Karnataka High Court
Chandrashekar S/O Mahalingappa vs Rajashekar S/O Mahalingappa on 25 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH AT
DHARWAD
DATED THIS THE 25TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.100595/2014 (PAR/POS)
BETWEEN :
SRI CHANDRASHEKAR
S/O MAHALINGAPPA YASHAWANT,
AGED ABOUT 45 YEARS, OCC: AGRICULTURE,
R/O. BORAGAL, TQ: HUKKERI,
NOW AT SHANBAG BUILDING,
CLUB ROAD, OPPOSITE JYOTHI COLLEGE,
BELGAUM TQ.& DIST: BELGAUM-590001.
... APPELLANT
(BY SRI G.I.GACHCHINAMATH ADV.)
AND :
1. RAJASHEKAR
S/O MAHALINGAPPA YASHAWANT,
AGED ABOUT 47 YEARS, OCC: SERVICE,
R/O MANGAL MURTI BUNGALOW,
MANGAL MURTI COLONY,
SHIVAJINAGAR (SOUTH) ,
SANGALI, DIST: SANGLI,
STATE: MAHARASHTRA-416403.
2. SHIVANAND SHANMUKH YASHWANT,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE.
3. SRI SHANKAREPPA BHIMAPPA CHOUGALA,
AGED ABOUT 60 YEARS,
OCC: AGRICULTURE.
4. SRI KEMPANNA IRAPPA CHOUGALA,
AGED ABOUT 56 YEARS,
OCC: AGRICULTURE.
5. MAHALING IRAPPA CHOUGALA,
AGED ABOUT 67 YEARS,
2
OCC: AGRICULTURE.
6. SRI MALAPPA BASAPPA CHOUGALA,
AGED ABOUT 49 YEARS,
OCC: AGRICULTURE.
7. IRAPPA ANNAPPA CHOUGALA,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURE.
8. SRI SHIVALINGAPPA IRAPPA YASHAWANT
AGED ABOUT 44 YEARS,
OCC: AGRICULTURE.
RESPONDENT NOS.2 TO 8 ARE
R/O. BORAGAL VILLAGE, TQ: HUKKERI,
DIST: BELGAUM-590001.
9. SMT.VAISHALI W/O RAJASHEKAR
@ APPASAHEB YASHAWANT,
R/O MANGALMURTI, BUNGLOW,
MANGALMURTI COLONY,
SHIVAJINAGAR (SOUTH),
SANGALI, TQ: & DIST: SANGALI,
(MAHARASHTRA)
...RESPONDENTS
(BY SRI SRINAND A.PACHHAPURE, ADV. FOR R.1 & 9)
(NOTICE TO RESPONDENT NOS.2, 3, 5, 6 & 8 : SERVED)
(NOTICE TO RESPONDENT NOS.4 & 7: HELD SUFFICIENT.)
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908 PRYING THIS COURT TO SET
ASIDE THE ORDER DATED 18.07.2014 PASSED IN
R.A.NO.292/2013 BY THE VII ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELGAUM AT CHIKKODI AND ALSO THE
IMPUGNED JUDGMENT AND DECREE DATED 24.01.2012 PASSED
IN O.S.NO.53/2010 BY THE SENIOR CIVIL JUDGE, HUKKERI, AT
HUKKERI AND FURTHER DECREE THE SUIT INCLUDING THE
PLOT SY.NO.227/B/2 MEASURING 467.50 SQ.METERS
SITUATED AT GIJAWANI, TQ: GADHINGALAJ, DIST: KOLHAPUR,
STATE MAHARASHTRA AND PLOT SY.NO.440/1 OPPOSITE
D.MART, SANGALI, DIST: SANGALI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
: JUDGMENT :
The captioned second appeal is filed by the
unsuccessful defendant No.1 questioning the
preliminary decree granting half share in the suit
schedule properties to respondent No.1/plaintiff.
2. Facts leading to the above case matter are
as follows:
Respondent No.1/plaintiff filed a suit for partition
and separate possession in O.S.No.53/2010. The
present appellant who was arrayed as defendant No.1
was served with summons. Appellant/defendant No.1
appeared through his counsel. Though sufficient
opportunity was given, the appellant/defendant No.1
did not file written statement and contested the
proceedings. Therefore, the present appellant/
defendant No.1 was placed exparte.
