IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 :BEFORE:
THE HON’BLE MR.JUSTICE B. SREENIVASE GOWDA R.S.A. NO. 724/2015 (PAR) BETWEEN:
SRI. JAYARAMA SHETTY, AGED ABOUT 52 YEARS, S/O LATE CHENNAMMA, R/AT KUKKILA HOUSE, ALLIPADE POST, SARAPADY VILLAGE, BANTWAL TALUK 575 018. … APPELLANT (BY SRI. NATARAJA BALLAL, ADV.) AND:
1. SMT. LEELA, AGED ABOUT 38 YEARS, D/O LATE CHENNAMMA, R/AT NO.19/41, 8TH CROSS, 7TH MAIN ROAD, GANESH BLOCK, MAHALAXMI LAYOUT, BENGALURU – 560 086 2. SMT. SAROJINI, MAJOR 3. SRI. POVVAPPA, MAJOR 4. SMT. RATHI, MAJOR 5. SRI VITTAL, MAJOR 5(a) SMT. MADHAVI AGED ABOUT 49 YEARS, W/O LATE VITTAL SHETTY 5(b) SRI. VACHAN, AGED ABOUT 25 YEARS, 5(c) SRI. CHETHAN, AGED ABOUT 24 YEARS, 5(d) SRI. RATHAN, AGED ABOUT 22 YEARS, R-5(a) IS THE W/O OF LATE VITTAL SHETTY & 5(b) TO 5(D) ARE THE LEGAL HEIRS OF LATE VITTAL SHETT. R/AT KUNDOLI HOUSE, AJJIBETTU VILLAGE & POST BANTWAL, DISTRICT – 575 018.
6. SMT. JAYANTHI, MAJOR, 7. SRI. KRISHNA @ KUTTY, MAJOR, 8. SMT. RAMANI, MAJOR, R-2,3,4,5,6,7 & R-8 ARE CHILDREN OF LATE DHARNAMMA & R/AT KUNDOLI HOUSE, VAMADA PADAVU, AJJIBETTU VILLAGE, BANTWAL TALUK – 575 018.
... RESPONDENTS (BY SMT. SANDHYA U. PRABHU, ADV. FOR R-1 R-2, R-3, R-4, R-5(a)(b)(c)(d)R-6, R-7, R-8, R-9 ARE SERVED.) [AMENDED THE CAUSE TITLE V.C.O DTD 13.09.2017] NOTE: [R-8 RAGHU WAS WRONGLY SHOWN AS RAGHAVA IN R.A HOWEVER SINCE HE DIED ON 15.02.2006 AS A BACHELOR DURING THE PENDING OF R.A. HE IS NOT ARRAYED AS RESPONDENT TO THIS APPEAL] THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD 19.12.2014 PASSED IN RA NO.34/2008 ON THE FILE OF THE III ADDL.
DISTRICT & SESSIONS JUDGE, DK., MANGALURU DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 08.02.2008 PASSED IN OS NO. 144/2006 ON THE FILE OF THE CIVIL JUDGE, (SR.DN.) JMFCM, BANTWAL, DK.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The defendant No.3 in OS No.144/2006 on the file of the Civil Judge (Sr.Dn.) & JMFC, Bantwal, D.K. has preferred this appeal challenging the concurrent judgment and decree passed by the trial Court, whereby the suit of the plaintiff filed for the relief of partition and separate possession of her share in the suit property has been decreed.
2. The first respondent (plaintiff) filed a suit in OS No.144/2006 against respondent Nos.2 and 3 and the appellant for the relief of partition and separate possession of her 1/6th share in the suit schedule property. The trial Court decreed the suit holding that the plaintiff is entitled for 1/6th share in the suit schedule properties and rendition of accounts derived from the suit schedule properties from the date of suit till the date of actual realization.
3. Only, the defendant No.3, who is aggrieved by the said judgment and decree of the trial Court challenged the same by preferring a Regular Appeal in R.A.No.34/2008 before the III Addl. District & Sessions Judge, D.K., Mangaluru and the same came to be dismissed. Hence, the 3rd defendant has preferred this second appeal.
