as-w IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 12TH DAY OF NOVEMBER 20:9. j BEFORE THE HON'BLE MRJUSTICE SI:JB}L¢\SI~§'_:E'E.V2'4&I).1" REGULAR FIRST APPEAL No.54 20CSE.R BETWEEN: 1.
SR1 DODDAPPA@ MUN:YAPPA,_.A-“** –.
S/0 LATE 13ANG1MUN1YAR1=A,’jA~~ –_ A
AGED ABOUT 65 YEARS, .
R/ATKALKEREVILLAGE, ‘
CHIKI{A’F1RUPATH_I.PQST, ” ‘V _ –
LAKKURHOBLI,MALi1}RVTALUK,'”‘ ”
KOLAR DISTRIC, I’; 1~;Q’L.AR –‘ 5_63’1.o1;–” A
2. SR1 MUNISWAMY, “*:::;.
S /0 LATE :BANGIM’LTN}Y¥APPA;’~..
AGED ABOUT 83 YEARS,’ _
R/AT KALKERE”VILLAGE, ”
CHIKKA TIRUPAT}-{.1 POST ” A _.
LAKKURH-QBLI, ‘MALUR TALUK,
,.E.QLAR»»r:a1STR:cT. _
.1_<:o'mR 56.:a10'~1., """ " …APPELLANTS
(EY..SR_1..'§i;1\i','SL1TAEAREDDY,
V SR1 VIVEK S'R'_E-'.D'DY, ADVOCATES)
if ' A 1", NAD.1PA15PA,
'S/Q LATE BANGIMUNIYAPPA.
AGED ABOUT 67 YEARS.
A E ~ “SR1 NARAYANBAPPA.
A .3/0 LATE MUNIVEKATAPPA.
AGED ABOUT 60 YEARS.
BOTH R/AT KALKERE VILLAGE.
CHIKKA THIRUPATHI POST,
LAKKUR HOBLI, MALUR TALUK.
KOLAR DISTRICT,
KOLAR~ 5631.01. …RESPoND:ENTst’ H
[BY SR1. Y.R.SADASI~IIVA REDDY, ADV I§’oR”R::, .;« T
R1-SERVED) ..
THIS APPEAL IS PILED UND’ER SECTION =9’6e1§>c’t
AGAINST THE JUDGMENT AND DECREE DATED fI;3.o,3.2’o06
PASSED IN O.S.NO.172/2000 ON THE P1LE”oP_ THE PRL.
CIVIL JUDGE (sR.DN.) AND~cJM.;”i{oLAR;”–DISM1ssING THE
SUIT FOR PARTITION AND _
THIS APPEAL eoM1Ns~–voN THIS DAY,
THE COURT DELIVERED THE PQj.LLQW’1_N_o:’–
This:Visfi the judgment and
decree in file of the Civil Judge,
Sr.Dvn., Kroiart awed t,1T3.t3.£2oo6.
for partition and separate possession
1/3*-._sha_.i’eZiofwthe plaintiffs and declaration that the
ti”‘:’?”ieeording.’of«name of 2nd defendant in the katha extract is
fiuit property is a land bearing Sy.No.7 measuring
it “as-res 25 guntas. The propositus Bangimuniyappa had
sons i_.e., 151 defendant — Nadupanna, 151 plaintiff —
Doddanna @ Muniyappa and 2nd plaintiff -~ Muniswaniy.
Plaintiffs and 15′ defendant were residing separately.
there is no partition in the suit properties.
property belongs to grandfather — if f
and 1st defendant are having
schedule property and plaintiffs-..__lf1avea,_l}’3V
29.5.2000 plaintiffs came to
changed in his name. partition
and separate possession, refused to
give. In thes_e- been filed for
partition and separate “pos-session.-
3. Q “2f1é ‘defendant ‘appeared and filed written
astateinent. ‘defendant did not contest the suit. 2nd
defefndantff that the suit schedule property
originally b-elonged to Munivenkatappa — father of 21303
and he was in possession. After the death of
K Mtiniiifenkatappa, 2nd defendant has been in possession as
and katha stands in his name. He has dug the
borewell and has got power connection and has also
r§i~>*'<~,
raised loan. The case of the plaintiffs is false and that
defendant has been in possession of the suit schediile
property for more than 12 years and has
adverse possession. The suit property wasps»
Muniga, Papa and Muniya respectiivelylp
guntas, 1 acre 8 guntas and lpsaere g;ti'ntasV.olLif:f:
suit schedule property. The 3
separate sale deeds on father' of 2m'
defendant Munivenkatappa then 211d
defendant has V"lI51aii?1tiffs had filed
form no.7 beforex he same came to be
dismissed on "On these pleadings 2m
defendantelaim th-at: the suit is liable to be dismissed.
