Karnataka High Court

Smt. Nagaratna @ Laxmi W/O ... vs Yallapa S/O Tulajanasa Kalburgi on 14 December, 2021

Bench: Jyoti Mulimani

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      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 14TH DAY OF DECEMBER, 2021

                          BEFORE

           THE HON'BLE MS. JUSTICE JYOTI MULIMANI

     REGULAR SECOND APPEAL NO.100160 OF 2015 (PAR)

BETWEEN

1.     SMT.NAGARATNA @ LAXMI
       W/O YALLAPPA KALBURGI,
       AGED ABOUT 50 YEARS,
       OCC:HOUSEHOLD WORK,
       R/O DESHPANDE NAGAR,
       HUBBALLI - 580 001.

2.     SMT.NEETA
       W/O MANJUNATH PAWAR,
       AGED ABOUT 27 YEARS,
       OCC:HOUSEHOLD WORK,
       R/O INDRANI APARTMENT,
       NEAR KAMAKSHI TEMPLE,
       DESHPANDE NAGAR,
       HUBBALLI - 580 001.                   ...APPELLANTS

(BY SRI SUNIL S.DESAI, ADVOCATE)

AND

1.     YALLAPPA
       S/O.TULAJANASA KALBURGI,
       AGED ABOUT 54 YEARS,
       OCC:BUSINESS,
       R/O KAMARIPETH, HUBBALLI - 580 001.
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2.   SMT.SUREKHA ALLEGED
     W/O YALLAPPA KALBURGI,
     AGED ABOUT 51 YEARS,
     OCC:HOUSEHOLD,
     R/O KAMARIPETH, HUBBALLI - 580 001.

3.   GANESH ALLEGED
     S/O YALLAPPA KALBURGI,
     AGED ABOUT 25 YEARS,
     OCC:BUSINESS,
     R/O KAMARIPETH, HUBBALLI - 580 001.

4.   SUNIL ALLEGED
     S/O YALLAPPA KALBURGI,
     AGED ABOUT 22 YEARS,
     OCC:BUSINESS,
     R/O KAMARIPETH, HUBBALLI - 580 001.

5.   NAGESH ALLEGED
     S/O YALLAPPA KALBURGI,
     AGED ABOUT 21 YEARS,
     OCC:BUSINESS,
     R/O KAMARIPETH, HUBBALLI - 580 001.

                                           ...RESPONDENTS

(BY SRI N.S.KINI, ADVOCATE FOR R2 TO R5;
    R1 - SERVED)


     THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF

CIVIL PROCEDURE 1908.


     THIS APPEAL POSTED FOR FINAL HEARING, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:
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                             JUDGMENT

Sri.Sunil S.Desai, learned counsel for appellants has

appeared in person. Sri.N.S.Kini, learned counsel for

respondents 2 to 5 has appeared through video conferencing.

2. This is an appeal from the Court of III Additional

Senior Civil Judge, Hubli.

3. The ranking of the parties are referred to as per

their ranking before the Trial Court.

4. The short facts are stated as under:-

It is the case of the plaintiffs that the suit schedule

property is a residential house bearing CTS No.1671/B

measuring 52 Sq.Yards, situated in Ward No.III, Kamaripeth,

Hubli. According to the plaintiffs, the father of the first

defendant Tuljansa Kalburgi got the entire property in the

family partition. He died in the year 1951. After his death, his

eldest son Hiralal Tulajansa Kalburgi acted as Karta of joint

family and his name came to be entered in the CTS register.

It is said that the total extent of the property bearing CTS

No.1671/A is 112 square yards.

It is stated that Hiralal Tuljansa Kalburgi gifted 52

square yards in favor of his younger brother Yallappa - the

first defendant and remaining 52 Sq.Yards was gifted to

Gangasa Tulajanasa Kalburgi. As per the gift, the names of

Yallappa and Gangasa were entered in the CTS records and

duly mutated. The suit schedule property is the ancestral

property of Yallappa - the first defendant.

