Karnataka High Court
Mallappa S/O Shivarudrappa Gondi vs Shivanand Basalingappa Gondi on 1 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.1059/2008 (PAR)
C/W RSA NOS.383 & 1058 OF 2008
IN RSA NO.1059/2008
BETWEEN
MALLAPPA S/O SHIVARUDRAPPA GONDI,
AGE: 60 YEARS, OCC: BUSINESS,
R/O MAHALINGAPUR, TQ.MUDHOL-587313.
... APPELLANT
(BY SRI.RAVI S.BALIKAI, ADV. & CHETANA ASSOCIATES)
AND
1. SMT.SUMITRA W/O SHANKARAPPA TARALA
SINCE DECEASED BY HER LRS.
1A. SMT.KALAVATI W/O CHANDRASHEKHAR PILLE,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O NEAR MARATHA MANDAL KANNADA MEDIUM
SCHOOL, NEAR WATER TANK, KAKATI,
TAL & DIST: BELGAUM.
1B. SMT.NANDA W/O BASAVARAJ SANIKOP,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O -DO-
1C. SMT. SAVITRI W/O PRAKASH PATIL,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O -DO-
2. BABU S/O SHIVARUDRAPPA GONDI,
(DECEASED)
2
3. SMT.ANNAVVA W/O SHIVARUDRAPPA GONDI,
SINCE DECEASED AND HER LRS ARE ALREADY ON RECORD
AS R1(A) TO 1(C) AND R5, R6 & R7)
4. SMT.SHUSHILABAI W/O BASALINGAPPA GONDI,
SINCE DECEASED AND HER LRS ARE ALREADY ON RECORD
AS R5, R6 & R7)
5. LATE D/O BASALINGAPPA GONDI,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
6. SAVITA D/O BASALINGAPPA GONDI,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
7. SHIVANAND BASALINGAPPA GONDI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R2-R7 ARE R/O MAHALINGAPUR, TQ.MUDHOL-587313.
... RESPONDENTS
(R1(A) TO R1(C), R6 & R7 ARE SERVED AND UNREPRESENTED,
R5 HELD SUFFICIENT, R2, R3 & R4 ARE DECEASED)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE ORDER DATED 20.07.2007 IN .R.A.NO.145/2002
PASSED BY THE COURT OF ADDL. CIVIL JUDGE (SR.DN.) JAMKHANDI
AND ORDER DATED 30.09.2002 IN O.S.NO.107/2000 PASSED BY THE
COURT OF ADDL. CIVIL JUDGE (JR.DN.) MUDHOL.
IN RSA. NO.1058/2008
BETWEEN
MALLAPPA S/O SHIVARUDRAPPA GONDI,
AGE: 60 YEARS, OCC: BUSINESS,
R/O MAHALINGAPUR, TQ.MUDHOL-587312.
... APPELLANT
(BY SRI.RAVI S.BALIKAI, ADV.)
3
AND
SHIVANAND BASALINGAPPA GONDI,
AGE: 40 YEARS, OCC: BUSINESS,
R/O MAHALINGAPUR, TQ.MUDHOL-587312.
... RESPONDENT
(BY SRI.A.G.WAJAPE, ADV.)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE ORDER DATED 20.07.2007 IN .R.A.NO.143/2002
PASSED BY THE COURT OF ADDL. CIVIL JUDGE (SR.DN.) JAMKHANDI
AND ORDER DATED 30.09.2002 IN O.S.NO.273/1999 PASSED BY THE
COURT OF ADDL. CIVIL JUDGE (JR.DN.) MUDHOL.
IN RSA NO.383/2008
BETWEEN
MALLAPPA S/O SHIVARUDRAPPA GONDI,
AGE: 60 YEARS, OCC: BUSINESS,
R/O MAHALINGAPUR, TQ.MUDHOL-587312.
... APPELLANT
(BY SRI.RAVI S.BALIKAI, ADV.)
AND
1. SHIVANAND BASALINGAPPA GONDI,
AGE: 40 YEARS, OCC: AGRICULTURE,
2. SMT.SHUSHILABAI W/O BASALINGAPPA GONDI,
(DECEASED AND HER LRS ARE ALRADY ON RECORD
AS R1, R3 AND R4)
3. LATA D/O BASALINGAPPA GONDI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
4. SAVITA D/O BASALINGAPPA GONDI,
AGE: 22 YEARS, OCC: HOUSEHOLD WORK,
4
5. SMT.ANNAVVA W/O SHIVARUDRAPPA GONDI,
(DECESED AND HER LRS ALREADY ON RECORD
AS R1, R3 & R4 AND R7(A) TO R7(C))
6. BABU S/O SHIVARUDRAPPA GONDI,
(DECEASED AND HIS LRS ARE ALREADY ON RECORD
AS R7(A) TO R7(C))
ALL ARE R/O MAHALINGAPUR, TQ.MUDHOL.
