaintiff. The Trial Court by considering the above material aspect of the matter and other oral and documentary evidence on record has rightly held that the oral partition set up by the first defendant is proved and established. The first appellate Court on re-appreciating the entire oral and documentary evidence on record has dismissed the appeal and confirmed the judgment and decree passed by the Trial Court.
16. I have carefully gone through the judgments and decrees passed by the Courts below and do not find any illegality and infirmity in the said judgments warranting interference of this Court. Apart from that there is absolutely no substantial question of law which warrants admission of the appeal for consideration of the said questions of law. Accordingly, the appeal is dismissed as devoid of merits.
No order as to costs.
Sd/- JUDGE NM