IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20" DAY OF OCTOBER, 2019
BEFORE
THE HON' BLE MR. JUSTICE ANAND BYR1A'RE:):)f£' " %
REGULAR SECOND APPEAL Ho. 1971~'0.E':2OG'§: E'
BETWEEN:
Sri. Gangappa,
S/O Late Sudugadappa,
Aged about 56 years,
Occ: Agriculturists,
R/O Thangali Village, _
Kasaba Hobli, '
Kadur Taluk --- 5715-48. I ' "APPELLANT
(By shr':._ M. 'Shiv'aV:ij:1:;ft11y;'T'T§gd*mcate)
AND:
.....
'
A Agc'[dabO1;t51 years,
' Aged about 46 years,
-T "Both areséns of late Sedugadappa,
' ..fAxgfie..u}turi.st,
* _ 'R/'O»MRa1leshwara Viflage,
E' KadurTa1uk.
ix.)
3, Gowramma W/0 Govindappa,
D/o Sudugadappa,
Aged about 53 years
Occ: Coolie,
R/o Vitalpura,
Yellambalse,
Kadur Taluk.
4. Jayamma W/o Rajappa,
D/o Sudugadappa,
Aged about 52 years,
R/o Bettadahally,
Tarikere Taluk.
5. Konthamma W/0 Shekarappa. 0 2"
D/0 Sudug.at{,app.a,
Aged about 5 "E3/ears.
Occ: Cc7>olie;= "
R/0_Lak_ka.ti'kd«t;e, _ ,_
Hi.1*enaIi'ur}{obIi;"
Kadurrfaluk »54'8._ 0 ' ...RESPONDENTS
(Respondents I Siazfeii Sei'Ved)
is filed Section 100 of Code of Civil Procedure,
'-1908; aegainst .the[.'j'udgment and decree dated 02.06.2008, passed
iii"R.}*\._.No;'l.i5_;t2_00fi'on the file of the Civil Judge (Sr.Dn) & JMFC,
Kadut, part.lya-lloiwing the appeal and setting aside the judgment
ii and de'Cree--Ad3ted 14.03.2007 passed in O.S.No.434/I997 on the
~ 1'-v%_"l"il.E3 of the Rfincipal Civil Judge (Jr.Dn), Kadur.
appeal coming on for Hearing this day, the Court
__'7deli';gered the following: --
JUDGMENT
Heard the learned counsel for the appellant. The
respondents who are served have remained absent.
2. The appellant was the plaintiff before
in a suit for partition and separate possession.~’—-T_h’e.. d’e.:fencia;j2tsr
who had entered appearance in the suit inc1u:;lelci..eertain”
properties namely a house property and StIr’=.?’.:ey{_’N.o,282
Thangali Village measuring 32py%ii:gunta_s. fl”he.,tria,Ii§ Court on
framing the issues partly held that the plaintiff
was entitled: to the properties and the property
mentioned iiinoptihe writteyni Vsytatement subject to payment of the
._nece._s_siary__iiCovurt fees._..__._.T’nis was challenged in an appeal by the
‘hereilni insofar as the decree in respect of the properties
mentioned. .ir1f’:-tile written statement was namely concerned, the
ii”-‘««.__i’house property and the land in Survey No.282 of Thangali
A The lower appellate Court held that insofar as the house
property is concerned, it was not defined by any boundaries and
that no document was produced regarding the existence of the
house and the hithaiu property and therefore? it could not”–.be the
subject matter of partition and accordingly set aside of
the judgment and decree. However, insofar aS_S.fifV*ey’
Thangali village was concerned, the ioweryipappellate
on the basis of the mutation extract certified as l.9§§6 that
the land was transferred to Savithrariirrna ‘represented by her
mother Honnarnma as the “guardian th’eip[rr1inioyr and further it was
not the case that_r’Savith1’amnia ia’11d’r..}ionnarrima were residing
separately frorrr'”theA:..p.laint.iffs__and j’ust_’hecause the change of the
name of1.kat}1edairifrorn’ other na’me of the plaintiff to his daughter’s
name by maki_rfg.a11appliciation to the revenue authorities, it could
= ._not that therevwas’ a transfer, which took away the right of
persoirsr said land. The lower appellate Court has
proceeded yoinirtthe footing that since the land apparently was
granted “‘to__the family as service inarn land, the same could not be
it as the exclusive property of the plaintiff and it could only
he be treated as the property of the family and has proceeded to hold
that the defendants right in respect of the same would not stand
extinguished by a mere transfer of katha in favour of the plaintiffs
daughter and held that the same was available forvpppartiition.
Incidentally, the lower appellate Court itself has fof;_indl
was no order of regraat produced in respect ofthe ~sajid ll’and,_ It is” .
this finding of the lower appellate ‘Cpouzprtthat’».is’~sot1ght*~..to*1.pe
assailed in the present appeal.
3. The substantial quesptionfoi”V].aw that.wpou,lid arise for
consideration ist-
thei i’n’lSurvey No.282 which
to Could be claimed as
E. — .. jpintilavtriilyilprolperty notwithstanding that there
a,,was’i– no régarant order in respect of the said
4. .””‘..’I’he’Vv’va’nswer straight away would have to be in the
V _ affirmative.’ Since even according to the lower appellate Cottrt
l:’ethere–.waslllno order of regrant in respect of the said land, it could
6
not be held as part of the joint family property and would not be
available for partition.
5. Therefore, the appeal is allowed to the limited .._extent
of setting aside the finding that the land in
Thangali village was not available for partitionmas-..the:r:e~ no
order of regrant made in respect of the;.lsaid:Alaad’;«_Tj ” V
6. The appeal is allowed saidsv.lelxteint’ afl.di’tlie”»s»
judgment and decree of the C0urtlb~eil0\.vV is not in other
respects.