IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL No.504/2010 C/W REGULAR SECOND APPEAL No.503/2010 R.S.A. No.504/2010 BETWEEN 1. SRI C.N. NARASAPPA S/O LATE NARAYANAPPA SINCE DEAD BY LRS.
1(a) SMT. VASUNDARA W/O. LATE VIJAYA KUMAR, AGED 46 YEARS 1(b) C.V. SOUMYA D/O. LATE VIJAYA KUMAR AGED 29 YEARS 1(c) C.V. CHITRA D/O. LATE VIJAYA KUMAR AGED 27 YEARS 1(d) C.V. KRUTHI D/O. LATE VIJAYA KUMAR AGED 25 YEARS 1(e) C.V. DEEPTHI D/O. LATE VIJAYA KUMAR AGED 23 YEARS 1(f) C.V. BRUNDA D/O. LATE VIJAYA KUMAR AGED 21 YEARS 1(g) C.V. PRUTHVI D/O. LATE VIJAYA KUMAR AGED 19 YEARS 1(a) to 1(g) ARE R/O:
UJJAINI MATHADA ROAD CHITRADURGA-577 501. ... APPELLANTS (BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE) AND A.N. LAKSHMINARAYANA SINCE DEAD BY HIS LRs.
1. SHOBHA D/O LATE LAKSHMINARAYANA AGED ABOUT 15 YEARS, 2. SANJAYA S/O LATE LAKSHMINARAYANA AGED ABOUT 13 YEARS, 3. SANDEEP S/O LATE LAKSHMINARAYANA AGED ABOUT 10 YEARS, SINCE R1, 2 TO 3 ARE MINORS REP. BY THEIR NATURAL GUARDIAN MOTHER SMT. ANJANADEVI 4. SMT. ANJANADEVI W/O LATE LAKSHMINARAYANA AGED ABOUT 39 YEARS, ALL ARE R/O:
NEAR VENKATARAMANA TEMPE, TURUVANUR ROAD, CHITRADURGA-577 501. ... RESPONDENTS (BY SRI SPOORTHY HEGDE NAGARAJA, ADVOCATE R-1 TO 3 ARE MINORS REP. BY R-4) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.10.2009 PASSED IN R.A.NO.33/2006 ON THE FILE OF THE ADDL. DISTRICT & SESSIONS JUDGE, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 13.07.2006 PASSED IN O.S.No.33/2000 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.) CHITRADURGA.
R.S.A. No.503/2010 BETWEEN SMT. NARASAMMA W/O C. RAMAPPA AGED ABOUT 62 YEARS, R/A KELAGOTE EXTENSION, CHITRADURGA-577 501.
... APPELLANT (BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE) AND A.N. LAKSHMINARAYANA SINCE DEAD BY 1. SHOBHA D/O LATE LAKSHMINARAYANA AGED ABOUT 15 YEARS, 2. SANJAYA S/O LATE LAKSHMINARAYANA AGED ABOUT 13 YEARS, 3. SANDEEP S/O LATE LAKSHMINARAYANA AGED ABOUT 10 YEARS, SINCE R1 TO R3 ARE MINORS REP BY THEIR NATURAL GUARDIAN MOTHER SMT. ANJANADEVI.
4. SMT. ANJANADEVI W/O LATE LAKSHMINARAYANA AGED ABOUT 39 YEARS, ALL ARE R/O:
NEAR VENKATARAMANA TEMPE, TURUVANUR ROAD, CHITRADURGA-577 501.
... RESPONDENTS (BY SRI SPOORTHY HEGDE NAGARAJA, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.10.2009 PASSED IN R.A.NO.32/2006 ON THE FILE OF THE ADDL. DISTRICT & SESSIONS JUDGE, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:13.07.2006 PASSED IN O.S.NO. 32/2000 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN) CHITRADURGA.
THESE APPEALS COMING ON FOR DICTATION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two regular second appeals are directed by the respective plaintiffs in O.S. Nos.33/2000 and 32/2000 against the respective regular appeals against the dismissal of the suits, as stated in the following table:
Sl.
No.
