Chavadappa S/O Hanumanthappa ... vs Mahadevayya S/O Shivamurthayya ...
2022 Latest Caselaw 3029 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 22ND DAY OF FEBRUARY 2022

                            BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                    RSA.NO.5051/2013 (PAR)
BETWEEN

CHAVADAPPA S/O HANUMANTHAPPA DUNDANNAVAR
AGE: 51 YEARS, OCC: AGRICULTURE
R/O. DOMBARAMATTUR, TQ:SAVANUR,
NOW AT YALAGACH, TQ:HAVERI

                                                 ... APPELLANT

(BY SRI.SHIVASAI M.PATIL, ADV.)


AND

1.    MAHADEVAYYA
      S/O SHIVAMURTHAYYA MULIMATH
      @ MULIMANI
      AGE: 55 YEARS, OCC: AGRIUCLTURE
      R/O. DOMBARAMATTUR,
      TQ: SAVANUR, DISGT: HAVERI

2.    SMT.MALLAVVA
      W/O. VEERABHADRAYYA GOUDAR
      AGE: 52 YEARS, OCC: AGRICULTURE
      R/O. NEERALAGI,
      TQ: SAVANURDIST: DHARWAD

3.    SMT.HALAVVA
      W/O. BASAVANNEYYA BALLARIMATH
      AGE: 50 YEARS, OCC: HOUSEHOLD WORK
      R/O. CHIKKAMARALIHALLI,
      TQ: SAVANUR, DIST: DHARWAD
                              2




4.   SMT.BASAVANNEVVA
     W/O. SHEKHAYYA PATIL
     AGE: 48 YEARS, OCC: HOUSEHOLD WORK
     R/O. HIGH SCHOOL ROAD, HAVERI

5.   SMT.JAYAMMA
     W/O. CHANNAVEERAPPA HIREMATH
     AGE: 46 YEARS, OCC: HOUSEHOLD WORK
     R/O. BYAHATTI, TQ: HUBLI DHARWAD

6.   IRAYYA S/O. SHIVAMURTHAYYA MULIMATH
     @ MULIMANI
     AGE: 44 YEARS, OCC: AGRICULTURE
     R/O. DOMBARAMATTUR,
     TQ: SAVANURDIST: HAVERI

7.   SHEKHAYYA S/O. SHIVAMURTHAYYA MULIMATH
     @ MULIMANI
     AGE: 42 YEARS, OCC: AGRICULTURE
     R/O. DOMBARAMATTUR,
     TQ: SAVANURDIST: HAVERI

8.   PUTTAPPA S/O. SHIVAPPA HUBBALLI
     AGE: 40 YEARS, OCC: AGRICULTURE
     R/O. DOMBARAMATTUR,
     TQ: SAVANURDIST: HAVERI

                                            ... RESPONDENTS

(BY SRI.SURESH N.KINI, ADV. FOR R1,
R3 TO R4 HELD SUFFICIENT; R5 & R6 SERVED;
R7 & R8 ABATED)

     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC SEEKING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 10.09.2008 IN
R.A.NO.38/2006 PASSED BY THE COURT OF DISTRICT JUDGE (FAST
TRACK) AT HAVERI.


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




                                JUDGMENT

The captioned regular second appeal is filed by

unsuccessful defendant No.3 who is a purchaser of

undivided share and is questioning the judgment and

decree passed by the first appellate court wherein the suit

filed by respondents/plaintiffs is decreed granting 1/7th

share in the suit schedule properties.

2. It would be useful to cull-out the family tree,

which is as under:

Shivamurthayya(deceased)

Mahadevayya Irappa Shekayya Mallavva Halavva Jayamma Basavaneevaa Plf.1 Def.1 Def.2 Plf.2 Plf.3 Plf.4 Plf.5

3. One Shivamurthayya was the propositus and

suit properties are claimed to be the joint family ancestral

properties and the present plaintiffs and defendant Nos.1

and 2 constitute undivided joint Hindu family.

Respondents/plaintiffs further contended that suit

properties are in joint possession and enjoyment of the

plaintiffs and defendant Nos.1 and 2.

Respondents/plaintiffs grievance is that defendant Nos.1 to

4 in collusion with their father Shivamurthayya have

alienated some of the items without the consent of the

plaintiffs. On these set of grounds, they filed suit for

partition and separate possession. The trial court on

examination of ocular and documentary evidence dismissed

the suit on the ground that description of the suit property

and in the sale deed do not tally with the description shown

in the plaint. On these set of reasoning, the trial court has

proceeded to dismiss the suit. The first appellate court on

re-appreciation of oral and documentary evidence found

that the judgment and decree of the trial court in

dismissing the suit on the ground that there are

inconsistencies in describing the suit schedule properties is

palpably erroneous. Admittedly, the sale deed executed by

the propositus Shivamurthayya and defendant Nos.1 and 2

as per Exs.P7 and P8 are in respect of ancestral properties.

The first appellate court found that plaintiffs are not

signatories to the said alienation. The first appellate court

was also of the view that merely because there are some

inconsistencies in describing the properties, the suit could

not have been dismissed. On these set of reasoning, the

first appellate court has proceeded to allow the appeal.

4. Heard the learned counsel for the appellant,

learned counsel for the respondents and perused he

judgments under challenge.

5. What can be gathered from the pleadings in the

plaint and written statement is that there is absolutely no

dispute that suit schedule properties are joint family

ancestral properties. The present appellant's vendor was

served with the summons, but he has not chosen to

contest the proceedings by filing written statement. The

role of a purchaser in a partition suit is very limited. In a

proceeding where preliminary decree is to be drawn by

ascertaining the nature of the suit schedule property and

consequent quantification of share has to be done by

drawing a preliminary decree. In the preliminary decree,

the purchaser is not at all necessary party. In the absence

of rebuttal evidence, the first appellate court has rightly

come to the conclusion that suit schedule properties are

joint family ancestral properties and that plaintiffs are

entitled for their legitimate share. Therefore, the first

appellate court has rightly allowed the appeal and thereby

granted 1/7th share to the plaintiffs. Granting 1/7th share

would not prejudice the rights of the appellant herein.

Admittedly, defendant Nos.1 and 2 are signatories to the

sale deed and therefore, appellant would be entitled to

2/7th share.

6. At this juncture, it is brought to the notice of

this court that, based on preliminary decree, the plaintiffs

have initiated final decree proceedings and final decree is

also drawn. If the other parties have not filed written

statement and have claimed relief to carve-out their share,

even then no prejudice is caused to the purchaser. It is

open for the him to file suit for general partition and seek

possession in the remaining portion, since it is only

plaintiffs share which is carved-out in the final decree

proceedings.

7. No substantial question of law arises for

consideration in the present case on hand. Accordingly, the

appeal stands dismissed.

8. In view of dismissal of the appeal, all pending

I.A's, if any, do not survive consideration and the same are

dismissed.

Sd/-

JUDGE MBS/-