Karnataka High Court
Gurubai W/O Veeranna Kaliji vs Veeranna S/O Rayappa Kalaji And Ors on 4 December, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 7062 of 2013
C/W RSA No. 7158 of 2013
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4 TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO.7062/2013 (MON)
C/W
REGULAR SECOND APPEAL NO.7158/2013
IN RSA NO. 7062 OF 2013
BETWEEN:
GURUBAI
W/O VEERANNA KALAJI,
AGE: 26 YEARS, OCC: HOUSEHOLD,
Digitally signed R/O VILLAGE KOHINOOR,
by LUCYGRACE TQ. BASAVAKALYAN,
Location: HIGH DIST. BIDAR-585401.
COURT OF ...APPELLANT
KARNATAKA (BY SRI RAVI B. PATIL, ADVOCATE)
AND:
1. VEERANNA
S/O RAYAPPA KALAJI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O VILLAGE KOHINOOR,
TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
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RSA No. 7062 of 2013
C/W RSA No. 7158 of 2013
2. NINGAMMA
W/O VEERANNA KALAJI,
AGE: 41 YEARS, OCC: HOUSEHOLD &
AGRICULTURE,
R/O VILLAGE KOHINOOR,
TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
3. TUKKAMMA
S/O RAYAPPA KALAJI,
AGE: 77 YEARS, OCC: HOUSEHOLD,
R/O VILLAGE KOHINOOR,
TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
4. ANNAPURNA
W/O AMRUTH KHASAGE,
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O VILLAGE KOHINOOR,
TQ. BASAVAKALYAN,
DIST. BIDAR,
NOW RESIDING AT YAF WING
BLOCK NO.61, 4TH FLOOR,
NAVANEET SOCIETY,
BHADRABAI ROAD,
OPP: NAVARANG THEATER,
ANDHERI,
WEST MUMBAI-58.
5. SHIVAMMA
W/O DHARAMAYYA,
AGED 77 YEARS, OCC: HOUSEHOLD,
R/O GADLEGAON-B,
TQ. BASAVAKALYAN-585403.
6. SHASHIKALA
W/O BASAVANAPPA BIRADAR,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O NELLIO, P.G. DHANUR, VAI KADGANCHI,
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RSA No. 7062 of 2013
C/W RSA No. 7158 of 2013
TQ. ALAND,
DIST. GULBARGA-585 103
...RESPONDENTS
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE FOR R4;
R1, R2 & R6 - SERVED;
R5-V/O DATED 09.09.2016 NOTICE HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF THE
CPC, PRAYING TO ALLOW THIS APPEAL AND TO SET
ASIDE ORDER DATED 19.11.2012 PASSED IN R.A.
NO.9/2012 BY THE SENIOR CIVIL JUDGE,
BASAVAKALAYAN, CONFIRMING THE JUDGMENT AND
DECREE DATED 05.03.2012 PASSED IN O.S. NO.61/2006
BY THE CIVIL JUDGE AT BASAVAKALYAN INSOFAR AS
DISMISSAL OF THE SUIT IN PART IN REGARD TO SY.NO.
45/2007 OF KOHINOOR VILLAGE IS CONCERNED.
IN RSA NO. 7158 OF 2013.
BETWEEN:
SMT. ANNAPURNA
W/O AMRUTH KHASAGE,
AGED ABOUT: 46 YEARS, OCC: HOUSEHOLD &
AGRICULTURE,
R/O KOHINOOR, TQ. BASAVAKALYAN,
NOW R/AT YAF WING, BLOCK NO.61,
4TH FLOOR, NAVANEET SOCIETY,
BHADRABAI ROAD,
OPP: NAVARANG THEATER,
ANDHERI WEST,
MUMBAI-58.
...APPELLANT
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
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RSA No. 7062 of 2013
C/W RSA No. 7158 of 2013
AND:
1. SHASHIKALA
W/O BASAVANAPPA BIRADAR,
AGED ABOUT: 54 YEARS, OCC: HOUSEHOLD,
R/O NELLIO PG DHANUR VAI KADGANCHI,
TQ. ALAND,
DIST. GULBARGA-585302.
