Karnataka High Court
Sri. Belagavi Sangappa vs Belagavi Rudramma on 25 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.100268/2021 (PAR)
C/W RSA.NO.100267/2021
IN RSA NO.100268/2021
BETWEEN
SRI BELAGAVI SANGAPPA
S/O. LATE BELAGAVI NAGAPPA
AGE. 55 YEARS,
OCC. AGRIL.,
R/O. HOLALU VILLAGE,
TQ. HADAGALI,
DIST. BALLARI.
... APPELLANT
(BY SRI.SHARAD V.MAGADUM, ADV.)
AND
1 . BELAGAVI RUDRAMMA
W/O. LATE B. GURUSHANTAPPA
AGE. 51 YEARS,
OCC. AGRIL.,
R/O. HOLALU VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
2 . SRI. BELAGAVI DEVARAJ
D/O. LATE B. GURUSHANTAPPA
AGE. 34 YEARS,
OCC. AGRIL.,
R/O. HOLALU VILLAGE-583217,
2
TQ. HUVINAHADAGALI,
DIST. BALLARI.
3 . SRI. BELAGAVI SHIVARAJ
LATE B. GURUSHANTAPPA
AGE. 33 YEARS,
OCC. AGRIL.,
R/O. HOLALU VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
BELAGAVI BELAGAVEPPA
S/O. LATE NAGAPPA
SINCE DECEASED BY HIS L.RS.
4 . SMT. KAMALAKSHAMMA
W/O. BELGAVI BELAGAVEPPA
AGE. 67 YEARS,
OCC. H/W,
R/O. HOLALU VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
5 . SRI. SHIVAYOGI
S/O. LATE BELAGAVI BELAGAVEPPA
AGE. 42 YEARS,
OCC. AGRIL.,
R/O. HOLALU VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
6 . SMT. NAGARATHNA
W/O. SHABHULINGAPPA UPPIN
AGE. 36 YEARS,
OCC. AGRIL.,
R/O. MUDOOR VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
7 . SRI. JAGADISH BELAGAVI
S/O. LATE BELAGAVEPPA
AGE. 38 YEARS,
OCC. AGRIL. AND MERCHANT,
3
R/O. HOLALU VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
8 . SRI. BELAGAVI ERAPPA
S/O. LATE BELAGAVI NAGAPPA
AGE. 46 YEARS,
OCC. PRIVATE EMPLOYEE,
R/O. HOLALU VILLAGE,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
... RESPONDENTS
(R1 TO R3, R5 & R7 ARE SERVED UNREPRESENTED,
R6 & R8 ARE SERVED IN RSA NO.100267/2021)
THIS APPEAL IS FILED UNDER 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 21.10.2020 PASSED IN
R.A.NO.65/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS,H.B.HALLI AND ITINERARY
SENIOR CIVIL JUDGE, HUVINAHADAGALI, PARTLY ALLOWING THE
APPEAL AND DISMISSING THE JUDGMENT AND DECREE DATED
31.10.2015, PASSED IN O.S. NO.87/2009 ON THE FILE OF THE CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUVINAHADAGALI,
DECREEING THE SUIT FILED FOR PARTITION.
IN RSA NO.100267/2021
BETWEEN
SRI BELAGAVI SANGAPPA
S/O. LATE BELAGAVI NAGAPPA
AGE. 55 YEARS,
OCC. AGRIL.,
R/O. HOLALU VILLAGE,
TQ. HADAGALI,
DIST. BALLARI.
... APPELLANT
(BY SRI.SHARAD V.MAGADUM, ADV.)
