Karnataka High Court
Smt Kamalavva Kom Yallapa Manenavar vs Mahadevappa on 11 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:14515-DB
RFA No. 100186 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100186 OF 2015 (DEC/PAR)
BETWEEN:
1. SHIVAJI
S/O. RAMAPPA MANENAVAR,
AGE: 31 YEARS, OCC: COOLIE,
R/O: BHAIRIDEVARAKOPPA,
HUBLI-580021, DIST: DHARWAD.
2. BHIMSI ,
S/O. RAMAPPA MANENAVAR,
AGE: 28 YEARS, OCC: COOLIE,
R/O: BHAIRIDEVARAKOPPA,
HUBBALLI-580021, DIST: DHARWAD.
...APPELLANTS
SAROJA (BY SRI. SHIVASAI M. PATIL, ADVOCATE)
HANGARAKI
Digitally signed by SAROJA
HANGARAKI
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENCH
AND:
Date: 2023.12.19 13:06:38
+0530
1. MAHADEVAPPA
S/O. MUDUKAPPA MANENAVAR,
AGE: 71 YEARS, OCC: AGRICULTURIST,
R/O: BHAIRIDEVARAKOPPA,
HUBBALLI-5800121,
DIST: DHARWAD.
2. SHIVAPPA
S/O. YALLAPPA MANENAVAR
AGE: 44 YEARS, OCC: COOLIE,
R/O: BHAIRIDEVARAKOPPA,
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NC: 2023:KHC-D:14515-DB
RFA No. 100186 of 2015
TALUK: HUBLI-580021,
DIST: DHARWAD.
3. SMT. YALLAWWA
W/O. SUBBANNA BHAVANNAVAR,
AGE: 54 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BHAIRIDEVARAKOPPA,
HUBBALLI-580021,
DIST: DHARWAD.
4. SMT. ANUSUYA
W/O. RAMAPPA MANENAVAR,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: BHAIRIDEVARAKOPPA,
HUBBALLI-580021,
DIST: DHARWAD.
5. KAREHOLEPPANAVAR SHANKARGOUDA
S/O. VENKANGOUDA,
AGE: 66 YEARS,
OCC: AGRICULTURE,
R/O: VISHWESHWAR NAGAR,
TALUK: HUBBALLI-580021,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI. S.R. AMBLI AND SMT. GIRIJA HIREMATH, ADV. FOR R5;
R1 TO R4-SERVED)
THIS RFA IS FILED UNDER SEC.96 OF CPC, AGAINST TH
JUDGMENT AND DECREE DATED 27.04.2015 PASSED IN
O.S.NO.184/2009 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALLI, PARTLY DECREEING THE SUIT FILED
FOR PARTITION AND SEPARATE POSSESSION, DECLARATION AND
MESNE PROFITS.
THIS RFA, COMING ON FOR HEARING, THIS DAY,
SANDESH, J., DELIVERED THE FOLLOWING:
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RFA No. 100186 of 2015
JUDGMENT
Heard the learned counsel for appellant and the learned
counsel for respondent No.5 is absent. The respondent Nos.1,
2, 3 and 4 served and unrepresented.
2. This appeal is filed challenging the judgment and
decree declining to grant the share in respect of item No.1 of
the suit property.
3. The Trial Court while considering the case of the
plaintiffs/appellants when the appellants/plaintiffs have sought
for the relief of partition and separate possession in respect of
suit schedule property considered the factual aspects of the
case. In pursuance of the suit summons, defendant has also
appeared and filed the written statement before the Trial Court.
Based on the pleadings of the parties, the Trial Court framed
the issues and also framed the additional issues with regard to
the disobedience of the temporary injunction order passed by
the Court and has sold the suit property in favour of the
defendant No.7 and also framed an issue as whether the
defendant No.7 is the bonafide purchaser for valuable
consideration without notice. The Trial Court allowed the parties
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to lead evidence before the Trial Court. The plaintiff in order to
substantiate the case, examined the plaintiff No.1 as PW1 and
got marked Ex.P1 to Ex.P12(a) and other documents are also
marked as Ex.C1 to Ex.C3(a). On the other hand, defendants
also examined one witness as DW1 and got marked Ex.D1 to
Ex.D4 and Ex.D3(a). The Trial Court having considered both
oral and documentary evidence answered issue No.1 as partly
affirmative and comes to the conclusion that except the
properties of item No.1 of suit property, other properties are
ancestral and joint family properties and declined to grant the
relief in respect of item No.1 of suit property and granted the
relief in respect of other properties.
