Karnataka High Court
Kamalabai vs Shashikala And Ors on 28 January, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MRS.JUSTICE J.M.KHAZI
RFA No.200052/2018
BETWEEN:
KAMALABAI W/O AMRUTHRAO
AGE: 48 YEARS OCC: HOUSEHOLD
R/O: HODEBEERNALLI TQ: CHINDHOLI
DIST: KALABURAGI-585 307.
... APPELLANT
(BY SRI. GURUBASAVA C. NAYAK AND
SRI. RAMACHANDRA K. ADVOCATES)
AND:
01. SHASHIKALA W/O LATE REVANSIDDAPPA
AGE: 51 YEARS OCC: HOUSEHOLD & AGRICULTURE
R/O: KOTGA TQ: CHINDHOLI
DIST: KALABURAGI-585 307.
02. BASAVARAJ S/OLATE REVANSIDDAPPA
AGE: 28 YEARS OCC: HOUSEHOLD & AGRICULTURE
R/O: KOTGA TQ: CHINCHOLI
DIST: KALABURAGI-585 307.
03. REKHA W/O REVANSIDDA
AGE: 25 YEARS OCC: HOUSEHOLD AND AGRICULTURE
R/O: CHINKUNTA TQ: CHINCHOLI
DIST: KALABURAGI-585 307.
04. GEETA D/O LATE REVANSIDDAPPA
AGE: 21 YEARS OCC: HOUSEHOLD & AGRICULTURE
R/O: KOTGA TQ: CHINCHOLI
DIST: KALABURAGI-585 307.
2
05. GIRIJA D/O LATE REVANSIDDAPPA
AGE: 19 YEARS OCC: HOUSEHOLD
R/O: KOTGA TQ: CHINCHOLI
DIST: KALABURAGI - 585 307.
06. ASHWINI @ ASHA D/O LATE REVANSIDDAPPA
AGE: 18 YEARS OCC: HOUSEHOLD
R/O: KOTGA TQ: CHINCHOLI
DIST: KALABURGI - 585 307.
07. CHANDRAKALA W/O: LATE SHARANABASAPPA
AGE: 45 YEARS OCC: AGRICULTURE & HOUSEHOLD
R/O: KOTGA TQ: CHINCHOLI
DIST: KALABURAGI-585 307.
08. KALPANA D/O LATE REVANSIDDAPPA
AGE: 23 YEARS OCC: HOUSEHOLD
R/O: KOTGA TQ: CHINCHOLI
DIST: KALABURAGI-585 307.
09. ANANDKUMAR S/O LATE SHARANABASAPPA
AGE: 21 YEARS OCC: AGRICULTURE
R/O: KOTGA TQ: CHINCHOLI
DIST: KALABURAGI-585 307.
... RESPONDENTS
(BY SRI. K.A. KALABURAGI, ADVOCATE FOR R1 TO R9)
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER
XLI RULE 1 READ WITH SECTION 96 OF THE CODE OF CIVIL
PROCEDURE CODE, PRAYING TO CALL FOR THE RECORDS AND
SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED BY
THE SENIOR CIVIL JUDGE AT CHINCHOLI IN O.S.NO.2/2014 ON
DATED 25.03.2017 AND MATTER IS TO BE REMANDED FOR
FRESH ENQUIRY AND ADJUDICATION ON MERITS.
THIS APPEAL BEING HEARD AND RESERVED FOR
JUDGMENT ON 21.01.2022, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
3
JUDGMENT
This is plaintiff's Regular First Appeal filed under
Order 41 Rule 1 read with Section 96 of the Code of Civil
Procedure Code (hereinafter referred as to 'CPC'), against
the judgment and decree, whereby her suit for partition
and separate possession of 1/3rd share in the suit schedule
properties came to be dismissed on one of the ground that
the plaintiff has not arraigned all the necessary parties to
the suit. Plaintiff has sought for remand of the matter for
fresh enquiry and adjudication on merits.
02. For the sake of convenience the parties are
referred to by their rank before the Trial Court.
03. Plaintiff sought 1/3rd share in the suit schedule
properties contending that she, Revanasidda the husband
of defendant No.1 and father of defendants No.2 to 6,
Sharanabasappa the husband of defendant No.7 and father
of defendants No.8 and 9 are the children of Basavantrao
Police Patil and Putalibai Police Patil. The suit schedule
properties are the ancestral properties and joint family
properties of said Basavantrao Police Patil. After his death
they have succeeded to the suit schedule properties and as
such she is entitled for 1/3rd share in the suit schedule
properties.
