Ashok Siddappa Karchi vs Channabasu Siddappa Karchi
2022 Latest Caselaw 9457 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

         DATED THIS THE 23RD DAY OF JUNE, 2022

                        BEFORE

         THE HON'BLE MR. JUSTICE E.S. INDIRESH

     REGULAR SECOND APPEAL NO. 100327 OF 2014

BETWEEN:

ASHOK SIDDAPPA KARCHI
AGE: 56 YEARS OCC: AGRICULTURE
R/O. AINAPUR, TQ: ATHANI
DIST: BELGAUM
                                           ...APPELLANT

(BY SMT BHAGYASHREE N. BIKKANNAVAR, ADVOCATE)

AND:

1.     CHANNABASU SIDDAPPA KARCHI
       AGE: 60 YEARS,
       OCC: AGRICULTURE
       R/O. AINAPUR, TQ: ATHANI
       DIST: BELGAUM

2.     MALLAPPA BHARAMAPPA KARCHI
       AGE: 35 YEARS,
       OCC: AGRICULTURE
       R/O. AINAPUR, TQ: ATHANI
       DIST: BELGAUM

3.     SIDDAPPA BHARAMAPPA KARCHI
       AGE: 32 YEARS,
       OCC: AGRICULTURE
                          2




     R/O. AINAPUR, TQ: ATHANI
     DIST: BELGAUM

4.   SAVUBAI D/O. BHARAMAPPA KARCHI
     AGE: 56 YEARS,
     OCC: HOUSEHOLD WORK
     R/O. AINAPUR, TQ: ATHANI
     DIST: BELGAUM

5.   MAHANANDA W/O. RAOSAHEB KARCHI
     AGE: 51 YEARS,
     OCC: HOUSEHOLD WORK
     R/O. AINAPUR, TQ: ATHANI
     DIST: BELGAUM

6.   KUMARI SAVITHA D/O. RAOSAHEB KARCHI
     AGE: 28 YEARS,
     OCC: HOUSEHOLD WORK
     R/O. AINAPUR, TQ: ATHANI
     DIST: BELGAUM

7.   KUMARI GEETHA D/O. RAOSAHEB KARCHI
     AGE: 26 YEARS,
     OCC: HOUSEHOLD WORK
     R/O. AINAPUR, TQ: ATHANI
     DIST: BELGAUM

8.   KUMAR RAJU RAOSHEB KARCHI
     OCC: AGRICULTURE R/O AINAPUR 591303 TALUKA
     ATHANI, DIST: BELAGAVI

9.   LAXMIBAI SIDDAPPA HANCHINAL
     AGE: 43 YEARS,
     OCC: HOUSEHOLD WORK
     R/O. NAGANOOR P K.
     TQ: ATHANI DIST: BELGAUM

                                      ...RESPONDENTS
                                   3




       THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 42 RULE 1 READ WITH SECTION 100 OF Code of
Civil Procedure, 1908 AGAINST THE JUDGMENT AND DECREE
DATED 04.02.2014 PASSED IN RA NO.50/2008 ON THE FILE
OF THE ADDITIONAL SENIOR CIVIL JUDGE & JMFC, ATHANI,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT
AND DECREE DATED 03.10.2008 AND THE DECREE PASSED
IN OS NO. 220/2003 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (JR.DN.) & JMFC, ATHANI, DECREEING THE SUIT
FILED FOR DECLARATION & INJUNCTION.

     THIS REGULAR SECOND APPEAL COMING ON FOR
FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

This appeal is filed by defendant No.5, challenging the

judgment and decree dated 04.02.2014 passed in RA.No.50

of 2008 on the file of the Additional Senior Civil Judge and

JMFC, Athani, dismissing the appeal and confirming the

judgment and decree dated 03.10.2008/15.10.2008 passed

in OS.No.220 of 2003 on the file of the Principal Civil Judge,

(Jr. Dn.) JMFC, Athani, decreeing the suit of the plaintiff.

2. For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the trial Court.

3. The relevant facts for adjudication of this appeal

are that, the original plaintiff and defendant No.1 had filed

Original Suit No.335 of 1974 before the trial Court, seeking

partition and the said suit came to be decreed as per the

family arrangement and therefore, the plaintiff has become

absolute owner in possession of the suit schedule properties.

It is the contention of the plaintiff that though the defendants

have no right or title in respect of the suit schedule property,

defendants are interfering with the suit schedule property

and as such, the plaintiff has filed a suit for declaration of

title. Defendants Nos. 1 and 9 died during the pendency of

the suit and the suit came to be dismissed as against

defendant Nos.1 and 9 as the plaintiff has not brought the

legal representatives of the deceased defendants on record.

