Karnataka High Court
Trimbak Uddharao Yearagattikar vs Vishwanath Narayanarao ... on 10 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.1098 OF 2003 (INJ)
Between:
1. Trimbak Uddharao Yaragattikar
Since deceased, by his LRs
A1(A). Shri. Milind S/o Trimbak Uddharao
Yearagattikar
Age: About 43 years, Occ: Nill,
R/o: Chimmad, Tq: Jamkhandi
Dist: Bagalkot 587 312
...Appellant
(By Sri. Girish A Yadawad, Advocate)
And:
1. Vishwanath Narayanrao Yaragattikar
Since deceased, by his LRs
R1(A). Smt. Prabhavati
W/o Vishwanath Yaragattikar
Age: About 65 years,
Occ: Household Work,
R/o: Chimmad village, Tq: Jamkhandi,
Dist: Bagalkot 587 312
R1(B). Shri. Janardhan
S/o Vishwanath Yaragattikar
Age: About 54 years, Occ: Service,
2
R/o: Chimmad village,
Tq: Jamkhandi, Dist: Bagalkot 587 312
R1(C). Shri. Kashinath
S/o Vishwanath Yaragattikar
Age: About 53 years,
Occ: Government Service,
R/o: Chimmad village, Tq: Jamkhandi,
Dist: Bagalkot 587 312
R1(D). Shri. Ganasham
S/o Vishwanath Yaragattikar
Age: About 35 years, Occ: Agriculture,
R/o: Chimmad village, Tq: Jamkhandi,
Dist: Bagalkot 587 312
R1(E). Shri. Bhima S/o Vishwanath Yaragattikar
Age: About 25 years,
Occ: Government Service,
R/o: Chimmad village, Tq: Jamkhandi,
Dist: Bagalkot 587 312
R1(F). Smt. Sushila W/o Elundarao Vaidya
Age: About 60 years, Occ: Household Work,
R/o: Near Ram Mandir, Tq: Mudhol,
Dist: Bagalkot 587 313
R1(G). Smt. Shalini W/o Madhukar Kulkarni
Age: About 58 years, Occ: Household Work,
R/o: Belagali village, Tq: Mudhol,
Dist: Bagalkot 587 113
R1(H). Smt. Kalawati W/o Divakar Kulkarni
Age: About 45 years, Occ: Household Work,
R/o: Chimmad village, Tq: Jamkhandi,
Dist: Bagalkot 587 312
R1(I). Smt. Kalpana
W/o Pralhad Nyamannavar
3
Age: About 43 years, Occ: Service,
R/o: Chimmad village, Tq: Jamkhandi,
Dist: Bagalkot 587 312
R1(J). Smt. Usha W/o Prasad Dandavate
Age: About 40 years,
Occ: Household Work,
R/o: Chimmad village,
Tq: Jamkhandi, Dist: Bagalkot 587 312
R1(K). Smt. Bhagyashree
W/o Raghavendra Joshi
Age: About 33 years,
Occ: Household Work,
R/o: Near Yallamma Temple, Mudalagi,
Tq: Gokak, Dist: Belgaum 591 312
2. Shanakar S/o Narayan Yaragattikar
Since deceased, by his LRs
R2(A). Balachandra S/o ShanakaYaragattikar
Age: 62 years, Occ: Private Job,
R/o: Swami Samarth Mandir,
Opposite Vinayak , Galli No. 2,
Navi Sangavi, Pune 411 061,
Maharashtra State
R2(B). Ramachandra S/o Shankar Yaragattikar
Age: 60 years, Occ: Private Service,
R/o: 302, Bwing, Bhakti Darshan Building,
Near Kokate Hospital, Pumpale Gurav,
Pune 411 061, Maharashtra State
R2(C). Raghunath S/o Shankar Yaragattikar
Age: 56 years, Occ: Private Service,
R/o: Shivaji Park, Sai Chowk,
