Karnataka High Court
Vasant S/O Jinappa Patil vs Bharamana S/O Devappa Patil on 9 August, 2023
Bench: Anant Ramanath Byarhj
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RFA No. 1231 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 1231 OF 2007 (PAR-)
BETWEEN:
1. VASANT S/O JINAPPA PATIL
SINCE DECEASED BY HIS LRS.
AS APPELLANTS NO.1(A) TO (C).
1.A SHRI. SANJAY
S/O LATE VASANT PATIL
AGE: 50 YEARS, OCC: AGRICULTURE,
1.B SHRI. NEMINATH
S/O LATE VASANT PATIL
AGE: 50 YEARS, OCC: AGRICULTURE,
1.C SHRI. SHEETAL
S/O LATE VASANT PATIL
AGE: 47 YEARS,
OCC: AGRICULTURE AND PVT SERVICE,
Digitally
ALL THE APPELLANTS NO.1(A), 1(B) AND 1(C) ARE
signed by
GIRIJA A RESIDING AT GANAPATI GALLI, PEERANWADI,
GIRIJA A BYAHATTI
BYAHATTI Date:
2023.08.11
TALUKA AND DISTRICT: BELGAUM( NOW BELAGAVI),
15:31:11 -
0700 PINCODE-590014.
...APPELLANTS
(BY SRI. SANJAY S KATAGERI, ADVOCATE)
AND:
1. BHARAMANA S/O DEVAPPA PATIL
SINCE DECEASED BY HIS L.RS.
1.A SHRI. APPASAHEB S/O BHARMA PATIL
SINCE DECEASED BY HIS L.RS.
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RFA No. 1231 of 2007
AS RESPONDENTS NO.1(A)(I), 1(A)(II),
1(A)(III) AND 1(A)(IV) HEREIN
1.A(I) SMT. SUREKHA
W/O APPASAHEB PATIL
AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
R/O: GANAPATI GALLI, PEERANWADI,
TQ AND DIST: BELAGAVI-590014.
1.A(II) SHRI. SACHIN
S/O APPASAHEB PATIL
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: GANAPATI GALLI, PEERANWADI,
TQ AND DIST: BELAGAVI-590014.
1.A(III) SHRI. SUNIL
S/O APPASAHEB PATIL
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: GANAPATI GALLI, PEERANWADI,
TQ AND DIST: BELAGAVI-590014.
1.A(IV) SMT. ASHWATHA
D/O APPASAHEB PATIL
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O: GANAPATI GALLI, PEERANWADI,
TQ AND DIST: BELAGAVI-590014.
1.B SMT. SUNANDA
W/O BABY KADEMANI
AGE ABOUT 54 YEARS, OCC: HOUSEHOLD,
R/O: GANAPATI GALLI, PEERANWADI,
TQ: BELGAUM (NOW BELAGAVI)
PIN CODE-590014.
1.C SHRI. BAHUBALI S/O BHARMA PATIL
SINCE DECEASED BY HIS L.RS.
1.C(I) SMT. SUMAN
W/O BAHUBALI PATIL
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: MUJAWAR GALLI, PEERANWADI,
TQ AND DIST: BELAGAVI-590014.
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RFA No. 1231 of 2007
1.C(II) SMT. JAYASHREE
D/O BAHUBALI PATIL
AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAJAGAON, PEERANWADI,
TQ AND DIST: BELAGAVI-590011.
1.D SMT. VILASMATHI
W/O DHARNENDRA
S/O BHARMA PATIL
AGE ABOUT: 40 YEARS,
OCC: HOUSEHOLD, R/O: HATTARAGI,
TQ: HUKKERI,
DIST: BELGAUM (NOW BELAGAVI)
PINCODE-591243.
1.E SHRI. JAYARAJ
S/O DHARNENDRA PATIL
AGE ABOUT: 20 YEARS,
OCC: AGRICULTURE, R/O: HATTARAGI,
TQ: HUKKERI,
DIST: BELGAUM (NOW BELAGAVI)
PINCODE-591243.
1.F SMT. SUVARNA
W/O MOHAN SHERI
AGE ABOUT: 48 YEARS,
OCC: HOUSEHOLD,
R/O: MUJAWAR GALLI, PEERANWADI,
TQ: BELGAUM (NOW BELAGAVI)
NOW R/AT: GOODSHED ROAD,
BELGAUM( NOW BELAGAVI)-590001
2. SRI. PARIS S/O DEVAPPA PATIL
SINCE DECEASED BY HIS L.RS.
AS RESPONDENTS NO.2(A), 2(C), 2(D)
AND 2(E) AND 2(B)(I), 2(B)(II) AND 2(B)(III).
2.A SMT. DEVAKI W/O PARIS PATIL
AGE: 78 YEARS, OCC: HOUSEHOLD WORK,
2.B SHRIKANT S/O LATE PARIS PATIL
SINCE DECEASED BY HIS L.RS.