04. The defendants have put in their appearance
and have filed written statement, wherein apart from the
usual pleadings, they have specifically contended that
Basavantrao Police Patil had three wives viz., first wife
Iramma, second wife Gouramma and third wife Putalibai.
The first wife Iramma died leaving behind two daughters
viz., Kallamma and Mahadevi, who are no more. The said
Kallamma has left behind three sons and a daughter, by
name Basavaraj Kaba, Shivalingappa, Manohar Kaba and
Sharadabai. Mahadevi left behind two sons and two
daughters by name Vaijanath, Manikarai, Padmawati and
Mallamma.
05. The second wife of Basavantrao Police Patil
namely Gouramma died leaving behind one daughter
Siddamma who is alive and she is given in marriage to one
Subhash. Defendants have alleged that intentionally,
plaintiff has not disclosed these facts in the genealogical
tree and also failed to implead all the persons who are
necessary parties to the suit and sought for dismissal of
the same.
06. Based on the pleadings, the Trial Court has
framed the issues.
07. In support of plaintiff's case two witnesses are
examined as PWs.1 and 2 and Ex.P.1 to 25 were marked.
It appears at this stage that the defendants have not led
any evidence.
08. PW.1 has been cross-examined at length with
regard to the fact that her father had married two other
wives before he married her mother and having children
and grand-children. After hearing arguments, on
23.03.2017 the Trial Court observing that issue regarding
non-joinder of necessary parties is not framed, has framed
additional issues and thereafter once again the case was
posted for judgment, after noting that plaintiff has no
further evidence to lead on additional issue. On
25.03.2017 the Trial Court has proceeded to dismiss the
suit as detailed above.
09. During the course of arguments, the learned
counsel representing the plaintiff submits that the
additional issue came to be framed on 23.03.2017, but
without giving sufficient opportunity to implead the
necessary parties, the Trial Court has proceeded to pass
the judgment on 25.03.2017 and the same is not justified.
The Trial Court also has also not examined the oral and
documentary evidence in proper perspective and seeks
remand of the case for fresh disposal.
10. On the other hand, during the course of
arguments, the learned counsel representing the
defendants submitted that in the written statement itself,
the defendants have in detail pleaded the fact of
Basavantrao Police Patil having two other wives and they
leaving behind children and grand-children, who are
necessary parties and only after the death of the first two
wives, he married Putalibai and therefore it is incorrect to
state that the Trial Court has did not give sufficient
opportunity to plaintiff to implead them.
11. As rightly submitted by the learned counsel
representing the defendants, on 03.05.2014 itself, the
defendants have filed written statement stating that the
children and grand-children of other two wives are
necessary parties to the suit. After filing of the written
statement, the plaintiff has not chosen to either amend the
plaint to include the pleadings with regard to the other two
wives and their children and grand-children nor taken any
steps to implead them for a total period of nearly three
years.
12. Since, at the first instance, the learned
Presiding Officer who framed the issues did not frame any
issue with regard to non-joinder of necessary parties, after
observing the said fact, the learned Presiding Officer has
framed additional issues. After a submission by the
plaintiff's counsel that he has no further evidence to led on
that issue, it proceeded to pass the judgment.
13. Anyhow, fact remains that before marrying
Putalibai, the father of plaintiff had married two other
wives. It appears after the death of first wife, he married
second wife and after her death he married the third wife.
The children and grand-children of the first two wives are
necessary parties to the suit. In order to pass an effective
decree as well as to ensure that all the matters in dispute
are effectually or completely determined, their presence is
necessary. Therefore, the matter requires remand for fresh
adjudication after impleading necessary parties.
Accordingly, I proceed to pass the following;
ORDER
I. The appeal is allowed by imposing cost of
Rs.10,000/-.
II. The impugned judgment and decree dated
25.03.2017 in O.S.No.2/2014 on the file of Senior
Civil Judge, Chincholi, is set-aside.
III. The suit is remanded to the Trial Court with a
direction to the plaintiff to file complete genealogical
tree and also to file necessary application to implead
necessary and proper parties and proceed with the
matter.
IV. Both the parties are directed to appear before the
Trial Court on 28.02.2022 without waiting for notice
from the Trial Court. On or before the said date, the
plaintiff shall deposit cost of Rs.10,000/- or pay to
the defendants on 28.02.2022 before the Court.
V. The Trial Court shall provide reasonable
opportunities to the plaintiff to implead the
necessary and proper parties and proceed in
accordance with law.
VI. Registry to return the Trial Court records along with
copy of this judgment forthwith.
Sd/-
JUDGE
KJJ