Sneha Kutir Builading, Near Suman
Shri Mangal Karyalaya, Navi Sangavi,
Pune 411 061, Maharashtra State
4
R2(D). Krishan S/o Shankar Yaragattikar
Age: 58 years, Occ: Agriculture,
R/o: Sadhu Maharaj Math, Chimmad,
Tq: Jamkhandi, Dist: Bagalkot 587 312
R2(E). Gurunath S/o Shankar Yaragattikar
Age: 54 years, Occ: Agriculture,
R/o: Sadhu Maharaj Math, Chimmad,
Tq: Jamkhandi, Dist: Bagalkot 587 312
R2(F). Gajanan S/o Shankar Yaragattikar
Age: 36 years, Occ: Agriculture,
R/o: Sadhu Maharaj Math, Chimmad,
Tq: Jamkhandi, Dist: Bagalkot 587 312
R2(G). Smt. Maya W/o Vyas Parvatikar
Age: 42 years, Occ: Household Work,
R/o: Elegant Apartment 201,
Near post office, Uttara Halli,
Bengaluru 560 061
R2(H). Smt. Chaya W/o Amodrao Savalekar
Age: 40 years, Occ: Household Work,
R/o: Sadhu Maharaj Math, Chimmad,
Tq: Jamkhandi, Dist: Bagalkot 587 312
R2(I). Smt. Pushpa @ Sampada W/o Nitin Alate
Age: 35 years, Occ: Household Work,
R/o: C/o: ShriKrishan
S/o Shankar Yaragattikar
Sadhu Maharaj Math, Chimmad,
Tq: Jamkhandi, Dist: Bagalkot 587 312
3. Nilkhanth S/o Narayanrao Yaragattikar
Since deceased, by his LRs
R3(A). Smt. Nalini W/o Nilkhanth Yaragattikar
Since deceased, by his LRs
5
[R3(B) to R3(I) treated as LRs of deceased R3(A)]
R3(B). Gopal S/o Nalini
W/o Nilkhanth Yaragattikar
Age: Major, Occ: Service,
R/o: Plot No. 48-A, Ward, Shivaji Peth,
Chatrapati Rajaram Timber Market Area,
Near Piranjai Hospital,
Kolhapur 416 012, Maharastra State
R 3 (C). Shripad S/o Nilkhanth Yaragattikar
Age: Major, Occ: Service,
R/o: Plot No. 48-A, Ward, Shivaji Peth,
Chatrapati Rajaram Timber Market Area,
Near Piranjai Hospital,
Kolhapur 416 012, Maharastra State
R3 (D). Smt. Neelambari
D/o Nilkhanth Yaragattikar
Age: Major, Occ: Household Work,
R/o: Plot No. 48-A, Ward, Shivaji Peth,
Chatrapati Rajaram Timber Market Area,
Near Piranjai Hospital,
Kolhapur 416 012, Maharastra State
R3 (E). Smt. Ujwala B Dindore
Age: Major, Occ: Nil,
R/o: 2441/B, Mangalwar Peth, Khasbag,
At: Kolhapur 416 012,
Maharastra State
R3 (F). Smt. Shanta B. Tamakhandikar
Age: Nil, Occ: Nil,
R/o: At Post: Narasingwadi, Tq: Shirol,
Dist: Kolhapur 416 103,
Maharastra State
R3 (G). Smt. Padmaja
W/o Padmanabha Satardekar
6
Age: Nil, Occ: Nill,
R/o: 2964-A, Wangi Bola,
Kolhapur 416 003
Maharastra State
R3 (H). Smt. Anaga W/o R. Ganapur
Age: Nil, Occ: Nill,
R/o: At, Post: Parashuram Malawadi,
Tq: Chaipalun, Dist: Ratnaqiril 415 605
Maharastra State
R3 (I). Shilpa S. Ghataka
Age: Nil, Occ: Nill,
R/o: H.No. 670/4 Hindu Colony,
Near Maruthi Mandir, Behind Shivaji Stadium,
Ratnaqiril 415 612 Maharastra State
4. Ganagadhar S/o Narayanrao Yaragattikar
Since deceased, by his LRs