4. Sri Nataraja Ballal, learned counsel appearing for the appellant (defendant No.3) submits that the courts below without considering the admission made by the plaintiff that she is not in possession of the suit schedule property, have committed an error in not holding that the suit as valued by the plaintiff under clause 7(2) of Karnataka Court Fee & Valuation Act, is not proper and court fee paid by the plaintiff based on the land revenue, is not proper and erred in not dismissing the suit on the ground of non payment of correct Court fee.
5. The learned counsel for the appellant further submits that the plaintiff having not been in possession of the suit property as on the date of institution of the suit, supposed to have valued the suit property on the basis of its market value and paid ad-valorem court fee on the market value of the suit property. The courts below, without considering this have committed an error in decreeing the suit of the plaintiff for the relief of partition.
6. The learned counsel for the appellant further submits that the plaintiff has not made his senior aunt as party and hence, the suit is bad for non-joinder of necessary parties. Hence, there are substantial questions of law arise for consideration and therefore, he prays for admitting the appeal for considering those substantial questions of law.
7. The first respondent (plaintiff) has brought the suit for the relief of partition and separate possession of 1/6th share in the suit schedule property contending that the suit schedule properties are the joint family properties of the plaintiff and the defendants. One late Sankamma Hengasu, mother of defendant Nos.1 & 2, grand-mother of plaintiff and defendant No.3 filed a declaration before the Land Tribunal, Bantwal Taluk in respect of the suit schedule properties representing on behalf of the joint family. The Land Tribunal, Bantwal as per order dated 31.12.1997 had conferred occupancy rights on Sankamma for and on behalf of the joint family. The said Sankamma had three children and they are defendant Nos.1 & 2 and Chennamma. Plaintiff is the daughter of this Chennamma. Chennamma pre- deceased her mother Sankamma and she died intestate on 24.04.1987 and Sankamma also died intestate on 3.7.1994. Therefore, the plaintiff and defendants have got 1/6th share in the plaint schedule properties. The Plaintiff and defendants are in joint possession of the suit schedule property. They have failed to settle the matter amicably. The defendants are trying to exclude the plaintiff from enjoying the plaint schedule properties.
8. First and second defendant have filed their written statement denying suit properties are joint family properties and denying that, suit properties were granted to Sankamma Hengasu on behalf of the joint family and they are the joint family properties. They deny that the plaintiff is the daughter of Chennamma Hengasu or she is the grand daughter of Sankamma Hengasu. They denied that plaintiff having 1/6th share in the suit schedule property and they denied the joint possession of the suit property by plaintiff and defendants. They disputed the identity of the plaintiff. It is contended that late Sankamma Hengasu has entered into a partition on 30.04.1998 with the 3rd defendant. The said partition is registered. The properties mentioned in ‘B’ & ‘C’ schedule have been allotted to the 1st and 2nd defendant respectively. The parties have acted upon the partition by taking their respective shares. The plaintiff has no manner of right in the plaint schedule property nor she is in joint possession of the same. The particulars of income from the schedule property is also denied. The plaintiff is not entitled for 1/6th share in the suit schedule properties as claimed. With these prayers, they sought for dismissal of the suit 9. Defendant No.3 has also filed separate written statement taking the same defence and praying for dismissal of the suit.
10. The Trial Court based on the rival pleadings of the parties, framed the following issues for its consideration:
1. Whether the plaintiff proves that the suit property are the joint family properties of the plaintiff and the defendants?
2. Whether she further proves that she is the grand daughter of late Sankamma Hengsu?
3. Whether she further proves that late Sankamma Hengsu filed the declaration before the Land Tribunal Bantwal in respect of the suit schedule properties to ensure the benefit of the joint famiy?
4. whether she further proves that the order passed by the Land Tribunal, Bantwal is on behalf of the joint family?
5. What is the income from the suit schedule properties?
6. Whether the defendants prove that as per the partition Deed dated 30.04.1988 the plaintiff has no right in the suit schedule properties?
