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2023 Supreme(Online)(Kar) 37914
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20th DAY OF APRIL, 2023 PRESENT THE HON'BLE MR. JUSTICE G. NARENDAR AND THE HON'BLE MR. JUSTICE P.N.DESAI REGULAR FIRST APPEAL NO.1489 OF 2007 C/W REGULAR FIRST APPEAL. CROB.NO.17 OF 2008 C/W REGULAR FIRST APPEAL NO.1196 OF 2007 IN RFA NO.1489 OF 2007 BETWEEN:
1. SRI S.A RAMACHANDRA, S/O LATE MARIGOWDA @
APPAJIGOWDA, AGED ABOUT 43 YEARS AGRICULTURIST, R/O KOPPALU, CHUNCHANAKATTE HOBLI, KR NAGARA TALUK, PIN-570 001.
2. SRI S A PRAKASH S/O LATE MARIGOWDA @
APPAJIGOWDA, AGED ABOUT 39 YEARS AGRICULTURIST, R/O KOPPALU, CHUNCHANAKATTE HOBLI, K.R NAGAR, TALUK, PIN-570 001.
3. SMT ARULATHA S/O LATE MARIGOWDA @
APPAJIGOWDA, AGED ABOUT 41 YEARS, AGRICULTURIST, R/O KOPPALU, CHUNCHANAKATTE HOBLI, K.R NAGAR, TALUK, PIN-570 001
4. SMT LAKSHMAMMA @ RATHNA S/O LATE MARIGOWDA AND APPAJIGOWDA, AGED ABOUT 64 YEA AGRICULTURIST, R/O KOPPALU, CHUNCHANAKATTE HOBLI, K.R NAGAR, TALUK, PIN-570 001.
... APPELLANTS (BY SRI. SHARATH S.GOWDA., ADVOCATE)
AND:
MASTER DHARSHAN KUMAR, S/O SMT YASHODAMMA AND SRI RAMACHANDRA AGED ABOUT 13 YEARS, RESIDING AT SALEKOPPALU, CHUNCHANAKATE HOBLI, K R NAGAR TALUK MINOR REPRESENTED BY MOTHER AND NEXT FRIEND SMT.
YASHODAMMA W/O RAMACHANDRA RESIDING AT SALEKOPPALU, CHUNCHANAKATE HOBLI, K R NAGAR TALUK-570001.
... RESPONDENTS (BY SRI. A.M. VIJAY., ADVOCATE)
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THIS RFA IS FILED UNDER SEC. 96 OF CPC AGAINST THE JUDGMENT AND DECREE DT.17.3.2007 PASSED IN O.S.NO.75/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN), HUNSUR, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION FOR RENDITION OF ACCOUNTS WITH COSTS.
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IN RFA.CROB NO.17 OF 2008 BETWEEN:
MASTER DHARSHAN KUMAR S/O S A RAMACHANDRA, AGED ABOUT 13 YEARS SINCE MINOR REPRESENTED BY MOTHER & NEXT FRIEND SMT YASHODAMMA W/O S A RAMACHANDRA R/AT SALEKOPPALU VILLAGE, CHUNCHAKATTE HOBLI, K R NAGARA TALUK MYSORE DISTRICT-571602.
... CROSS OBJECTOR (BY SRI. A.M VIJAY., ADVOCATE)
AND:
1. SRI S A RAMACHANDRA S/O LATE MARIGOWDA @
APPAJIGOWDA, AGED ABOUT 43 YEARS AGRICULTURIST, R/AT SALEKOPPALU VILLAGE, CHUNCHAKATTE HOBLI, K R NAGARA TALUK MYSORE DISTRICT-571602.
2. SRI S A PRAKASH S/O LATE MARIGOWDA @
APPAJIGOWDA, AGED ABOUT 39 YEARS AGRICULTURIST, R/AT SALEKOPPALU VILLAGE, CHUNCHAKATTE HOBLI, K R NAGARA TALUK MYSORE DISTRICT-571602.
