IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated the 2nd day of June 2008
:BEFORE: ._ _V
THE HON'BLE MRJUSTICE'. : v.JAGANN;}K'1'HA;~1[: _
REGULAR SECOND APPEAL No. :_2§5=;L"'i., 2 ' 1
BETWEEN :
Sam. Madhumathi, . _
W/o Shanthappa Ghami, ' " V V_
Age: 30 years, Occ: HousehoId}..Agn'culti1It, *
R/0 Shivaiingappa Suqur Basva'P'z'iYa,
No.90'?/43~i'.), Adarshnagarsi, A .4 V
Gu1barga--585 3.01. --
...Appel1ant
2
W/o Kate Basav 2 1ja_Ghaizti','
Age: 52 Geczdiioeusehoidl Agriculture,
R / Q Hars1ii*,V_'I'a}.uk &'*.IZ)iétz'ict:
Gufiibarga -- 55.55. 104. V
**** ...ReSp0ndent
. (By Sri V.'l'.Rayareddy, Advocate. )
__ Second Appeal filed under Section 100 of the
(3.P.C. "against the fiudgment and decree dated 22.11.2004
.. ' pagsed in R.A,No. 528/2004 on the file of the Presiding
2 '3_dOi§'ioer, Fast Track Court~V, Gulbarga, allowing the appeal
fand setting aside the judgment and decree dated 22.7.2002
passed in O.S.No. 538/1998 on the file of the I Addl. Civil
Judge (Jr. DIL), Gulbarga.
This appeal coming on for heaping this day, the court
delivered the following : dd
J U D G M E N T
The suit filed by the __aga;?1ist’ »
for injunction was dismissed by
appeal by the plaintifi’, jowei”
aside the jtzdgxxaent. of ‘”(3Q.1.lI’t’ end. decreed the
suit of the pIaint.ifi’ ‘dd__’instV§’:*t§1e.’:’e§;;§eilant. Hence this
second appeélirby the 7
2. purpose of disposal of
this :appeae~ i eifeet that the plajntifl’ filed the
suit in di:esfion._ the relief of injunction against
V. _ d_et’ei1dan’t”o1i~~~t11e footing that she became the owner
as per the wifi executed by her son
and since then, she has been in possession
of the__d’s11it properties. It is also her case that following
death of her son Shanthappa, the plaintiff continued
to enjoy the suit properties and the defendant interfered
with her possession d hence the suit by her.
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3. The defendant, on the other hand, contended that
her husband Shanthappa did not execute any: in
favour of the plaintifi’ and that the
been possession and enjoyment of tile
It is also her case that one ti:-Le it
landed properties between the e
Shanthappa and his such,’
there was no occaeieft. to
bequeath the
4. Based’ parties, the trial
as could be found at page–‘?
of the and taking into account the
Vv the parties, the learned trial judge
a ;.n}finIatel_ydl’1eld that though the properties fell into the
* et shentheppa, the plaintifi’ and the defendant,
}_class–I heirs, became co–sharers of the suit
it if’ and only the plaintifi’ seeks declaration of her
iifiexclusive ownership over the entire suit properties. The
plaintiff cannot get the relief sought for by her because,
a co-owner has got interest in the whole property and
also in every parcel of it. Therefore, by holding that the
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court were to concur with the View taken by the lower
appeilate court, the appellant be gven seek
partition of the suit properties as, according teeth’: 2%,:
suit properties are ancestraig” “In def the} T. V
submission made by the learned coiinsel ‘~
appeilant and the lower sgnjiellate llfounld
from the evidence pissed had
estabiished her of the suit
properties the same under a
will her favour, I am of the
documentary evidence
placed’ to indicate that she has been
in ,mssessio,IA1’of the suit properties to the exclusion of
‘ * _ ciéffifidogsit. ivvlllllherefore, the finding recorded by the
A . lQ*Nt3i’~.é’ippCllé3.tE court cannot be termed as perverse or as
avcase’ «niisreadixig of the evidence on record. At the
.. s.f::g1ne’~-time, the trial court was in error in holding that
it the: appellant is a co–sharer in the absence of there
‘ *’:being any evidence placed by her in proof of the same.
7 . Under the above circumstances, I do not find any
substantial question of law emergng from the finding
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recorded by the lower appellate court. As sueh, the
appeal is liable to be dismissed and hence, L
following order:
The appeal is dismissed Izhe ‘ 1.
judgment and decree of the iower
However, the ‘-is to ‘
other remedy available to,” “to’-eeieibfish her
right over the suit a share in the
same and, taking any such
step, above shall not come
in such remedy.
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