Karnataka High Court
Smt.Uddawwa W/O. Yallappa ... vs Narayan Ramappa Kaparatti on 28 August, 2023
Bench: C.M.Poonachapresided Bycmpj
-1-
NC: 2023:KHC-D:9570
MSA No. 100117 of 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS SECOND APPEAL NO. 100117 OF 2019
BETWEEN:
1. SMT.UDDAWWA W/O. YALLAPPA MADIHALLI,
AGE : 79 YEARS, OCC : HOUSEHOLD WORK,
R/O : KURUBAR DADDI, GOKAK-591307
DIST : BELAGAVI.
2. SMT.LAKKAVVA W/O. DUNDAPPA KOLAVI,
AGE : 49 YEARS, OCC : AGRICULTURE,
R/O : DURADUNDI NOW AT KURUBAR DADDI,
GOKAK-591307 DIST : BELAGAVI.
3. SHRI.BHIMAPPA YALLAPPA MADIHALLI,
AGE : 44 YEARS, OCC : MASON,
R/O : KURUBAR DADDI,
GOKAK-591307 DIST : BELAGAVI.
4. SMT.DODDAVVA W/O. YALLAPPA BABALI,
AGE : 34 YEARS, OCC : AGRICULTURE,
R/O : MALADINNI-591233
TAL: GOKAK, DIST: BELAGAVI.
...APPELLANTS
(BY SRI. P.G. NAIK, ADVOCATE)
Digitally signed
by
AND:
SHIVAKUMAR
SHIVAKUMAR HIREMATH
HIREMATH
NARAYAN RAMAPPA KAPARATTI
Date:
2023.08.30 SINCE DECEASED BY HIS LRS
13:15:54 +0530
RESP.NO.1 TO 3
1. SMT.LAXMAWWA W/O. NARAYAN KAPARATTI,
AGE : 44 YEARS, OCC : HOUSEHOLD WORK,
R/O : KURUBAR DADDI,
GOKAK-591307 DIST :BELAGAVI.
-2-
NC: 2023:KHC-D:9570
MSA No. 100117 of 2019
2. SHRI.GANAPATI S/O. NARAYAN KAPARATTI,
SINCE DECEASED BY HIS LRS;
2A. SMT. MANGALAWWA W/O GANAPATI KAPARATTI,
AGE: 30 YEARS, OCC: PRIVATE SERVICE,
R/O. NEAR SIDDESHWAR TEMPLE,
SIDDESHWAR NAGAR,
GOKAK-501307 DIST: BELAGAVI.
2B. SONAWWA D/O. GANAPATI KAPARATTI,
AGE: 10 YEARS, OCC: STUDENT,
R/O. NEAR SIDDESHWAR TEMPLE,
SIDDESHWAR NAGAR,
GOKAK-501307 DIST: BELAGAVI.
SINCE MINOR REPRESENTED BY HER NATURAL
GUARDIAN MOTHER RESP. NO 2A -
SMT. MANGLAWWA W/O. GANAPATI KAPARATTI.
3. SHRI.PARASAPPA S/O. NARAYAN KAPARATTI,
AGE : 21 YEARS, OCC : AGRICULTURE,
R/O : KURUBAR DADDI,
GOKAK-501307 DIST :BELAGAVI.
4. SMT. UDDAVVA W/O.SHANKARAPPA DANDIN,
AGE : 41 YEARS, OCC : AGRICULTURE,
R/O : CHIGADOLLI-591218
TAL: GOKAK, DIST:BELAGAVI.
...RESPONDENTS
(BY SRI.SANTOSH S. HATTIKATAGI, ADV. FOR R1;
NOTICE TO R2 (A) (R3) & R4 IS SERVED;
R2 (B) IS MINOR REPRESENTED BY R2 (A))
THIS MISCELLANEOUS SECOND APPEAL IS FILED U/SEC.43
RULE 1 (u) OF CPC., 1908, AGAINST THE JUDGEMENT AND DECREE
DTD: 03.04.2019 PASSED IN R.A.NO.75/2016 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE, GOKAK, ALLOWED AND
REMANDED BACK THE JUDGEMENT AND DECREE DTD:09.06.2014
PASSED IN O.S.NO. 235/2009, ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE, GOKAK, DECREEING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.
THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2023:KHC-D:9570
MSA No. 100117 of 2019
JUDGMENT
Heard the learned counsel for the appellants.