3. Respondent No.1/plaintiff in support of his
contention examined himself as PW.1, examined two
independent witnesses and relied on documentary
evidence vide Exs.P.1 to P.26. The present
appellant/defendant No.1 who did not chose to file
written statement has not even cross-examined
respondent No.1/plaintiff. The suit was decreed by
recording a finding that the suit schedule properties
are joint family ancestral properties and therefore
respondent No.1/plaintiff has succeeded in
establishing that he is entitled for half share in the suit
schedule property by answering Issue No.1 & 3 partly
in the affirmative and Issue No.2 in the affirmative.
The Trial Court has proceeded to decree the suit
granting half share to respondent No.1/plaintiff in the
suit schedule properties.
4. The appellant/defendant No.1 who did not
contest the proceedings, filed an appeal before the
First Appellate Court in R.A.No.292/2013. The said
appeal was filed after delay of 664 days. The appellant
Court having examined the explanation offered by the
appellant/ defendant No.1 has proceeded to reject the
delay application and consequently the appeal is also
dismissed.
5. Learned counsel appearing for the
appellant/ defendant No.1 assailing the the judgment
and decree of the Courts below would vehemently
argue and contend before this Court that the suit for
partition and separate possession filed by respondent
No.1/plaintiff was not at all maintainable as the suit is
filed without including all the properties held by the
family. He would submit to this Court that there are
two more commercial properties which are not
included and therefore the suit for partition and
separate possession is not at all maintainable. On
these set of grounds, he would submit to this Court
that the order passed by the First Appellate Court in
rejecting the delay application and consequently
dismissing the appeal suffers from perversity and
therefore warrants interference at the hands of this
Court.
6. Per contra learned counsel appearing for
respondent No.1/plaintiff would submit to this Court
that she has filed statement of objections to
I.A.No.1/2014. By filing statement of objections,
respondent No.1/plaintiff has brought to the notice of
this Court that pursuant to preliminary decree,
respondent No.1/plaintiff initiated final decree
proceedings in FDP.No.6/2013. The FDP Court has
drawn final decree. The final decree drawn by the FDP
Court was not at all challenged and respondent
No.1/plaintiff based on final decree filed execution
petition in E.P.No.112/2014 and the properties which
were allotted to respondent No.1/plaintiff in FDP
proceedings have delivered to respondent No.1/
plaintiff and the execution proceedings are is closed as
fully satisfied on 02.05.2015.
7. On these set of defences, the learned
counsel appearing for respondent No.1/plaintiff would
submit to this Court that the present second appeal
does not survive for consideration as preliminary
decree is given effect to in final decree proceedings
and the properties which were allotted in FDP
proceedings are also delivered to respondent
No.1/plaintiff. Respondent No.1/plaintiff is in exclusive
possession of the properties, which were allotted to
him in final decree proceedings.
8. Heard learned counsel appearing for the
appellant and learned counsel appearing for
respondent No.1/plaintiff. Perused the materials on
record.
9. The objections filed by respondent
No.1/plaintiff would clearly indicates that pursuant to
preliminary decree granting half share, the feasibility
of partition submitted by the Court Commissioner is
accepted by the Final Decree Court and final decree is
drawn on 11.07.2014. Based on the final decree
respondent No.1/plaintiff has taken possession of the
suit schedule property which were allotted to him in
FDP in E.P.No.112/2014 and execution petition is
closed as fully satisfied on 02.05.2015. Therefore,
partition proceedings have stood concluded pursuant
to closure of execution petition.
10. The contention of appellant/defendant No.1
that there are two more commercial properties which
are left out and therefore the suit for partition is not
at all maintainable cannot be acceded to at this stage.
The appellant/defendant No.1 has not chosen to
contest the proceedings by filing written statement. In
absence of contest, the contentions raised by the
appellant/defendant No.1 for the first time before the
first appellate court in a belated appeal and also
before this Court cannot be entertained. No
substantial question of law arises. The appeal is
devoid of merits and accordingly the same stands
dismissed.
11. Since appellant/defendant No.1 has not
chosen to contest the proceedings by filing written
statement and has not adduced any documentary
evidence. Question of considering additional evidence
under Section 100 of CPC also would not arise and the
same cannot be entertained. Accordingly,
I.A.No.3/2004 stands rejected.
Sd/-
JUDGE
EM