4. Being aggrieved by the judgment and decree of the
Trial Court, present Regular First Appeal is filed before this
Court. The main contention of counsel appearing for the
appellants that the Trial Court committed an error in dismissing
the suit in respect of item No.1 of suit property. The counsel
also vehemently contend that the lower Court failed to
appreciate the vital aspects admitted by the respondents and
totally justifies the claim of appellants. The finding given by the
Trial Court and issues framed are improper, while answering
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the other issues i.e., issue Nos.1, 3 and 4 are contradicting to
each other is led to wrong conclusion in rendering the
judgment.
5. The counsel also would vehemently contend that in
the suit i.e., in O.S No.370/2005, each appellant grown up as
majors and they have not been arrayed as parties to the said
suit. The counsel also vehemently contend that if the properties
are ancestral to father/grand father of the appellants, then
automatically they become ancestral to appellants and when
such being the case, the Trial Court committed an error in
coming to the conclusion that already grand father was a party
to a settlement arrived between the parties with the defendant
No.1 and the said property is allotted in favour of the defendant
No.1 and hence not entitled for the relief. The very approach of
the Trial Court is erroneous.
6. Having heard the counsel for appellants and also on
perusal of materials available on record, the points that would
arise for consideration of this Court are:
1) Whether the Trial Court committed an error in not
granting the relief in respect of item No.1 of 'A'
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schedule property and whether it requires
interference?
2) What Order?
POINT No.1:
7. Having heard the counsel for appellants and also
on perusal of the reasoning of the Trial Court, the Trial Court
while rejecting the relief in respect of item No.1 of suit
property, comes to the conclusion that already there was a
document styled as "Gharaaneya Vyavstha Patra" which is
marked as Ex.P9. Having considered that document, taken note
of the fact that the said document establishes that the
defendant No.1 and grand father of plaintiffs entered into
family arrangements and this document further establishes that
item No.1 of suit property herein fallen to the share of
defendant No.1 and one house fallen to the share of grand
father of plaintiffs. The Trial Court also taken note of the order
passed in ME No.6451 which is marked as Ex.D2. Having
considered the documents Ex.P9 and Ex.D2, comes to the
conclusion that item No.1 of suit property mutated in the name
of defendant No.1 based on the Ex.P9. Having taken note of
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both the documents, comes to the conclusion that grand father
of plaintiffs and also the defendant No.1 entered into partition.
With the help of the said document, i.e., Ex.P9 and in terms of
the document at Ex.P9, the properties are divided among them.
As per that document, item No.1 of the suit schedule property
fallen to the share of defendant No.1. Hence, comes to the
conclusion that the material is crystal clear that item No.1 of
the suit property is no more Hindu undivided joint family
property.
8. The Trial Court also taken note of the fact that this
document Ex.P9 is also referred in compromise decree passed
in O.S No.370/2005. All this material strengthens the
contention of the defendant No.1. This material establishes that
item No.1 of the suit property is no more ancestral property of
plaintiffs as contended in the plaint. The Trial Court having
considered both oral and documentary evidence available on
record particularly the document Ex.P9 and also Ex.D2 which
establishes that already there was a partition between the
grand father of plaintiffs as well as defendant No.1 and the said
properties are allotted in favour of defendant No.1 and the
same is not the ancestral property as contended by the
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plaintiffs. When such finding is given based on both oral and
documentary evidence particularly relying upon the documents
Ex.P9 and Ex.D2, we do not find any error committed by the
Trial Court in excluding item No.1 of suit property in granting
the relief of the partition and hence we do not find any error
committed by the Trial Court in excluding item No.1 of suit
property and hence there is no any force in the contention of
the appellants' counsel that the Trial Court committed an error.
Once the plaintiffs' grand father was a party and the document
was entered into between plaintiffs' grand father as well as 1st
defendant and when the said property was allotted and parties
have acted upon in terms of the document Ex.P9 and Ex.D2
came into existence and hence we do not find any ground to
interfere with the findings of the Trial Court. Hence, no merit to
allow the appeal and to set-aside the judgment and decree of
the Trial Court. The Trial Court given anxious consideration by
considering both oral and documentary evidence and no ground
is madeout to set-aside the order of the Trial Court. Hence,
answered the Point No.1 as Negative.
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POINT No.2:
In view of the discussions made above, we pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
RHS