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RFA No. 1231 of 2007
2.B(I) SMT. SUNITA W/O LATE SHRIKANT PATIL
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
2.B(III) KUMARI DHANASHREE
D/O SHRIKANT PATIL
AGE: 25 YEARS, OCC: STUDENT,
2.C SHRI. RAVNDRA
S/O LATE PARIS PATIL
AGE: 60 YEARS, OCC: AGRICULTURE,
THE RESPONDENTS NO.2(A), 2(B)(I), (II), (III)
AND RESPONDENT NO.2(C) ARE RESIDING AT
PATIL GALLI, PEERANWADI, BELAGAVI-590014.
2.D SMT. LEELAVATI
W/O VIJAY DHANAWAD
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: PATIL GALLI, PEERANWADI,
BELAGAVI-590014.
2.E SMT. SAROJINI
W/O BHARAT SAVADI
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: ANANTSHAYAN GALLI,
BELAGAVI-590002.
3. SMT. INDUMATI
W/O DHANYAKUMAR PATIL
SINCE DECEASED BY HIS L.RS.
AS RESPONDENTS NO.3(A), 3(B) AND 3(C).
3.A SMT. SAVITA
W/O SANJAY APPANNAVAR
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
R/O: TANAJI GALLI,
BELAGAVI-590002.
3.B SMT. SUMAN
W/O BAHUBALI PATIL
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
TQ: HALAGA, TQ AND DIST: BELAGAVI.
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RFA No. 1231 of 2007
3.C SMT. BHARATI
W/O ASHOK SHIRHATTI
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: MACHHE, TQ AND DIST: BELAGAVI.
4. SRI. VIJAY JINNAPPA PATIL
SINCE DECEASED BY LRS.
NIRMALA W/O VIJAYA J.PATIL
AGED ABOUT 39 YEARS, OCC: HOUSEHOLD,
RESIDING AT:
R/O: MANGALWAR PETH,
MIRAJ-416410.
NOW R/A: PATIL GALLI, PEERANWADI,
TQ AND DIST: BELGAUM (NOW BELAGAVI),
PINCODE:590014.
5. PRAVEEN VIJAY PATIL
AGED ABOUT: 28 YEARS,
OCC: NOT KNOWN, R/O: GANAPATHI GALLI,
PEERANWADI, TQ: BELGAUM(NOW BELAGAVI),
PIN CODE: 590014.
...RESPONDENTS
(BY SRI. SANGRAM S. KULKARNI, ADV. FOR R1(D) AND R1(E);
R1(A), R1(C) AND R3 ARE DISMISSED AS ABATED;
R1(B), R1(F)-NOTICE SERVED;
SRI. M.B.ZIRALI; SRI. V.S.KALASURMATH;
SRI. S.S.HAVERI, ADV. FOR R2(NOC);
SRI. DINESH M KULKARNI, ADV. FOR R2(NOC);
R4, R5, R1(A)(I) TO R1(A)(IV)-NOTICE SERVED;
R1(C)(I) AND R1(C)(II)-NOTICE SERVED;
R2(A)-NOTICE SERVED;
R2(E) HELD SUFFICIENT)
THIS RSA IS FILED U/S.96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED: 31.01.2007 PASSED IN
O.S.NO.232/1999 ON THE FILE OF THE PRL.CIVIL JUDGE(SR.DN.)
BELGAUM, DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 1231 of 2007
JUDGMENT
Heard Sri. Sanjay Katageri, learned counsel
appearing for the appellant and Sri. Sangram S. Kulkarni,
learned counsel appearing for the respondents.
2. The appellant/plaintiff in this appeal is
challenging the judgment and decree in O.S.No.232/1999
on the file of the Senior Civil Judge, Belagavi. In terms of
the judgment and decree dated 31.01.2007, the suit of the
plaintiff is dismissed.
3. The suit was for partition and separate
possession in respect of the two properties, namely,
survey No.23 measuring 9 acres 25 guntas in Peeranawadi
Village, Taluk Belagavi and Survey No.5/2 measuring 09
guntas in Peeranawadi village, Taluk Belagavi. The
plaintiff is claiming 1/6th share in the suit schedule
properties.
4. The plaint averments do not disclose the
complete genealogy between the plaintiff and contesting
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defendants No.1 and 2. Defendant No.3 is the wife of
plaintiff's brother and defendant No.4 is the plaintiff's
brother. The suit is filed essentially against defendants
No.1 and 2 claiming 1/6th share in the suit properties. As
already noticed, the plaint does disclose the complete
genealogy to trace the common ancestor and devolution of
property between the plaintiff and defendants No.1 and 2.
5. Defendants No.1 and 2 have contested the
matter. Remaining defendants supported the case of the
plaintiff. The trial Court after trial, has concluded that the
plaintiff and defendant Nos. 3 and 4 have got 4½ guntas
of land in Survey No.5/2 referred to above. The trial Court
has also concluded that the plaintiff's claim in respect of
Survey No.23 is not established and dismissed the suit.
