Irappa S/O Gaddeppa Hangnalli And ... vs Ashok S/O Irappa Hangnalli And Ors
2022 Latest Caselaw 4673 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

     DATED THIS THE 14TH DAY OF MARCH 2022

                      BEFORE

     THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

            R. S. A. NO.200215 OF 2021

BETWEEN:

1.   IRAPPA
     S/O GADDEPPA HANGNALLI
     AGE: 53 YEARS, OCC.AGRICULTURE (COOLIE)
     R/O JALAWAD, TQ. SINDAGI,
     DIST.VIJAYAPURA - 586 120

2.   LAXMAN
     S/O GADDEPPA HANGNALLI
     AGE: 48 YEARS, OCC.AGRICULTURE,
     R/O JALAWAD, TQ.SINDAGI,
     DIST.VIJAYAPURA - 586 120

3.   BHIMARAYA
     S/O GADDEPPA HANGNALLI
     AGE: 45 YEARS, OCC.AGRICULTURE,
     R/O JALAWAD, TQ.SINDAGI,
     DIST.VIJAYAPURA - 586 120

4.   SHANKREPPA
     S/O GADDEPPA HANGNALLI
     AGE: 47 YEARS, OCC.AGRICULTURE,
     R/O JALAWAD, TQ.SINDAGI,
     DIST.VIJAYAPURA - 586 120
                                       ...APPELLANTS
(BY SRI. B K HIREMATH, ADV.)
                          2




AND

1.    ASHOK
      S/O IRAPPA HANGNALLI
      AGE: 27 YEARS, OCC.AGRICULTURE,
      R/O JALAWAD, TQ.SINDAGI,
      DIST.VIJAYAPURA - 586 120

2.    RATNABAI
      W/O IRAPPA HANGNALLI
      AGE: 48 YEARS, OCC.HOUSEHOLD (AGRICULTURE)
      R/O JALAWAD, TQ.SINDAGI,
      DIST.VIJAYAPURA - 586 120

3.    SHANKREWWA
      W/O GADDEPPA HANGNALLI
      AGE: 78 YEARS, OCC.HOUSEHOLD,
      R/O JALAWAD, TQ.SINDAGI,
      DIST.VIJAYAPURA - 586 120

4.    LAXMIBAI
      W/O MALLAPPA HIKKANGUTTI
      AGE: 34 YEARS, OCC.HOUSEHOLD,
      R/O JALAWAD, TQ.SINDAGI,
      DIST.VIJAYAPURA - 586 120

5.    NEELAWWA
      D/O GADDEPPA HANGNALLI
      AGE: 34 YEARS, OCC.HOUSEHOLD,
      R/O JALAWAD, TQ.SINDAGI,
      DIST.VIJAYAPURA - 586 120
                                      ...RESPONDENTS


     THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 23.03.2020 PASSED IN
R.A. NO 49/2018 ON THE FILE OF THE ADDL. SENIOR
CIVIL JUDGE AND J.M.F.C. SINDAGI AT.SINDAGI
DISMISSING THE APPEAL AND CONFIRMING THE
                            3




JUDGEMENT AND DECREE DATED 13.08.2018 PASSED IN
O.S. NO.488/2012 ON THE FILE OF THE ADDL. CIVIL
JUDGE AND JMFC AT SINDAGI.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

challenging the judgment and decree dated

23.03.2020, passed in R.A.No.49/2018 by the Addl.

Senior Civil Judge & JMFC, Sindagi, confirming the

judgment and decree dated 13.08.2018, passed in

O.S.No.488/2012 by the Addl. Civil Judge & JMFC,

Sindagi.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants No.1 to 4 are the defendants No.2 to 5;

respondents No.1 and 2 are the plaintiffs; and

respondents No.3 to 5 are the legal representatives of

deceased defendant No.1 before the Trial Court.

3.1. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiffs filed a suit for partition and separate

possession. It is the case of the plaintiffs that the suit

properties are the ancestral and joint family properties

of plaintiffs and defendants and till date there is no

division in the suit properties. The plaintiffs demanded

their legitimate share in the suit properties. The

defendants refused to give a share. Hence, the

plaintiff had filed a suit for partition and separate

possession.

3.2. The defendants filed a written statement

admitting the relationship of plaintiffs and defendants

and also admitted the nature of the suit schedule

property except Sy.No.181/1+2. It is contended that

on 04.12.2001 defendant No.1 has partitioned the

family properties and share was allotted to defendants

No.2 to 5. It is contended that after partition,

defendants No.4 and 5 have purchased

Sy.No.181/1+2 measuring to an extent of 9 acres 9

guntas and defendant No.3 has purchased VPC

No.2589 and 1433 at Jalwad Village. Hence, the suit

filed by the plaintiffs is not maintainable and prayed to

dismiss the suit.

3.3. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

     1. ªÁ¢AiÀÄgÀÄ,    ªÀÄvÀÄÛ ¥Àw
                                æ ªÁ¢AiÀĪÀgÀÄ »AzÀÄ PÀÄlÄA§zÀ
         ¸Àz¸

À ÀågÀÄ JAzÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄgÉ?

