Karnataka High Court
Sangappa S/O. Shivappa Kotin vs Irawwa @ Anita W/O. Mahadev Mirji on 15 March, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
R.F.A.NO.100107/2014 (PAR/POS)
C/W
R.F.A.NO.100092/2014 (PAR/POS)
IN R.F.A.NO.100107/2014 (PAR/POS)
BETWEEN:
FAKIRAPPA
S/O DODDARUDRAPPA SANADANI,
AGE : 54 YEARS, OCC: AGRICULTURE,
R/O HIREKOPPA, TQ: NAVALGUND,
DIST: GADAG-582101.
... APPELLANT
(BY SRI SHIVARAJ BALLOLI, ADV. FOR
SRI S.Y.SHIVALLI, ADV.)
AND:
1. IRAWWA @ ANITA
W/O MAHADEV MIRJI,
AGE : 30 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O BAIRANATTI, TQ: GOKAK-591 307.
2. KRISHNAPPA
S/O LAXMAPPA KILABANUR,
AGE : 42 YEARS, OCC: AGRICULTURE,
R/O KURUVINAKOPPA, POST: HIREKOPPA,
TQ: NARGUND, DIST: GADAG-582101.
2
3. NINGAPPA
S/O LAXMAPPA KILABANUR,
AGE : 40 YEARS, OCC: AGRICULTURE,
R/O KURUVINAKOPPA, POST : HIREKOPPA,
TQ: NARAGUND, DIST:GADAG-582101.
4. RAMESH
S/O LAXMAPPA KILABANUR,
AGE : 28 YEARS, OCC: AGRICULTURE,
R/O KURUVINAKOPPA, POST : HIREKOPPA,
TQ: NARAGUND, DIST: GADAG-582101.
5. SANGAPPA
S/O SHIVAPPA KOTIN,
AGE : 52 YEARS, OCC: AGRICULTURE,
R/O KURUVINAKOPPA, POST : HIREKOPPA,
TQ: NARAGUND, DIST:GADAG-582101.
... RESPONDENTS
(BY SRI H.M.DHARIGOND, ADV. FOR R.1
NOTICE TO RESPONDENT NOS.2, 3 & 4 : SERVED
SRI DEEPAK MAGANUR, ADV. FOR
SRI CHANDRASHEKAR P.PATIL, ADV. FOR R.5.)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT
TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.03.2014
MADE IN O.S.NO.149/2012 PASSED BY THE PRINCIPAL SENIOR
CIVIL JUDGE & CJM, GADAG INSOFAR AS SUIT SCHEDULE ITEM
NO.7 & 9 ARE CONCERNED BEING ARBITRARY ERRONEOUS AND
NOT SUSTAINABLE IN LAW IN THE INTEREST OF JUSTICE AND
EQUITY AND SUCH OTHER RELIEFS.
R.F.A.NO.100092/2014 (PAR/POS)
BETWEEN:
SANGAPPA
S/O SHIVAPPA KOTIN,
AGE : 52 YEARS, OCC: AGRICULTURE,
R/O KURUVINAKOPPA, POST : HIREKOPPA,
TQ: NARAGUND, DIST: GADAG-582101.
... APPELLANT
(BY SRI DEEPAK MAGANUR, ADV. FOR
SRI CHANDRASHEKAR P.PATIL, ADV.)
AND:
3
1. IRAWWA @ ANITA
W/O MAHADEV MIRJI,
AGE : 30 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O BAIRANATTI, TQ: GOKAK-
DIST: BELGAUM-591 307.
2. KRISHNAPPA
S/O LAXMAPPA KILABANUR,
AGE : 42 YEARS, OCC: AGRICULTURE,
R/O KURUVINAKOPPA, POST: HIREKOPPA,
TQ: NARGUND, DIST: GADAG-582101.
3. NINGAPPA
S/O LAXMAPPA KILABANUR,
AGE : 40 YEARS, OCC: AGRICULTURE,
R/O KURUVINAKOPPA, POST : HIREKOPPA,
TQ: NARAGUND, DIST: GADAG-582101.
4. RAMESH
S/O LAXMAPPA KILABANUR,
AGE : 28 YEARS, OCC: AGRICULTURE,
R/O KURUVINAKOPPA, POST : HIREKOPPA,
TQ: NARAGUND, DIST: GADAG-582101.
5. FAKIRAPPA
S/O DODDARUDRAPPA SANADANI,
AGE : 54 YEARS, OCC: AGRICULTURE,
R/O HIREKOPPA, TQ: NAVALGUND,
DIST: GADAG-582101.
... RESPONDENTS
(BY SRI H.M.DHARIGOND, ADV. FOR R.1
SRI SHIVARAJ S.BALLOLI, ADV. &
SRI RAMESH I.ZIRALI, ADV, FOR R.5
NOTICE TO RESPONDENT NOS.2, 3 & 4 : SERVED
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT
TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.03.2014
PASSED IN O.S.NO.149/2012 BY THE PRINCIPAL SENIOR CIVIL
JUDGE & CJM, GADAG AND DISMISS THE SUIT OF THE PLAINTIFF,
IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY,
RAJENDRA BADAMIKAR, J. DELIVERED THE FOLLOWING:
4
JUDGMENT
These two appeals are filed by the purchasers
against the judgment and decree passed in
O.S.No.149/2012 dated 29.03.2014 on the file of
Principal Senior Civil Judge & CJM, Gadag, whereby the
learned Senior Civil Judge has decreed the suit filed by
the plaintiff by awarding 1/4th share to plaintiff in the suit
schedule properties.
2. The present appellants are defendant Nos.4
and 5 in the suit who are purchasers.