Aggrieved by the aforementioned judgment and decree,
the plaintiff is in appeal.
6. Sri. Sanjay S. Katageri, learned counsel
appearing for the appellant/plaintiff would contend that,
survey No.5/2 was partitioned in the year 1974 as
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evidenced in Ex.P8. He would further contend that,
similarly the property bearing Survey No.23 was
partitioned in the year 1979 as evidenced in Mutation
Entry No.76. Referring to the partition in respect of
Survey No.5/2, he would contend that the partition in
respect of Survey No.23 as evidenced in Mutation Entry
No.76 is also a valid partition and defendants No.1 and 2
could not have succeeded in their appeal before Assistant
Commissioner challenging the Mutation Entry No.76. He
would further contend that, the land being the
unproductive land and was not partitioned between the
ancestors of plaintiff and defendants No.1 and 2 and was
kept joint.
7. As against this, Sri. Sangram S. Kulkarni,
learned counsel appearing for defendants No.1 and 2
would contend that, as far as Survey No.5/2 is concerned,
the plaintiff has got share to the extent of 4½ guntas,
along with defendant Nos. 3 and 4. However, he would
urge that the remaining portion in Survey No.5/2 is
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already sold by the contesting defendants and the
purchasers have not been made parties to the suit and as
such, the suit is defective in respect of Survey No.5/2.
8. As far as Survey No.23 is concerned,
Sri.Sangram S. Kulkarni, would contend that the plaintiff is
not in a position to establish that the property is the joint
family property of the plaintiff and the defendants. He
would refer to the earlier plaint in O.S.No.526/1990 on the
file of the Munsiff, Belagavi, in respect of Survey No.23
and would urge that, in the said suit, 25 persons filed a
suit claiming share in survey No.23. He would further
urge that, even according to the plaintiff's own plaint in
the said suit, where he was plaintiff No.21, remaining 24
persons have right over the properties and those persons
have not been made parties to the present suit and as
such, would submit that the suit has to be dismissed.
9. This Court has considered the contentions
raised at the bar and also perused the records.
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10. The points that would arise for consideration
are:
i. Whether the trial Court is justified in
dismissing the suit after having held
that the plaintiff and defendants No.3
and 4 are having right in 4½ guntas of
land in Survey No.5/2?
ii. Whether the trial Court is justified in
dismissing the suit in respect of Survey
No.23?
11. As far as the first point for consideration is
concerned, the trial Court has given a finding in paragraph
No.19 of the impugned judgment to the effect that the
plaintiff and defendants No.3 and 4 are having right in
respect of 4½ guntas of land in Survey No.5/2. Though
Sri. Sangram S. Kulkarni, has contended that the
remaining portion in the said survey number is already
sold by the contesting defendants, this Court is of the view
that there is a finding that plaintiff and defendant Nos. 3
and 4 have right in respect of survey No.5/2 to the extent
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of 4½ guntas. Hence the suit could not have been
dismissed in respect of the said property. To that extent
the judgment and decree of the trial Court has to be set
aside and accordingly set aside.
12. However, it is made clear that, when the
plaintiff files final decree proceedings in respect of the
aforementioned property, the purchasers shall be made as
parties and they should be permitted to contest the matter
in respect of any claim of the said purchasers in respect of
4½ guntas, which is standing in the name of the plaintiff
and defendants No.3 and 4.
13. As far as survey No.23 is concerned, though the
plaintiff claims that he has got 1/6th share over the said
property, title to that property is not traceable on the
basis of the documentary evidence placed before this
Court. On what basis the plaintiff is claiming 1/6th share is
not made out. Why the other members of the family
shown in the genealogy are not made parties is also not
forthcoming from the pleadings.
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14. Under the circumstances, this Court is of the
view that the plaintiff has not made out any case to hold
that the plaintiff and defendants No.3 and 4 are having
1/6th share in item No.1 property bearing survey No.23.
To that extent the judgment and decree passed by the
trial Court does not call for any interference.
15. Accordingly, the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and decree dated
31.01.2007 passed by the Principal Civil
Judge (Sr.Dn.), Belagavi, in
O.S.No.232/1999 are set aside, to the extent
of dismissing the suit in respect of Survey
No.5/2 in Peeranawadi village, Taluk
Belagavi.
iii. The legal representatives of plaintiff are
entitled to partition and separate possession
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to the extent of 1/6th share of the property
bearing Survey No.5/2.
iv. It is also made clear that, in the final decree
proceedings, the purchasers of the remaining
portion of the property in Survey No.5/2
shall be made as parties to the proceedings
and they shall be given an opportunity to
defend their claim, if any, over Survey
No.5/2.
Sd/-
JUDGE
gab
CT-PA
