Karnataka High Court
Shri.Krishnappa S/O Hanamanth ... vs Shri.Hanamanth S/O Appanna Gurav on 29 March, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH 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.100030/2016 (PAR/POS)
BETWEEN:
1. SHRI KRISHNAPPA
S/O HANAMANTH GURAV,
AGE : 44 YEARS,
OCC: AGRICULTURE,
R/O NANDESHWAR-591240,
TALUKA : ATHANI,
DIST: BELAGAVI.
2. SHRI RAMESH
S/O HANAMANTH GURAV,
AGE : 42 YEARS,
OCC: AGRICULTURE,
R/O NANDESHWAR-591240.
TALUKA: ATHANI,
DIST: BELAGAVI.
3. SHRI UMESH
S/O HANAMANTH GURAV,
AGE : 40 YEARS,
OCC: AGRICULTURE,
R/O NANDESHWAR-591240.
TALUKA: ATHANI,
DIST: BELAGAVI.
... APPELLANTS
(BY SRI SMT.P.G.NAIK, ADV.)
AND:
2
SHRI HANAMANTH
S/O APPANNA GURAV
SINCE DECEASED BY HIS LRS.
1. SMT.NEELAVVA
W/O SHANKAR GURAV,
AGE : 53 YEARS,
OCC: HOUSEHOLD,
R/O HALINGALI-587 301,
TALUKA : JAMAKHANDI,
DIST: BAGALKOT.
2. SMT.KALLAVVA
W/O LAXMAN GURAV,
AGE : 51 YEARS,
OCC: AGRICULTURE,
R/O GOTHE-587 301,
TALUKA : JAMAKHANDI,
DIST: BAGALKOT.
3. SMT.BHIMAVVA
W/O NAGAPPA GURAV,
AGE : 49 YEARS,
OCC: AGRICULTURE,
R/O GOTHE-587 301,
TALUKA : JAMAKHANDI,
DIST: BAGALKOT.
4. SMT.BHAGAVVA
W/O GAJAPPA PUJARI,
AGE : 47 YEARS,
OCC: AGRICULTURE,
R/O RAMATEERTH-591240,
TALUKA : ATHANI,
DIST: BELAGAVI.
5. SMT.YAMANAVVA
W/O SADASHIV GURAV,
AGE : 56 YEARS,
OCC: AGRICULTURE,
R/O NANDESHWAR-591 240,
TALUKA : ATHANI,
DIST: BELAGAVI.
6. SHRI BHIMAPPA
S/O HANAMANTH GURAV
3
SINCE DECEASED REPRESENTED BY HIS LRS.
6(A) SMT.KASHIBAI @ SAVITA
W/O RAMESH GURAV,
AGE : 38 YEARS,
OCC: HOUSEHOLD WORK,
R/O MUCHCHANDI-416404,
TAL: JATT; DIST: SANGLI,
(MAHARASHTRA STATE)
6(B) SHRI PRASHANT,
S/O BHIMAPPA GURAV,
AGE : 35 YEARS,
OCC: AGRICULTURE,
R/O NANDESHWAR-591 240,
TAL: ATHANI, DIST: BELAGAVI.
6(C) SMT.SANYAVVA,
W/O MANJU GURAV,
AGE : 30 YEARS, OCC:
HOUSEHOLD WORK,
R/O SHIRAGUPPI-587 119.
TAL: JAMAKHANDI,
DIST: BAGALKOT.
6(D) SHRI APPANNA,
S/O BHIMAPPA GURAV,
AGE : 25 YEARS,
OCC: AGRICULTURE,
R/O NANDESHWAR-591 240,
TAL: ATANI, DIST: BELAGAVI.
6(E) SMT.MALA
W/O BHIMAPPA GURAV,
AGE : 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O NANDESHWAR-591 240,
TAL: ATANI, DIST: BELAGAVI.
7. SHRI VASAPPA
S/O HANAMANTH GURAV,
AGE : 58 YEARS,
OCC: AGRICULTURE,
R/O NANDESHWAR-591 240,
TALUKA : ATHANI,
DIST: BELAGAVI.
4
8. SHRI PANCHAXARI
S/O VASAPPA GURAV,
AGE : 25 YEARS,
OCC: AGRICULTURE,
R/O NANDESHWAR-591 240,
TALUKA : ATHANI,
DIST: BELAGAVI.
9. SHRI APPANNA
S/O VASAPPA GURAV,
AGE : 29 YEARS,
OCC: AGRICULTURE,
R/O NANDESHWAR-591 240,
TALUKA : ATHANI,
DIST: BELAGAVI.