2. VEERANNA
S/O RAYAPPA KALAJI,
AGED ABOUT: 55 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O VILLAGE KOHINOOR,
TQ. BASAVAKALYAN-585423.
3. NINGAMMA
W/O VEERANNA KALAJI,
AGED ABOUT: 47 YEARS,
OCC: HOUSEHOLD & AGRICULTURE,
R/O VILLAGE KOHINOOR,
TQ. BASAVAKALYAN-585423.
4. SHIVAMMA
W/O DHARAMAYYA,
AGED ABOUT: 77 YEARS, OCC: HOUSEHOLD,
R/O GADLEGAON (B),
TQ. BASAVAKALYAN-585423.
5. GURUBAI
W/O VEERANNA KALAJI,
AGED ABOUT: 25 YEARS, OCC: NIL,
R/O KOHINOOR VILLAGE,
TQ. BASAVAKALYAN-585423.
...RESPONDENTS
(BY SRI RAVI B. PATIL, ADVOCATE FOR R2;
R3 & R4 - SERVED)
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RSA No. 7062 of 2013
C/W RSA No. 7158 of 2013
THIS RSA IS FILED UNDER SECTION 100 OF THE
CPC, PRAYING TO ALLOW ABOVE REGULAR SECOND
APPEAL AND SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE DATED:19.11.2012 PASSED BY SENIOR CIVIL
JUDGE AT BASAVAKALYAN, IN R.A. NO.15/2012,
REVERSING JUDGMENT AND DECREE DATED 05.03.2012
IN O.S. NO.61/2006 PASSED BY CIVIL JUDGE (JR.DN) AT
BASAVAKALYAN.
THESE APPEALS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. RSA No.7062/2013 is filed by the plaintiff in
O.S. No.61/2006 aggrieved by the judgment and decree
passed in the suit dismissing the suit to the extent of
property in Survey No.45/7 of Kohinoor Village and
confirmed in RA No.9/2012 by the Senior Civil Judge,
Basavakalyana by the impugned judgment and decree.
2. RSA No.7158/2013 is filed by defendant No.4
aggrieved by the judgment and decree passed in RA
No.15/2012, by which the first Appellate Court while
allowing the said appeal had modified the judgment and
decree of the trial Court passed in O.S. No.61/2006
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allotting share to defendant No.6 in the land in Survey
No.45/7.
3. The above suit in O.S. No.61/2006 was filed by
the plaintiff namely Smt. Gurubai against her father and
mother the defendant Nos.1 and 2, respectively, and
grandmother defendant No.3 and her paternal aunts
defendants Nos.5 and 6, seeking partition and possession
in respect of the properties bearing Survey No.45/7,
measuring 3 acres, Survey No.45/3 measuring 1 acre 2
guntas, Survey No.45/5 measuring 3 acres 2 guntas, plot
No.416 and house property No.414, all situated in
Kohinoor Village, Basavakalyan Taluk, Bidar District.
4. Defendant No.4, namely, Smt. Annapurna had
purchased the property bearing Survey No.45/7 in terms
of deed of sale dated 08.06.2006 executed by defendant
No.1. The trial Court by its judgment and decree dated
05.03.2012 partly allowed the suit filed by the plaintiff
allotting share in the land bearing Survey Nos.45/5, 45/3
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and open plot No.416 and House No.414, all situated at
Kohinoor Village of Basavakalyan Taluk, Bidar District and
dismissed the suit with regard to land in Survey No.45/7
holding that the sale was for family necessity.
5. Being aggrieved by the judgment and decree
passed by the trial Court, plaintiff filed regular appeal in
RA No.9/2012, while defendant No.6 - Smt. Shashikala
filed regular appeal in RA No.15/2012 before the first
Appellate Court. The first Appellate Court by its judgment
and decree dated 19.11.2012 dismissed the said appeal
filed in RA No.9/2012 by the plaintiff, confirming the
judgment and decree passed by the trial Court, while
allowed the appeal in RA No.15/212 filed by defendant
No.6 allotting the share to defendant No.6 in the said land
in Survey No.45/7.