It is further stated that plaintiff No.1 was married to

Yallappa - the first defendant about 27-28 years back. A girl

child was born i.e., the second Plaintiff. It is said that after the

birth of the child, Yallappa started ill-treating his wife and

daughter. Hence, she was constrained to take shelter at her

parental house for 20-21 years. After some time, with the

intervention of the elder's she lived in a part of the suit

schedule property.

It is averred that under the guise of reconstruction of the

house, the roof of the plaintiffs house was removed. Hence,

she started residing at Deshpande Nagar, Hubli. Contending

that they are members of the Hindu joint family and there is

no partition, plaintiffs took shelter of the Court and filed a suit

for partition.

After the issuance of suit summons, defendant No.1

appeared through his counsel and filed written statement. He

denied the plaint averments.

He contended that the suit schedule property is his self-

acquired property and plaintiffs are not entitled for any share.

He also contended that plaintiffs are residing separately since

many years. The plaintiff No.1 is working as Teacher in Rotary

School, Deshpande Nagar, Hubli and getting salary of

Rs.15,000/- (Rupees Fifteen Thousand only) per month and

plaintiff No.2 is married and she is residing with her husband.

Among other grounds, he prayed for dismissal of the suit.

On the basis of the above pleadings, the Trial Court

framed the following issues:

ISSUES

1. Whether the plaintiff proves that the suit

property is un-divided joint Hindu Family

property of themselves and defendant?

2. Whether the suit is bad for non-joinder for

necessary parties?

3. Whether the plaintiffs are entitled for any

share in the suit property? If so, to what

extent?

4. What order or decree?

To prove the case, plaintiff No.1 was examined as PW1

and produced three documents which were marked as Ex.P.1

to Ex.P.3. On the other hand, defendant No.3 was examined

as DW1 and another witness was examined as DW2 and they

did not produce any documentary evidence.

On the trial of the action, the suit came to be decreed

holding that plaintiffs are entitled for 2/3rd share in the suit

schedule property. It was also declared that defendant No.1 is

entitled for 1/3rd share in the suit schedule property.

Aggrieved by the judgment and decree, the defendants

preferred an appeal before the First Appellate Court in

R.A.No.40/2013.

On appeal, the First Appellate Court set aside the

judgment and decree of the Trial Court and dismissed the suit.

Hence, this Regular Second Appeal is filed under Section 100

of C.P.C.

5. Sri.Sunil S.Desai, learned counsel for appellants

submits that the judgment and decree of the First Appellate

Court is contrary to the oral and documentary evidence on

record.

Next, he submitted that the First Appellate Court has

erred in permitting the appellants to take out notice in

Sanje-Vani Newspaper.

A further submission was made that Sanje-Vani

Newspaper is not a daily news paper circulating in the locality.

Counsel vehemently urged that the service of notice in

Sanje-Vani Newspaper cannot be considered as proper service

of notice.

To substantiate the contention, counsel also relied upon

the decision in the case of SRI.VENKATESH VS.

SRI.P.SUBBAIAH AND ANOTHER reported in ILR 2007

KAR 3912.

It is also submitted that the plaintiffs may be permitted

to contest the appeal. Hence, the case requires a remand.

Lastly, he submitted that viewed from any angle the

judgment and decree of the First Appellate Court lacks judicial

reasoning. Hence, he submitted that the appeal may be

allowed.

6. Sri.N.S.Kini, learned counsel for respondents 2 to 5

justified the judgment and decree of the First Appellate Court.

Next, he submitted that the First Appellate Court

permitted the appellants to take out notice by substituted

service of notice by way of paper publication. Accordingly,

notice was ordered and the same was also published in

Sanje-Vani Newspaper.

A further submission was made that the First Appellate

Court in extenso referred to the material on record and

justified in dismissing of the suit of the plaintiffs.

Lastly, he submitted that the appellants have not made

out any good grounds to interfere with the judgment and

decree of the Appellate Court. Accordingly, he prayed for

dismissal of the appeal.

7. Heard, the contentions urged on behalf of the

parties and perused the original records in R.A.No.40/2013.

