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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.S. MUDAGAL, J.
Smt. Puttalingamma W/o Nanjaiah – Appellant
Versus
Sri. Kalingaiah S/o Late Siddaramaiah – Respondent
Regular Second Appeal No. 198 of 2016
Decided On : 31-01-2019
Civil Procedure Code, 1908 - Section 11 - Rule 17 - Order VI - Oral partition – Share compensation - Plaintiff and defendant are daughters and defendant was son of one - Defendant are children of defendant died in year - Plaintiff and defendant against defendant claiming that suit schedule property – Self acquired property and he has bequeathed said property in their favor Will thereby they have become absolute owners of said property – Held, There is no dispute that plaintiff’s father owned another property bearing - Parties are governed by Hindu Law which permits oral partition - Only if partition is effected document then that requires registration - Material on record shows that herself admitted that after death of her father names of herself and defendant were entered to acre each in - It is further admitted that said land was acquired by Deputy Commissioner Mysore as per for purpose of forming layout for State Bank of Mysore Employees House Building Co operative Society - She has further admitted that herself and second defendant have received compensation each - Though she contended that defendant also received compensation she failed to establish that plea - Though suit was filed for partition and separate possession of share in her father’s property she did not include his other properties in suit - Having regard to such admissions and other materials placed on record Trial Court accepted contention of oral partition and that was concurred by first appellate court - After fighting litigation since first time in appeals he sought to adduce additional evidence impaled parties include properties and to amend plaint which apparently was for Renovo trial of case - Only reason assigned for her omission was that she was ignorant - First appellate court while considering application held that she was fighting litigation since therefore cannot be called as ignorant woman -There is no perversity in observation and finding first appellate court and trial court on merits In judgments relied upon by Counsel for appellant in cases referred to sprit was that applications for adducing additional evidence shall be considered along with appeal - Perusal of those judgments shows that first appellate court had not considered applications at all - In this case first appellate court has considered applications along with main matter and has given findings on that - Therefore said judgments are not applicable to facts of case - Appeal dismissed
JUDGMENT :
K.S. MUDAGAL, J.
1. This plaintiff’s second appeal arises out of the judgment and decree dated 31.10.2015 passed in R.A. No. 200/2012 by the II Additional District Judge at Mysuru. Under the said judgment and decree the 1st Appellate Court has confirmed the judgment and decree dated 6.3.2012 in O.S. No. 721/2009 passed by the IV Addl. Senior Civil Judge at Mysuru, dismissing the suit of the appellant for partition and separate possession of her share in the house property bearing door No. 2973 new No. CH-17 situated at II Cross, Kukkarahalli, Mysuru.
2. Plaintiff and defendant No. 2 are the daughters and defendant No. 1 was the son of one Siddaramaiah. Defendant Nos. 3 to 5 are the children of defendant No. 2. Siddaramaiah died in the year 1980. Plaintiff and defendant No. 2 filed O.S. No. 1027/1988 against defendant No. 1 claiming that the suit schedule property i.e. door No. 2973 new No. CH-17 was the self-acquired property of said Siddaramaiah and he has bequeathed the said property in their favour under the Will dated 19.1.1974 and thereby they have become the absolute owners of the said property. The said suit came to be dismissed on adjudication. Plaintiff and defendant No. 2 challenged the said judgment in R.A. No. 365/2004 which also came to be dismissed in 2009.
3. While disposing of R.A. No. 365/2004, it was observed that, if the plaintiff claims any right in the property through her father by succession, it is open to her to file suit claiming share in the suit property. Thereafter, plaintiff filed O.S. No. 721/2009 claiming that on the death of her father, herself, defendant Nos.1 and 2 are entitled to equal 1/3rd share each in the suit property.
4. Only the first defendant contested the suit and other defendants did not contest the suit. First defendant contended that after death of their father Siddaramaiah, his properties were partitioned amongst plaintiff, himself and defendant No. 2 orally and accordingly, their names were mutated in the revenue records. He further contended that the properties fallen to the share of plaintiff and defendant No. 2, were acquired for the purpose of forming layout for the State Bank of Mysore Employees’ House Building Co-operative Society and plaintiff and defendant No. 1 received the compensation awarded for such acquisition. He further contended that the plaintiff has not included the property fallen to the share of herself and defendant No. 1, which they enjoyed and therefore, suit is bad for non-inclusion of the properties.
5. On the basis of such pleadings, the trial court framed the following issues:
2. Whether the plaintiff proves that herself and defendants are in joint possession of the suit schedule property?
3. Whether the defendant No. 1 proves that this suit is barred by Section 11 of CPC?
4. Whether the first defendant proves that there was already partition in the joint family properties between the parties?
5. Whether the plaintiff is entitled for 1/3rd share in the suit schedule property?
6. What Order or Decree?
6. Plaintiff got herself examined as PW-1 and got marked Exs.P1 to P6. Defendant No. 1 got himself examined as DW-1 and got marked Exs.D1 to D9. The Trial court after hearing the parties dismissed the suit holding that the admissions of PW-1 and the documents produced by the defendant coupled with his oral evidence show that there was an oral partition between plaintiff, defendant Nos.1 and 2 and Sy. No. 313/1 measuring 2 acres 3 guntas was allotted to the share of plaintiff and defendant No. 2. It was further held that in the acquisition proceedings, plaintiff and defendant No. 2 have received the compensation amount and though the plaintiff contended that first appellant has also shared the compensation amount with them, she failed to prove the same and ultimately the suit was dismissed.
7. Agg
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