IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD REGULAR SECOND APPEAL No.1731/2012(DEC & INJ) BETWEEN:
SMT. THIMMAMMA W/O ANNEGOWDA AGED ABOUT 60 YEARS HEGGADIHALLI VILLAGE MALLIPATTANA HOBLI ARKALGUD TALUK PIN CODE-573102.
(BY SRI.N.P.KALLESH GOWDA, ADV. ) AND 1. SRI. CHANNARAJEGOWDA S/O KOOGEGOWDA AGED ABOUT 80 YEARS 2. SRI. KARIGOWDA S/O KOOGEGOWDA AGED ABOUT 60 YEARS 3. NARAYANAGOWDA S/O CHANNARAJEGOWDA AGED ABOUT 53 YEARS ... APPELLANT 4. CHANNAKESHAVEGOWDA S/O THIMMEGOWDA AGED ABOUT 60 YEARS SINCE DEAD REPRESENTED BY HIS LR’S 4(a) SANNATHAYAMMA W/O CHANNAKESHAVEGOWDA AGED ABOUT 53 YEARS 4(b) MANJULA D/O CHANNAKESHAVEGOWDA AGED ABOUT 33 YEARS 4(c) GEETHA D/O CHANNAKESHAVEGOWDA AGED ABOUT 31 YEARS 4(d) DHANI S/O CHANNAKESHAVEGOWDA AGED ABOUT 29 YEARS 4(e) KUMARA S/O CHANNAKESHAVEGOWDA AGED ABOUT 27 YEARS ALL ARE RESIDING AT HEGGADIHALLI VILLAGE MALLIPATTANA HOBLI ARKALGUD TALUK PIN-573102.
5. SHESHADRIGOWDA S/O THIMMEGOWDA AGED ABOUT 48 YEARS 6. CHANNEGOWDA S/O JUNJEGOWDA AGED ABOUT 53 YEARS 7. RAJEGOWDA S/O JUNJEGOWDA AGED ABOUT 48 YEARS ALL ARE RESIDING AT HEGGADIHALLI VILLAGE MALLIPATTANA HOBLI ARKALGUD TALUK PIN CODE-573102.
... RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 06.06.2012 PASSED IN R.A.NO.2/2009 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., ARKALGUD, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:31.01.2009 PASSED IN OS.NO.20/2007 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., ARKALGUD.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant-plaintiff challenging the judgment and decree dated 31.1.2009 passed by the Court of the Civil Judge (Jr.Dn.) & JMFC, Arkalgud in O.S.No.20/2007, which is confirmed by the judgment and decree dated 6.6.2012 passed by the Court of the Senior Civil Judge & JMFC, Arkalgud in R.A.No.2/2009, whereby the suit of the plaintiff is dismissed.
2. The parties are referred to as per their ranking before the trial court in the original suit.
3. Brief facts of the case:
The grandfather of the plaintiff i.e., one Bore Gowda had only one son by name Chaluve Gowda and the said Chaluve Gowda had 3 daughters including the plaintiff. The father of the plaintiff had no male issues and plaintiff being the elder daughter stayed in his house and he had performed the marriage of other two daughters and had sent them out of his family. The grandfather of the plaintiff i.e., Bore Gowda had got 6 acres 22 guntas of land and after his death, the grandmother of the plaintiff i.e., Lakshmamma and father of the plaintiff i.e., Chaluve Gowda had sold 4 acres 4 guntas of land to one Channaraje Gowda s/o Bore Gowda on 22.2.1939 and had kept the remaining portion of the land to the southern side of the sold property. When there was partition in the house of the joint family of the plaintiff, 30 guntas of land was given to the share of one Javaramma w/o Thammanna Gowda and the remaining portion of the land was kept for their share and the family of the plaintiff was in peaceful possession and enjoyment of the same. The defendants have no manner of right, title or interest over the suit schedule property and they are trying to interfere with the peaceful possession and enjoyment of the plaintiff. Therefore, the plaintiff preferred the suit for declaration that she is the absolute owner of the suit schedule property and for consequential relief of permanent injunction.
4. After service of notice, the defendants have appeared through their counsel and they have filed their written statement denying the case of the plaintiff and they have further contended that there is no cause of action for the suit and that the suit survey number land is in Heggadihally Village and Sy.No.22 comprises of 6 acres 22 guntas. It originally belonged to one Bore Gowda s/o Belure Gowda. After the death of Bore Gowda, his wife Lakshmamma and son Cheluva Gowda executed a sale deed on 22.2.1939 in favour of the father of the defendant No.1 in respect of 4 acres 22 guntas of land. They have further contended that the plaintiff is not having right over the remaining portion of the land in the southern side of the suit survey number which was retained by the father of the plaintiff and his mother. One Ammayamma, who is the wife of the of the father of the plaintiff i.e., Chaluve Gowda and his daughters namely Javaramma, Puttamma, Thimmamma and Chennamma were also having equal rights over the suit schedule property. They have not been made as parties to the suit. Hence, they prayed for dismissal of the suit.
