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2019 DIGILAW 1223 (KAR)

S. Gadigappa v. K. G. Sujatha D/o S. Gadigappa

2019-06-12

N.K.SUDHINDRARAO

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JUDGMENT : N.K. Sudhindrarao, J. 1. Though the matter was listed for admission, with the consent of learned counsels for both sides, the same is taken up for final disposal. 2. The present appeal is directed against the judgment and decree dated 18.09.2012 passed in R.A. No. 26/2011 by the Presiding Officer, Fast Track Court at Chikkamagaluru, wherein, the appeal came to be dismissed confirming the judgment and decree dated 06.12.2010 passed in O.S. No. 80/2006 by the Senior Civil Judge and JMFC, Kadur. 3. In order to avoid confusion and overlapping, parties are referred in accordance with their status as it stood before the trial court. 4. The plaintiff earlier had filed a suit for declaration of title and possession in O.S. No. 434/2001 on the file of the Additional Civil Judge (Jr. Dn.) and JMFC, Kadur, which came to be decreed in part on 20.01.2006. The said suit was for declaration of the status of the plaintiff as the daughter of defendant No. 1 and one Rathnamma. The relief of plaintiff as the daughter was granted, however her relief in respect of the suit schedule property was dismissed. 5. Meanwhile, plaintiff had filed another suit in O.S. No. 80/2006 for partition and separate possession, by virtue of amended Hindu Succession Act. It is stated that, she has obtained the status of coparceners and that the defendant No. 1 has married another lady and seeks for partition of the schedule properties which are claimed by her as joint family properties. Defendants resisted the same. The trial Judge, on the basis of oral and documentary evidence, decreed the suit and granted half share to the plaintiff. Being aggrieved by the said judgment and decree, defendant No. 1 Gadigappa who is the father of the plaintiff preferred an appeal in R.A. No. 26/2011. The said appeal also came to be dismissed. 6. Thus, the appellants are seeking to aside the judgment and decree passed by the first appellate Court confirming the judgment and decree passed by the learned Trial Judge in O.S. No. 80/2006. 7. The operative portion of the judgment passed in O.S. No. 80/2006 is as under: "Suit of the plaintiff is decreed. The Plaintiff is entitled for partition and separate possession in respect of her half share in the suit schedule properties by metes and bounds. Looking to the relationship, parties shall bear their own costs. 7. The operative portion of the judgment passed in O.S. No. 80/2006 is as under: "Suit of the plaintiff is decreed. The Plaintiff is entitled for partition and separate possession in respect of her half share in the suit schedule properties by metes and bounds. Looking to the relationship, parties shall bear their own costs. Draw preliminary decree accordingly." 8. It is necessary to make a mention of the earlier proceedings in O.S. No. 434/2001 filed by the present plaintiff against Gadigappa claiming herself to be his daughter and also seeking declaration of title of the schedule properties. The said suit came to be partly decreed holding the plaintiff Sujatha as the daughter of Gadigappa and Rathnamma Defendant No. 2, however, suit for declaration of title over the schedule property came to be rejected. The judgment and decree passed in O.S. No. 434/2001 was challenged in R.A. No. 51/2006. However, the said appeal also came to be dismissed. 9. The substantial questions of law that arise for consideration would be: (i) Whether the dismissal of suit in O.S. No. 434/2001 would operate res-judicata on O.S. No. 80/2006? (ii) Whether the release deed or relinquishment deed Exhibit-D2, restricts the right of the plaintiff? (iii) Whether the plaintiff Sujatha being the daughter of Gadigappa is entitled for equal share of the property with Gadigappa Defendant No. 1? 10. Gadigappa is defendant No. 1 in the suit filed by plaintiff-Sujatha in O.S. No. 434/2011. It was her contention in the said suit that she was both the daughter of Gadigappa and owner of suit properties. However, she was declared to be the daughter of defendant No. 1- Gadigappa and Rathnamma. Thus the claim of the plaintiff Sujatha was accepted to the effect that she is the daughter of Gadigappa Defendant No. 1. But, her claim for declaration of title and injunction over the schedule properties was rejected on the ground that the properties belonged to the joint family and no partition had been effected. 11. Learned counsel for the appellants would submit that the plaintiff Sujatha is nowhere connected to the joint family or the properties of defendant No. 1. She claims to be the daughter of defendant No. 1 Gadigappa through defendant No. 2 Rathnamma who has got released under Exhibit-D2 dated 04.04.1977. 11. Learned counsel for the appellants would submit that the plaintiff Sujatha is nowhere connected to the joint family or the properties of defendant No. 1. She claims to be the daughter of defendant No. 1 Gadigappa through defendant No. 2 Rathnamma who has got released under Exhibit-D2 dated 04.04.1977. The substance of Exhibit-D2 is that the property bearing Survey No. 150/2 to the extent of 1 acre 10 guntas that was given for partition in favour of Sakamma earlier was given to Rathnamma who parted from Gadigappa. 