IN THE COURT OF THE HONOURABLE PRINCIPAL

SENIOR CIVIL JUDGE, AT DAVANGERE

R.A. 174/2023

MEMORANDUM OF APPEAL FILED UNDER ORDER 41,

RULE-5 CPC FILED ON BEHALF THE APPELLANT

(IN THE COURT OF THE HONOURABLE PRINCIPAL

CIVIL JUDGE AND JMFC, AT DAVANGERE)

(O.S.446/2018)

APPEAL PREFERRED BY: DEFENDANT NO.3 TO 6

BEFORE TRIAL COURT

NATURE OF APPEAL: Partition and separate possession

BETWEEN:

1. Smt.Vinodamma
W/o late Lokeshwarappa,
Aged about 50 years,
Agriculturist,
2. Kum. Kavya D/o late Lokeshwarappa,
Aged about 25 years,
Student,
3. Kum.Sindhu D/o late Lokeshwarappa,
Aged about 23 years,
Student,
4. Nagaraj S/o Lokeshwarappa,
Aged about 22 years,
Student,
All are residing at Janatha Hatti,
K.E.B.Colony, Chikkatogaleri village,
Davangere Taluk --------Appellants
(The defendant No.3 to 6 before the Trial Court)

Vs

AND
 1. Smt. Bhagamma alias Neelamma
D/o late Shekharappa,
Aged about 53 years,
Housewife,
Tolahunase village,
Davangere Taluk
(The plaintiff before the Trial Court)
2. Smt.Halamma since dead by LRs’
The appellants’ and respondent No.1 & 3
are the LRs’ of the deceased Respondent No.2
and they are already on record)

3. Shivamurthemma
D/o late Sekharappa
W/o Ramanna alias Ramappa,
Housewife,
Nearby Bakkeshwara Bakery,
Nittuvalli, Davangere ------------ Respondents
(The defendant No.1 and 2 before the Trial Court)

The appellants beg to submit is as follows:

1. The address of the parties for service of Court Notice,

summons and the process of the Hon’ble Court is as
shown in the above cause title. The address of the counsel
for the appellant Sri Dadapeer K, B.Com., LL.B., and
Smt.H.P.Sanjida Banu B.A; LL.B., Advocates, 3rd Main,
13th Cross, Vinobhanagar, Davangere.

2. The respondent No.1 being the plaintiff filed the suit

praying for partition and separate possession of her 1/4th
share in the suit schedule property in O.S.446/2018
before the Hon’ble Principal Civil Judge and JMFC, at
Davangere (hereinafter called ‘Trial Court), the same is
decreed by the Hon’ble Trial Court and the appellants beg
to prefer this appeal being highly aggrieved by the
judgment and decree (hereinafter called impugned
Judgment) passed in the said suit on 04.08.2023 on the
following grounds amongst the other grounds that may
kindly be urged at the time of hearing on the main appeal.
3. For the sake convenience of the appeal and appreciating
the rank of the parties, the appellants are the defendants
No.3 to 6, the respondent No.1 is plaintiff; the respondents
No.2 and 3 are the defendant Nos.2 and 3 before the Trial
Court.

I. BRIEF FACTS OF THE CASE OF THE APPELLANTS

BEFORE THE TRIAL COURT:

1) The respondent No.1 being the plaintiff stated in the

plaint that one late Sri Lakshmajji Shekharappa was the
propositus of the plaintiff and the defendant’s family. He
had wife Smt. Halamma, defendant No.1, 3 daughters
and 2 sons. Out of 3 daughters Smt Rathnamma is no
more without any LRs as her only son Hanumanthappa
died issueless. The son Lokeshwarappa died leaving
behind wife and 3 children who are the appellants in the
above appeal. The respondent No.1 & 3 are the daughters
of the respondent No.2. Further, the plaintiff alleged that
Sy.No.118 of Nalkunda Village in Mayakonda Hobli,
Davangere Taluk, measuring 6 acres 13 guntas originally
belongs to Lakshmajji Shekharappa. After the death of
Lakshmajji Shekharappa, the Khata has been transferred
in the name of His son L.S.Lokeshwarappa and the said
Lokeshwarappa sold 4 acres of land in the same Survey
number and remaining property 2 acres 13 guntas of
Nalukunda village is standing in the name of
L.S.Lokeshwarappa. Further, the plaintiff alleged that
after the death of Lokeshwarappa, the Khata of the suit
schedule property has changed in the name of the
respondent No.2 Halamma and the appellant No.1 herein.
Further it is alleged by the plaintiff that the suit schedule
property is the undivided joint family property and there
was no any partition in the family of the plaintiff and the
defendants. The plaintiff/respondent No.1 further alleged
 that she made demand her share in the suit schedule
property, and then the respondent No.2 postponed the
same at the instance of the appellant No.1. Hence, the
respondent No.1 being the plaintiff, knocked the door of
the Hon’ble Trial Court.
2) The appellants put their appearance through the Counsel
and filed the Written Statement. In the Written
Statement, the appellants herein specifically denied the
plaint averments and in para No.12 of the Written
Statement, these appellants contended that after the
death of Lakshmajji Shekharappa @ Shekharappa, the
Khata of the suit schedule property mutated in the name
of Lokeshwarappa i.e., the husband of the 1st appellant
and the father of the remaining appellants. After the
death of Lokeshwarappa, the Khata of the suit schedule
property mutated in the name of the respondent No.2 &
3, since the date of mutation, the respondent No.2 & 3
are the absolute owners and in possession of the suit
schedule property. Further, these appellants contended
that the respondent No.2 is an aged woman, since the
death of her husband, she lived with the appellant No.1.
and this appellant has taken care of the respondent No.2
in all aspects. In this regard, the respondent No.2 has
executed the relinquishment deed in favour of the
appellant No.1. In the said relinquishment deed, the
respondent No.,2 has relinquished her right over the joint
property. Hence the appellants contented that the
question of right in claiming the share by the plaintiff in
the suit schedule property does not arise. On all these
grounds, the appellant herein sought for dismissal of the
suit with costs.
3) The respondent No.2 and 3 have filed their separate
written statement, denying the plaint averments. These
respondents have contended in the written statement and
 they sought for preliminary decree in the suit schedule
property.
4) On the basis of the rival contentions of the [parties, the
Hon’ble Trial Court is pleased to frame as many as five
issues. After framing of the issues, when the case was
posted for the evidence, the respondent No.1 being the
plaintiff entered into the witness box and she herself is
examined as PW1. Thereafter, the respondent No.1
without examining any independent witnesses, she
closed her side. After closing of the evidence, the
appellant No.1 being the defendant No.3 examined herself
as DW1 and got marked one document i.e.,
relinquishment deed as Ex.D1 and closed her side. After
hearing the arguments, the Hon’ble Trial Court is pleased
to decree the suit without considering the contentions
raised by the appellants in the manner in which it ought
to have taken into consideration. Aggrieved by the said
judgment and decree passed by the Hon’ble Principal
Civil Judge and JMFC, Davangere in O.S. 446/2018 and
on 04.08.2023.