7. SMT.SUMITRA W/O SHANKARAPPA TARALA
SINCE DECEASED BY HER LRS.
7A. SMT.KALAVATI W/O CHANDRASHEKHAR PILLE,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O NEAR MARATHA MANDAL KANNADA MEDIUM
SCHOOL, NEAR WATER TANK, KAKATI, TAL & DIST: BELGAUM.
7B. SMT.NANDA W/O BASAVARAJ SANIKOP,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O -DO-
7C. SMT. SAVITRI W/O PRAKASH PATIL,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O -DO-
... RESPONDENTS
(BY SRI.P.A.KULKARNI, ADV. FOR R1, R3 & R4),
R7(A) TO R7(C) ARE SERVED AND REMAIN UNREPRESENTED,
R2, R5 & R6 ARE DECEAESD)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE ORDER DATED 20.07.2007 IN .R.A.NOS.9/2003,
143/2002 & 145/2002 PASSED BY THE COURT OF ADDL. CIVIL
JUDGE (SR.DN.) JAMKHANDI AND ORDER DATED 30.09.2002 IN
O.S.NOS.273/1999, 251/1999 & 107/2000 PASSED BY THE COURT OF
ADDL. CIVIL JUDGE (JR.DN.) MUDHOL.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
These three regular second appeals are arising out of
clubbed suits bearing O.S.No.251/1999, O.S.No.273/1999
and O.S.No.107/2000.
2. Before adverting to the facts of the case, it
would be necessary to cull out the genealogy of the family,
which is as follows:
Shivaputrappa
(died prior to 1956)
Annawwa (died on 23.09.2003)
Basalingappa Sumitra (Plf.) Mallappa (D1) Babu
(died on 1981) (died on 13.12.2013) (not married)
(died on 13.03.2006)
Sushila
(died on 04.10.2010)
kalavati Nanda Savitri
Shianand Lata Savitri
Mahananda Uma Sadhana Nagaraj Basavaraj
3. On perusal of the family tree and records, it is
found that one Sumitra who is the daughter of
Shivaputrappa filed a suit for partition and separate
possession in O.S.No.107/2000. Shivanand who is the
eldest son of Basavalingappa also filed a suit for partition
and separate possession in O.S.No.251/1999. The present
appellant Mallappa who was arrayed as defendant No.1 in
O.S.No.107/2000 and defendant No.5 in O.S.No.251/1999
also filed a bare suit for injunction in O.S.No.273/1999 by
specifically contending that family opted for arbitration and
in the presence of arbitrators, the difference in the family
was resolved and partition was also effected and award
came to be drawn on 20.05.1998. The present appellant
also specifically contended that in terms of award, the
present appellant has paid in all Rs.1,30,000/- to plaintiffs
and other defendants. A specific contention was also made
that the said amount infact was deposited in the concerned
accounts in the presence of the arbitrators.
4. The plaintiffs in both the suits, i.e., in
O.S.No.107/2000 and 251/1999 to substantiate their claim
let in ocular evidence and also produced documentary
evidence to indicate that the suit schedule properties are
joint family ancestral properties and that plaintiffs along
with defendants constitute undivided Hindu joint family.
Per contra, the present appellant who was arrayed as
defendant No.1 in O.S.No.107/2000 and defendant No.5 in
O.S.No.251/1999 though specifically contended that there
is severance in the family pursuant to drawing up of
arbitration award by the arbitrators on 20.05.1998,
however, did not produce any documentary evidence
indicating that there is severance in the family in terms of
arbitration award passed by the arbitrators. The trial court
having assessed oral and documentary evidence answered
issue Nos.1 to 3 in the affirmative framed in
O.S.No.251/1999 and issue Nos.1 and 2 in the affirmative
in O.S.No.107/2000 and issue Nos.1 and 2 in the negative
in O.S.No.273/1999. Therefore, the trial court having
assessed oral and documentary evidence held that the suit
schedule properties are joint family ancestral properties of
plaintiffs and defendants. The trial court also negatived the
contention of the present appellant and recorded a
categorical finding that he has failed to establish severance
in the family and also failed to establish that CTS No.762 is
purchased by him from his independent earnings. The trial
court having recorded a categorical finding that suit
schedule properties are joint family ancestral properties
and plaintiffs and defendants are in joint possession and
enjoyment over suit schedule properties, proceeded to
dismiss the suit filed by the appellant in O.S.No.273/1999
which was one for bare suit for injunction on the ground
that since there is no severance, the present appellant
cannot seek injunction against his own family members. On
these set of reasoning, the trial court decreed the partition
suit filed in O.S.No.107/2000, O.S.No.251/1999 and
consequently dismissed the bare suit for injunction filed by
the appellant herein in O.S.No.273/1999.
