Karnataka High Court
Sri. Babagouda Ramagouda Patil vs Sri. Bhimappa Annappa Kullali on 22 March, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
REGULAR FIRST APPEAL No.100041/2018
BETWEEN:
SRI. BABAGOUDA RAMAGOUDA PATIL
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: BALLIGERI, TQ: ATHANI,
DIST: BELAGAVI-591212.
.. APPELLANT
(BY SRI. S.A. SONDUR AND SRI. K.L. PATIL, ADVS.)
AND:
1. SRI. BHIMAPPA ANNAPPA KULLALI
SINCE DEAD. BY L.Rs.
(A) SMT. DRAKSHAYANI,
W/O BHEEMAPPA KULLOLLI,
AGE 38 YRS., OCC: HOUSEWIFE,
R/O BELLIGERI, TQ. ATHANI,
DIST. BELAGVI 591 212.
(B) AKHILA D/O BHEEMAPPA KULLOLLI,
AGE 18 YRS., OCC: HOUSEWIFE,
R/O BELLIGERI, TQ. ATHANI,
DIST. BELAGVI 591 212.
(C) AKSHATA D/O BHEEMAPPA KULLOLLI,
AGE 17 YRS., OCC: HOUSEWIFE,
R/O BELLIGERI, TQ. ATHANI,
2
DIST. BELAGVI 591 212.
(D) BASAVARAJ, S/0 BHEEMAPPA KULLOLLI,
AGE 13 YRS., OCC: HOUSEWIFE,
R/O BELLIGERI, TQ. ATHANI,
DIST. BELAGVI 591 212.
(E) ABHISHEK, S/O BHEEMAPPA KULLOLLI,
AGE 11 YRS., OCC: HOUSEWIFE,
R/O BELLIGERI, TQ. ATHANI,
DIST. BELAGVI 591 212.
(F) KASTURI, W/O ANNAPPA KULLOLLI,
AGE 69 YRS., OCC: HOSUE WIFE,
R/O BELLIGERI, TQ. ATHANI,
DIST. BELAGVI 591 212.
2. SMT.AUBAI W/O SURESH PATIL
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: BALLIGERI, TQ: ATHANI,
DIST: BELAGAVI-591212.
3. SMT.BHARATI W/O RAOSAB HUCHAGOUDAR
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O: BALLIGERI, TQ: ATHANI,
DIST: BELAGAVI-591212.
4. SRI.SHIVAPPA PARAPPA HUCHAGOUDAR
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: BALLIGERI, TQ: ATHANI,
DIST: BELAGAVI-591212.
5. SRI.CHANDRASHEKHAR BALAPPA KAMBLE
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: BALLIGERI, TQ: ATHANI,
DIST: BELAGAVI-591212.
6. SRI.LAXMAN BALAPPA KAMBLE
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: BALLIGERI, TQ: ATHANI,
DIST: BELAGAVI-591212.
7. SRI.GOUTHAM BALAPPA KAMBLE
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: BALLIGERI, TQ: ATHANI,
3
DIST: BELAGAVI-591212.
.. RESPONDENTS
(BY SRI. JAGADISH PATIL, ADV. FOR R2 TO R5.
SRI. SHIVARAJ S. BALLOLI AND SRI. RAMESH I. ZIRALI, ADVS.
FOR R3.
SRI. M.C. HUKKERI, ADV. FOR R4.
SRI. BAHUBALI KANABARGI, ADVB. FOR R1(A) TO (F), ADV.
R6 AND R7 SERVED.)
THIS RFA FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DTD:16.11.2017 PASSED IN
O.S.NO.65/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, ATHANI, DISMISSING THE SUIT FILED UNDER ORDER 7
RULE 11 OF CPC.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
H.T.NARENDRA PRASAD, J.,DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the plaintiff is filed under Section 96 of
the Code of Civil Procedure, 1908 (hereinafter for brevity
referred to as 'CPC') challenging the order dated
16.11.2017 passed by the learned Principal Senior Civil
Judge, Athani, in O.S.No.65/2015 whereby the suit filed by
the plaintiff has been dismissed as not maintainable on the
application being filed by defendant No.4 under Order VII
Rule 11 of CPC.
2. The plaintiff/appellant has filed a suit for
declaration and consequential relief of permanent injunction
against the defendants on the ground that Smt. Neelawwa
wife of Basagouda Patil has executed a will in favour of the
plaintiff on 08.06.2012.
3. After service of summons, the defendants have
appeared through their counsel. Defendant No.4 has filed
I.A.I under Order VII Rule 11 of CPC and taken a specific
contention that in respect of suit schedule property,
Neelawwa has executed a Will on 15.4.2018 in his favour.
On the basis of the Will, he has filed a suit in O.S.
No.135/2012 for declaration. The same came to be
dismissed. Against that, he has filed RFA No.4236/2013.
The same is pending before the High Court.
4. The trial Court after hearing the parties,
dismissed the suit on the ground that RFA No.4236/2013
filed by defendant No.4 is pending before the High Court,
wherein he has filed a suit for declaration on the basis of
the Will executed by Neelawwa in respect of the suit
schedule property.
5. During the pendency of this appeal, RFA
No.4236/2013 pending before this Court has been disposed
off by order dated 20.10.2020 by remanding the matter
back to the learned Principal Senior Civil Judge, Athani, for
reconsideration of O.S. No.135/2012.
6. Both the counsel appearing for the parties have
submitted that this appeal may be allowed and remanded
back to the learned Principal Senior Civil Judge, Athani,
with a direction to club both the matters and to dispose of
the same in accordance with law.
7. The impugned order dated 16.11.2017 is passed
only on the ground that RFA No.4236/2013 is pending
before this Court. Now the said RFA is disposed off by this
Court by remitting the matter to the trial Court for
reconsideration. Under this circumstance, we are of the
opinion that this appeal has to be allowed and remanded
back to the trial Court with a direction to club both the
matters and pass orders in accordance with law.
In view of the above, the appeal is allowed. The
Order dated 16.11.2017 passed by the learned Principal
Senior Civil Judge, Athani, in O.S.No.65/2015 is set aside.
The matter is remitted back to learned Principal Senior Civil
Judge, Athani, with a direction to club both O.S.No.65/2015
and O.S.No.135/2012 and dispose off both the suits in
accordance with law after giving an opportunity to both the
parties.
The Registry is directed to transmit the trial Court
records to the concerned Court forthwith.
In view of disposal of the appeal, I.A.2/2021 does not
survive for consideration.
Sd/-
JUDGE
Sd/-
JUDGE
kmv