7. Whether the plaintiff is entitled to the partition and separate possession in the suit schedule properties?
8. What order or decree?
Additional Issues:
1. Whether the defendants prove that the suit is not properly valued?
2. Whether the defendants further prove that the Court fee paid is not proper?
11. The plaintiff in order to prove her case, has examined herself as PW-1 and has produced 13 documents which were marked as Ex.P1 to Ex.P13. On behalf of the defendants, third defendant was examined as DW-1 and they produced 12 documents which were marked as Ex.D1 to Ex.D12.
12. The Trial Court hearing the arguments advanced by the learned counsel appearing for the parties, considering the oral and documentary evidence on record, decreed the suit holding that plaintiff is entitled for 1/6th share in the suit schedule property.
13. The First Appellate Court re-appreciating the entire oral and documentary evidence on record, dismissed the appeal and confirmed the judgment passed by the Trial Court.
14. The question that arises for consideration in this appeal is whether there is any substantial question of law which warrants admission of appeal for consideration of said substantial question of law?
15. It is not in dispute that the suit lands were tenanted lands and occupancy right was granted by the Land Tribunal in favour of Sankamma Hengasu. It is also not in dispute that said Sankamma Hengasu had three daughters namely (1) Smt.Dharanamma (defendant No.1), (2). Smt.Kamalamma (second defendant) and (3). Smt.Channamma (mother of plaintiff and defendant No.3). Defendant Nos.1 and 2 in their written statement, have specifically contended that late Sankamma Hengasu, during her life time had effected a partition deed dated 30.04.1988 and properties mentioned under Schedule B and C to the partition were allotted to the share of first and second defendants respectively. The Trial Court has come to the conclusion that the suit properties had been allotted to the share of Channamma mother of the plaintiff and third defendant. The defendant Nos.1 and 2 who are senior aunts of the plaintiff and third defendant, have not denied the allotment of suit lands in favour of Channamma under the partition deed dated 30.04.1988 effected by their mother Sankamma Hengasu.
16. The plaintiff in order to prove that she is the daughter of Channamma and sister of third defendant Jayakar Shetty, has produced her SSLC Admission Ticket at Ex.P11 and notarized copy of pass port at Ex.P13. In her SSLC admission ticket, name of her father is shown as Aithappa Shetty. In the passport produced at Ex.P13, particulars of her residence and other details are stated. The defendant No.3, brother of the plaintiff has specifically pleaded that his mother has ran away with a servant about 12 years back and her whereabouts are not known.
17. The Trial Court considering the above material, has held that plaintiff has proved that she is the daughter of Smt.Channamma and granddaughter of Sankamma Hengasu, and answered issue No.2 accordingly.
18. The plaintiff has produced revenue documents relating to the suit properties at Ex.P1 to Ex.P6 and defendants have produced Ex.D.1 Geni receipts, Ex.D.2 Krushi Passbook, Ex.D.3 copy of order of Land Tribunal, Ex.D.4 Voter lists, Ex.D.5 – Geni receipts, Ex.D.6 - Form No.6 (B) Geni Agreement, Ex.D.7 - RTC extracts and Ex.D.9 - partition deed.
19. The Trial Court considering entire oral and documentary evidence on record, has held that the suit lands were granted by the Land Tribunal Bantwala in favour of Sankamma Hengasu.
20. It is the specific case of the plaintiff as well as third defendant that their mother Smt. Channamma is not a party to the partition deed at Ex.D9 dated 30.04.1988 and it was effected by late Sankamma Hengasu between her two daughters viz. Dharanamma and Kamalamma – defendant Nos.1 and 2 respectively. The Trial Court considering this material aspect of the matter, has held that said partition is not binding on the mother of the plaintiff and third defendant and their mother Channamma. As such, the plaintiff is entitled for 1/6th share in the suit schedule properties.
21. 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. The First Appellate Court has considered the grounds urged by the appellant that the suit was not properly valued and Court Fee paid was not proper and negatived the same.
22. 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 which arises for consideration in this appeal.
Accordingly, appeal is dismissed as devoid of merits.
In view of dismissal of appeal, I.A.No.4/16 filed for stay does not survive for consideration and accordingly dismissed. No order as to costs.
SD/- JUDGE PL/DKB/NC