Karnataka High Court
Basanna S/O Dharmanna Holakindi ... vs Mandakini W/O Arjun Holkundi And ... on 31 January, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MRS. JUSTICE J.M.KHAZI
RSA No.200210/2015 (PAR/SEP-POSS)
BETWEEN:
1. BASANNA S/O DHARMANNA HOLAKUNDI
OCC : AGRI, OCC: AGRIL,
R/O : TAJ SULTANPUR
TQ & DIST : KALBURAGI
2. BASAMMA W/O MAILARI HOLAKUNDI
AGE; 58 YEARS, OCC : HOUSEHOLD
R/O : TAJ SULTANPUR
TQ & DIST : KALABURAGI
3. BABURAO S/O MAILARI HOLAKUNDI
AGE: 41 YEARS, OCC : AGRI
R/O : TAJ SULTANPUR
TQ & DIST : KALABURAGI
4. RAMESH S/O MAILARI HOLAKUNDI
AGE: 38 YEARS, OCC : AGRI
R/O : TAJ SULTANPUR
TQ & DIST : KALABURAGI
5. BHEERANNA S/O MAILARI HOLAKUNDI
AGE: 32 YEARS, OCC : AGRI
R/O : TAJ SULTANPUR
TQ & DIST : KALABURAGI
6. MALKAMMA W/O JAGANNATH BELAMBKAR
AGE: 42 YEARS, OCC : HOUSEHOLD
R/O : VAKKALGERA
2
BHAVANI NAGAR,
RING ROAD, KALABURAGI
7. JANUBAI @ RAJESHWARI
W/O SIDDALING KURPPENAVOR (KOTTARGI)
AGE: 33 YEARS, OCC : HOUSEHOLD,
R/O : MOMINPURA
GUNJ ROAD, KALABURAGI.
...APPELLANTS
(BY SRI.S.B.HANGARKI, ADVOCATE)
AND
1. MANDAKINI W/O ARJUN HOLKUNDI
AGE: 48 YEARS,
OCC : AGRI & ANGANWADI TEACHER
R/O : TAJ SULTANPUR
TQ & DIST : KALABURAGI-585101.
2. SRIKANT @ LINGANNA W/O ARJUN
SINCE DECEASED BY HIS LRS
2A. ARUNA W/O SRIKANT @ LINGANNA
AGE: 24 YEARS, OCC : HOUSEHOLD,
2B. ARJUN S/O SRIKANT @ LINGANNA
AGE: 11 YEARS, MINOR BY
GUARDIAN NATURAL MOTHER
ARUNA W/O SRIKANT @ LINGANNA
BOTH R/O TAJ SULTANPUR
TQ & DIST : KALABURAGI-585101.
3. VITHAPPA S/O DHARMANNA HOLKUNDI
AGE: 58 YEARS, OCC : SERVICE
R/O : TAJ SULTANPUR
NOW AT 383 DWARKA FLATS
PONNA KINARU STREET
3
VILLIVKAM
CHENNAI-600049
4. SHANTAPPA S/O DHARMANNA HOLKUNDI
AGE: 52 YEARS, OCC :AGRI
R/O : TAJ SULTANPUR
TQ & DIST : KALABURAGI-585101.
7. NINGANNA S/O DHARMANNA HOLKUNDI
AGE: 50 YAERS, OCC :AGRI
R/O : TAJ SULTANPUR
TQ & DIST : KALABURAGI
8. DEVENDRAPPA S/O DHARMANNA HOLKUNDI
AGE: 48 YEARS, OCC : STATION MASTER
R/O : TAJ SULTANPUR
NOW AT VINNAMANGAM
RAILWAY STATION NEAR
JOLARPETAL JUNCTION/JANCHAR
DIST: TITIPATTUR
TAMILNADU STATE-600050.
... RESPONDENTS
(BY SRI.A.M.BIRADAR, ADV. FOR R-1 & R2(A)
R2(B) IS MINOR U/G R2(A), R-3 SERVED,
SRI.A.P.JAHAGIRDAR, ADV. FOR R4 & R5
SRI. VINAYAK APTE, ADV. FOR R6)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED
25.03.2015 PASSED IN R.A.NO.84/2011 BY THE COURT OF
THE IV ADDL. DISTRICT JUDGE, KALBURGI, CONFIRMING
THE JUDGMENT AND DECREE DATED 29.06.2011 PASSED
IN O.S.NO.65/2006 ON THE FILE OF THE I ADDL. CIVIL
JUDGE (S.D) GULBARGA IN RESPECT OF SUIT ITEM NO.A
TO C & E AND CONSEQUENTLY THE SUIT OF THE
PLAINTIFF BE DISMISSED BY ALLOWING THIS APPEAL
WITH COST AND ETC.