4
AND
1. BELAGAVI RUDRAMMA
W/O. LATE B. GURUSHANTAPPA
AGE. 51 YEARS,
OCC. AGRIL.,
R/O. HOLALU VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
2. SRI. BELAGAVI DEVARAJ
D/O. LATE B. GURUSHANTAPPA
AGE. 34 YEARS,
OCC. AGRIL.,
R/O. HOLALU VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
3. SRI. BELAGAVI SHIVARAJ
LATE B. GURUSHANTAPPA
AGE. 33 YEARS,
OCC. AGRIL.,
R/O. HOLALU VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
BELAGAVI BELAGAVEPPA
S/O. LATE NAGAPPA
SINCE DECEASED BY HIS L.RS.
4. SMT. KAMALAKSHAMMA
W/O. BELGAVI BELAGAVEPPA
AGE. 67 YEARS,
OCC. H/W,
R/O. HOLALU VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
5. SRI. SHIVAYOGI
S/O. LATE BELAGAVI BELAGAVEPPA
AGE. 42 YEARS,
OCC. AGRIL.,
R/O. HOLALU VILLAGE-583217,
5
TQ. HUVINAHADAGALI,
DIST. BALLARI.
6. SMT. NAGARATHNA
W/O. SHABHULINGAPPA UPPIN
AGE. 36 YEARS, OCC. AGRIL.,
R/O. MUDOOR VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
7. SRI. JAGADISH BELAGAVI
S/O. LATE BELAGAVEPPA
AGE. 38 YEARS,
OCC. AGRIL. AND MERCHANT,
R/O. HOLALU VILLAGE-583217,
TQ. HUVINAHADAGALI,
DIST. BALLARI.
8. SRI. BELAGAVI ERAPPA
S/O. LATE BELAGAVI NAGAPPA
AGE. 46 YEARS,
OCC. PRIVATE EMPLOYEE,
R/O. HOLALU VILLAGE,
TQ. HUVINAHADAGALI, DIST. BALLARI.
... RESPONDENTS
(SRI.NAVEEN P.MOREY & SRI.A.S.KANAVI AND
SRI.S.S.VIBUIT, ADVS. FOR R7,
R1 TO R3, R5 & R8 ARE SERVED UNREPRESENTED,
R4 HELD SUFFICIENT, )
THIS APPEAL IS FILED UNDER 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 21.10.2020 PASSED IN
R.A.NO.65/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS,H.B.HALLI AND ITINERARY
SENIOR CIVIL JUDGE, HUVINAHADAGALI, PARTLY ALLOWING THE
APPEAL AND DISMISSING THE JUDGMENT AND DECREE DATED
31.10.2015, PASSED IN O.S. NO.87/2009 ON THE FILE OF THE CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUVINAHADAGALI,
DECREEING THE SUIT FILED FOR PARTITION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
6
JUDGMENT
The captioned Regular Second Appeals are filed by
defendant No.2 questioning the judgment and decree of
the first appellate court passed in R.A.Nos.73 and 65 of
2018.
2. Respondent No.1/plaintiff filed a suit for
partition and separate possession in O.S.No.87/2009.
Respondent No.7 filed written statement and specifically
contended that propositus Nagappa has bequeathed
agricultural land in his favour under Will dated 11.12.2006
and therefore, claimed exclusive right and title over the
properties covered under the Will. The present appellant
herein who is arrayed as defendant No.2 did not choose to
file written statement. Based on the rival contentions,
parties were relegated to trial. Respondent No.1/plaintiff to
substantiate her claim let in ocular evidence by examining
herself as P.W.1, examined three independent witnesses
and relied on documentary evidence vide Exs.P1 to P12.
The present respondent No.7/defendant No.4 to
substantiate his claim that he has acquired right and title
on the basis of the Will executed by propositus Nagappa
examined himself as D.W.5 and also examined witnesses
on his behalf and produced registered Will vide Ex.D3. The
trial court having assessed oral and documentary evidence
answered issue Nos.1 and 2 in the affirmative and
additional issue in the negative and granted 1/4th share to
respondent No.1/plaintiff.
3. When the matter was set in for arguments, it
appears the present appellant/defendant No.2 filed an
application and sought permission to file written statement.