III. GROUNDS FOR APPEAL:

(a) The Judgment and Decree passed by the Trial court is

against the facts and probabilities of the case;
(b) The Judgment and Decree passed by the Trial court is
opposed to the well established legal principles;
(c) The Judgment and Decree passed by the Trial court is
arbitrary, erroneous and perverse;
(d) The Trial Court has not objectively assessed the oral as
well as the documentary evidence produced by the
defendant No.3 to 6 (appellants) on record in proper
perspective manner. As a result, the Trial court has come
to the wrong conclusion and therefore the finding
recorded by the trial court is vitiated;
(e) The Trial Court committed error in not taking into
consideration the document produced by the defendant
No.3 to 6 in the manner in which it ought to have taken
into consideration, the Trial court has come to wrong
conclusion, the same has resulted miscarriage of justice;
(f) The Trial Court is not at all considered the admissions
made by the Pw1 about acquisition of the suit schedule
property by the father. If the Trial Court taken into
consideration about the vital admissions given by the Pw1,
made the issue No.1 may be held in negative and
certainly, the Trial Court dismissed the suit by declining
the share of the plaintiff/respondent No.1 in the suit
schedule property.
(g) The Trial Court in answering the issue No.1 & 2 in
affirmative is neither cogent nor acceptable one. If the
Trial Court is considered exhibit marked in ‘D’ series and
admissions made by Pw1 it ought to have make negative
the issue No.1 & 2 and dismiss the suit of the plaintiff;
(h) The reasoning assigned by the Trial Court to answer
issue No.1 and 2 in the affirmative is not proper and
correct;
(i) The Trial Court without considering the admissions
made by Pw1erred in decreeing the suit, the same is not at
all sustainable in the eye of law;
(j) The Trial Court is erred in making negative the issue
No.3, the same is against the principles of law;
(k) The Trail Court though appreciated about Ex.D1 and
but failed to consider the said document in the manner in
which it ought to have taken into consideration. Hence,
the same is neither cogent nor acceptable one.
(l) The Trial Court not at all observed the principles laid
down by the Hon’ble High Court of Karnataka, several
High Courts and the Hon’ble Supreme Court of India that
there is severance of status in the family, the plaintiff is
 entitled for her share in the suit property. If the Trial
Court observed the principles laid down in the decisions in
the manner in which it ought to have taken into
consideration, the Trial Court rightly dismissed the suit of
the plaintiff;
(m)The entire Judgment of the Trial Court is based on
surmises and conjunctures, the same is not sustainable in
the eye of law;
(n) The appellant crave leave of this Hon'ble Court to urge
the grounds amongst other grounds at the time of hearing
of the appeal.
IV. The Judgment was delivered on 04.08.2023, application
for certified copies were filed on 07.08.2023. 06.08.2023
was Sunday. Certified copy of the Judgment and decree
was delivered to the appellants on 14.08.2023. Hence, the
appeal filed today is within prescribed time of limitation.
For abundant caution, the appellants have filed the
necessary application to condone the delay if any occurred
in filing the appeal.
V. Certified copy of the Judgment and Decree, Valuation
Slip are herewith produced.
VI. Court fee is paid as per valuation slip enclosed herewith.
VII. PRAYER FOR JUDGMENT AND DECREE:
WHEREFORE, the appellants pray for judgment and
decree in their favour and against the respondents for the
following reliefs:

a) To set aside the judgment and decree passed by the

Hon’ble Principal Civil Judge and JMFC, Davangere in
O.S.446/2018 on 04.08.2023 and dismiss the suit filed
by the respondent No.1 by allowing the appeal with
costs;
b) Call for records from the trial Court in O.S.446/2018
disposed on 04.08.2023;
c) To award costs of this appeal and to grant such other
relief as the Hon'ble Court deems fit to grant under such
circumstances of the case, in the interest of justice and
equity.

Davangere (DPK)

Date.14.09.2023 Advocate for Appellants

(DADAPEER K)