4
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.01.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
Defendant Nos.2, 6 to 11 have filed this appeal
challenging the concurrent judgments of trial Court as
well as First Appellate Court.
2. For the sake of convenience, the parties
are referred to by their rank before the trial Court.
3. The trial Court has granted 1/7th share to
the plaintiffs together. Similarly, 1/7th share to
defendant Nos.1 to 5 and 1/7th share to defendant
Nos.6 to 11 collectively in all suit properties except
item No.2(d) property.
4. The first appeal filed by the defendant
Nos.2, 6 to 11 came to be dismissed.
5. While admitting this appeal vide order
dated 22.07.2015, this Court has framed the following
two substantial questions of law;
(i) Whether the Courts below have
committed any serious legal error in
ignoring the admission of the plaintiffs
regarding previous partition and
consequently, erroneously decreed the
suit of the plaintiffs even in respect of
the properties in item Nos.C and E of the
suit schedule properties by holding that
there was no earlier partition between
the parties?
(ii) Whether the First Appellate Court has
committed any serious legal error in not
considering I.A.No.II under which an
amendment was sought for written
statement of the appellant and without
disposing I.A.No.II, whether the First
Appellate Court was right in disposing of
the appeal on the merits itself?
6. During the course of arguments, the
learned counsel representing the appellants submitted
that in spite of there being an admission by DWs.2, 3
and 5, about the prior partition, the trial Court is not
justified in granting partition and separate possession
in suit item Nos.A to C and E. He further submitted
that before the First Appellate Court, they filed
IA.No.II under Order VI Rule 17 CPC, seeking
amendment of the written statement to the effect that
in the event of Court coming to the conclusion that
there is no earlier partition, then house constructed in
the name of defendant No.5 in a site measuring 40' x
60' situated at Badepur, Gulbarga and another house
bearing Corporation No.4-601/69A measuring 30' x
40' situated at M.B.Nagar, Gulbarga standing in the
name of defendant No.1 and his wife Shanta and
another house bearing VP No.3-7/8 situated at Taj
Sultanpur, Tq: Gulbarga, standing in the name of
Smt.Champavati, wife of defendant No.4 is also
acquired through the joint family property and grant
partition. The appellants have sought this as an
alternative prayer.
7. Learned counsel representing appellants
submitted that even though defendant No.4 who is
respondent No.5 before the First Appellate Court as
well as before this Court, has filed objections to
IA.N.II, the trial Court has not disposed of the said
application, but proceeded to pass the judgment on
the main appeal. He would further submit that this is
covered by the judgment of this Court reported in
2015 (1) KCCR 304 in the matter of Shri Kedari
Mashnu Gurav and Another Vs. Shri Pandurang
Mashnu Gurav and Others, (Kedari's case) and in
the light of the said judgment, the matter requires to
be remanded back to the First Appellate Court to
decide the pending application i.e. IA.No.II filed under
Order VI Rule 17 CPC and thereafter to decide the
main appeal.
8. Learned counsel representing the
respondent No.1, 2(A) and (B), who are plaintiff
Nos.1, 2(A) and (B) has fairly conceded that in view of
non disposal of IA.No.II before the First Appellate
Court and in the light of the above decision, the
matter requires remand to the First Appellate Court to
decide the interim application and to dispose of the
main appeal.
9. In view of the Kedari's case, I am of the
considered opinion that the matter requires remand to
the First Appellate Court for disposal of IA.No.II and
thereafter to dispose the main appeal and accordingly
the substantial question No.2 is answered in the
affirmative. Hence, I proceed to pass the following;
ORDER
(a) The appeal is allowed.
(b) The matter is remanded back to the First
Appellate Court to dispose off IA.No.II filed
under Order VI Rule 17 CPC and thereafter
proceed in accordance with law.
(c) Registry is directed to send back the trial
Court records as well as the records of the
First Appellate Court to the First Appellate
Court forthwith.
(d) The parties who are represented before this
Court are directed to appear before the First
Appellate Court on 28.02.2022 without
awaiting for further notice from the First
Appellate Court. So far as other parties are
concerned, the First Appellate Court shall
issue notice to them and proceed in
accordance with law.
Sd/-
JUDGE
msr