The said application was rejected. Therefore, the present
appellant feeling aggrieved by rejection of the application
seeking permission to file written statement and
consequent decree, filed regular appeal in R.A.No.65/2018.
Respondent No.7/defendant No.4 feeling aggrieved by the
judgment and decree of the trial court preferred
R.A.No.73/2018. Both the appeals were clubbed together
and the first appellate court on re-appreciation of oral and
documentary evidence has come to the conclusion that
respondent No.7/defendant No.4 has placed cogent and
clinching evidence and has proved due execution of the Will
in his favour by propositus Nagappa. Therefore, the first
appellate court has declared respondent No.7/defendant
No.4 as absolute owner of the properties which are covered
under the Will. The appeal filed by the present appellant
herein in R.A.No.73/2018 was dismissed by the first
appellate court and therefore, negatived the contention
raised by the present appellant herein.
4. These two judgments rendered by the first
appellate court in R.A.Nos.73 and 65 of 2018 are
challenged before this court. RSA No.100267/2021 is filed
questioning the judgment and decree passed in
R.A.No.73/2018 wherein the first appellate court has
declared respondent No.7/defendant No.4 as absolute
owner in terms of Will dated 11.12.2006 executed by
propositus Nagappa. RSA No.100268/2021 is filed by
defendant No.2 questioning the concurrent judgments and
decree of the courts below in negativing the contention of
the appellant.
5. The first appellate court has reversed the
judgment of the trial court and declined to grant share to
respondent No.1/plaintiff insofar as agricultural lands are
concerned which are subject matter of the Will. Strangely,
respondent No.1/plaintiff has not challenged the judgment
and decree of the first appellate court in declaring
respondent No.7/defendant No.4 as absolute owner based
on the Will. Therefore, the question that would arise before
this court is, as to whether the present appellant/defendant
No.2 who has not filed written statement and has not
disputed the Will in favour defendant No.7/defendant No.4
can maintain second appeal. It is also not in dispute that
appellant/defendant No.2 has not even cross-examined
respondent No.7/defendant No.4. The counsel for the
appellant/defendant No.2 fairly submits that appellant has
not cross-examined respondent No.7/defendant No.4 in
regard to due execution of the Will. If the present appellant
has not at all challenged and disputed the bequeath by
Nagappa in favour of respondent No.7/defendant No.4,
then this court is of the opinion that second appeal filed by
defendant No.2 questioning the judgment and decree of
the first appellate court passed in R.A.No.73/2018 is not
maintainable, because there is no contest by
appellant/defendant No.2. He has not disputed the Will in
favour of respondent No.7/defendant No.4 and there is no
cross-examination. In that view of the matter, no
substantial question of law arises for consideration insofar
as judgment and decree passed in R.A.No.73/2018 is
concerned.
6. Insofar as the second appeal in RSA
No.100268/2021 is concerned, in view of the judgment and
decree passed in R.A.No.73/2018, all the contentions
raised by the appellant in RSA No.100268/2021 would be
of no consequence. If the Will is held to be proved and all
agricultura lands which are subject matter of the Will are
held to be absolute properties of respondent
No.7/defendant No.4, no substantial question of law even
arise in the connected appeal in RSA No.100268/2021.
7. The contention of the learned counsel for the
appellant that his application filed under Order 41 Rule 27
of CPC in R.A.No.65/2018 was not considered by the first
appellate court. The question of considering the additional
evidence would arise only when appellant/defendant No.2
has let in evidence before the trial court. In the absence of
written statement and in the absence of any documentary
evidence, question of considering the additional evidence
would not arise. Therefore, the judgment and decree of the
first appellate court in rejecting the application filed by the
appellant/defendant No.2 in R.A.No.65/2018 is in
accordance with law and does not suffer from any infirmity.
No substantial question of law arises for consideration
in both the appeals. Accordingly, both the appeals are
dismissed.
Sd/-
JUDGE
MBS/-