R4 (A). Smt. Malati Ganagadhar Yaragattikar
Age: 77 years, Occ: Household Work,
R/o: Chimmad, Tq: Jamkhandi,
Dist: Bagalkot 587 312
R4 (B). Anant Ganagadhar Yaragattikar
Age: 47 years, Occ: Agriculture,
R/o: Chimmad, Tq: Jamkhandi,
Dist: Bagalkot 587 312
R4 (C). Mukund Ganagadhar Yaragattikar
Age: 42 years, Occ: Agriculture,
R/o: Chimmad, Tq: Jamkhandi,
Dist: Bagalkot 587 312
R4 (D). Maleshwar Ganagadhar Yaragattikar
Age: 37 years, Occ: Agriculture,
R/o: Chimmad, Tq: Jamkhandi,
Dist: Bagalkot 587 312
7
R4 (E). Rigambar Ganagadhar Yaragattikar
Age: 32 years, Occ: Agriculture,
R/o: Chimmad, Tq: Jamkhandi,
Dist: Bagalkot 587 312
R4 (F). Smt. Kumudini Balakrishna Nadapurshet
Age: 52 years, Occ: Household Work,
R/o: Sadde Pplot, Arkali Road, Raibag
Dist: Belagavi 591 317
R4 (G). Asha Mahesh Kulkarni
Age: 44 years, Occ: Household Work,
R/o: H.No. 11 Kaipalli Katti, Sameerwade,
Tq: Mudhol, Dist: Bagalkot 587 316
5. SadaShiva Narayanrao Yaragattikar
Age: 60 Years, Occ: Agriculture,
R/o: Chimmad, Tq: Jamkhandi,
Dist: Bagalkot 587 312
6. Smt. Megha W/o Jayant Puranik
Age: 56 Years, Occ: Service,
R/o: C/o502, Vardhman Vatika,
Opp. Tatvadnyan Vidyapeeth, Godabandar
Mumbai 400 607 Maharashtra State
7. Smt. Megha W/o Maruti Huligol
Age: 50 Years, Occ: Household Work,
R/o: Abbigeri Building,
Near Jumma Masjid, Gadag
Dist: Gadag 582 102
8. Smt. Vandana W/o Anand Yaragattikar
Age: 45 Years, Occ: Household Work,
R/o: "Mangal" 10th Cross, Plot No. 73,
Manjunath Colony, Shivagiri Dharwad
Tq & Dist: Dharwad 580 007
8
9. Rahul Anand Yaragattikar
Age: 20 Years, Occ: Student,
R/o: "Mangal" 10th Cross, Plot No. 73,
Manjunath Colony, Shivagiri Dharwad
Tq & Dist: Dharwad 580 007
10. Kumari Praneeta Anand Yaragattikar
Age: 14 Years, Occ: Student,
Represented by her Natural Mother or Guardian
Smt. Vandana W/o Anand Yaragattikar R.08
R/o: "Magala" 10th Cross, Plot No. 73,
Manjunath Colony, Shivagiri, Dharwad
Tq & Dist: Dharwad 580 007
...Respondents
(By Sri. Shrikant T Patil, advocate for R1(a-k);
Sri. Prashant Hosamani, advocate for R4(A to E);
R2(A), (B), (D) to (F), (H) to (I)- notice served;
R2(C) & (G) - service held sufficient;
R3(A & B)-deceased;
R3(B to H)-notice served; R3(I)-dismissed;
R4(F & G)- notice served; R10- r/by R8;
R3(B)(i) to B(iii) and R5 to R9-notice served)
This RSA is filed under section 100 of CPC against the
judgment and decree dated 27.8.2003 passed in R.A.No.
51/1995 on the file of the Prl. Civil judge (Sr.Dn.), Jamkhandi,
dismissing the appeal and upholding the judgment and decree
dated 26.6.1995 passed in O.S.No.146/1989 on the file of the
Munsiff and J.M.F.C., Banhatti by allowing this appeal with
cost.