10. SHRI DUNDESHWAR
S/O SIDALINGESHWAR KAMARIMATH,
AGE : 58 YEARS,
OCC: AGRICULTURE,
R/O NANDESHWAR-591 240,
TALUKA : ATHANI,
DIST: BELAGAVI.
11. SHRI BHIMAPPA
S/O LAXMAPPA SHIRAGUR,
AGE : 58 YEARS,
OCC: AGRICULTURE,
R/O HANAGANDI-587 315,
TALUKA : JAMAKHANDI,
DIST: BAGALKOT.
... RESPONDENTS
(BY SRI SHIVARAJ S.KULKARNI, ADV. FOR R.11 : NOTICE TO
RESPONDENT NOS.1 TO 5 AND 10-SERVED : NOTICE TO
RESPONDENT NOS.7 TO 9-HELD SUFFICIENT.)
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER XLI
RULE 1 READ WITH SECTIN 96 OF THE CIVIL PROSECURE CODE,
1908 PRAYING THIS COURT TO SET ASIDE THE JUDGMENT AND
DECREE DATED 03.11.2015 PASSED BY THE ADDITIONAL SENIOR
CIVIL JUDGE & JMFC, ATHANI IN O.S.NO.86/2000 AND SUCH
OTHER RELIEFS.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
RAJENDRA BADAMIKAR, J. DELIVERED THE FOLLOWING:
5
: JUDGMENT :
This appeal is filed by the plaintiffs against the
judgment and decree dated 03.11.2015 passed in
O.S.No.86/2000 by the Additional Senior Civil Judge and
JMFC, Athani ("the Trial Court" for short), whereby the
Trial Court has dismissed the suit of the plaintiffs as not
maintainable only on the ground of preliminary issue
No.3.
2. For the sake of convenience parties herein are
referred with the original ranks occupied by them before
the Trial Court.
3. The propositus of the family was one
Appanna, who had a son by name Hanumant. The
plaintiffs and defendant Nos.1 to 3 are the children of
Hanumant. The plaintiffs have filed a suit for partition
and separate possession of their legitimate share in the
suit schedule properties. The said suit came to be
contested by the defendants on various grounds
including earlier partition.
4. The Trial Court on the basis of the pleadings
has framed the following eight issues.
1. Whether the plaintiffs prove that they
themselves and the defendants are joint family
members and the suit schedule properties are
joint family properties?
2. Whether the plaintiff proves that she is having
1/7th share in the suit schedule properties by
way of partition and separate possession by
metes and bounds?
3. Whether the defendants prove that the present
suit is not at all maintainable in view of
disposal of O.S.No.10/1996 dtd.5.1.1996 and
in view of Judgment and decree passed in
O.S.No.176/2009 dtd.12.7.2012?
4. Whether the defendants prove that in the year
1967 there was partition in between all the
family properties and the plaintiffs are not at
all having any right, title and interest to the
suit schedule properties?
5. Whether the defendants prove that the
valuation of the suit properties and the Court
fee paid by them is not proper?
6. Whether the defendants are entitled for
compensatory costs?
7. Whether the plaintiffs are entitled for the
reliefs as sought for?
8. What order or decree?
5. However, the Trial Court directed that issue
No.3 should be heard as preliminary issue as it pertains
to question of law and maintainability of the suit itself.
After hearing the arguments on issue No.3, the Trial
Court has answered the said issue in the affirmative and
thereby dismissed the suit of the plaintiffs as not
maintainable. Being aggrieved by the judgment and
decree passed by the Trial Court, regarding dismissal of
the suit on preliminary issue itself, this appeal is filed by
the plaintiffs.
6. We have heard the arguments advanced by
learned counsel for the appellants and learned counsel
for the respondents. We have perused the records.
7. The main contention of the learned counsel for
the appellants is that, the Trial Court without properly
appreciating the pleadings, has come to a conclusion that
there was an earlier partition and dismissed the suit in
view of the disposal of O.S.No.10/1996 and
O.S.No.176/2009. It is contended that in
O.S.No.10/1996 plaintiffs were not parties and
O.S.No.176/2009 was a bare suit for injunction. Hence, it
is argued that the Trial Court ought to have considered
these aspects. It is also further argued that, when issue
is a mixed question of law and facts, a trial ought to have
been held and without proceeding for trial on preliminary
issue, the suit came to be dismissed and finding on all
issues is not given which has resulted in miscarriage of
justice. Hence, it is contended that the judgment and
decree passed by the Trial Court is perverse and
erroneous, which has resulted in miscarriage of justice as
the plaintiffs were deprived of establishing their rights
over the suit schedule properties. Hence it is contended
that the entire approach of the Trial Court is erroneous
and as such sought for allowing this appeal by setting
aside the impugned judgment and decree.