12. The contention of the learned counsel for the appellants would be, all relationship between defendant No. 1 Gadigappa and defendant No. 2 Rathnamma or persons claiming under her came to an end with Exhibit-D2 and the present plaintiff claims her share in the schedule properties. It is the further submission that the plaintiff Sujatha is claiming as the daughter of Rathnamma who has already got terminated her relationship with Gadigappa and his properties. 13. Learned counsel for appellants further submits that the plaintiff Sujatha is never a legal heir of the defendant No. 1 nor the member of his family to claim the schedule properties, whether by way of declaration or through partition. 14. Refuting the contentions of the appellants, learned counsel for the respondent No. 1/ plaintiff would submit that disposal of O.S. No. 434/2001 can never stand as an embargo for agitating the rights of partition by the plaintiff. The right of the plaintiff is that of a member of the joint family and daughter of Gadigappa in combination. It was further submitted that, Rathnamma was never a representative of plaintiff Sujatha in the matters of accepting or relinquishing her share of properties to put an end to the rights of the plaintiff Sujatha. He would further submit that, the plaintiff cannot be bound by the documents which come into existence between Gadigappa and Rathnamma or others. It was also submitted that, right over the schedule properties have been vested one to the plaintiff that cannot be de-tagged at the volition of defendant No. 1 Gadigappa. 15. The reliefs sought by the plaintiff in the original suit in OS No. 434/2001 are: declaration of title over the suit schedule properties and injunction and declaration that she is the daughter and her mother is the wife of Gadigappa. 16. 15. The reliefs sought by the plaintiff in the original suit in OS No. 434/2001 are: declaration of title over the suit schedule properties and injunction and declaration that she is the daughter and her mother is the wife of Gadigappa. 16. That relief in respect of declaration of title over the property and permanent injunction came to be rejected. However, Sujatha who was the plaintiff in that case was declared to be the daughter and her mother Rathnamma is the wife of defendant No. 1 who is none other than Gadigappa. 17. Now, to the question as to whether O.S. No. 80/2006 which is filed seeking partition of the joint family properties claiming as daughter, suffered with the hurdle of O.S. No. 434/2001 and the proceedings in said former suit operated as res-judicata. It is necessary to make a mention that the earlier suit that was filed by the plaintiff was for two declarations wherein first one was with reference to the properties and the second one, is to declare the status of daughter to the plaintiff and her mother G.B. Rathnamma is the wife of defendant No. 1. The simple analysis of the judgment in the said suit would reveal that the relief in respect of the property was not granted to the plaintiff Sujatha for the reason that there was no partition in the joint family and a co-sharer or a member could not have sought the relief of declaration and injunction as exclusive rights against her father. However, the status of daughter to Sujatha and that of her mother Rathnamma as the wife of Gadigappa were recognized and granted. The appeal preferred against O.S. No. 434/2001 by Gadigappa in R.A. No. 51/2006 came to be dismissed on 22.07.2008, thereafter, there were no proceedings and the judgment and decree passed in R.A. No. 51/2006 attained finality. In the further circumstances of the case, plaintiff files a suit for partition in O.S. No. 80/2006 against her father in respect of the schedule properties. 18. In the further circumstances of the case, plaintiff files a suit for partition in O.S. No. 80/2006 against her father in respect of the schedule properties. 18. Now that the trial Court among other issues framed two issues on material aspects, one regarding the status of joint family member and another one regarding entitlement for half share in the schedule properties by the plaintiff and the second one is that the trial Court holding the material issues in affirmative, granted decree in favour of the plaintiff Sujatha to the extent of half share which judgment and decree in O.S. No. 80/2006 dated 16.12.2010 decreeing the suit of the plaintiff for partition and separate possession of half share in the suit schedule properties came to be confirmed in RA No. 26/2011 on 18.09.2012 by the appellate Court. 19. In so far as the second suit in O.S. No. 80/2006 is concerned, it cannot be considered as already adjudicated. On the other hand, the second suit in O.S. No. 80/2006 was filed in compliance or without derogation to O.S. No. 434/2001. 20. The paternal relationship of the plaintiff Sujatha with defendant No. 1 Gadigappa is confirmed of father and daughter. Regard being had to the fact that defendant No. 1 Gadigappa is the husband of the defendant No. 2 Rathnamma. Now that there are no contentions or claims of any siblings of Sujatha. In the light of the fact of relationship, the joint family properties and the half share of Sujatha stands confirmed. In this connection, Exhibit-D2 which is stated to have been entered into between Rathnamma and also the mother of plaintiff is of no consequence. 21. Thus, I find no error, infirmity and lapse in the judgment and decree passed by the trial court in O.S. No. 80/2006 and as confirmed by the first Appellate Court in R.A. No. 26/2011. The substantial questions of law are answered accordingly in favour of respondent No. 1. 22. In the result, appeal is dismissed. No order as to costs.