Mallikarjun S/O. Kashappa ... vs Basappa Gangappa Goudar
2022 Latest Caselaw 248 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

       DATED THIS THE 06TH DAY OF JANUARY 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

      REGULAR SECOND APPEAL NO.5470/2013 (PAR)

BETWEEN

MALLIKARJUN
S/O. KASHAPPA KALAGAGGARI
AGE: 33 YEARS,
OCC: AGRICULTURE
R/O. AMATUR,
TQ: BAILHONGAL,
DIST: BELGAUM-591123.
                                           ... APPELLANT

(BY SRI S.S.BAWAKHAN AND SRI H.C.HIREMATH, ADVTS.)

AND

1.    BASAPPA GANGAPPA GOUDAR,
      AGE: MAJOR,
      OCC: AGRICULTURE,
      R/O. AMATUR,
      TQ: BAILHONGAL,
      DIST: BELGAUM-591123.

2.    NAGAPPA GANGAPPA GOUDAR ,
      AGE: MAJOR,
      OCC: AGRICULTURE,
      R/O. AMATUR,
      TQ: BAILHONGAL ,
      DIST: BELGAUM-591123.

3.    SMT.BALAWWA
      W/O. HANAMANTAPPA NIRANJI ,
      AGE: MAJOR,
      OCC: HOUSEHOLD WORK,
      R/O. HANAMANTTI,
      TQ: BAILHONGAL,
                               2




      DIST: BELGAUM-591123.

4.    SMT.MAHADEVI
      W/O. YALLAPPA HOSAMANI
      AGE: 55 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O. KOWADWAD GALLI,
      ANGOL,
      DIST: BELGAUM-590011.

5.    SMT.RATNAWWA
      W/O. SIDDAPPA HOSAMANI
      AGE: MAJOR,
      OCC: HOUSEHOLD WORK,
      R/O. KOWADWAD GALLI, ANGOL,
      DIST: BELGAUM-590011.
                                         ... RESPONDENTS

(BY   SRI RAVIRAJ C.PATIL, ADV. AND
      SRI CHETAN MUNNOLI ADV. FOR R.1 & R3 TO R.5
      SRI N.L.BATAKURKI, ADV. FOR R.2)


      THIS APPEAL IS FILED UNDER SECTION 100 OF THE

CODE OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT

AND DECREE DATED 07.02.2013 PASSED INR.A.NO.19/2010 ON

THE FILE OF THE IV ADDL. DISTRICT JUDGE, BELGAUM,

DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND

DECREE DATED 10.09.2009 AND THE DECREE PASSED IN

O.S.NO.40/2009 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AT

BAILHONGAL,   PARTLY   DECREEING   THE   SUIT   FILED   FOR

PARTITION AND SEPARATE POSSESSION.



      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.5 questioning the

concurrent judgment and decree passed by both the

Courts below in decreeing the suit of respondent

No.1/plaintiff which is filed for partition and separate

possession of his legitimate share.

2. Respondent No.1/plaintiff filed a suit

against his brothers and sisters and also present

appellant who is the purchaser of the property. The

appellant's vendor who is arrayed as 1st defendant

contested the proceedings and set up a plea of prior

partition. The 1st defendant specifically contended that

there was an oral partition and in the said partition

there was severance in the family and the brothers are

in exclusive possession of the properties allotted to

their respective share in the said partition.

3. The Trial Court having appreciated the oral

and documentary evidence on record has recorded a

finding that the 1st respondent failed to establish the

plea of prior partition and accordingly proceeded to

decree the suit filed by the plaintiff granting 1/5th

share to the plaintiff and defendant Nso.2 to 4.

4. Feeling aggrieved by the said judgment and

decree of the Trial Court, the present appellant who is

the 5th defendant-purchaser preferred an appeal

before the First Appellate Court in R.A.No.19/2010.

The First Appellate Court on appreciation of the oral

and documentary evidence on record has concurred

with the finding and conclusion arrived by the Trial

Court and has proceeded to dismiss the appeal.

5. Heard learned counsel for the appellant and

perused the judgments under challenge.

6. The present appellant claims that he has

purchased the suit schedule property from defendant

No.1 under a registered sale deed for valuable sale

consideration. Defendant No.1, who is vendor of

appellant herein though contested the proceedings has

not chosen to challenge the preliminary decree passed

by the Trial Court in O.S.No.40/2005. Both the Courts

have concurrently held that defendant No.1 has failed

to establish alleged prior partition set up in the written

statement. Both the Court having perused the certified

copy of the judgment and decree passed in

O.S.No.86/2003 have held that the 1st defendant claim

that there was a prior partition has been negatived in

the earlier round of litigation in O.S.No.86/2003. The

said suit was filed by defendant No.1 claiming absolute

ownership and exclusive possession on the ground

that there is a oral partition in the family. The said

contention was negatived by the Courts below in the

earlier round of litigation and suit filed in

O.S.No.86/2003 was dismissed.

7. Both the Courts have also taken note of the

fact that in the alleged oral partition, defendant Nos.2

to 4 who are the sister are not allotted any share. This

aspect is also taken in to consideration by both the

Courts while negating the plea of 1st defendant in

regard to alleged oral partition. In that view of the

matter, I do not find any substantial question of law in

the present case on hand. Accordingly, appeal is

devoid of merits and the same stands dismissed.

8. It is needless to say that the appellant has

purchased the divided interest from defendant No.1.

Therefore, as a purchaser he is entitled to workout his

equity in final decree proceedings.

9. It is a trite law that the appellant being

purchaser would step into the shoes of defendant No.1

and would be entitled to seek allotment of 1st

defendant's share, while working out feasibility of

partition in final decree proceedings.

Sd/-

JUDGE EM