5. The appellant feeling aggrieved by the judgment
and decree passed by the trial court preferred an appeal in
R.A.Nos.9/2003 questioning the judgment and decree
passed in O.S.No.251/1999 and R.A.No.145/2002
questioning the judgment and decree passed in
O.S.No.107/2000 and R.A.No.143/2002 was filed
questioning the judgment and decree passed in
O.S.No.273/1999. The first appellate court having
independently assessed oral and documentary evidence
concurred with the finding arrived at by the trial court and
recorded a categorical finding that the present appellant
has failed to establish severance in the family and also
failed to establish that property bearing CTS No.762 is his
self-acquired property. Having meticulously examined the
evidence on record, the first appellate court has also come
to the conclusion that alleged payment made by the
appellant herein pursuant to settlement is also not
established by the present appellant herein. On these set
of reasoning, the first appellate court proceeded to dismiss
the appeals.
6. Against these concurrent finding in all the three
suits, the present appellant is before this court. RSA
No.383/2008 is filed questioning the judgment and decree
passed in O.S.No.251/1999 and R.A.No.9/2003. RSA
No.1059/2008 is filed questioning the judgment and decree
passed in O.S.No.107/2000 and R.A.No.145/2002 and RSA
No.1058/2008 is filed questioning the judgment and decree
passed in O.S.No.273/1999 and R.A.No.143/2002.
7. Heard the learned counsel for the appellant,
learned counsel for the respondents and perused the
judgments under challenge.
8. Though three suits were filed, the controversy
infact revolves around a narrow compass. Plaintiff in
O.S.No.251/1999 and O.S.No.107/2000 have come before
the court, seeking relief of partition by specifically
contending that suit schedule properties are joint family
ancestral properties. The present appellant who is arrayed
as defendant No.1 in O.S.No.107/2000 and defendant No.5
in O.S.No.251/1999 has come up with a specific case that
dispute arose in the family and therefore, plaintiffs and
defendants referred the matter to the arbitration and the
arbitrators have passed an award. It is his specific case
that, pursuant to award passed by the arbitrators,
possession of the specific properties in terms of settlement
before the arbitration is also delivered to the respective
parties and he has paid amount to the plaintiffs in the
presence of the arbitrators. A further contention was also
taken that receipts are with P.W.2-Irappa Malleshappa
Hollikeri.
9. Appellant's case is that dispute was referred to
arbitrators and arbitrators have resolved the dispute in the
family of appellant and defendants and accordingly, award
is passed. If really an award was passed by the arbitrators,
burden was on the appellant to demonstrate that valid
award partitioning the joint family properties among the
parties was passed by the arbitrators, by producing the
said award. It is only production of valid award constitute
any bar to any action on the basis of any original demand
and that would operate by way of estoppal against the
plaintiff. If there is valid award, it would also operate as an
instrument of partition within Section 2(15) of Stamp Act,
so as to give life to the award. All these significant details
are not produced by the appellant/plaintiff and the burden
was not at all discharged by the appellant.
10. Having raised such a defence, the present
appellant has not produced copy of the award passed by
the arbitrators. No documents are produced indicating that
he has made payment pursuant to settlement by the
arbitrators. Though a specific contention is taken that
money was transferred in the account of the plaintiffs,
however, these documents are also not produced.
Therefore, both the courts below having examined the
defence of the appellant herein and having answered issues
in the negative have proceeded to decree the suit granting
share to the plaintiffs. In the absence of defence and
clinching rebuttal evidence indicating that there is
severance in the family, the judgment and decree passed
by the courts below is in accordance with law and
therefore, may not warrant any interference at the hands
of this court under Section 100 of CPC.
11. At this juncture, learned counsel for the
appellant would submit to this court that Babu has died
issueless and his sister Sumitra who was plaintiff in the
partition suit also died leaving behind Class-I heirs. It is
also brought to the notice of this court that mother of
plaintiff and defendants Annawwa is also no more and she
died on 23.09.2003. The present appeals are filed by the
defendants questioning the judgment and decree passed
by the courts below negativing the contention in regard to
severance. Even during the pendency of the proceedings,
some of the parties have died. It is open for the parties to
bring it to the notice of the final decree court. If there are
deaths and if there are no legal heirs, there has to be some
evidence to that effect. All these exercise can be done or
can be resorted to before the final decree court. In the
evident, these facts are proved by the parties, it is well
within the jurisdiction of the final decree court to modify
the preliminary decree taking note of the death of the
parties.
12. With these observations, these appeals are
dismissed.
13. In view of dismissal of the appeals,
I.A.No.2/2011 filed in RSA No.383/2008 does not survive
for consideration and the same is dismissed.
Sd/-
JUDGE
MBS/-
