Karnataka High Court

Karabasayya S/O Gurusiddayya ... vs Chanveerayya @ Muttayya So ... on 14 September, 2022

Bench: H.P.Sandesh

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                                                          RFA No. 2426 of 2006

                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                           DATED THIS THE 14TH DAY OF SEPTEMBER, 2022

                                             BEFORE

                               THE HON'BLE MR. JUSTICE H.P.SANDESH

                           REGULAR FIRST APPEAL NO.2426 OF 2006 (PAR-)

                    BETWEEN:
                    1.   KARABASAYYA,
                         S/O GURUSIDDAYYA VIRAKTHMATH
                         AGED ABOUT 66 YRS, OCC: AGRI,
                         R/O KOTBAL TQ: RON,
                         DIST: GADAG 585201.

                    2.   PANCHAXARAYYA,
                         S/O GURUSIDDAPPA VIRAKTHAMATH,
                         AGED ABOUT 60 YRS, OCC AGRI,
                         R/O KOTBAL, TQ: RON,
                         DIST: GADAG585201.
                                                                 ...APPELLANTS

                    (BY SRI. SHIVAKUMAR S BADAWADAGI, ADVOCATE
                     AND SMT.VAISHALI K., ADVOCATE)

                    AND:

                    1.   CHANVEERAYYA @ MUTTAYYA,
       Digitally
       signed by         SO GURUSIDDAYYA VIRAKTHMAT,
John   John Doe
       Date:             AGED ABOUT 62 YRS, OCC AGRI,
Doe    2022.09.19
       12:18:23
       +0530             R/O KOTBAL, TQ RON,
                         DIST: GADAG 585201.
                         SINCE DECEASED BY LR RESPONDENT No.2

                    2    SMT.BASAMMA,
                         W/O CHANAVEERAYYA VIRAKTHAMATH,
                         AGED ABOUT 57 YRS,
                         OCC HOUSEHOLD,
                         R/O KOTBAL, TQ RON,
                         DIST GADAG 575201.
                             -2-




                                      RFA No. 2426 of 2006

3.   SHEKAPPA,
     S/O BASAPPA KUMBAR,
     AGED ABOUT 45 YRS, OCC AGRI,
     R/O RAJUR, RON, GADAG 585201,
     SINCE DECEASED BY LR'S.

3A   IRAWWA,
     W/O SHEKAPPA KUMBAR,
     AGED ABOUT 65 YEARS,
     OCC: HOUSEHOLD.

3B   BASAPPA,
     S/O SHEKAPPA KUMBAR,
     AGED BOUT 45 YEARS,
     OCC: NOT KNOWN.

3C   SHARANAPPA,
     S/O SHEKAPPA KUMBAR,
     AGED ABOUT 40 YEARS,
     OCC: NOT KNOWN,

3D   SMT. GANGAWWA,
     W/O BASAPPA KUMBAR,
     AGED ABOUT 37 YEARS,
     OCC: NOT KNOWN,
     ALL ARE RESIDENT OF RAJUR VILLAGE
     TQ: RON, DIST: GADAG.

4.   HUSENSAB
     S/O HUCHUSAB GUDIHOLA
     AGED ABOUR 55 YRS,
     OCC AGRI, R/O GAJENDRAGAD,
     RON GADAG 583201.
                                            ...RESPONDENTS

(R1-DECEASED, R2 IS TREATED AS LR OF DECEASED R1,
 R3(A), R3(C) AND R3(D), R2, R4-SERVICE HELD SUFFICIENT,
 R3(B)-NOTICE SERVED)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED.27.09.2006 PASSED IN OS
NO. 91/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) RON,
DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
                                     -3-




                                                 RFA No. 2426 of 2006

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

                            JUDGMENT

Heard learned counsel for the appellants. Though notices

were issued to the respondents, they did not choose to engage

services of a counsel. Hence, service of notice to respondents is

held sufficient.

2. This appeal is filed challenging the judgment and

decree of dismissal of suit seeking relief of partition in

O.S.No.91/2005 dated 27.09.2006 on the file of Civil Judge

(Sr.Dn.), Ron.

3. Factual matrix of the case of the appellants i.e.

plaintiffs before the trial Court is that plaintiffs' sister

Shantavva died without any issues and she became absolute

owner of the suit schedule properties on account of death of

her husband. After the death of Shantavva, the plaintiffs and

defendant No.1 have become as nearest legal representatives

of deceased Shantavva. It is also the claim of the plaintiffs that

after the death of Shantavva, they are entitled for equal share

along with defendant No.1. It is contended that defendant No.1

colluding with his wife defendant No.2 have got entered their

RFA No. 2426 of 2006

names to the suit properties without any right and thereafter

sold suit land in favour of defendant No.3 and defendant No.2

sold suit house in favour of defendant No.4 without the

knowledge of the plaintiffs. Hence, they claimed 1/3rd share.

4. Defendant No.1 filed written statement and

defendant Nos.3 and 4 have not filed any written statement.

Defendant No.2 adopted written statement filed by defendant

No.1. The main contention of defendants is that Shantavva was

under the care of defendant No.1 and he was looking after the

suit properties and the same is aware of by plaintiffs and they

kept quite and suppressing the true facts filed suit for the relief

of partition. The trial Court framed the following issues:

1. Whether the genealogy furnished by the plaintiffs under para No.2 of the plaint is correct?

2. Whether the plaintiffs prove that, after the death of the Shantavva the plaintiffs and the defendant No.1 became the owners of the suit properties as pleaded?