3. SMT ARULATHA D/O LATE MARIGOWDA @
APPAJIGOWDA AGED ABOUT 41 YEARS AGRICULTURIST, R/AT SALEKOPPALU VILLAGE, CHUNCHAKATTE HOBLI, K R NAGARA TALUK MYSORE DISTRICT-571602. 4. SMT LAKSHMAMMA @
RATHNA W/O LATE MARIGOWDA @
APPAJIGOWDA AGED ABOUT 60 YEARS AGRICULTURIST, R/AT SALEKOPPALU VILLAGE, CHUNCHAKATTE HOBLI, K R NAGARA TALUK MYSORE DISTRICT-571602.
5. S A SHIVASWAMY S/O LATE MARIGOWDA @ APPAJIGOWDA, MAJOR.
AGRICULTURIST, R/AT SALEKOPPALU VILLAGE, CHUNCHAKATTE HOBLI, K R NAGARA TALUK MYSORE DISTRICT-571602. 6. S A KRISHNAMURTHY S/O LATE MARIGOWDA @ APPAJIGOWDA, MAJOR.
AGRICULTURIST, R/AT SALEKOPPALU VILLAGE, CHUNCHAKATTE HOBLI, K R NAGARA TALUK MYSORE DISTRICT-571602.
…RESPONDENTS (BY SRI. SHARATH S.GOWDA., ADVOCATE)
RFA.CROB FILED (IN RFA NO.1489/2007) U/O XLI RULE
22 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 22.03.2005 PASSED IN OS.NO.75/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) HUNSUR, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION FOR RENDITION OF ACCOUNTS WITH COSTS, THE CROSS-OBJECTOR HEREIN PREFERS THIS RFA.CROB IN SO FAR AS IT RELATES TO THE REJECTION OF THE PRAYER SOUGHT IN THE SUIT AS REGARDS ITEM NOS.16 AND 19 AND ALSO ORDERING FOR THE PAYMENT OF COSTS OF RS.2,000/- BY THE CROSS-OBJECTOR/PLAINTIFF TO THE RESPONDENTS 5 AND 6 ARE CONCERNED.
IN RFA. NO.1196 OF 2007 BETWEEN:
SRI S A RAMACHANDRA S/O LATE MARIGOWDA @
APPAJIGOWDA AGED ABOUT 43 YEARS AGRICULTURIST R/AT SALE KOPPALU CHUNCHANAKATTE HOBLI, K.R.NAGAR TALUK-571 001.
…APPELLANT (BY SRI. B.ROOPESHA., ADVOCATE)
AND:
1. MASTER DARSHAN KUMAR, S/O SMT YESHODAMMA AND SRI RAMACHANDRA, AGED ABOUT 13 YEARS, R/OF SALE KOPPALU, CHUNCHANAKATTE HOBLI, K.R.NAGAR TALUK , SINCE MINOR REP. BY HIS MOTHER, NATURAL GUARDIAN SMT YESHODAMMA.
2. SRI S A PRAKASHA S/O LATE MARIGOWDA @
APPAJIGOWDA AGED ABOUT 39 YEARS, AGRICULTURIST,R/O SALE KOPPALU, CHUNCHANAKATTE HOBLI, K.R.NAGAR TALUK-571 001.
3. SMT ARULATHA W/O PURUSHOTHAMA, D/O LATE MARIGOWDA @ APPAJIGOWDA AGED ABOUT 40YEARS AGRICULTURIST,R/O SALE KOPPALU, CHUNCHANAKATTE HOBLI, K.R.NAGAR TALUK-571 001.
4. SMT LAKSHMAMMA @ RATHNA W/O LATE MARIGOWDA @
APPAJIGOWDA, AGED ABOUT 40 YEARS AGRICULTURIST,R/O SALE KOPPALU, CHUNCHANAKATTE HOBLI, K.R.NAGAR TALUK-571 001
5. SRI S A SHIVASWAMY S/O LATE MARIGOWDA @ APPAJIGOWDA AGED ABOUT 77 , AGRICULTURIST,R/O SALE KOPPALU, CHUNCHANAKATTE HOBLI, K.R.NAGAR TALUK-571 0016.
