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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2023 BEFORE THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.152 OF 2016 (PAR)
C/W REGULAR SECOND APPEAL NO.1390 OF 2016 (PAR)
IN RSA NO.152/2016 BETWEEN:
SHRI B N MARIYAPPA SON OF LATE NANJAPPA AGED ABOUT 65 YERS RESIDING AT BEEKANAHALLI VILLAGE JYOTHINAGAR POST CHIKKAMAGALURU TALUK & DISTRICT Digitally CHIKKAMAGALURU-577101.
sign ed by CHAITHRA A …APPELLANT Location:
High Court (BY SRI. SHIVASHANKAR S K , ADVOCATE)
of Karnatak a AND:
1. SHIVAKUMAR B N S/O LATE NANJAPPA AGED ABOUT 55 YEARS R/O.BEEKANAHALLI JYOTHINAGAR POST CHIKKAMAGALUR - 577101
2. JAYAMMA W/O HALAPPA AGED ABOUT 67 YEARS R/O.BENDEKERE VILLAGE ARSIKERE TALUK HASSAN DISTRICT – 573 102
3. RUDRESH S/O LATE ERAMMA AGED ABOUT 39 YEARS
4. MAMATHA D/O LATE ERAMMA AGED ABOUT 44 YEARS RESPONDENT NOS.3 AND 4 ARE R/A. BENDEKERE VILLAGE, ARSIKERE TALUK, HASSAN DISTRICT.
5. POORNIMA D/O LATE ERAMMA W/O SADASHIVA AGED ABOUT 44 YEARS R/O.PILLENAHALLI KADUR TALUK – 577 548
6. MULLAPPA H/O LATE ERAMMA AGED ABOUT 74 YEARS R/O BENDEKERE VILLAGE ARSIKERE TALUK HASSAN DISTRICT - 573102
7. KAMALAMMA W/O.MALLESHAPPA AGED ABOUT 62 YEARS R/O LAKYA VILLAGE & POST CHIKKAMAGALUR TALUK PIN CODE – 577101
8. B N MALLIKARJUNAPPA S/O.LATE NANJAPPA AGED ABOUT 60 YEARS PEON, AGRICULTURAL DEPARTMENT JYOTHI NAGAR CHIKKAMAGALURU PIN CODE – 577102
9. B N GANGADHARAPPA S/O.LATE NANJAPPA AGED ABOUT 52 YEARS
10. B N SADASHIVA S/O.LATE NANJAPPA AGED ABOUT 50 YEARS RESPONDENT NOS.9 AND 10 ARE RESIDING AT BEEKANAHALLI VILLAGE JYOTHI NAGAR POST CHIKKAMAGALURU TALUK – 577102
11. JYOTHEESHWARAPPA S/O NANJUNDAPPA AGED ABOUT 52 YEARS R/O UDDEBORANAHALLI VILLAGE CHIKKAMAGALURU TALUK AND DISTRICT.
PIN CODE - 577102 …RESPONDENTS (BY SMT.ANUSHA A, ADVOCATE FOR SRI. A MADHUSUDHANA RAO, ADVOCATE FOR R.1;
SRI.B.S.SACHIN, ADVOCATE FOR R.8 TO 10;
SRI.SATISH KUMAR, ADVOCATE FOR R.11;
R.2 TO 7 ARE SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.9.2015 PASSED IN RA NO.129/2013 ON THE FILE OF THE PRL. DISTRICT JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 1.10.2013 PASSED IN OS NO.103/2002 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHIKMAGALUR AND ETC.