Regular Second Appeal Regular Appeal Original Suit 1 504/2010 filed by the plaintiff 33/2006 filed by the defendants D D: 09.10.2009 Allowed 33/2000 filed by the plaintiff – C.N Narasappa D D: 13.07.2006 Allowed 2 503/2010 filed by the plaintiff 32/2006 filed by the defendants D D: 09.10.2009 Allowed 32/2000 filed by the plaintiff – Narasamma DD: 13.07.2006 Allowed 2. O.S. No.32/2000 was filed by one Narasamma and O.S.No.33/2002 was filed by one C.N. Narasappa, husband of one who is natural sister of the plaintiff in O.S. No.32/2000. It is necessary to clarify at this stage that C.N.Narasappa represented as the legal heir of one Rukminamma(Rukminiamma) who is his wife. In other words, the daughters of Adimani Adiveppa filed their respective suits claiming that the suit schedule property to the extent of 8 acres 1 gunta in Survey No.69/1 of Madakaripura is their ancestral property and they are entitled to inherit their respective share in the said property, being exclusive legal heirs of Adimani Adiveppa.
3. In order to avoid confusion and overlapping, the parties are hereinafter referred in accordance with their rankings in trial Court.
4. To begin with, it is claimed by the plaintiffs in each of the cases that one Adimani Hanumappa is the common propositor or senior most paternal ancestor of their family. He had two sons by name Adimani Narayanappa and Adimani Adiveppa. A.N. Narayanaswamy is stated to be the son of AdimanI Narayanappa and the said A.N. Narayanaswamy’s son is A.N. Lakshminarayana, the defendant.
5. Similarly, from the branch of Adimani Adiveppa, the plaintiff Narasamma in O.S.No.32/2000 and the plaintiff in O.S.No.33/2000 Rukminamma( Rukminiamma) are the daughters of Adimani Adiveppa.
6. It is necessary to state that Rukminamma(Rukminiamma) the elder daughter of Adimani Adiveppa is no more and is represented by her husband C.N.Narasappa who incidentally is plaintiff in O.S. No.33/2000. It is also necessary to take on record that one Gowramma shown to be daughter of A.N. Narayana Swamy is sister of A.N. Lakshminarayana. However, she is not made as party in the proceedings. With these introduction, the suits for declaration of title and injunction came to be filed by Narasamma in O.S. No.32/2000 and C.N.Narasappa, the husband of Rukminamma(Rukminiamma) in O.S. No.33/2000 against the said A.N. Lakshminarayana.
7. The learned trial Judge was accommodated with the oral and documentary evidence by the plaintiffs and defendants in both the suits are as follows:
Oral evidence in O.S. No.32/2000 on behalf of plaintiff:
PW1 : Smt. Narasamma PW2 : N. Thippeswamy PW3 : Y. Kaliraj Documentary evidence in O.S. No.32/2000 on behalf of plaintiff:
Ex.P1 : Partition Deed Ex.P2 : Book containing the signatures Ex.P3 & 4 : Written arguments Oral evidence in O.S. No.33/2000 on behalf of plaintiff:
PW1 : Narasappa Documentary evidence in O.S. No.33/2000 on behalf of plaintiff:
Ex.P1 : Partition Deed (xerox) Common oral and documentary evidence in both the suits on behalf of defendants.
DW1 : Anjanadevi DW2 : Krishnappa Ex.D1 to 5 : RTCs Ex.D6 : Khathe badalavane report Ex.D7 : Genealogical tree 8. The suits of the plaintiffs in both the cases i.e., O.S. Nos.32 and 33 of 2000 came to be decreed on 13.07.2006 in favour of the plaintiffs and against the defendants.
9. Being aggrieved by the common judgment and decree passed in original suit Nos. 32 and 33 of 2000 dated 13.07.2006, R.A. Nos.32 and 33 of 2006 were respectively filed by the legal heirs of the A.N.
Lakshminarayana and the said regular appeals came to be allowed and consequently both the original suits were dismissed. Against which, these second appeals are filed by the plaintiffs.
10. In the above circumstances, this Court while admitting the appeal, framed the following substantial questions of law on 17.02.2011 IN RSA No.504/2010.
i. Whether the lower appellate Court has erred in law in holding that the Registered Partition deed Ex.P1 is not proved, Ex.P1 having not been challenged by its executant till his death?
ii. Whether R.A. Nos.32/2006 and 33/2006 are liable to be dismissed as hit by principles of res-judicata since no appeals have been filed by the defendants against dismissal of counter claim?
