Karnataka High Court
Savakka W/O Ramesh Malapur vs Nagavva W/O Somaraya Waddar on 7 June, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 100830 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 07TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100830 OF 2022 (PAR/POS-)
BETWEEN:
1. SAVAKKA W/O RAMESH MALAPUR
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: HOTANAHALLI, TQ: SHIGGAON
DIST:HAVERI-581203
...APPELLANT
(BY SRI. PATIL M H AND SRI.HARSHWARDHAN
M PATIL, ADVOCATES)
AND:
1. NAGAVVA W/O SOMARAYA WADDAR
AGE: 55 YEARS
OCC: AGRICULTURE,
R/O:HOTANAHALLI
TQ: SHIGGAON
DIST:HAVERI-581203
2. SIDDAPPA S/O GURAPPA WADDAR
AGE: 80 YEARS
OCC:AGRICULTURE,
R/O:HOTANAHALLI
TQ: SHIGGAON
DIST:HAVERI-581203
3. SHANKRAVVA W/O GADIGEPPA WADDAR
AGE: 43 YEARS
OCC:AGRICULTURE,
R/O:HOTANAHALLI
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RSA No. 100830 of 2022
TQ: SHIGGAON
DIST:HAVERI-581203
4. MALLAVVA W/O YALLAPPA WADDAR
AGE: 37 YEARS
OCC:AGRICULTURE,
R/O:RAMPUR
TQ: MUNDAGODA
DIST:KARWAR-581345
...RESPONDENTS
THIS RSA FILED U/SEC.100 OF CPC,1908, AGAINST THE
JUDGMENT AND DECREE DATED 04.06.2020 PASSED IN
R.A.NO.173/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, SHIGGAON,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 05.07.2016, PASSED IN O.S. NO.135/2014 ON THE
FILE OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
SHIGGAON, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY THE
COURT MADE THE FOLLOWING:
JUDGMENT
This Appeal is filed by the defendant No.4,
challenging the judgment and decree dated 4/6/2020
passed in R.A.No.173/2017 on the file of the Senior Civil
Judge and JMFC, Shiggaon, confirming the judgment and
RSA No. 100830 of 2022
decree dated 5/7/2016 passed in O.S.No.135/2014 on the
file of the Civil Judge and JMFC, Shiggaon, decreeing the
suit of the plaintiff.
2. For the sake of convenience, the parties to this
appeal are referred to with their rank before the trial Court.
3. It is the case of the plaintiff that suit schedule
properties are the joint family properties of defendants
along with her and defendant No.1 is her father. It is the
averment made in the plaint that, as she is one of the
coparcener in the family of defendant No.1 along with
other defendants, she is entitled for partition and separate
possession of the suit schedule properties and the same
was denied on the demand made by her and as such the
plaintiff has filed O.S.No.135/2014 on the file of the Civil
Judge and JMFC, Shiggaon, seeking relief of partition and
separate possession.
RSA No. 100830 of 2022
4. After service of summons, defendant Nos.1, 3 and 4
entered appearance, however, defendant No.2 appeared in
person. Defendants have not filed written statement before
the trial Court. In order to substantiate their case, plaintiff
was examined as PW.1 and got marked four documents and
the same were marked as Exs.P.1 to 4. Defendants have not
adduced any evidence before the trial Court. The trial Court,
after considering the material on record, by order judgment
and decree dated 5/7/2016, decreed the suit, holding that
the plaintiff is entitled for 1/5th share in the suit schedule
properties. Feeling aggrieved by the same, defendant No.4
preferred RA.No.173/2017 before the First Appellate Court
and the said appeal was not resisted by the respondents. The
First Appellate Court, after considering the material on
record, dismissed the appeal consequently confirming the
judgment and decree in O.S.No.135/2014 on the file of the
Civil Judge and JMFC, Shiggaon. Being aggrieved by the
judgment and decree passed by the Courts below defendant
No.2 has preferred this appeal.
RSA No. 100830 of 2022
5. Sri.M.H.Patil, learned counsel appearing for the
appellant argued that the defendants were able to contest
the matter on merit and therefore, impugned judgment
passed by the Courts below requires interference in this
appeal. He further contended that, sufficient opportunity
has not been provided to the appellant hearing and
accordingly sought for interference in this second appeal.
6. In the light of the argument advanced by the
learned counsel appearing for the appellant, relationship
between the parties reads as under:
Shiddappa Gurappa Waddar (70 years) (Deft.No.1)
Timmappa (deceased)
Nagavva (D.No.2) Shenkravva (D.No.3) Mallavva (D.No.4) Savakka (D.No.5)
7. Perusal of the genealogical tree would indicate that
the plaintiff and the defendant Nos. 2 to 4 are daughters of
defendant No.1. Perusal of the finding recorded by the trial
RSA No. 100830 of 2022
court would indicate that the plaintiff has produced RTC
extract with regard to the landed properties, stands in the
name of the defendant No.1, which are ancestral properties
of the plaintiff and the defendants. As the suit schedule
properties stands in the name of the mother of the
plaintiffs and the defendant Nos.2 to 4. After the demise
of her mother, the property was devolved among the
children as per Section 15 of the Hindu Marriage Act.
In that view of the matter, as the defendants were served
and appeared before the Court, however, not contested the
matter on merits cannot be basis to interfere with the
reasoned judgment passed by the trial Court. In this
regard, I have also noticed from the finding
recorded by the First Appellate Court wherein the suit
schedule properties stand in the name of the mother of
the plaintiff and same would devolve among the
children and therefore, I do not find any merit in the
appeal. Resultantly, the appellant herein has not made
out the case for interference in this appeal by
RSA No. 100830 of 2022
exercising jurisdiction under Section 100 of Code of Civil
Procedure as there is no requirement of framing substantial
question of law in the appeal. Accordingly, the appeal is
dismissed at the stage of admission itself.
8. In view of disposal of the Regular Second Appeal
pending application, if any does not survive for
consideration and the same is disposed of.
Sd/-
JUDGE
VB