The issue really falls within a small compass. The suit

giving rise to the filing of a Regular Second Appeal was filed by

the plaintiffs for partition and separate possession. On full-

fledged trial, the suit was decreed. The defendants preferred

an appeal before the First Appellate Court. The appeal was

filed on 06.03.2013. The Court issued notice to the

respondents. The case was adjourned from time to time.

As things stood thus, an application under Order V rule

20 (1-A) read with Section 151 of CPC came to be filed by the

appellants to take notice on respondents through substituted

service by publishing the notice in the reputed daily local

newspaper "SANJE-VANI". The application is dated

07.04.2014. The Court allowed the application on 10.04.2014.

The First Appellate Court passed the order on I.A.No.I as

under:

ORDERS ON I.A.I The appellants have filed I.A.No.I u/o.V rule 20(1-A) r/w. sec.151 of CPC issue notice to the respondents through substitute service by publishing the notice in the local newspaper Sanje-Vani.

It is stated that the respondents are intentionally avoiding the service of notice. No ground is made out to disbelieve the assertion stated in the application. Hence, I pass the following...

ORDER I.A. No.I filed by the appellants u/o.V rule 20(1-A) r/w. sec.151 of CPC is allowed.

To furnish the draft and pay P.F.

Call on: 19-4-2014.

The notice was published in SANJE-VANI newspaper on

14.05.2014. The date for appearance of respondents was

fixed on 06.06.2014. The case was called on 06.06.2014.

The order sheet discloses that respondents remained absent.

They were placed ex-parte.

It is relevant to note that learned Judge heard counsel

for appellant; allowed the appeal and the suit came to be

dismissed.

While addressing argument, learned counsel Sri. Sunil S.

Desai strenuously urged that the judgment and decree of the

First Appellate Court is liable to be set aside solely on the

ground of the order of paper publication in evening edition is

impressible and is also contrary to the decision of this Court

reported in SRI.VENKATESH VS SRI.P.SUBBAIAH AND

ANOTHER reported in ILR 2017 KARNATAKA 3912.

Learned counsel has also drawn the attention of the Court to

Order V Rule 20 (1-A) of CPC.

I have heard the contention with utmost care. It would

be relevant to refer to Order V Rule 20 (1-A) of CPC. The

same reads as under:

"[1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the

newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.]"

It is significant to note that the First Appellate Court

allowed the application and permitted the appellants to take

out notice to respondents in 'SANJE-VANI' newspaper.

It is perhaps well to observe that this Court in

VENKATESH'S case referred to supra has held that the word

daily news paper appearing in the provision should be

understood to mean not only a newspaper which is circulated

on all days of the week but it should be a newspaper of repute

which is published as a morning edition.

I may extract the relevant portion i.e., paragraph No.10

of the decision as under:

"10. In this regard the Courts cannot be oblivious of the fact that in several cases dubious methods are also adapted in order to

secure ex-parte order and as such paper publication should be ordered with due care and also after being satisfied about the particular paper in which the paper publication is sought to be taken out. Here I must add a word of caution that the Courts should avoid permitting publication in all and sundry newspapers for the mere asking since such request is made only because it is cheaper to publish in such paper irrespective of its readership.

xxxx

The word daily newspaper appearing in the provision should be understood to mean not only a newspaper which is circulated on all days of the week but it should be a newspaper of repute which is published as a morning edition with general acceptance to the satisfaction of the Court since the readership of certain papers even though published daily is an exception to the normal practice of reading a newspaper. The purpose of publication is that all concerned should see it, but if publication is permitted

in certain evening editions and in newspaper which are not seriously taken, the object and purpose would not be served except for complying with an empty formality which only leads to multiplicity of proceedings."

In the present case, the notice was published in

newspaper called 'SANJE-VANI'. The name of the newspaper

itself depicts that it is evening newspaper and will be

circulated only in the evening. Taking note of the decision, I

have no hesitation to say that the notice published in

Sanje-Vani newspaper is not in consonance with the law laid

down by this Court in the above-mentioned decision. There is

procedural lapse which has resulted in lack of knowledge of

date of hearing.

The substantial question of law is answered accordingly.

8. In the result, the appeal is allowed. The judgment

and decree dated:21.10.2014 passed by the Court of III Addl.