11. The substantial questions of law are reframed by this court today as under:
i. It would also be relevant to examine as to whether the landed property in Survey No.69/1 to the extent of 8 acres 1 gunta was partitioned between Adimani Naranayappa, Adimani Adiveppa and also A.N. Lakshminarayana son of Adimani Narayanappa.
ii. Whether the parties under the said partition are entitled for the share of property in the ratio of 4.1acre:2acre:2acre in favour of Lakshminarayan, Narasamma and Rukminamma(Rukminiamma), respectively;
iii. Whether the partition of properties under the Partition Deed has any negative effect/self destruction by virtue of suit for partition to get vitiated because of dismissal of Partition Suit in O.S. No,.40/2000, which was filed by Rukminamma(Rukminiamma), and Narasamma daughters of Adimani Adiveppa in respect of house properties (consisting six sites)?
iv. Whether the suit is hit by doctrine of res-judicata?
v. Whether the suit is hit by doctrine of estoppel by conduct?
12. Learned counsel for the appellants Sri G. Balakrishna Shastry in both the appeals would submit that the schedule property is admittedly the ancestral property and in the beginning, the extent of same was 16 acres 1 gunta. He further submits that one Adimani Narayanappa grand father of A.N. Lakshminarayana, Adimani Adiveppa and also A.N. Lakshminarayana have sold 8 acre of land in Survey No.69. Thus, the available and left out land for the joint family was 8 acres 1 gunta. Learned counsel further submits that a Deed of Partition was registered and it happened among Narasamma and Rukminamma(Rukminiamma), daughters of Adimani Adiveppa and A.N. Lakshminarayana son of Narayanaswamy and grand son of Adimani Narayanappa, as per Ex.P1 the Partition Deed. The female branches namely Narasamma and Rukminamma(Rukminiamma), got 2 acres each and 4 acres 1 gunta went to the share of A.N. Lakhminarayana. In the circumstances, the suits for declaration of title and permanent injunction were filed by the plaintiffs Narasamma and legal heirs of Rukminamma(Rukminiamma), against A.N. Lakshminarayana.
13. Learned counsel would submit that basically the property is stated to be belonged to Adimani Hanumappa.
14. Learned counsel Sri Spoorthi Hegde Nagaraja for the respondents-defendants would submit that Adimani Narayanappa and his branch if any have nothing to do with the joint family property of the plaintiffs. It is necessary to mention that the defendants were successful before the first appellate Court as both the appeals came to be allowed and thereby dismissed the judgment and decree passed by the Trial Court in the original suits.
15. It was the contention of the plaintiffs that the schedule property which consists of 8 acres 1 gunta has been divided under the Partition Deed - Ex.P1 dated 23.04.1999, wherein the distribution of acres of land among A.N. Lakshminarayana, Narasamma and Rukminamma(Rukminiamma), is in the ratio of 4 acres 1 gunta:2 acres:2 acres. This partition, according to the plaintiffs has paved way for seeking declaration of title and permanent injunction.
16. This submission is vehemently opposed by Sri Spoorthy Hegde Nagaraja, learned counsel appearing for the defendants. Learned counsel would submit that the plaintiffs in both the suits have nothing to give and take from the family of A.N. Lakshminarayana.
17. Before proceeding further, it is necessary to clarify that, at this stage the registered Sale Deed dated 06.01.1938 with reference to the landed property to the extent of 8 acres was sold by Adimani Narayanappa and Adimani Adiveppa and A.N.Narayanaswamy minor guardian of Narayanappa. Incidentally, the said document is filed along with application under Order LXI Rule 27 of Code of Civil Procedure. Learned counsel would submit that he does not insist for further evidence over the documents filed. In the circumstances, I am of the sincere opinion that the said application is deserves to be allowed in the ends of justice and the same is allowed and contents of the documents are perused.
18. In that circumstances of the case, the extent of land of 16 acres 1 gunta as on 06.10.1938 is established by the registered Sale Deed dated 06.01.1938 wherein 8 acres of land was sold by A.N. Narayanaswamy - father of A.N. Lakshminarayan and his father Adimani Naranayapappa and his uncle Adimani Adiveppa. It is a registered document.
