Sri. Nivrutti S/O Tukaram Patil vs Smt. Shrimanti W/O Ramchandra ...
2022 Latest Caselaw 2049 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 9TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA.NO.100866/2015 (DEC)
BETWEEN

1.   SRI. NIVRUTTI S/O TUKARAM PATIL
     AGE:60 YEARS, OCC:AGRL and SERVICE
     R/O:CHANNEWADI, TQ:KHANAPUR
     DIST:BELAGAVCI

2.   SRI.VINAYAK S/O TUKARAM PATIL
     AGE:58 YEARS, OCC:AGRL and SERVICE
     R/O:CHANNEWADI, TQ:KHANAPUR
     DIST:BELAGAVCI

3.   SRI.CHANDRAKANT S/O TUKARAM PATIL
     AGE:56 YEARS, OCC:AGRL and SERVICE
     R/O:CHANNEWADI, TQ:KHANAPUR
     DIST:BELAGAVCI

4.   SRI.SANJEEV S/O TUKARAM PATIL
     AGE:54 YEARS, OCC:AGRL and SERVICE
     R/O:CHANNEWADI, TQ:KHANAPUR
     DIST:BELAGAVCI

5.   SRI.RAMACHANDRA S/O TUKARAM PATIL
     AGE:58 YEARS, OCC:AGRL and SERVICE
     R/O:CHANNEWADI, TQ:KHANAPUR
     DIST:BELAGAVCI

                                               ... APPELLANTS

(BY SRI.D.RAVIKUMAR GOKAKAKAR, ADV.)
                               2




AND

1.    SMT. SHRIMANTI W/O RAMCHANDRA DESAI
      AGE:57 YEARS, OCC:HOUSEHOLD
      R/O:GARGOTI, TQ:GADHINGLAJ
      DIST:KOLHAPUR

2.    SMT.URMILA W/O NARAYAN PATIL
      AGE:60 YEARS, OCC:HOUSEHOLD
      R/O:WADDEBAIL, TQ:KHANAPUR
      DIST:BELAGAVI

3.    SHRI.SAMEER S/O IQBALSAHEB KITTUR
      AGE:29 YEARS, OCC:SERVICE
      R/O:106, GANDHALI GALLI
      HALAKARNI,KHANAPUR ROAD,
      BELAGAVI, DIST:BELAGAVI

4.    SRI.DILIP S/O PUNDALIK PATIL
      AGE:55 YEARS, OCC:BUSINESS
      R/O:CHANNEWADI, TQ:KHANAPUR
      DIST:BELAGAVI

                                              ... RESPONDENTS
(BY SMT.R.M.HIREMATH, ADV. FOR C/R1 & R2)

       THIS APPEAL IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT     &   DECREE    DTD:     24.07.2015   PASSED    IN
R.A.NO.254/2010 ON THE FILE OF THE I ADDITIONAL DISTRICT
JUDGE, BELAGAVI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT    AND   DECREE   DTD:24.05.2010,   PASSED   IN   O.S.
NO.26/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, KHANAPUR,
DECREEING THE SUIT FILED FOR DECLARATION, PARTITION AND
SEPARATE POSSESSION.


       THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                    3




                            JUDGMENT

The captioned regular second appeal is filed by the

unsuccessful defendants who are questioning the judgment

and decree of the courts below wherein the suit for

partition filed by respondent Nos.1 and 2 is decreed.

2. Brief facts of the case are that:

Original plaintiff who is the father of respondent

Nos.1 and 2 filed suit for partition and separate possession

in O.S.No.26/2008. Original plaintiff namely Narayan

Ramachandra Patil specifically contended that he along

with defendant No.1 and defendant Nos.2 to 6 are sons of

defendant No.1 and constitute an undivided Hindu joint

family and suit schedule properties are joint family

ancestral properties. The grievance of the original plaintiff

to file the present suit was that, defendant No.7 who is

nowhere related to the family of plaintiff and defendant

Nos.1 to 6 in collusion with defendant No.1 tried to fell the

trees. Therefore, original plaintiff namely, Narayan R.Patil

was compelled to issue a legal notice to defendant No.7.

However, by way of reply, respondent No.7 contended that

he has purchased the standing trees from defendant No.1

for a consideration of Rs.5,51,111/- and he has paid

advance amount of Rs.1,41,502/- and therefore, he has

legal right to fell the tress and accordingly he is entitled to

deal with the trees. It is in this background, the original

plaintiff was compelled to verify the revenue records and

on verification, he found that defendant No.1 has effected

some changes in the revenue records as per his whims and

fancies. This compelled the original plaintiff to file the

present suit.

and defendant No.7 appeared and contested the

proceedings and filed written statements. The present

appellants/defendants resisted the suit by specifically

contending that there was oral partition in the year 1984

and therefore, there is severance in the family and as such,

the present suit for partition filed by the plaintiff is not

maintainable. The present appellants/defendants also

contended that deceased plaintiff agreed to take 1 acre of

land in Sy.No.14 towards his maintenance and has

received a sum of Rs.1,00,000/- towards the share of his

daughters.

4. Respondents/plaintiffs let in ocular evidence by

examining plaintiff No.1B as PW1 and relied on

documentary evidence vide Ex.P1 to Ex.P29. The present

appellants/defendants by way of rebuttal evidence

examined three witnesses as DW1 to DW3 and relied on

documentary evidence vide Ex.D1 to Ex.D9. The Trial Court

having examined the material on record has answered

issue No. 4 and 5 in negative and recorded a categorical

finding that the appellants/defendants having set up a plea

of prior partition have not let in evidence. Therefore,

having negatived issue No.4 and 5, the Trial Court has

proceeded to decree the suit. Feeling aggrieved by the

judgment and decree of the Trial Court, the present

appellants/defendants preferred an appeal before the First

Appellate Court. The First Appellate Court having

independently assessed the ocular and documentary

evidence has concurred with the findings arrived at by the

Trial Court. The First Appellate Court was also of the view

that there is absolutely no rebuttal evidence adduced to

prove in regard to severance in the family as alleged in the

written statement. On these set of reasons, the First

Appellate Court has dismissed the appeal. It is against

these concurrent judgments the present

appellants/defendants have preferred this second appeal.

5. Heard the learned counsel for the appellants and

the learned counsel appearing for the respondent.

6. The appellants/defendants have set up a plea

that there was prior partition in the family in 1984. They

have further contended that the original plaintiff i.e.

Narayan has also received a sum of Rs.1,00,000/- towards

share of his daughters, who are present plaintiffs. Having

raised such a contention, it was incumbent on the part of

the appellants/defendants to establish prior partition and

also to establish that the daughters of deceased Narayan

have received a sum of Rs.1,00,000/- towards their

legitimate share. Having taken such a contention, the

appellants/defendants have miserably failed to adduce

rebuttal evidence. In the absence of rebuttal evidence,

both the Courts were justified in decreeing the suit of the

plaintiffs. No substantial question of law is involved in the

present appeal. Hence, appeal being devoid of merits

stands dismissed.

7. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

SD/-

JUDGE MBS/YAN/-