3. For the sake of convenience, parties herein
are referred with the original ranks occupied by them
before the Trial Court.
4. The brief factual matrix leading to the case is
as under:
The plaintiff has filed a suit for partition and
separate possession of her 1/4th share in the suit
schedule properties. According to plaintiff, the suit
schedule properties were owned by her father Laxman
who died in the year 2009 and he survived by the
present plaintiff and defendant Nos.1 to 3. The mother of
plaintiff and defendant Nos.1 to 3, Smt.Gangawwa
predeceased the propositus Laxman. The plaintiff claims
that, she has sought for partition and separate
possession of her 1/4th share and as the same was
denied, she has filed a suit for partition and separate
possession. The plaintiff has also alleged that defendant
Nos.4 & 5 have purchased the portion of the schedule
properties from defendant Nos.2 & 3, who are her
brothers. Hence the suit came to be filed.
5. Defendant Nos.1 to 3 have appeared and filed
their written statement disputing the plaint allegations
contending that defendant Nos.1 to 3 got partitioned
among themselves and revenue entries were mutated in
their names.
6. Defendant Nos.4 & 5 filed their written
statement contending that they are the bonafide
purchasers and the suit is bad for non-joinder of
necessary parties as one of the vendor is not impleaded
as necessary party.
7. On the basis of the above said pleadings, the
Trial Court has framed the following issues.
"1. Whether the plaintiff proves that the suit
schedule properties are herself and defendants
and are available for partition?
2. Whether the plaintiff further proves that she is
entitled to get 1/4th share in the suit schedule
properties?
3. Whether the defendants prove that the alleged
sale transaction is for the benefit of the family
and legal necessity?
4. Whether the defendants further prove that the
suit is bad for non joinder of necessary parties?
5. Whether the defendants further prove that the
prior partition as pleaded in the written
statement?
6. Whether the plaintiff is entitled to the relief as
sought for?
7. What Order or Decree?"
8. The plaintiff was got examined herself as PW.1
and one witness examined on her behalf as PW.2.
Further the plaintiff has placed reliance on 36 documents
as Exs.P.1 to P.36. Defendant Nos.3, 4 and 5 were
examined as DWs.1, 2 & 5 respectively and two more
witnesses were examined on behalf of defendants as
DWs.3 & 4. Defendants have also placed reliance on 32
documents marked at Exs.D.1 to D.32.
9. After hearing the arguments and pursing the
oral and documentary evidence adduced by the parties,
the learned Senior Civil Judge has answered issue Nos.1,
2 and 6 in the affirmative and issue Nos.3 to 5 were
answered in the negative and decreed the suit by
awarding 1/4th share to the plaintiff and 1/4th share each
to defendant Nos.1 to 3 in the suit schedule properties.
10. Being aggrieved by the judgment and decree,
defendant Nos.5 has filed RFA.No.100107/2014 and
defendant No.4 has filed appeal in RFA.No.100092/2014.
11. Since both these appeals are arising out of the
same judgment, they are heard together and disposed of
by common judgment.
12. We have heard learned counsels appearing for
the appellants and learned counsels appearing for
respondents. Perused the records of the Trial Court.
13. Learned counsels appearing for the appellants
would contend that the judgment and decree of the Trial
Court is erroneous and perverse as the appellants are the
bonafide purchasers of the suit schedule properties and
their interest is not protected. It is further contended by
the appellants that the other purchasers are not
impleaed as necessary parties and hence since their
rights have been affected, they sought for setting aside
the impugned judgment and decree passed by the Trial
Court.
14. Per contra, learned counsel appearing for
plaintiff-respondent No.1 would support the judgment
and decree of the Trial Court contending that the Trial
Court has considered all the issues raised by the
appellants in these appeals and has answered properly.
Further he submits that the interest of the purchasers is
also protected in the final order itself by giving them an
opportunity to workout their remedy in the final decree
proceedings by way of equity. Hence, he would seek for
dismissal of the appeals.
15. Having heard the argument and perusing the
records it is evident that, the plaintiff is the sister of
defendant Nos.1 to 3 which is an undisputed fact.
Defendant Nos.1 to 3 assert the partition amongst
themselves, but the said ground even if it is accepted,
cannot be considered since the plaintiff is a coparcener
and in her absence the brothers have got partitioned the
properties and when she is not a party to the said
partition, it is not binding on her.
16. Admittedly, the properties were owned by
father and the plaintiff being the sister of defendant
Nos.1 to 3 is having equal share in the suit schedule
properties. Further the operative partition of the
judgment of the Trial Court clearly discloses that, the
Trial Court has also taken care of interest of the present
appellants, who are the purchasers, which is required to
be worked out during the final decree proceedings. The
appellants cannot challenge any other grounds and they
are required to workout their remedy regarding the
properties purchased by them only in the final decree
proceedings by way of equity and that cannot be
considered while drawing a preliminary decree.
17. Learned Senior Civil Judge has appreciated
the oral and documentary evidence in detail and he has
arrived at a just decision. The judgment and decree of
the Trial Court does not suffer from any perversity,
illegality or arbitrariness, so as to call for any
interference by this Court.
18. Hence, both the appeals are devoid of any
merits and deserve to be dismissed. Accordingly, we
proceed to pass the following:
: ORDER :
RFA.No.100107/2014 & RFA.No.100092/
2014 are dismissed by confirming the
judgment and decree dated 29.03.2014
passed in O.S.No.149/2012 by the Principal
Senior Civil Judge & CJM, Gadag.
No order as to costs.
In view of disposal of the appeal, pending
applications if any, also stand disposed off.
Sd/-
JUDGE
Sd/-
JUDGE
EM