6. While aggrieved by dismissal of regular appeal
in RA No.9/2012 plaintiff is before this Court in RSA
No.7062/2012, and aggrieved by the judgment and decree
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passed in RA No.15/2012 defendant No.4 is before this
Court in RSA No.7158/2012. This Court by order dated
13.06.2013 admitted RSA No.7062/2013 for considering
the following substantial questions of law:
"1. Whether the courts below were justified
in recording the finding that the plaintiff
failed to prove there was no legal
necessity for sale of land measuring 3
acres in Sy.No.45/1, one of the suit
schedule properties by the 1st defendant
in favour of the 4th defendant, to deny
the plaintiff the relief of declaration
partition and separate possession of the
said property?
2. Whether the lower appellate court
without re-appreciating the evidence
both oral and documentary was justified
in concurring with the finding of the trial
court occasioning denial of justice as
contended by the plaintiff?"
7. Appeal in RSA No.7158/2013 is not yet
admitted.
8. Learned counsel Sri Ravi B. Patil and learned
counsel Sri Shivakumar Kalloor, appearing for the
respective parties in respective appeals submit that the
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impugned judgments and decrees dated 19.11.2012
passed in RA No.9/2012 and in RA No.15/2012 giving
mutually contrary and conflicting reasons and conclusions
have created legal and factual anomaly. They submit in
unison that the very same first Appellate Court on the very
same day, between the same parties on the very same set
of facts and circumstances and evidence and against the
very same judgment and decree of the trial Court, has
given two different judgments and decrees, which per se
illegal and unsustainable. Therefore, they submit that
notwithstanding the substantial questions of law having
been framed in one of the appeals in RSA No.7062/2012
as noted above, the impugned judgment be set aside and
matters be remanded to the first Appellate Court for fresh
consideration of the appeals on the grounds urged therein.
Hence, they seek for disposal of the appeals with a
direction to the first Appellate Court for fresh
consideration.
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9. Heard the learned counsel for the parties and
perused the records.
10. There is no dispute of the fact that aforesaid RA
No.9/2012 by the plaintiff and RA No.15/2012 by
defendant No.6 filed before the First Appellate Court are
against the judgment and decree dated 05.03.2012
passed in OS No.61/2006 by which the trial Court, while
partly decreeing the suit had dismissed the same as
regards the land in Survey No.45/7 of Kohinoor Village,
which was purchased by defendant No.4, who is the
appellant in RSA No.7158/2013. The aforesaid two regular
appeals in RA Nos.9/2012 and 15/2012 having raised
identical questions of fact and law before the first
Appellate Court have been disposed of by the first
Appellate Court by two different judgments and decrees of
even date i.e., 19.11.2022, by which the appeal filed in RA
No.9/2012 by the plaintiff has been dismissed confirming
the judgment and decree passed by the trial Court, while
appeal in RA No.15/2012 filed by defendant No.6 has been
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allowed setting aside the judgment and decree passed by
the trial Court.
11. It may also necessary to note that when the
RSA No.7062/2013 was admitted by this Court on
13.06.2013 for consideration of the substantial questions
of law referred to above, the appeal filed by the defendant
No.4 in RSA No.7158/2013 was not on record and could
not have been brought to the notice of this Court
regarding the aforesaid divergent finding and the
conclusion arrived at by the first Appellate Court.
12. In view of these peculiar facts and
circumstances of the matter as stated above, resulting in
contrary and conflicting reasoning, finding and conclusion,
taking note of the submissions made by the learned
counsel for the parties, this Court is of the considered view
that without expressing any view on the merits or
otherwise of the case of the appellants, both the
judgments and decrees dated 19.11.2012 passed in
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aforesaid RA No.9/2012 and RA No.15/2012 be set aside.
Accordingly, the same are set aside and the matters are
remitted to the first Appellate Court for disposal afresh
after providing sufficient opportunity to the parties.
13. It is made clear that the first Appellate Court
shall issue notice to all the parties and ensure prompt and
proper service of such notice and after affording sufficient
opportunity to all the parties concerned, shall dispose of
the appeals in accordance with law, within an outer limit of
one year from the date of service of notices as directed
above.
14. With the above observations, the appeals are
disposed of.
Sd/-
JUDGE
SBS
