Sahadev S/O. Shetawappa Kharande vs Jakkawwa S/O. Shetawappa ...
2022 Latest Caselaw 2095 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.6250/2012 (PAR)
BETWEEN

SAHADEV S/O. SHETAWAPPA KHARANDE
AGE: 43 YEARS, OCC: AGRICULTURE
R/O. KODAGANUR, TQ: ATHANI DIST: BELGAUM

                                                 ... APPELLANT

(BY SRI.MADANMOHAN M.KHANNUR, ADV.)

AND

1.    KUM.JAKKAWWA D/O. SHETAWAPPA KHARANDE
      AGE: 30 YEARS, OCC: AGRICULTURE
      R/O. KODAGANUR, TQ: ATHANI DIST: BELGAUM

2.    SRI.SHETAWAPPA S/O. MAHADU KHARANDE
      AGE: 73 YEARS, OCC: AGRICULTURE
      R/O. KODAGANUR, TQ: ATHANI DIST: BELGAUM

3.    SMT.DUNDAWWA W/O. SHETAWAPPA KHARANDE
      AGE: 69 YEARS, OCC: HOUSEHOLD WORK
      R/O. KODAGANUR, TQ: ATHANI DIST: BELGAUM

4.    SMT.ANNAPURNA W/O. HANAMANT LONARI
      AGE: 48 YEARS, OCC: HOUSEHOLD WORK
      R/O. TODALABAGI, TQ: JAMKHANDI DIST: BAGALKOT

5.    SMT.SUVARNA W/O. GOPAL KATRAL
      AGE: 38 YEARS, OCC: HOUSEHOLD WORK
      R/O. HONAWAD, TQ and DIST: BIJAPUR
                                  2




6.    SMT.GODAWWA W/O. NYAMADEV GUGGARE
      AGE: 36 YEARS, OCC: AGRICULTURE
      R/O. CHINCHAL RAILWAY STATION RAIBAG, DIST: BELGAUM

                                                 ... RESPONDENTS

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 24.08.2012 IN
R.A.NO.101/2006 PASSED BY THE COURT OF THE PRL. SENIOR CIVIL
JUDGE, ATHANI AT ATHANI AND THE JUDGMENT AND DECREE DATED
07.10.2006 IN O.S.NO.311/2004 PASSED BY THE COURT OF THE
ADDL. CIVIL JUDGE (JR.DN.) & JMFC, ATHANI.

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

                          JUDGMENT

The captioned regular second appeal is filed by

unsuccessful defendant No.2 questioning the judgment and

decree of the trial court wherein the suit filed by

respondent No1./plaintiff is decreed granting 1/4th share.

2. Brief facts of the case of the are that:

Respondent No.1/plaintiff filed a suit for partition and

separate possession in O.S.No.311/2004 by specifically

contending that suit schedule properties are joint family

ancestral properties and they were originally owned by

their father Shetawappa. Respondent No.1/plaintiff further

contended that she has four sisters and one brother. The

present suit came to be filed by respondent No.1/plaintiff

by specifically alleging that defendants highhandedly tried

to dispossess the plaintiff from joint possession. Therefore,

respondent No.1/plaintiff requested the defendants to allot

her 1/4th share in the suit schedule property. Since the

defendants did not give heed to the request made by the

respondent No.1/plainitff, she is compelled to file a suit for

partition and separate possession.

3. On receipt of summons, the present

appellant/defendant No.2 contested the proceedings and

contended that there is already partition in the family of

plaintiff and defendants and therefore, the suit is not at all

maintainable. Respondent No.1/plaintiff in support of her

contention let in ocular evidence by examining herself as

P.W.1 and produced documentary evidence vide Exs.P1

and P2. Though present appellant contested the suit by

contending that there is already severance in the family,

however did not choose to lead ocular and documentary

evidence. The trial court having examined material on

record answered issue No.1 in the affirmative and decreed

the suit granting 1/4th share to the respondent

No.1/plaintiff. The said judgment and decree is confirmed

by the first appellate court. It is against these concurrent

judgment and decree of both the courts below, the present

appellant/defendant No.2 is before this court.

4. Appellant/defendant No.2 having taken a

specific contention that there is severance in the family

was required to lead rebuttal evidence. The fact that a

defence was taken in the written statement that there is

severance in the family pre-supposes that appellant admits

that suit schedule properties are joint family ancestral

properties. Since appellant/defendant No.2 has not chosen

to contest the proceedings, both the courts below have

concurrently held that suit schedule properties are joint

family ancestral properties and proceeded to grant 1/4th

share to respondent No.1/plaintiff. Therefore, in the

absence of contest, this court cannot examine the

concurrent findings recorded by the courts on issue No.1.

5. No substantial question of law arises for

consideration in the present case on hand. Accordingly, the

appeal stands dismissed.

6. In view of dismissal of the appeal,

I.A.No.1/2012 does not survive for consideration and the

same is dismissed.

SD/-

JUDGE MBS/-