A based on the pleadings framed the
foilowing"iss*t1es:'"'
it (ls), Whether the plaintiffs prove the
replaigionship pleaded by them?
(2) Whether the plaintiffs prove the suit
'properties are (:o–pareenery properties of
plaintiffs and defendants?
5
r%y..”:<'.
(3) Whether the plaintiffs are entitle for 1/ 3
share in suit property?
(4) Whether the defendants prove that suit’
property _f’o–f 5
Munivenkatappa, the father of 2nd defendant’? V ‘ H l
property is the separate
[5] What decree or order’?
The trial Court on appreciation of the? reCofr:d~..ffVfV’f’:
held that the plaintiffs have pro*.Ied tithe’ irejlationshijp
however held that plaintiffs..have”failed ._prove”thaVt suit
schedule property is the and entitled
for 1/3 share came to be
disrnissedglv Itfis’ saidvvfjudgrnent and decree,
plaintiffs are in “appeal; . if -. ,,
for the appellants submit that
the held that relationship between the
parties has proved. The entry in the record of right
y.ear’V”l..969–7O as per Ex.P.2 to 13.6 clearly show the
“the plaintiffs, The trial Court overlooking the
‘ in the revenue records has dismissed the suit. He
also submitted that if the properties are ancestral
w
e
there was any partition among Bangirnuniyappa and his
brothers. The trial Court has held in the suit for partitfcilnp
and separate possession, all the co–parcen,ers<
necessary.
8. As regards the claim of._p}aintiff force if
it is not pleaded by the ‘the propertyfiifell to
the share of Bangimuniyapp§.,. have
produced Exs.D.él3.,;’ 44 Muniga,
Papanna and if Vpfoussession of the
property 1 acre 8 guntas
and 1 acre’ and they executed
registered ~ saleuu dfeedi” favour of the father of 21161
Nhrnivenlratfappa @ Kuntappa on 8.5.1926.
PVlfi ‘«:;-_”ef_pi’, fffp,laintiff has admitted in his cross
fflfffffezgamination’ his grand father Nadupiga had 3 sons
A.l\/{_.1’1ni’yappa, Papanna and Muniswamy. However,
plaintiffsfflfhave not pleaded their relationship in the plaint.
if on the ground that the mutation stood in the name
the plaintiffs, a partition is claimed. The trial Court on
consideration of the mutation entries at EX.P.2 to R6 has
held that in view of the tenancy law, the entry was made
in the name of the plaintiffs but the said V.
supported by any material. A perusal of l’
45 reveals that the properties were
father of 21361 defendant — Munivenl_<atappa'–and
of the matter has not been dispute.d'by PW-it and
these documents have at an
undisputed point of timeA.2uid'~i.th–ese are sold
individually n§,g7+.h*ern portion of the
schedule land, Even in
Ex.D.44 the"re"ctiai -of property is shown as a
boundaryantyd E3x,_D;'45.'V'the property sold by Muniyappa,
was shown as share of lV£uniyappa's
broth.erjfiluiiisvvarny' is shown. These recitals in the safe
deed atduan undisputed point of time establishes that there
partition among Papanna, Muniyappa and
they were all in individual and independent
possession and they alienated the suit property to the
'fjfather of 2nd defendant. Considering the material
documents produced by the defendant, it clearly
establishes that the piaintiffs have failed to prove that._t:h.e'~».vV
properties are ancestral properties and failed to.A"prove.»tas ~
to why they have not joined all the r;<:cee.sary
further have also not proved their intlerestl 3f
except producing the mutation entryai.whicl1..
the title as the said reven.ue.V_entrie's'Aa;reuraade vvi'tho'ut any
mutation.
9. The trial:j__”C’50urt.» poiiaappreciation of the entire
evidence has thevdplaintiffs have failed to
prove that ‘they, 1/ 3 share in the suit
schedule ‘property; up ”
._ olirre-appreciation I do not find any error
in the of the trial Court. Accordingly, appeal
‘ ‘fai1s”and is “dismissed.
Sd/-
Iudge
brn