19. Learned counsel for the defendants-respondents would submit that the said document is a non-est. The said document cannot be branded or taken by the defendants by surprise or as shock because of the primary reason that, in the trial Court at the time of filing the plaint in Para No.3, plaintiff has unequivocally stated about the registered Partition Deed dated 23.04.1999.
20. The defendants had ample circumstances of perusing the contents of the said deed by obtaining the certified copy from the office of the Sub-Registrar Chitradurga. The contents of another document of 1939 is which Sale deed show that 8 acres of landed property in Survey No.69 was sold by the Adimani Narayanappa and Adimani Adiveppa and A.N. Narayanaswamy son of Adimani Narayanappa and there is declaration in crystal clear terms that they are selling the joint family property. The document - Sale Deed
contention of the learned counsel for the defendants regarding variation of signature of A.N. Lakshminarayana and non-happening of partition do not hold ground.
21. Learned counsel would further dispute the very relationship to the effect that Adimani Narayanappa had brother. In the second phase of submission, the learned counsel would submit that the brother was there by name Adimani Adiveppa. Thus the very paternity of Narasamma the plaintiff in O.S. No.32/2000 and that of Rukminamma(Rukminiamma), in O.S.No.33/2000 are vehemently denied by the defendants. It is necessary to mention that all the ways were open for the defendants to question the Partition Deed, provided that the same was vitiated by fraud or forgery or impersonation and the relationship of the plaintiffs on fictitious grounds. More particularly, the line of ground regarding denial of relationship, neither there are any issues before the trial Court nor adjudication in the appellate Court and the assertion before this Court does not appears to be probable and justifiable. It appears that the defendants have chosen to deny the relationship for the sake of denial without there being substance in it. In the total circumstances of the case, the genealogical tree relied on by the plaintiffs is as under:
GENEALOGY Adimani Hanumappa | | | Adimani Narayanappa Adimani Adiveppa | | | A.N. Narayanaswamy Rukminiamma Narasamma | | | [pltf. in OS 32/00) A.N.Lakshminarayana Gowramma W/o. C.N Narasappa (Defendant) (pltf.OS No.33/00) | Anjanadevi D1(d)
22. It is necessary to place on record the further aspect regarding genealogical tree. It is made known by the plaintiffs that one Gowramma is the sister of A.N. Lakshminarayana. However, neither she is made as a party in the suit nor there is any objection to the said effect by the defendants. In the circumstances, the said Gowramma who was not before the Court in the stands as sister of the defendant A.N. Lakshminarayna.
23. In so far as the inheritance of title and possession of 2 acres of property within the boundaries stated above in each of the suits for declaration and permanent injunction is by the side of Rukminamma(Rukminiamma), daughter of Adimani Adiveppa and another lady Narasamma daughter of Adimani Adiveppa. Thus the source of acquiring the title over 2 acres of property does not hold good for plaintiffs in each of the cases and denial of title or possession or relationship existing of joint family or the execution of the Partition Deed are not in hands of the defendant A.N. Lakshminarayana.
24. The learned counsel for defendant Sri. Spoorthi Hegde Nagaraja, would submit that the relationship between Adimani Adiveppa and Adimani Narayanappa and that of Rukminamma(Rukminiamma), and Narasamma and others has been stoutly denied in the written statement at para No.10. In this connection, when asked to clarify, learned counsel submits that it is as per para 10 in written statement. Therefore, it is relevant to extract, Para-10 of the written statement is both the suits.
Para No.10 in O.S.NO.32/2000 is as under:
“10. The defendants submit that the plaintiff has no right in the plaint schedule property and the alleged partition dated 23.4.1999 is a created and concocted document. The relationship is not given in the plaint and it is denied that the plaintiff is also having share in the property. Hence, the plaintiff is not entitled any relief.”
Para No.10 in O.S.NO.33/2000 is as under: “The description of suit schedule property and the boundaries described in the schedule never tallies with the Sy.No.69/1 and the boundaries described are all false that itself shows that the plaintiff never concerned to the sy.no.69/1 which belongs to the defendant, wherein the boundaries are entirely different”.
