IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO. 703 OF 2016 BETWEEN:
SRI G. R. PRAMESHWARAIAH SON OF LATE REVANNA, AGED ABOUT 55 YEARS R/AT GOPALAPURA VILLAGE, KASABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT.
... APPELLANT (BY SRI. BALAKRISHNAN A., ADVOCATE) AND:
1. SMT CHANNABASAMMA WIFE OF LATE BORALINGAIAH, AGED ABOUT 55 YEARS.
2. SMT DEVEERAJAMMA DAUGHTER OF LATE BORALINGAIAH, AGED ABOUT 26 YEARS.
RESPONDENT NO. 1 & 2 ARE RESIDING R/AT G HOSAHALLI VILLAGE, KASABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT – 572216.
3. SMT NEELAMMA WIFE OF LATE BORALINGAIAH, AGED ABOUT 47 YEARS.
4. SRI LAVA SON OF LATE BORALINGAIAH, AGED ABOUT 25 YEARS.
5. SRI DEVARAJU SON OF LATE BORALINGAIAH, AGED ABOUT 27 YEARS.
6. SRI K. GANGABASAPPA SON OF KARIYAPPA, AGED ABOUT 66 YEARS.
7. SRI KARIBASAVAIAH SON OF CHANNAPPA, AGED ABOUT 55 YEARS.
RESPONDENTS NO. 3 TO 7 ARE R/AT GOPALAPURA VILLAGE, KASABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT – 572 216.
... RESPONDENTS (BY SRI..B.R. PRABHULINGA MURTHY., ADVOCATE FOR R1 & R2;
NOTICE SERVED ON R3 TO R7 ) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 08.01.2016 PASSED IN R.A. NO. 42/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AN DECREE DATED 04.03.2009 PASSED IN O.S. NO. 100/2001 ON THE FILE OF THE PRL. CIVIL JUGE (J.D) AND JMFC., GUBBI.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the second defendant in O.S.No.100/2001 on the file of the Principal Civil Judge, (Junior Division), Gubbi (for short, ‘the civil Court’)calling in question the judgment dated 4.3.2009 therein and judgment and decree dated 8.1.2016 in the first appeal in R.A.No.42/2009 on the file of the Senior Civil Judge, Gubbi (for short, ‘the appellate Court’).
2. The undisputed facts are that the suit schedule properties were ancestral properties of the propositus Revanna, who was survived by his first wife, the deceased defendant No.1, his son, the appellant and the legal representatives of his pre-deceased son, Sri Boralingaiah @ Lingannaiah. The respondent No.1 is the first wife of Sri Boralingaiah @ Lingannaiah and respondent No.2 is her daughter. The respondent No.3 is the second wife of late Boralingaiah @ Lingannaiah and respondent Nos.4 and 5 are their children.
3. The respondent Nos.1 and 2 have filed the suit in O.S.No.100/2001 seeking partition of the suit schedule properties which are essentially agricultural lands except suit item No.8 that is a residential property. The suit item No.7 viz., the land in Survey No.17/2 measuring 17 guntas of Gopalapura village, Kasaba Hobli, Gubbi Taluk and a portion of the residential property viz., suit item No.8 were transferred during the life time of late Revanna in favour of the respondent Nos.6 and 7 respectively. The respondent Nos.1 and 2 have asserted that these properties are joint family properties which are not partitioned and they would be entitled for a share in the share of the deceased son Boarlingaiah @ Lingannaiah along with his other legal representatives.
4. The appellant contested the suit essentially asserting that there is already partition of the suit schedule properties as per a Panchayath Palu Patti dated 5.1.1983. In terms of this partition, certain properties are granted jointly to the parents, another set of properties to the deceased Boralingaiah @ Lingannaiah and yet another set of properties to the appellant. The revenue records according to the appellant are accordingly mutated. As such, the suit was liable to be dismissed.
5. The civil Court on appreciation of the respective evidence, and in answering the Issues that required the civil Court to decide whether the plaintiffs – respondent Nos. 1 and 2 were able to prove that the subject lands were ancestral properties and that they are entitled for a share, concluded that these respondents were able to establish their case and as such, they would be entitled for 1/7th share. The civil Court concluded that the Panchayath Palu Patti being an unregistered document cannot be accepted and even the oral evidence did not corroborate the defence of prior partition.
6. In the appeal filed by the appellant and his mother who is presently no more, the appellate Court has reappreciated the entire evidence. The appellate Court has concluded on consideration of the Panchayath Palu Patti that this document is not a record of past partition and therefore should have been registered under the provisions of the Indian Registration Act, and the document not being registered cannot be relied upon to hold in favour of the appellant as regards a prior partition. The appellate Court has also examined the revenue records viz., Exs.P7 to P14, which are RTCs, and it has concluded that these records do not indicate that there was a partition of the properties as contended by the appellant. The appellate court has held that even according to the appellant there was a partition during the lifetime of Revanna in the year 1983. However, Exs.D.12 and D.13, certified copies of the sale deeds have been marked. These sale deeds are executed in favour of respondent Nos.6 and 7 respectively. The recitals in these sale deeds are that Revanna and his sons were the owners of ancestral properties and that they have transferred the subject properties without referring to any partition. The appellant has also explained why Revanna and his sons, including the deceased Boralingaiah executed sale deeds as per Exs.D.12 and D.13 stating that the subject properties were the ancestral properties, if there was a partition. Therefore, the appellate Court has held that the appellant cannot contend that the sale deeds refer to a partition of the year 1983, 7. The Courts below being Courts of facts and law, have on appreciation of evidence concluded that there was no prior partition as pleaded by the appellant and as such, the respondent Nos.1 and 2 would be entitled for a share as declared in the suit schedule properties. The conclusion being based on appreciation of evidence on record, no substantial question of law arises. Further, the learned counsel for the appellant is unable to point out that the judgment and decree of the Courts below are opposed to the settled principles of law.
8. The learned counsel submits that the respondent Nos.6 and 7 are purchasers of portions of a joint family property and they would be entitled for working out of equities. However, these respondents have not impugned the confirmation of the civil Court’s judgment by the appellate court in R.A.No.42/2009. If these respondents could indeed plead for working out equities in the final decree proceedings, they could plead and protect their purchase in the final decree. However, the learned counsel for the parties submit that shares will have to be reworked with the demise of Smt. Puttarevamma, wife of Revanna, the original defendant No.1. The properties will have to be divided notionally amongst the father and the two sons with the legal representatives of the father including the appellant and the legal heirs of the pre-deceased son Lingannaiah @ Boralingaiah being entitled for a further half share in the father’s share. Consequentially, the appellant would be entitled for half a share and the legal representatives of Sri. Boralingaiah @ Lingannaiah – the respondent Nos.1, 4 and 5, would be inter se entitled for the remaining half share. The judgment and decree of the courts below will have to be accordingly read. These submissions are taken on record, and the appeal is accordingly disposed of.
In view of disposal of the appeal, pending application does not survive for consideration.
SD/- JUDGE nv Ct:sr