5. On the basis of the above pleadings, the trial court framed the following issues:
1. ªÁ¢AiÀÄÄ vÁ£ÀÄ zÁªÁ ¸ÀéwÛ£À ¸ÀA¥ÀÆtð ºÀPÀÄÌzÁgÀgÀÄ ºÁUÀÆ ±ÁAwAiÀÄÄvÀ ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°è EzÁÝgÉ JAzÀÄ ¸Á©ÃvÀÄMr¸ÀĪÀgÉÃ?.
2. ªÁ¢AiÀÄÄ ¥ÀæwªÁ¢AiÀÄgÀÄ zÁªÁ ¸ÀéwÛ£À ±ÁAwAiÀÄÄvÀ ¸Áé¢üãÀPÉÌ vÀAn vÀPÀgÁgÀÄ ªÀiÁqÀÄwÛzÁÝgÉ J£ÀÄߪÀÅzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
3. ¢: 22.02.1939 gÀAzÀÄ zÁªÁ ¸ÀªÉð £ÀA:22 gÀ°è 4 ªÀgÉ JPÀgÉAiÀÄ£ÀÄß 1£Éà ¥ÀæwªÁ¢ vÀAzÉ ¨ÉîÆgÉÃUËqÀ ©£ï ZÉ£ÀßgÁeÉÃUËqÀ ¨ÉÆÃgÉÃUËqÀ£À ºÉAqÀw ®PÀêäªÀÄä ªÀÄvÀÄÛ ªÀÄUÀ ZɮĪÉUËqÀ¤AzÀ ±ÀÄzÀÝ PÀæAiÀÄPÉÌ ¥ÀqÉzÀÄ C£ÀĨsÀ«@PÉÆAqÀÄ §gÀÄwÛzÀÄÝ FUÀ F ¸ÀévÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀ ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°èzÉ E£ÀÄߪÀÅzÀ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
4. ªÁ¢AiÀÄÄ zÁªÉAiÀÄ°è PÉýzÀAvÀºÀ ¥ÀjºÁgÀUÀ¼À£ÀÄß ºÉÆAzÀ®Ä CºÀðgÉÃ?
5. K£ÀÄ rQæ CxÀªÁ DzÉñÀ?
6. To establish the case of the plaintiff, she got examined herself as PW-1 and produced and got marked 16 documents. On behalf of the defendants, defendant No.4 has been examined as DW-1 and they have produced and got marked 6 documents.
7. After hearing the learned Counsel for the parties, the learned Judge of the trial Court has answered issue Nos.1, 2 and 4 in the negative and issue No.3 in partly affirmative and issue No.5 as per the final order and dismissed the suit. Against the said judgment and decree of the trial Court, regular appeal was filed by the plaintiff in R.A.No.2/2009 and the following points arose for the consideration of the First Appellate Court:
1. Whether the Appellant/plaintiff proves that the impugned judgment and decree dated: 31/01/2009 passed in O.S.No.20/2007 by the trial Court in dismissal the suit, is contrary to law, facts, evidence and probabilities of the case and as such, it is liable to be interfered with?
2. Whether the appellant/plaintiff proves that there are grounds to allow the i.A.No.4 under order 26 Rule 9 of CPC for appointment of Court Commissioner?
3. What Order?
8. After hearing the learned counsel appearing for the parties, the First Appellate Court answered the point Nos.1 and 2 in the negative and point No.3 as per the final order and confirmed the judgment and decree of the trial court. It is this concurrent finding, which is called in question on various grounds as set out in the appeal memo.
9. Heard the learned Counsel for the appellant and perused the records.
10. It is not in dispute that the suit schedule property measuring 6 acres 22 guntas originally belonged to one Bore Gowda, grandfather of the plaintiff. After the death of Bore Gowda, his wife Lakshmamma and father of the plaintiff i.e., Cheluva Gowda sold 4 acres 4 guntas of land in favour of Channaraja Gowda s/o Bore Gowda on 22.2.1939 and kept the remaining portion of the property. The suit is filed for declaration and permanent injunction. The plaintiff has admitted that the suit schedule property is the joint family property and she also admitted that she has got two sisters and in the cross examination, she has admitted that the first wife of her father is alive and mother is also alive. When admittedly, the suit property is the joint family and ancestral property, the other members of the family are also the necessary parties under the suit and they have right over the suit schedule property and they become necessary parties. Considering this aspect of the matter, the trial court has rightly dismissed the suit and the same is confirmed by the First Appellate Court.
11. It is clear from the evidence and the documents produced by the parties that the suit schedule property is the joint family and ancestral property and the plaintiff cannot claim that she is the absolute owner of the suit schedule property without making the wife of the father of the plaintiff i.e., Ammayamma and their daughters, Javaramma, Puttamma, Thimmamma and Chennamma as parties as they have also got right over the suit schedule property.
12. In this view of the matter, there cannot be any interference by this Court. Further, there is no substantial question of law that would arise for consideration in this appeal. Hence, the appeal is devoid of merits and is liable to be dismissed. Accordingly, the following order is passed:
ORDER The appeal is dismissed by confirming the judgments and decrees passed by the trial court as well as the First Appellate Court.
There is no order as to costs.
Sd/- JUDGE DM