3. Whether the plaintiffs prove that, the sale deed dated 05.10.1996 executed by the defendant No.1 in respect of the suit land in favour of the

RFA No. 2426 of 2006

defendant No.3 and a sale deed dated 12.10.2000 executed by the defendant No.2 in favour of the defendant No.4 are illegal?

4. Whether the defendants prove that, the suit filed by the plaintiffs is bad for non-inclusion of the entire joint family properties?

5. Whether the plaintiffs are entitled for 1/3rd share in the suit properties?

6. What order or decree?

5. The plaintiffs in order to prove their case, examined

plaintiff No.1 as P.W.1 and got marked documents as Exs.P.1 to

P.10 and defendants have not led any evidence. The trial Court

after hearing both the respective parties, dismissed the suit by

answering issue No.1 in affirmative and issue No.2 in negative

so also issue No.3 in negative and comes to the conclusion that

they are not entitled for 1/3rd share and suit of the plaintiffs

was dismissed. Hence, the present appeal is filed before this

Court.

6. The main contention of the learned counsel for the

appellants before this Court is that there is no dispute with

regard to the relationship between the defendants and the

RFA No. 2426 of 2006

plaintiffs. The Trial Court answered issue No.1 in the

affirmative, however accepted the case of defendant No.1 in

coming to the conclusion that the plaintiffs and defendant

No.1's sister died issueless and committed an grave error in not

considering the fact that the plaintiffs in their plaint have

clearly stated that except the plaintiffs and defendant No.1, no

nearest relatives are there to the deceased Shantavva. Even

though issue No.1 is answered in favour of the plaintiffs, erred

in dismissing the suit and hence it requires interference of this

Court.

7. Having heard the learned counsel for the appellants

and on perusal of the material available on record, the points

that arise for the consideration of this Court are:

(i) Whether the Trial Court has committed an error in answering issue Nos.2 and 3 as negative inspite of issue No.1 is answered as affirmative and committed an error in dismissing the suit for partition?

(ii) What order?

RFA No. 2426 of 2006

Point No.(i):

8. Having heard the learned counsel for the appellants

and on perusal of the material available on record and taking

note of the pleadings, there is no dispute with regard to the

relationship between the plaintiffs and defendant No.1 and

defendant No.2 is the wife of defendant No.1 and defendant

Nos.3 and 4 are the subsequent purchasers from defendant

Nos.1 and 2. Defendant No.2, 3 and 4 did not choose to file

the written statement and contest the matter. P.W.1 in his

evidence reiterated the contents of the plaint and got marked

the documents Exs.P.1 to 10. During the course of cross-

examination of P.W.1, it is elicited that Shantavva was the

sister of P.W.1 and also she is the sister of defendant No.1 and

also elicited that Shantavva was not having any issues. It is

suggested that Shantavva in order to protect her, she was

keeping defendant No.1 along with her and the same was

denied. It is suggested that Shantavva has given entire right in

favour of defendant No.1 and the same was denied. However,

P.W.1 admits that the property belongs to her husband. May

be Shantavva is having right to give the property to anybody,

RFA No. 2426 of 2006

but witness volunteers that during her lifetime she has not

given any right in favour of anybody.

9. Though defendant No.1 filed the written statement,

not entered the witness box and admittedly, the property

belongs to the husband of Shantavva. There is no dispute with

regard to the fact that Shantavva is the sister of plaintiff Nos.1

and 2 and defendant No.1. There is no dispute with regard to

the fact that Shantavva was not having any issues and also no

dispute with regard to the fact that her husband passed away

prior to the death of Shantavva. When such being the material

on record, no other persons have claimed any right in respect

of the properties. The Trial Court has come to the conclusion

that plaintiff Nos.1 and 2 and defendant No.1 are the nearest

relatives of Shantavva. The subsequent purchasers who have

purchased the property from defendant Nos.1 and 2 have not

contested the matter and also no documents are placed before

the Court that during the lifetime of Shantavva she has

executed any testamentary document in favour of defendant

No.1. Except the suggestion that she has given up her right in

favour of defendant No.1, no other document is placed before

the Court. Hence, the Trial Court has committed an error in

RFA No. 2426 of 2006

dismissing the suit when there was an admission that no other

documents except oral say of defendant No.1 that she has left

the property in favour of defendant No.1 and no documents to

show that the deceased Shantavva executed any testamentary

documents and hence the Trial Court ought to have answered

issue Nos.2 and 3 as affirmative in coming to the conclusion

that they became the owners of the suit properties as

contended in the plaint. In respect of the sale made in favour

of defendant Nos.3 and 4, it is contended that sale deeds are

illegal since defendant Nos.1 and 2 were not having any

absolute right in executing the sale deed in favour of defendant

No.3 and 4. I have already pointed out that no documents are

placed before the Court for having disposed off the property by

the said Shantavva during her lifetime. When such being the

case, issue No.3 would have been answered in the affirmative

and the Trial Court has committed an error in dismissing the

suit. Hence, I answer point No.(i) as affirmative.

Point No.(ii):

10. In view of the discussions made above, I pass the

following:

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RFA No. 2426 of 2006

ORDER

(i) The appeal is allowed.

(ii) The impugned judgment and decree of the Trial Court is set aside and consequently the suit filed by the plaintiffs is allowed granting 1/3rd share each in respect of the suit schedule properties.