IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA RSA NO.1137/2016 BETWEEN:
1. SHANKARAIAH S/O MALLAIAH AGED ABOUT 44 YEARS 2. MALLAIAH S/O LATE MUDIANNA AGED ABOUT 72 YEARS BOTH ARE R/AT MANCHALADORE HAGALAVADI HOBLI GUBBI TALUK TUMKUR DISTRICT PIN – 572216. ... APPELLANTS (BY SRI JAYAPRAKASH.R, ADV) AND:
SIDDAGANGAMMA W/O NIJALINGAPPA AGED ABOUT 42 YEARS R/AT N. RAMPURA VILLAGE NITTUR HOBLI GUBBI TALUK TUMKUR DISTRICT PIN – 572216. ... RESPONDENT (BY SRI FAYAZ SAB.B.G, ADV) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD : 01.03.2016 PASSED IN R.A.NO.16/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.12.2013 PASSED IN O.S.No.329/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., GUBBI.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Second defendant in O.S.No.329/2012 on the file of the Principal Civil Judge & JMFC, Gubbi has preferred this appeal challenging the concurrent judgments and decrees passed by the courts below whereby suit of the plaintiff for partition and separate possession of her 1/3rd share in the suit schedule properties has been decreed.
2. I have heard the learned counsel for the appellants and learned counsel for the respondent. Perused the judgments and decrees passed by the courts below.
3. The respondent-plaintiff had filed a suit in O.S.No.329/2012 against the appellants before the Civil Judge & JMFC at Gubbi for the relief of partition and separate possession of her 1/3rd share in the suit properties. The Trial Court decreed the suit holding that the plaintiff is entitled for 1/3rd share in the suit schedule properties.
4. The defendants aggrieved by the said judgment and decree of the Trial Court, preferred an appeal in R.A.No.16/2014. The First Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. It is challenging these concurrent judgments and decrees of the Courts below, defendants have preferred this second appeal.
5. Sri.R.Jayaprakash, learned counsel for the appellants-defendant Nos.1 and 2 submits that the judgments and decrees passed by the courts below are otherwise opposed to law, facts and probabilities of the case and they are not sustainable in law.
6. The Trial Court without providing sufficient opportunity to the defendants to file written statement and contest the case, has committed an error in decreeing the suit and the First Appellate Court has also committed the same error. He submits that there are substantial questions of law arise for consideration and therefore he prays for admitting the appeal for consideration of those substantial questions of law.
7. Sri.Fayaz Sab.B.G, learned counsel for the respondent-plaintiff submits that there are no irregularities or infirmities in the judgments and decrees passed by the courts below warranting interference of this Court. He also submits that there are no substantial questions of law arise for consideration and therefore he prays for dismissing the appeal.
8. Respondent-plaintiff has brought the suit in O.S.No.329/2012 for the relief of partition and separate possession of her 1/3rd share in the suit schedule properties by contending that the defendant No.1 is her father and defendant No.2 is her brother and they are the members of Hindu undivided joint family and they are coparceners. The suit properties are their ancestral and joint family properties and they are in joint possession and enjoyment of the same. Since differences have arisen between the plaintiff and defendants, the plaintiff demanded first defendant to allot her legitimate share in the suit schedule properties. The first defendant went on dodging to allot her share. Hence, the plaintiff had to file this suit, for the relief of partition.
9. The defendants though were served with the suit summons and entered appearance through their counsel, did not choose to file written statement and contest the case. Therefore, the Trial Court based on the averments of the plaint, has formed the following points for its consideration:
1. Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties?
2. Whether the plaintiff is entitled for the relief as prayed in the suit?
3. What order or decree?
10. Plaintiff in order to prove her case, has examined herself as PW-1 and has produced Ex.P1 to Ex.P6 – RTC extracts and Ex.P7 – Genealogy Tree. Defendants did not choose to cross examine the plaintiff.
11. The Trial Court considering the arguments advanced by the learned counsel for the plaintiff and oral and documentary evidence adduced by the plaintiff, has held that the plaintiff has proved that the suit schedule properties are ancestral and joint family properties of the parties to the suit and has held that plaintiff is entitled for the relief of partition and decreed the suit accordingly.
12. The First Appellate Court on re-appreciation of entire oral and documentary evidence on record, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court.
13. The first defendant Mallaiah is the propositus of the family and plaintiff and second defendant are his daughter and son respectively. The relationship between the parties is not disputed by the appellants. The plaintiff apart from examining herself as PW-1 and reiterating the averments made in the plaint that suit schedule properties are ancestral and joint family properties of the plaintiff and defendants, has also produced six RTCs which were marked as Ex.P1 to Ex.P6 and Genealogy Tree of the family which was marked as Ex.P7. The Trial Court considering these documents, has held that the plaintiff has proved that the suit schedule properties are ancestral and joint family properties of the plaintiff and defendants.
14. The first defendant – father of the plaintiff is alive and as such the plaintiff is entitled for equal share in the suit properties as that of a male coparcener as per the amended Section 6 of the Hindu Succession Act. The Trial Court considering this aspect of the matter, was justified in decreeing the suit of the plaintiff holding that the plaintiff is entitled for 1/3rd share in the suit schedule properties. The First Appellate Court on re- appreciating the entire oral and documentary evidence on record and having not found any merit in the appeal, dismissed the appeal.
15. I have carefully gone through the judgments and decrees passed by both the Courts below and do not find any illegality or infirmity warranting interference. Apart from that, absolutely there is no substantial question of law that arises for consideration of this appeal.
Accordingly, appeal is dismissed as devoid of merits.
SD/- JUDGE DKB/NC.