IN THE HIGH comm' 0:2 KARNATAKA AT BANGALORE
Dated the 30"! day of May 2008
:BEFORE: '___
THE HON'BLE MRJUSTICE : v.JAGANN2§;T'Hm§.f: _
REGULAR SECOND APPEAL No. I. % T' 1
BETWEEN :
1. Shivappa G, V. .
S/o Patek Rangappa,
Aged about 55 years.
2 . G. Basava1*ajapp%1';'v~ ._ _
S/o Patc1Ranga;3pa--,. '--
Aged about 4? f
Both give'
R/<2 4Santh;ehcHnur V.i11agc,i;
'
Disf:i'ict~ -"5'__?_'_'?
T' X" ...Appc1]ants
" _ I¥fg!\é4:aiz-tttxash, Advocate. )
we :.
a'
" ' T. 'Jill O' G_O'§!Efda Siddalingappa,
V' about 55 years,
R] O Santhebennur Village,
V-Navzrat Betmgere Village,
~~ Chfldcajajur, Holalkem Taluk,
"shitradurga -- 565 053.
M2. G.Mal.lika1ju11appa,
S/0 Patel Rangappa,
Aged about 47 years,
Agrziculturist, R] o Santhebezmur
Village, Channagiti Taiuk,
Davanagere District - 5??' 552.
.. . Respondents
Regular Second Appeal filed under Section 100 of the
C.P.C. against the judgment and decree dated I9-3.2007
passed in R.A.No. 317/2004 on the file of the Adcit. Seaeitms
Judge 65 Presiding Oficer, Fast Track Court-l
partly allowing the appeal and modifying theWj:11dgrment
decree dated 6.9.2004 passed in. O.S.4l’lo._’_’ 1:116;
file of the Addl. Civil Judge (Jr.en;.,) &.”\J–_M.;:F’C«’-“,, .ehanfiag-;;_~i.~~:.
This appeal coming for the L’
court delivered the follawing : _
Heard appellants.
2. V against the concurrent
fmdixigslof below in respect of the suit
filed , bylktliiee for partition and separate
V’ –. of in the suit schedule properties.
Vlfidedecreed the suit of the plaintiff in O.S.No.
;1999 lam held that the plaintiff is entitled to use
n all the suit schedule properizies by metes and
lxulnds.
V The appeal preferred by the first defendant and
one G.Ba-savarajappa [who was not a party in the trial
court) in R.A.No. 317/2004 was allowed in part only to
J’
W I
the extent of partial modification of the judgment and
decree of the trial court inasmuch as the lowef.e’;fijei1ate
court, though held that the piaint3’fi’ is ‘”1
share, it had confined the sanaefloniy 91′
176/ 1P, S.No. 269 and a
No. 676, and held that as; 1/sré
share in each of efiexifioeed above
and ordered a’ as modified
by it. It of Vappellate court in
R.A.No. by the appellants
rendered by the
1owe1″ apLpelVlate_@ ‘ ” ‘ .
4′._;’ ” The .Vfa::1;Vs’ brief necessary for the purpose of
: of._VtI1is appeal are to the efiect that plaintiff
._ fled the suit for partition and separate
of her 1/ 3rd share in the suit properties by
V’ *eo;1te1i’di11g that the original propositus Rangappa had
sons Siddaliragappa (husband of the plaintifi),
V Murigeppa, Shivappa (I)efendax1t~ 1), Basavarajappa
(Appellant-2), Hamnnanthappa (since dead), and
Malljkaxjunappa (Defendant-2), and the plaintiff, being
the wife of Siddalingappa, contended that t11e1’e.._jWas a
partition in the family during the time off of
Rangappa and that was efiected under a_ ” x
dated 10.12.1932 and, in the med ” to u
properties and a house property
the p1a;i;ntifi’ and defendanteéiandvh 2- ae
the said defendants fwtele of the
family, the pxamtnf J t in the suit
properties she had to file
the .
5. ‘ogo their part, took up the
eontentixoxtt ettbeequent to the partition that took
me 1982, the p1aimm’ and defendants-1
‘ extent of two acres thirty guntas in item
” r~:Io;«2 tiiere was an oral partition between the first
t\n2to~.tiefex1dants and the plaintifi and in the said
A A_pt.é1″;A§tit:io11, S.No. 176/ IP measuring two acres fifteen
guntas fell to the share of the first defendant and the
southern portion of two acres fell to the share of the
plaintiff and the second defendant was allotted two
acres thirtynine guntas in S.No. 269 and the three
}
.1
ankaxla house was also divided into three and
the plajntifi’ got the middle share and fl1e.’otl3er.:.’tWo
portions were allotted to defendantsél.
respectively. It was the furthe’fdoaee_ of di’
that, acting upon the oral the V’
to sell her two acres “land. Wot” one
Kamalamma by dated
20.1 1.1990 and latex? sold his share
ir: favour of strength of the
ageemeflt: and, therefore, there
are and the suit is,
therellozje,”
67 ‘ ;’ ” Based above stand taken by the parties, the
as many as five material issues and
iszstie-1 in the affinnative and so also issue-4.