This appeal coming on for final hearing this day, the
court delivered the following:
9
JUDGMENT
The captioned second appeal is filed by unsuccessful
plaintiff questioning the concurrent judgment and decree of
the Courts below.
2. The facts leading to the case are that the
appellant-plaintiff has filed a suit for partition and separate
possession claiming half share in 1/3rd share held by the
branch of Dajisaheb. It is useful to cull out the family tree,
which is as follows:
Ramachandra Rao (propositus)
Dajisaheb Narayan Rao Uddav Rao
(Dead) (Dead) (Dead)
Janakibai (wife) Trimbak (pltf)
(Dead)
Vishwanath Shankar Neelakant Gangadhar Sadashiv
(Deft-1) (Deft-2) (Deft-3) (Deft-4) (Deft-5)
3. The appellant plaintiff is the grandson of the
propositus, who represents the branch of Uddav Rao whereas
respondents represents branch of Narayanrao, who is the
second son of the propositus. It is not in dispute that
Dajisaheb died intestate leaving behind his wife Janakibai.
Present suit for partition is filed by the appellant-plaintiff by
contending that though in 1956 partition between Narayanrao
and the plaintiff was effected and 2/3rd share was granted to
Narayanrao and 1/3rd share was allotted to the appellant-
plaintiff, the said partition was effected between Narayanrao
and the appellant-plaintiff with an understanding that after the
death of Janakibai, 1/3rd share held by Dajisaheb branch is to
be re-partitioned between the plaintiff and Narayanrao. On
these set of pleadings the appellant-plaintiff has filed the
present suit by claiming that he is entitled for half a share in
1/3rd share held by the branch of Dajisaheb and therefore, the
present suit is filed.
4. On receipt of summons, respondents/ defendants
have contested the proceedings. The respondents-defendants
stoutly denied the entire averments made in the plaint and
specifically contended that there is severance way back in the
year 1979 and therefore, the present suit for partition is not at
all maintainable. The respondents-defendants have also
specifically contended that the appellant-plaintiff has filed the
present suit claiming share only in respect of properties
allotted to the share of Narayanrao and has not included the
properties which were allotted to him in 1956 partition and
therefore, specifically contended that suit is not at all
maintainable without including all the family properties in the
suit.
5. In support of their respective contentions, both
the parties let in ocular evidence and have produced
documentary evidence. The Trial Court having assessed the
oral and documentary evidence has answered all the issues in
negative. While answering issue No.1 and 2, the Trial Court
has recorded a finding that appellant-plaintiff has failed to
prove that in the family partition, there was an agreement
whereby 2/3rd share was allotted to Narayanrao with
corresponding duty of maintaining the widow of Dajisaheb. On
these set of reasons, the Trial Court having referred to the
unequivocal admissions made by the appellant-plaintiff in para
4 of the plaint has proceeded to hold that there was severance
in 1956 and therefore, the present suit is not maintainable.
The Trial Court was also of the view that the present suit is
filed without including the properties which were allotted to
the appellant-plaintiff and held that suit for partial partition is
not maintainable.
6. The judgment and decree passed by the Trial
Court was questioned before the First Appellate Court in
R.A.No.51/1995. The First Appellate Court on re-appreciation
of oral and documentary evidence has concurred with the
findings of the Trial Court and has proceeded to dismiss the
appeal. Against these concurrent findings of the Courts below,
the appellant-plaintiff is before this Court.
7. While admitting the top noted appeal, this Court
formulated following substantial questions of law:
1. Whether the plaintiff is entitled to 1/2 share in
1/3rd share which was segregated and allotted in
favour of Smt. Janaki Bai which the courts below
have failed to consider?
2. Whether the Trial Court had committed an error in
law in not marking the document dated
17.12.1927 although the said document was
tendered in evidence and the duty and penalty
was paid?
8. Heard the learned counsel appearing for appellant
in terms of substantial question of law raised by this Court at
the time of admitting the appeal and perused the judgment
under challenge. It would be useful for this Court to cull out
para No.4 of the plaint, which would clinch the issue in the
present case on hand.