8. Learned counsel for the respondents would
support the judgment and decree of the Trial Court and
further asserted that the plaintiffs were not born when
the alleged partition was effected and hence they had no
birth right in the suit schedule properties as on the date
of filing the suit and as such he sought for rejection of
the appeal.
9. Having heard the arguments and perused the
records, now the following point would arise for our
consideration.
"Whether the Trial Court has committed an
error in dismissing the suit on preliminary issue
and the judgment and decree of the Trial Court is
perverse and arbitrary so as to call for any
interference by this Court?"
10. The plaintiffs have filed the suit for
declaration, partition and separate possession of their
legitimate share in the suit schedule properties.
Admittedly, the genealogy discloses that Appanna was
propositus and he is having a son by name Hanumant.
The plaintiffs claim to be the coparceners in the joint
family and claims that they are entitled for equal share in
the suit schedule property. Though the Trial Court has
framed as many as eight issues, the suit was dismissed
on preliminary issue No.3 regarding disposal of
O.S.No.10/1996 and O.S.No.176/2009 and effecting
earlier partition of 1967.
11. The judgment of the Trial Court further
discloses that the Trial Court has exercised the power
under Order VII Rule 11 of the Code of Civil Procedure,
1908 ("CPC" for short) suo-moto without there being any
application and at preliminary stage itself dismissed the
suit. This approach of the Trial Court is erroneous and
the Trial Court ought not to have exercised the power
under Order VII Rule 11 of CPC, when mixed question of
law and facts are involved and when the parties did not
file any such application. Apart from that, for considering
maintainability of suit under Order VII Rule 11 of CPC,
the pleadings made in the plaint are alone relevant and
defence as well as documents relied on by the
defendants cannot be looked into. In the instant case,
the plaintiffs have nowhere admitted the earlier partition
of 1967. Their simple contention was that there was only
a family arrangement for better cultivation and they
never put forward earlier partition. The Trial Court
assumed certain facts on its own and arrived at a wrong
conclusion.
12. Further it is also important to note hear that
in O.S.No.10/1996 the plaintiff were not parties and the
compromise decree passed in said suit is not binding on
the plaintiffs. O.S.No.176/2009 is a bare suit for
injunction. Hence, the Trial Court ought not to have
taken these suits into consideration to arrive a conclusion
regarding maintainability of the suit. Further when the
Trial Court has framed as many as eight issues it was
incumbent on the part of the Trial Court to direct the
parties to lead evidence on all issues and it ought to have
given finding on all issues. It did not allow any parties to
lead evidence and when issue No.3 is a mixed question of
law and fact, it cannot be heard as a preliminary issue.
13. The contention of the learned counsel for the
respondents that the plaintiffs were not born during the
earlier partition holds no water since no case of earlier
partition is made out by the plaintiffs and it was only a
family arrangement. All these issues are required to be
decided during full-fledged Trial. The Trial Court without
appreciating any of these issues, has straight way
dismissed the suit and hence the judgment and decree of
the Trial Court is perverse, erroneous and arbitrary,
which has resulted in miscarriage of justice. As such, the
judgment and decree does not survive for judicial
scrutiny and needs to be set aside by remitting the
matter to the Trial Court with a direction to give an
opportunity to all the parties to lead the evidence on all
the issues. As such, we answer the point under
consideration in the affirmative. Accordingly appeal
needs to be allowed and hence we proceed to pass the
following:
: ORDER :
The appeal is allowed.
The impugned judgment and decree
dated 03.11.2015 passed in O.S.No.86/2000
by the Trial Court is set aside.
The matter is remitted back to the Trial
Court with a direction to afford an opportunity
to the parties to lead the evidence on all the
issues and then dispose of the matter in
accordance with law by giving opportunity to
both the parties.
The appellants and respondent Nos.6(a)
to 6(e) as well as respondent No.11 shall
appear before the Trial Court on 18.04.2022.
The Trial Court is directed to take this
matter on 18.04.2022 and notice to
appellants-plaintiffs and respondent Nos.6(a)
to 6(e) and 11 is dispensed with. However,
the plaintiffs shall take steps to issue notice to
other respondents. The Trial Court is directed
to dispose of the matter within nine months
from the date of completion of service of
notice to the parties.
In view of disposal of the appeal, pending
applications, if any, do not survive for consideration and
accordingly stand disposed off.
Send back the TCR's to trial court with order of this
court immediately for compliance.
Sd/-
JUDGE
Sd/-
JUDGE
EM