6. SRI S A KRISHNAMURTHY S/O LATE MARIGOWDA @ APPAJIGOWDA AGED ABOUT 43 YEARS AGRICULTURIST,R/O SALE KOPPALU, CHUNCHANAKATTE HOBLI, K.R.NAGAR TALUK-571 001 ...RESPONDENTS (BY SRI. A.M. VIJAY., ADVOCATE FOR C/R-1, SRI.SHARATH S.GOWDA,ADVOCATE FOR R2 TO R4 (VIDE ORDER DATED 03/03/2022 APPEAL AGAINST R5 IS DISMISSED AS ABATED), SRI. GURUPRASAD B.R. AND SMT.SANDHYA RAO.P.,ADVOCATES FOR R6)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 17.03.2007 PASSED IN OS.NO.75/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
HUNSUR, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THESE APPEALS AND RFA.CROB HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, P.N.DESAI J, DELIVERED THE FOLLOWING:
JUDGMENT
RFA No.1489/2007 is filed by defendants Nos.1 to 4, RFA No.1196/2007 is filed by defendant No.1 and RFA Crob. No.17/2008 is filed by Plaintiff challenging the judgment and decree dated 17.03.2007 passed by learned Civil Judge(Sr.Dn.), Hunsur in O.S.No.75/2003, wherein the suit for partition and separate possession came to be decreed partly.
The parties will be referred as 'plaintiff' and 'defendants' as per their respective ranks before the trial court for the sake of convenience in these appeals.
2. The plaintiff instituted a suit through his next friend mother against his father defendant No.1 Ramachandra, his brothers and sisters. It is contention of the plaintiff that the suit properties belongs to one Late Marigowda alias Appaji Gowda. He has got two sons who are defendant Nos.1 and 2. Suit schedule properties are the ancestral properties of the plaintiff and defendant Nos.1 and 2. Defendant No.4 is the mother of defendant Nos.1 and 2. It is further averred that the said Marigowda, his two sons and plaintiff together constituted an Hindu Undivided joint family. Defendant No.3 is the sister of defendant Nos.1 and 2 and her marriage was solemnised in the year 1985-1986. Matrimonial dispute arose between defendant No.1 and the plaintiff's mother Yashodamma who is his next friend. There was allegation of demand of dowry and harassment by the plaintiff's mother against defendant No.1 and a criminal case also came to be filed against the defendants. Defendant No.1 proclaimed that they will sell the property and make the plaintiff destitute. Therefore, the plaintiff demanded share of the properties through his next friend-mother, but the defendants have refused to give any share and they tried to sell the suit property. Hence, the plaintiff filed a suit for partition and separate possession stating that cause of action arose in the month of August
2000.
3. Defendant Nos.5 and 6 were included subsequently and as necessary parties in respect of Item No.8 of the suit schedule land, which is not the joint family property of defendant Nos.1 and 4. It is contended that the plaintiff is entitled for 15/72th share in the suit schedule properties.
4. Defendant No.1 appeared and filed written statement and defendant Nos.2 to 4 filed a memo stating that they are adopting the written statement filed by defendant No.1. Defendant No.6 filed his written statement and defendant No.5 filed a memo adopting the written statement of defendant No.6.
5. Defendant No.2 in his written statement admitted the relationship with plaintiff, but they have contended that Item No.8 suit schedule land was purchased by defendant Nos.5 and 6 on 10.02.1936 through a registered sale deed and they are in possession, they have constructed a house and they are enjoying the property since the life time of their father.
6. It is contended that the father of defendant Nos.1 to 3 died in the year 1994. They have denied the averments of the plaint as all false. They have denied that the suit schedule properties are the joint family properties and ancestral properties. It is contended that at the instance of mother of the plaintiff, a false case has been filed against them and other averments are all denied. It is contended that it is next friend-mother of the plaintiff quarelled with defendant No.1 and others and caused harassment. Therefore, the first defendant separated from the joint family and a partition of the landed property was made on 14.02.1995. There was division of the house property on 23.01.2001 between defendant Nos.1, 2 and 4. The next friend-mother of the plaintiff quarelled with defendant No.1 and in the partition, the property fell to the share of the defendant No.1 as shown in written statement.
7. The house properties were also divided on
23.01.2001. Thereafter, the defendant No.1 has been in separate possession and enjoyment of the property that has fallen to his share and there is no joint family property in existence. It is also contended that defe
