Karnataka High Court
Shivalingappa S/O Malakajappa ... vs Smt.Laxmibai W/O Basappa Bilagi on 13 June, 2022
Bench: K.S.Mudagal, M.G.S. Kamal
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RFA No. 100065 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR FIRST APPEAL NO. 100065 OF 2021 (PAR/POS)
BETWEEN:
1. SHIVALINGAPPA S/O MALAKAJAPPA BILAGI
AGE. 59 YEARS, OCC. AGRICULTURE,
R/O. HUNNUR, TQ. JAMKHANDI,
DIST. BAGALKOT-587301
...APPELLANT
(BY SRI. GIRISH A. YADAWAD, ADVOCATE)
AND:
1. SMT.LAXMIBAI W/O BASAPPA BILAGI
AGE. 61 YEARS, OCC. HOUSEHOLD WORK
R/O. HUNNUR, TQ. JAMKHANDI,
DIST. BAGALKOT-587301
2. MAHANANDA W/O. KADAPPA BILAGI
AGE. 61 YEARS, OCC. HOUSEHOLD WORK
R/O. HUNNUR, TQ. JAMKHANDI,
DIST. BAGALKOT-587301
...RESPONDENTS
(BY SRI. PRASHANT S. KADADEVAR, ADVOCATE FOR R1,
R2 SERVED)
THIS RFA IS FILED UNDER SECTION 96(1) R/W ORDER XLI
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
19.04.2021 PASSED IN O.S.NO.121/2020 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, JAMKHANDI,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS RFA COMING ON FOR ADMISSION, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
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RFA No. 100065 of 2021
JUDGMENT
Appellant/defendant No.1, plaintiff/respondent No.1 and
the respective counsel are present. Parties are duly identified
by their counsel.
2. The appellant/defendant No.1 is agreeable for
giving 1/3rd share in the property bearing Sy. No.8/3B
measuring 10 acres 31 guntas of Kadapatti Village, Jamkhandi
Taluk, which is shown at Sl. No.1 in para 4 of the plaint.
3. According to the appellant's counsel, the written
statement was filed in the office of the trial Court on
17.04.2021, but the trial Court proceeded to pass the judgment
on 19.04.2021 without taking the said written statement on
record. The counsel for the appellant/defendant No.1 submits
the certified copy of the written statement which is presented in
the registry of the trial Court on 17.04.2021 and entered in
Reg.VII/VIII No.315/2021.
4. In the said written statement, the
appellant/defendant No.1 contended that there are other joint
family properties which are not included in the suit, therefore,
the suit was barred for non-inclusion of entire joint family
RFA No. 100065 of 2021
properties. He also made a counter claim seeking 1/3rd share in
the properties allegedly left out by the plaintiff in the suit
showing them as counter claim statement properties.
5. Both parties and learned counsel are agreeable for
remanding the matter for consideration of all the contentions
raised by the appellant/defendant No.1 in his written statement
confirming the preliminary decree with regard to land bearing
Sy. No.8/3B measuring 10 acres 31 guntas of Kadapatti Village,
Jamkhandi Taluk.
6. Having regard to the submissions of the counsel
and the fact that the written statement was not taken on
record, it is a fit case to confirm the preliminary decree with
regard to the land bearing Sy. No.8/3B and remand the matter
for consideration of all other contentions raised by the parties.
7. Hence, the following:
ORDER
The appeal is partly allowed.
RFA No. 100065 of 2021
The preliminary decree granting 1/3rd share to
respondent No.1/plaintiff in respect of Sy. No.8/3B measuring
10 acres 31 guntas of Kadapatti Village is hereby confirmed.
The rest of the decree is hereby set aside.
The matter is remanded to the trial Court to take the
written statement of the appellant/defendant No.1 on record
and reconsider the matter with regard to all other contentions
of the parties, by giving a reasonable opportunity to them.
The final decree proceedings filed by the respondent
No.1/plaintiff shall continue only in respect of land bearing Sy.
No.8/3B measuring 10 acres 31 guntas of Kadapatti village,
Jamkhandi taluk.
The parties shall bear their own costs.
Sd/-
JUDGE
Sd/-
JUDGE
Rsh