Is’sues–«2′,~ and 5 were answered in the negative. In
* otherhvlrords, the trial court held that the plaintiff has
that the suit properties are the joint family-
‘ V ‘lproperties of the parties and the defendants had failed
to establish that a partition had taken place and also
held that the defexiants had also filed to prove plaintifl”
OJ
having disposed of item No.2 of the suit property.
Following the said findings, the suit of the plcfurrtiffitras
decreed by holding that she is entitled to
all the suit properties.
‘7. Aggrieved by the judjgmpentl L.
court, the first defehdant iorte who
are the appellants said judgment
before the lower 317/2004
and the the judgment of
the triale having proved her
entitiementloff the suit properties, but the
leamedjtldge appellate court held that the
out of three items viz, S.Nos.
‘ .:.’1’?6 .._and house bearing khaneshumari No. 676.
” Itls jeedlgment of the lower appellate court that is
in question by the appellants herein.
to 4_ have heard the learned counsel for the appellants
“‘V.VVlr1″respect of the concurrent findings of fact of the courts
l V below. The only contention put forward by the learned
counsel for the appellants is that both the courts
>
…g
7
committed error in coming to the conclusion that the
defendants have failed to prove that the
sold one item of the property to one
this finding is erroneous beca1_1se,__ e _
produced Ex.D~1 to prove
property mentioned 1. to Vwjife or L’
Nanjundappa. ‘1’her.efore,l- leis. it that nrrhen once
Rudramma had sole’ the
said once again
within use i 3. partition of the
that there was an oral
between Rudraxnma and
defendants-ii and 2. As such, both the courts below
« error in not accepting the said contention
I “‘
9–…__ In light of the above submissions made and
AA tile evidence of the witnesses being placed for my
by the learned counsel for the appellants, the
V .–only point for consideration is Whether any substantial
question of law iwvolved in this appeal so as to
9
case. An entirely new point raised for the
first tixne before the High Court is
qI..16SfiOI1 involved in the case unless ”
to the met of the matter. It will, unease,’
depend on the facts
each case whether a qtiestioif of if
substantial one and»iiinjsro1vedv_’ii1 on 3
not; the paramount””i’eoi:era11
being the needfor
between the to do
justice at necessity
of of any iis.
_ ____ _ of law will also
__sitnation, Where the legal
Apo_sition-._ either on account of
_ expfess ‘provisions of law or binding
3_j§I’eceden”ts.,_..hnt the court below has decided
V .,iv’ti1en1atter, either ignoring or acting contrary
it ‘iegal principle. In the second type of
the substantial question of law arises
” not because the law is still debatable, but
tnecause the decision rendered on a material
question, violates the settled position of law.”
11. Keeping the above parameters as laid down by the
Supreme Court, I have carefully examined the matexial
placed at this stage. The main thrust of the appellants’
3/
1)
£0
counsel is that Rudramma had sold one of t1 1__e suit
items to K a under E:-:.D-1 and,
the courts were in error in holding that ‘
taken place. In this regard, tiled’;
reasons assigned by both the
there is no evidence piaced..sho\X? ” ‘Via did’ i
sell one of the suit ‘items 13jx..so–1 ato”KaSma1arm11a.
The learned judge ot course of his
answer to discussed this
aspect of that Ex.D-1 is not a
sale _ it an agreement of sale
evidence of I).W.1 makes it
clear” 1 is a sale deed. The trial court has
., it is the case of the defendants
._ that Rudramma executed the sale
deed stamp paper, but D.W.3, who is none other
~ husband of Kamaiamma, has admitted that the
fldovcument of ageement of sale was written on a plain
paper. Further, the sig1ature of the plaintifi’ was not to
be found in the fKS 6 of Ex.II)~1.
12
14. For the aforesaid reasons and having regard §§;”‘m,g~’. _,_
guidelines laid down by the Apex Court with 3
the power of the High Court to AV
concurrent findings cf fact, in 1E:f§;”‘I§16W,”‘f1()V’ subestéagfiial
questien of law arises for e0nside_1_feifie1:..
and the appeal, therefore, hence the
same is dismissed.
eke] —