"4. Before the partition in the year 1956, it was
agreed between the plaintiff and deceased
Narayanrao the father of the defendants, that the
defendant's deceased father Narayanrao should take
the 1/3rd share of Dajisaheb for giving the
maintenance of the Dajisaheb's wife Janakibai for
which she has filed a suit in the year 1927 for
maintenance against Narayanrao and Udhavrao in
Jamkhandi State. Munsiff court which was ultimately
confirmed by the then District Court Jamkhandi
State. As per the said agreement and decree
Narayanrao was paying the maintenance amount and
enjoying the 1/3rd share in the lands allotted to her
deceased husband till his death and after his death
the defendants were paying the maintenance amount
and are enjoying the deceased Dajisaheb's share in
these lands. Janakibai died on 15.08.1979 leaving
behind no issues either male or female except the
present plaintiff and the defendants 1 to 5 as her
heirs who are entitled equally to the share of
deceased Dajisaheb's share."
9. A bare perusal of para No.4 of the plaint, this
court would find that the appellant-plaintiff has admitted in an
unequivocal terms that there was a severance in the family in
the year 1956. But however, plaintiff has made an attempt to
substantiate his claim that he is entitled to maintain the
present suit for partition by setting up a case that there was
an agreement between Narayanrao and himself with regard to
1/3rd share of Dajisaheb branch which came to be allotted to
Narayanrao to pay the maintenance to the widow of Dajisaheb
namely Janakibai. Having taken such contention, it was
incumbent on the part of the appellant-plaintiff to establish
the said contention during the trial. Except bald allegations in
the plaint, appellant-plaintiff has failed to produce any
clinching evidence to prove that 1/3rd share of Dajisaheb was
allotted to the share of Narayanrao with an understanding it
would be partitioned among Narayanrao and plaintiff after the
death of widow of Dajisaheb namely Janakibai. Both the
Courts below have meticulously dealt with the evidence on
record and have come to the conclusion that there was
severance in 1956 by way of oral partition. If plaintiff has
voluntarily agreed to take 1/3rd share thereby giving up his
share in 1/3rd share of Dajisaheb and if partition is accepted
by plaintiff, I am of the view that the present suit for partition
is not maintainable. It is a trite law that if plaintiff admits
earlier partition, then he cannot maintain partition suit without
seeking reopening of earlier partition. The present suit is also
not maintainable as plaintiff has sought share only in the
properties allotted to the branch of Narayanrao i.e. ancestor of
defendants, who has not chosen to include those properties
which were allotted to his share. Therefore, this aspect is also
dealt with by both the Courts below. Both the Courts below
have held that there is severance in the family which is
admitted by the plaintiff in unequivocal terms at para No.4 of
the plaint. Further, both the Courts have concurrently held
that plaintiff has failed to prove the alleged agreement.
10. This Court has formulated substantial question at
Sl.No.2 referring the document dated 17.12.1997. This
document has no relevance to the present lis on hand. It is
also notice that this document was not marked and the same
is not part of the record. Even otherwise, the said document
dated 17.02.1977 as stated by learned counsel for appellant is
a letter written by Narayanrao. The alleged arrangement made
in 1927 would be of no consequence because the plaintiff
himself has in unequivocal terms admitted that there was
partition in 1956. Therefore, the letter dated 17.12.1977 is not
at all relevant to the instant case or relevant document to take
judicial note. Therefore, the substantial question raised at
Serial No.2 by this Court is not at all relevant to adjudicate the
controversy between the parties. Further, in view of
unequivocal pleadings in para No.4 of the plaint admitting the
partition in the year 1956, the substantial question at Sl.No.1
needs to be answered in negative. For the above stated
reasons, the substantial questions formulated by this Court at
the time of admitting the appeal are answered in negative and
appeal is dismissed being devoid of merits.
11. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are dismissed accordingly.
Sd/-
JUDGE
YAN