2. The present appeal is filed challenging the order
dated 03.04.2019 passed in R.A.No.75/2016 by the I
Additional Senior Civil Judge, Gokak (herein after referred
to as 'the first appellate Court'), wherein, the Judgment
and decree dated 09.06.2014 passed in O.S.No.235/2009
by the Court of the Principal Civil Judge, Gokak
(hereinafter referred to as 'the trial Court') has been set
aside and the matter was remanded to the trial Court.
3. The parties will be referred to as per their
rankings before the trial Court.
4. The appellants who are the plaintiffs instituted a
suit in O.S.No.235/2009 seeking partition and separate
possession. The trial Court by its Judgment and Decree
dated 09.06.2014 decreed the suit of the plaintiffs and
held that, the plaintiffs and defendant No.2 together have
half share in the suit property.
NC: 2023:KHC-D:9570
MSA No. 100117 of 2019
5. The legal representatives of the deceased
defendant No.1 filed R.A.No.75/2016 contending inter alia
that, they have not provided with an opportunity to
contest the suit. The first appellate Court by its Judgment
dated 03.04.2019 allowed the appeal and passed the
following order:
"The appeal preferred by the
appellant/defendant No.2 under Order 41 Rule 1
of CPC, is hereby allowed.
The judgment and decree passed in
O.S.No.235/2009 by Prl. Civil Judge and JMFC,
Gokak dated 06-09-2014 is hereby set aside.
The trial court is directed to give proper
opportunity to appellants/defendants and to file
their written statement and dispose of the matter
in accordance with law.
Both parties are directed to appear before
the trial court on 22-04-2019.
Separate notice to both parties is hereby
dispensed with.
Draw decree accordingly.
Send back the LCR to the Trial Court."
NC: 2023:KHC-D:9570
MSA No. 100117 of 2019
Being aggrieved, the plaintiffs have preferred the present
appeal.
6. Learned counsel for the appellants/plaintiffs
contends that, the sole ground on which the first appellate
Court has remanded the matter to the trial Court was by
holding that the legal representatives of the deceased
defendant were not provided with an opportunity to
contest the suit which aspect is incorrect, having regard to
the material available on record.
7. I have considered the submissions of the
learned counsel for the appellants and the learned counsel
for the respondents and perused the material available on
record.
8. It is forthcoming that the first appellate Court
upon noticing the facts of the case, noticed that, on
24.01.2014, the further evidence of P.W.1 was taken as
'Nil' and on the same day, P.W.2 and P.W.3 were
examined and on the said day itself cross-examination of
NC: 2023:KHC-D:9570
MSA No. 100117 of 2019
P.W.1 to P.W.3 were taken as 'Nil' and posted the matters
for arguments. The first appellate Court has taken note of
the fact that, the legal representatives of the deceased
defendants who had preferred the appeal before the first
appellate Court, although, had not filed the written
statement, they were entitled to be afforded with an
opportunity to cross-examine the witnesses and having
noticed the fact that, the said opportunity was not offered,
has passed the order which is impugned in the present
appeal.
9. It is further forthcoming that, the first
appellate Court has not only considered the aspect
regarding legal representatives of the deceased defendant
No.3 not having an opportunity to cross-examine P.W.1 to
P.W.3, but merits of the matter has also been noticed by
the first appellate Court, wherein, a finding is recorded
that the deceased defendant No.1 also had an equal share
in the suit property which aspect is also not disputed by
the plaintiffs.
NC: 2023:KHC-D:9570
MSA No. 100117 of 2019
10. Having regard to the admitted position that the
deceased defendant No.1 was also entitled to half share in
the suit property and in view of the fact that, the trial
Court by its Judgment and decree, had granted half share
only to the plaintiffs and defendant No.2, the first
appellate Court has rightly set aside the judgment and
decree rendered by this trial Court and passed the order of
remand.
11. In view of the aforementioned factual aspects,
no ground has been made out by the appellants/plaintiffs
to interfere with the order of the first appellate Court in
the present appeal.
12. Hence, I pass the following:
ORDER
(i) The above appeal is dismissed as
being devoid of merits;
(ii) Having regard to the fact that, in the
present appeal there was an interim order of
stay of further proceedings in the suit and in
NC: 2023:KHC-D:9570
MSA No. 100117 of 2019
view of the fact that the first appellate Court
had specified a date for appearance of the
parties before the trial Court, it is hereby
ordered that both the parties shall appear
before the trial Court on 11.09.2023 without
requirement of any fresh notice being issued in
this regard.
(iii) The trial Court shall proceed further
in terms of the order of the first appellate Court
in accordance with law.
(iv) Registry to transmit the records to the
concerned Court, forthwith.
(Sd/-)
JUDGE
SVH