2. zÁªÁ D¹ÛU¼ À ÀÄ, ªÁ¢AiÀÄgÀ ªÀÄvÀÄÛ ¥Àw æ ªÁ¢AiÀÄgÀÄ dAn ªÀiÁ°PÀvÀéz° À èªÉ JAzÀÄ ªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀg?É

3. zÁªÁ D¹ÛU¼ À ÀÄ vÀªÀÄä PÀÄlÄA§zÀ°è FUÁUÀ¯ÃÉ ¢£ÁAPÀ 04.12.2001 gÀAzÀÄ FUÁUÀ¯É ªÁnßAiÀiÁVªÉ JAzÀÄ ¥Àw æ ªÁ¢ªÀgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀg?É

4. zÁªÁ D¹ÛU¼ À °À è 2£Éà ¥Àw æ ªÁ¢AiÀÄ 1/5 ¨sÁUÁA±ÀzÀ°è ªÁ¢gÀgÀÄ 1/3 ¨sÁUÀA±À ºÉÆ¢zÉÝªÉ JAzÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀg?É

5. ªÁ¢AiÀÄgÀÄ ±Á±ÀévÀ ¤§ðAzÀPÁeÉÕAiÀÄ ¥ÀjºÁgÀª£ À ÀÄß ¥ÀqA É iÀÄ®Ä CºÀðgÉ?

6. ªÁ¢AiÀÄgÀÄ vÁªÀÅ PÉýgÀĪÀAvÉ ¥ÀjºÁgÀ ¥ÀqA É iÀÄ®Ä CºÀðgÉ?

7. AiÀiÁªÀ rQæ CxÀªÁ DzÉñÀ?

3.4. Plaintiffs in order to prove the case,

plaintiff-1 examined as PW-1 and examined one

witnesses as PW-2 and got marked Ex.P1 to P16. On

the other hand, defendant No.2 was examined as DW-

1 and got examined 2 witnesses as DWs-2 and 3 and

got marked Exs.D1 to D13. The Trial Court, after

recording evidence and considering the material on

record, held that the plaintiffs have proved that the

suit schedule properties are the ancestral joint family

properties and further held that the plaintiffs are

entitled for a share in the suit schedule properties and

consequently decreed the suit of the plaintiffs.

3.5. The defendants No.2 to 5 aggrieved by the

judgment and decree passed by the Trial Court,

preferred an appeal in R.A.No.49/2018 before the

Additional Senior Civil Judge and J.M.F.C., Sindagi.

The First Appellate Court framed the following points

for consideration:

1. Whether the appellants have made out good grounds to allow the application filed under Order XLI Rule 27 of CPC?

2. Whether the appellants have made out good grounds to set aside the judgment and decree passed in O.S.No.488/2012 and for remand?

3. What order or decree?

3.6. During the pendency of the appeal,

defendants No.2 to 5 filed an application for

production of additional documents. The First

Appellate Court, after re-appreciating the material on

record, rejected the application for production of

additional documents and consequently dismissed the

appeal. Hence the defendants have filed the instant

appeal.

4. Heard learned counsel for the defendants.

5. Learned counsel for defendants submits that

in order to prove prior partition, the defendants has

produced Ex.D-7. The Courts below have failed to

consider Ex.D-7. On the strength of Ex.D-7, the name

of the parties are entered in the revenue records. The

Trial Court as well as the Appellate Court have

committed an error in passing the impugned judgment

and decree. Hence, on these grounds, he prays to

allow the appeal.

6. Perused the records and considered the

submissions made by learned counsel for the

Defendants.

7. There is no dispute in regard to the

relationship and also the nature of suit schedule

property except Sy.No.181/1+2. The main contention

of defendants No.2 to 5 is that the deceased

defendant No.1 during his life time in the year 2001 -

2010 had effected partition among defendants No.2 to

5 and allotted the shares as per Ex.D-7. Admittedly,

Ex.D-7 is an unregistered Watni Patra. Ex.D-7

discloses that, it is not a memorandum of partition but

it is a deed of partition and it does not disclose that

the parties recorded the past events and the

document is styled as memorandum of partition.

Ex.D-7 is a partition deed. As per section 17(1)(b) of

Registration Act, the said document requires to be

compulsory registered.

8. In order to prove the contents of Ex.D7,

the defendants have not examined any independent

witnesses. It is well established principles of law that

mere marking of Ex.D7 does not dispense its proof, it

is required to be done in accordance with law. The

said view is reiterated by the Hon'ble Apex Court in

the case of L.I.C. of India & Anr -vs- Ram Pal

Singh Bisen in C.A.No.893/2007 disposed of on 16th

March, 2010. The Trial Court, after considering the

material on record, as recorded a finding that the

defendants No.2 to 5 have failed to prove that there

was a prior partition by metes and bounds and further

the Trial Court has declined to consider Ex.D7 on the

ground that, the said document is styled as partition

deed, but not as memorandum of partition, and the

said document is not registered and it is inadmissible

in evidence. The First Appellate Court on re-

appreciation of material on record was justified in

dismissing the appeal and also the application for

production of additional documents. Both the Courts

below have concurrently recorded a finding of facts. I

do not find any grounds to interfere with the

impugned judgment and decree and also I do not find

any substantial question of law, in this appeal.

Accordingly, the appeal is dismissed.

In view of dismissal of appeal, I.A.No.2/2020

doest not survive for consideration.

SD/-

JUDGE

RD/GRD