Bayappagala Yerriswamy S/O vs B Gangamma D/O Late Byappagala ...
2023 Latest Caselaw 5797 Kant

Citation : 2023 Latest Caselaw 5797 Kant
Judgement Date : 21 August, 2023

Karnataka High Court

Bayappagala Yerriswamy S/O vs B Gangamma D/O Late Byappagala ... on 21 August, 2023

Bench: Anant Ramanath Byarhj

                                                    -1-
                                                          NC: 2023:KHC-D:9235
                                                              RFA No. 4002 of 2013




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 21ST DAY OF AUGUST, 2023

                                                 BEFORE
                            THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                              REGULAR FIRST APPEAL NO. 4002 OF 2013 (PAR)
                       BETWEEN:

                       1.    BAYAPPAGALA YERRISWAMY
                             S/O LATE BYAPPAGALA KADAPPA,
                             AGE: 40 YEARS, HINDU, OCC: AGRICULTURE,
                             R/O: CHOWDAPUR VILLAGE,
                             TQ: KUDALGI, DIST: BELLARY.

                       2.    BYAPPAGALA SANNA RAJAPPA
                             S/O BYAPPAGALA KADAPPA,
                             AGE: 58 YEARS, HINDU, OCC: AGRICULTURE,
                             R/O: CHOWDAPUR VILLAGE, TQ: KUDALGI,
                             DIST: BELLARY.
                                                                        ...APPELLANTS

                       (BY SRI. SURESH P HUDEDAGADDI, ADVOCATE)

                       AND:

                       1.    B GANGAMMA
          Digitally
          signed by          D/O LATE BYAPPAGALA KADAPPA,
          SAROJA
SAROJA    HANGARAKI
HANGARAKI Date:              AGE: 56 YEARS, HINDU, OCC: DRAMA ARTIST,
          2023.08.24
          15:57:42
          +0530
                             R/O: VIRAPAPURA VILLAGE,
                             POST: KAKKUPPI, TQ: KUDALGI,
                             DIST: BELLARY.

                       2.    B. GUNDAMMA
                             D/O LATE BYAPPAGALA KADAPPA,
                             AGE: 54 YEARS, HINDU, OCC: HOUSE WIFE,
                             R/O: VIRAPAPURA VILLAGE, POST: KAKKUPPI,
                             TQ: KUDALIGI, DIST: BELLARY.

                       3.    B. KARIBASAMMA
                             LATE BYAPPAGALA KADAPPA,
                             AGE: 37 YEARS, HINDU, OCC: DRAMA ARTIST,
                             -2-
                                   NC: 2023:KHC-D:9235
                                        RFA No. 4002 of 2013




     R/O: VIRAPAPURA VILLAGE, POST: KAKKUPPI,
     TQ: KUDALIGI, DIST: BELLARY.

4.   BYAPPAGALA KENCHAMMA
     D/O LATE BYAPPAGALA KADAPPA,
     AGE: 56 YEARS, HINDU, OCC: DRAMA ARTIST,
     R/O: VIRAPAPURA VILLAGE, POST: KAKKUPPI,
     TQ: KUDALIGI, DIST: BELLARY.
                                           ...RESPONDENTS

(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R1-R3,
 NOTICE TO R4 SERVED)

      THIS RFA IS FILED U/S.96 OF CPC., PRAYING THAT THE
HON'BLE COURT MAY KINDLY BE PLEASED TO SET ASIDE THE
JUDGMENT AND DECREE DTD:18.11.2010 PASSED BY THE CIVIL
JUDGE (SR.DN.), KUDALGI, IN OS.NO.17/2010 AND REMAND THE
MATTER TO THE HON'BLE CIVIL JUDGE (SR.DN.), KUDALGI, IN
THE INTEREST OF JUSTICE AND EQUITY.


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


                        JUDGMENT

The defendants in O.S.No.17/2010 on the file of the

Senior Civil Judge, Kudligi are before this Court under

Section 96 of CPC challenging the judgment and decree for

partition and separate possession granted in favour of the

plaintiffs who admittedly are the sisters of the defendants.

NC: 2023:KHC-D:9235 RFA No. 4002 of 2013

2. Propositus Byyappagala Kadappa S/o Yelavappa

@ Marappa died 30 years prior to filing of the suit which

was filed in the year 2010. Plaintiffs claim to be Class-I

heirs and entitled to equal share in the suit schedule

properties along with the defendants. The defendants

remained exparte before the trial Court and suit is decreed

in respect of ten properties described in the schedule.

3. Learned counsel for the appellants, Sri.Suresh P

Hudedagaddi submits that the decree passed before the

trial Court is an exparte decree where an opportunity is

not given to the defendants to contest the matter.

4. He would further submit that there is no proper

service of notice on the defendants. He also submits that

there was already a partition in the family of the

defendants during the lifetime of the father and in the said

partition the properties are allotted to the share of the

mother of the plaintiffs and the defendants.

NC: 2023:KHC-D:9235 RFA No. 4002 of 2013

5. The following point would arise for

consideration:

"Whether the trial Court is justified in granting a decree for partition and separate possession to the extent of 3/6th share in favour of the plaintiffs."

6. The ground No.10 in the appeal memo would

reveal that the defence of the defendants/appellants is

that suit schedule properties are the properties allotted to

the share of the mother. It is an admitted fact that the

mother died six months prior to the institution of the suit.

Under these circumstances, the plaintiffs and defendants

would inherit the suit properties equally. The trial Court

has granted a decree for partition and separate possession

to the extent of 3/6th share of the plaintiffs in the suit

schedule properties.

7. This Court having considered the contentions

raised at the bar and also on perusal of the impugned