25. After going though the said para, it is quite un- understandable, in what way the said para is meant for denial of relationship. Though there is no specific denial of relationship between Adimani Adiveppa and Rukminamma(Rukminiamma), and Narasamma who are his daughters. Learned counsel for defendants first submit that, it is in Para 10, later at para No.5 and then at para No.2 the relationship between the parties is denied. However, the Court cannot make out, as there is no specific denial in the said paras.
26. The partition deed Ex.P1 is said to be concocted as per the stance of the defendants. In the over all circumstances of the case as stated above, one Gowramma is stated to be the sister of the defendant and this fact is not disputed by either of the parties. However, the total property available in the joint family is 8.01 gunta of land and it was divided among the parties, namely; A.N. Lakshminarayana and children of Late Adappa namely Smt. Rukminamma(Rukminiamma), w/o. Narasappa and 2nd daughter Smt. Narasamma w/o. C.N.Ramappa.
However, it is upto the defendants’ branch to prove Lakshminarayana is allotted 4.01 guntas of land. The said partition is not challenged.
27. Further, learned counsel Sri. Spoorthi Hegde Nagaraja would submit that a partition suit was filed by Narasamma and Narasappa in O.S.No.40/2000 that came to be decreed on 7.11.2007 and the connected Regular Appeal No.84/2007 preferred by the defendants came to be allowed on 21.3.2011 and consequently, suit in O.S.No.40/2000 was dismissed. Regular second appeal preferred against the judgment and decree passed in RA No.84/2007 by the plaintiffs also came to be dismissed thereby confirming the dismissal of the suit for partition. However, it is submitted by learned counsel for plaintiffs and defendants with unanimity that no portion of the suit schedule property in this case is covered in the said original suit i.e. in OS No.40/2000 as it referred only six item of house properties and the suit came to be dismissed by holding that the suit properties are not joint family properties. Thus in the light of the absence of same subject matter, this suit is nothing to do with OS No.40/2000 the plaintiff in each of the cases cannot be held to be bound by the doctrine of estopple to bar them from filing the suit for partition.
28. Learned counsel for the defendants also filed an application under order 41 Rule 27 CPC in RSA NO.504/2010 along with the four documents, namely:
(1) Certified copy of the Preliminary Record of Rights in respect of Sy. No.69 showing the suit property as an ancestral property of Narayanappa bin Hanumappa Adimane;
(2) Certified copy of the registered sale deed dated 6.01.1938 registered in the office of the Sub Registrar, Chitradurga regarding sale of Northern portion of 8 acres of land in RS No.6 of Madakrarikoppa village executed by Adimane Narayanappa and his younger brother Adimane Adeppa, Muninarayanaswamy s/o Narayanappa in favour of Sanna Rangppa;
(3) Certified copy of the Record of Rights of Sy.No.69/1 for the year 1975-76 to 2001- 2002 showing Sy.No.69/2 as an ancestral land at the hands of Narayanappa bind Adimane Hanumappa;
(4) Certified copy of the mutation MR No.117/1985-86 in favour of Laxminarayana S/o Narayanappa in respect of Sy.No.69/1 showing that said land as the ancestral property.
29. On questioning the purpose of filing the said application, learned counsel for defendants would submit that those documents are filed for the purpose of verification of the signature of Lakshminarayana in his marriage certificate with Anjanadevi and registered joint agreement which was executed by A.N.Narasamma and Lakshminarayana in respect of land and property in Sy.No.52/C. The said documents are perused. Moreover, the partition deed right from the date of partition execution it is not challenged. On verification of signatures, I do not find any relevancy in comparing the signature. The main partition which is 20 years old as on today and even on the date of filing of the suit which is on 22.1.2000 it is 09 months old. I.A.No.1/2019 is allowed. However, the documents produced therein are of no avail to the defendants.
In the circumstances, I am of the view that the first appellate Court erred in allowing the regular appeals and dismissing the suits of the plaintiff. Thus the substantial question of law reframed by this court are answered accordingly.
For the foregoing reasons, both the appeals are allowed.
The judgment and decree dated 09-10-2009 passed in R.A.No.33/2006 (in RSA No.504/2010) and 32/2006 (in RSA No.503/2010) by the Additional District and Sessions Judge, Chitradurga are set aside, confirming the judgment and decree dated 13.7.2006 passed by the trial court in O.S.No.32/2000 and O.S.No.33/2000.
Sd/- JUDGE Sbs*/tsn*