4. After service of summons, the remaining

defendants entered appearance but did not choose to file the

written statement denying the averments made in the plaint.

5. On the basis of the plaint averments, the trial

Court has formulated points for consideration. In order to

establish their case, plaintiff has examined himself as PW1

and got marked 2 documents as Exs.P1 to P2. On the other

hand, no evidence was produced on behalf of the defendants.

6. The trial Court, after considering the material on

record, by its judgment and decree dated 03.10.2008

decreed the suit of the plaintiff and being aggrieved by the

same, defendant No.5 has preferred Regular Appeal in RA

No.50 of 2008 on the file of First Appellate Court. The said

appeal was resisted by the plaintiff and remaining

defendants. The First Appellate Court, after re-appreciating

the facts on record, by its judgment and decree dated

04.02.2014 dismissed the appeal and consequently,

confirmed the judgment and decree passed by the trial Court

in OS No.220 of 2003, dated 03.10.2008/15.10.2008.

7. Being aggrieved by the dismissal of the Regular

Appeal by the First Appellate Court, defendant No.5 has

preferred this Regular Second Appeal under Section 100 of

CPC.

8. I have heard Smt Bhagyashree N.Bikkannavar,

learned counsel for the appellant, who submitted that finding

recorded by the both the courts below is incorrect. She

further submitted that the legal representatives of the

deceased were not brought on record and accordingly, suit

ought to have been dismissed at the threshold. She further

contended that though defendants have not contested the

matter on merits, however, it is the duty of the trial Court to

adjudicate the matter in accordance with law. Accordingly,

she sought for interference of this Court.

9. Having heard the learned counsel appearing for

the appellant, I have carefully examined the finding recorded

by the both the courts below. Perusal of the finding would

indicate that father of the plaintiff-Siddappa Mallappa, died

leaving behind his wife Nelawwa and his four sons and

daughters. Plaintiff is the second son and defendant No.1 is

the elder son of Siddappa Mallappa. Defendant Nos.2 to 4 are

the sons of defendant No.1 and defendant No.5. Defendant

Nos.6 to 9 are the wife and daughters of fourth son of

Siddappa Mallappa. Defendant No.10 is the only sister of the

plaintiff. Defendant No.1 married to Savubai, and got three

sons and as such, said Savubai filed OS No.286 of 1993

before the Civil Court which came to be decreed and in the

said suit, the plaintiff in the present suit was arraigned as

defendant No.1. It is also forthcoming that there was a

family arrangement between the plaintiff and the defendant

No.1 during 1972 and same was acted upon by the parties.

As the plaintiff and defendants could not acted as per the

family arrangement, defendant No.1 had filed OS No.335 of

1974 before the Munciff Court, Athani for declaration and

injunction, which came to be decreed on 24.08.1974. As per

family arrangements and decree was passed in OS No.335 of

1974, wherein, certain schedule properties were allotted to

the share of the plaintiff and therefore, the mutation entries

had been changed into the name of plaintiff. Perusal of the

finding recorded by the trial Court would indicate that the

suit came to be dismissed against defendant Nos.1 and 9 for

having not taken steps, however, it is not in dispute that the

appellant and respondents herein are legal representatives of

the deceased defendants. Undisputably, the plaintiff got suit

schedule properties in terms of the decree passed in OS

No.335 of 1974, (Ex.P2) and the trial Court has provided

more than one year time to the defendants for filing of the

written statement, despite the same, no written statement

has been filed by the defendants and accordingly, the finding

recorded by the both the courts below is just and proper.

Taking into consideration the fact that, the plaintiff got the

suit schedule properties through the decree passed in OS

No.335 of 1974, I am of the view that, contention raised by

the learned counsel for the appellant cannot be accepted and

though the appeal is filed in the year 2014, and further the

appellant herein took 8 years time to get admission of the

suit before this Court and it also forthcoming from the order

sheet that periodically, time was granted to the appellant to

argue the matter, I am of the opinion that, since the both the

Courts below have justly decreed the suit, there is no

necessity to unsettle the settled law on the factual aspects of

the case. Though the said observation may not be necessary,

however, taking into consideration the fact that the suit is

filed for seeking declaratory relief and the plaintiff has

produced title deeds pursuant to the judgment and decree

passed in OS No.335 of 1974, I am of the view that, the

submission made by the learned counsel appearing for the

appellant herein cannot be accepted and the appeal is

dismissed at the stage of admission itself as the appellant

has not made out case for formulation of substantial question

of law as required under Section 100 of Code of Civil

Procedure. In the result, the appeal is rejected.

Sd/-

JUDGE

SB