IN RSA NO.1390/2016 BETWEEN:
SRI. JYOTHEESHWARAPPA S/O LATE NANJUNDAPPA AGED ABOUT 54 YEARS R/O UDDEBORANAHALLI VILLAGE CHIKKAMAGALUR TALUK – 577 101 …APPELLANT (BY SRI. J SATHISH KUMAR, ADVOCATE)
AND:
1. SHIVAKUMAR B N S/O LATE NANJAPPA AGED ABOUT 56 YEARS R/O BEEKANAHALLI JYOTHINAGAR POST CHIKKAMAGALUR – 577 101
2. JAYAMMA W/O HALAPPA AGED ABOUT 75 YEARS R/O BENDEKERE VILLAGE ARSIKERE TALUK HASSAN DISTRICT - 573103
3. RUDRESH S/O LATE ERAMMA AGED ABOUT 42 YEARS
4. MAMATHA D/O LATE ERAMMA AGED ABOUT 45 YEARS RESPONDENT NOS.3 AND 4 ARE R/O BENDEKERE VILLAGE ARASIKERE TALUK HASSAN DISTRICT – 573103
5. POORNIMA D/O LATE ERAMMA W/O SADASHIVA AGED ABOUT 46 YEARS R/O PILLENAHALLI VILLAGE KADUR TALUK - 577548
6. MULLAPPA H/O LATE ERAMMA AGED ABOUT 86 YEARS R/O BENDEKERE VILLAGE ARASIKERE TALUK HASSAN DISTRICT – 573103
7. KAMALAMMA W/O MALLESHAPPA AGED ABOUT 62 YEARS R/O LAKYA VILLAGE AND POST CHIKKAMAGALUR TALUK – 577 102
8. B.N.MARIYAPPA S/O LATE NANJAPPA AGED ABOUT 66 YEARS
9. B.N.MALLIKARJUNAPPA S/O LATE NANJAPPA AGED ABOUT 62 YEARS PEON, AGRICULTURAL DEPARTMENT, JYOTHINAGAR, CHIKKAMAGALUR – 577102
10. B.N.GANGADHARAPPA S/O LATE NANJAPPA AGED ABOUT 54 YEARS
11. B.N.SADASHIVA S/O LATE NANJAPPA AGED ABOUT 52 YEARS RESPONDENT NOS.8 TO 11 ARE R/O BEEKANAHALLI, JYOTHINAGAR POST CHIKKAMAGALUR TALUK – 577 101 …RESPONDENTS (BY SMT.A.ANUSHA, ADVOCATE FOR SRI.A.MADHUSUDHANA RAO, ADVOCATE FOR R.1;
R.2 TO 11 ARE SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.09.2015 PASSED IN RA NO.121/2013 ON THE FILE OF THE PRL. DISTRICT JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.10.2013 PASSED IN OS NO.103/2002 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC., CHIKKAMAGALURU.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two captioned appeals are filed by defendant No.2 and defendant No.6 – pendent lite purchaser. Defendant No.2 has preferred an appeal in RSA No.152/2016 while defendant No.6 – pendent lite purchaser has preferred an appeal in RSA No.1390/2016. Both Courts have concurrently held that there is no partition in the family and claim of defendant No.2 that item No.1 of schedule ‘A’ property is self acquired property of defendant No.2 is also negatived by both Courts.
2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court.
3. The genealogical tree of the family is as under;
Nanjappa (died)
|
Sharanamma (died)
4. The present suit is filed by one of the son of Nanjappa, who had five sons and three daughters. The plaintiff has instituted the present suit by contending that he constitutes an undivided joint Hindu Family along with defendant Nos.1 to 5 and that the suit schedule properties are joint family ancestral properties. The plaintiff has further contended that defendant No.3 forcibly took his signatures on the stamp paper and therefore, concocted a partition deed.
5. Defendant No.2 on receipt of summons tendered appearance and filed written statement. Defendant No.2 on the contrary claimed that there is already partition in the family and the same is evidenced by a partition deed dated 26.12.1996. Defendant No.2 also contended that item No.1 of ‘A’ schedule property is his self acquired property, while defendant No.6, who is a pendent lite purchaser claimed that he is a bonafide purchaser.
6. The plaintiff and defendants to substantiate their respective claims have let in oral and documentary evidence.
7. The Trial Court has examined the allegations of plaintiff that his signatures were obtained forcibly on Ex.D.1, which is styled as partition deed, by defendant No.3. The Trial Court while taking cognizance of Ex.D.1 found that there are several over writings and the signatures are secured on the top of the stamp papers and not at the bottom of the stamp papers. The Trial Court found that there are some over writings and some writings were made with different hand writing by using different pens. The Trial Court noticed the variations of the signatures found in Ex.D.1. The Trial Court has also held that the signatures of plaintiff found on the disputed document and other documents are also not similar. Therefore, referring to several suspicious overwritings, the Trial Court has recorded a categorical finding that the alleged partition deed set up by defendants vide Ex.D.1, is not a genuine document. Consequently, the said document is discarded by the Trial Court and issue No.3 is answered in the Affirmative and against the defendants.
8. While examining the claim of defendant No.2 that item No.1 of schedule ‘A’ property is his self acquired property, the Trial Court has examined the rebuttal evidence let in by defendant No.2. However, the Trial Court found that defendant No.2 having made a claim that item No.1 of schedule ‘A’ property is his self acquired property has failed to demonstrate that he had independent earning. In absence of independent earning, the Trial Court was not inclined to accept that item No.1 of schedule ‘A’ property is self acquired property of defendant No.2. Consequently, suit filed by the plaintiff is decreed and the same is confirmed by the Appellate Court.
9. Heard learned counsel appearing for defendant No.2 and defendant No.6 – pendent lite purchaser and learned counsel appearing for the plaintiff. Perused the concurrent findings recorded by both Courts below.
10. Defendant No.2 has set up a plea of prior partition. Both Courts have discarded this document by recording a finding that this document is not a genuine document. Be that as it may, family tree clearly indicates that Nanjappa is sur
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