Karnataka High Court
Shri Shankar S/O Rangappa Metagud vs Shri Shrikant S/0 Rangappa Metagud on 6 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:14236-DB
RFA.CROB No. 100014 of 2023
C/W RFA No. 100277 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
RFA CROSS OBJ NO. 100014 OF 2023 (PAR/POS)
C/W
REGULAR FIRST APPEAL NO. 100277 OF 2023
IN RFA CROB.NO.100014 OF 2023:
BETWEEN:
SMT. HANAMAVVA
W/O. HANAMAPPA UDAGATTI,
AGE: 65 YEARS, OCC: AGRICULTURE/H/W,
R/O: VANTAGODI, TQ: MUDHOL,
DIST: BELAGAVI-590001.
...CROSS OBJECTOR
(BY SRI. SHARAD V.MAGADUM, ADVOCATE)
AND:
SAROJA
HANGARAKI
1. SHRI. SHRIKANT
S/O. RANGAPPA METAGUD,
Digitally signed by SAROJA
HANGARAKI
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENCH
Date: 2023.12.15 15:25:05
+0530 AGE: 49 YEARS, OCC: AGRIL.,
R/O: KULAGOD-591310,
TQ: MUDALAGI, DIST: BELAGAVI.
2. SHRI. SADHASHIV
S/O. RANGAPPA METAGUD,
AGE: 58 YEARS, OCC: AGRIL.,
R/O: KULAGOD-591310,
TQ: MUDALAGI, DIST: BELAGAVI.
3. SHRI. SHANKAR
S/O. RANGAPPA METAGUD,
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NC: 2023:KHC-D:14236-DB
RFA.CROB No. 100014 of 2023
C/W RFA No. 100277 of 2023
AGE: 57 YEARS, OCC: AGRIL.,
R/O: KULAGOD-591310,
TQ: MUDALAGI, DIST: BELAGAVI.
4. SMT. SHOBHA
W/O. SUBHAS JAKAREDDI,
AGE: 54 YEARS, OCC: HOUSE WIFE,
R/O BASAV NAGAR, 1ST CROSS,
BEHIND DR.GULL HOSPITAL GOKAK,
TQ: GOKAK, DIST: BELAGAVI-591218
...RESPONDENTS
(BY SRI. MAHANTESH R.PATIL, ADV. FOR R1;
SMT. SUNANDA PATIL, ADV. FOR R3;
SRI. VITTHAL S.TELI, ADV. FOR R2 AND R4)
THIS RFA.CROB IS FILED UNDER ORDER XLI RULE 22 OF
CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 31.01.2023 PASSED IN O.S.NO.757/2022 BY THE
PRINCIPAL SENIOR CIVIL JUDGE GOKAK AND ETC.
IN RFA NO.100277 OF 2023:
BETWEEN:
SHRI. SHANKAR
S/O. RANGAPPA METAGUD,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KULAGOD-591310,
TQ: MUDALAGI, DIST: BELAGAVI.
...APPELLANT
(BY SMT. SUNANDA P.PATIL, ADVOCATE)
AND:
1. SHRI. SHRIKANT
S/O. RANGAPPA METAGUD,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: KULAGOD-591310,
TQ: MUDALAGI, DIST: BELAGAVI.
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NC: 2023:KHC-D:14236-DB
RFA.CROB No. 100014 of 2023
C/W RFA No. 100277 of 2023
2. SMT. HANAMAVVA
W/O. HANAMAPPA UDAGATTI,
AGE: 66 YEARS, OCC: AGRICULTURE
AND HOUSEHOLD WORK,
R/O: VANTAGODI-587313,
TQ: MUDHOL, DIST: BAGALKOT.
3. SHRI. SADASHIV
S/O. RANGAPPA METAGUD,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: KULAGOD-591310,
TQ: MUDALAGI, DIST: BELAGAVI.
4. SMT. SHOBHA
W/O. SUBHAS JAKAREDDI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: BASAVA NAGAR, 1ST CROSS,
BEHIND DR.GULL HOSPITAL,
GOKAK-591307,
TQ: GOKAK, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. MAHANTESH R.PATIL, ADV. FOR R1;
SRI. SHARAD V.MAGADUM, ADV. FOR R2;
SRI. VITTHAL S.TELI, ADV. FOR R3 AND R4)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 31.01.2023 PASSED IN O.S.757/2022 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, GOKAK AND
ETC.
THIS RFA CROSS OBJECTION AND APPEAL, COMING ON
FOR ADMISSION, THIS DAY, H.P.SANDESH, J., DELIVERED THE
FOLLOWING:
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RFA.CROB No. 100014 of 2023
C/W RFA No. 100277 of 2023
JUDGMENT
These two matters are listed for admission and these
matters are arising out of the judgment and decree dated
31.01.2023 passed in O.S.No.757/2022 by the Principal Senior
Civil Judge, Gokak.
2. The RFA is filed by defendant No.3 and RFA Cross
Objection is filed by defendant No.1.
3. The factual matrix of the case of the
plaintiff/respondent No.1 before the Trial court that the plaintiff
and defendants are the sons and daughters of deceased
Rangappa and his wife Venkavva. The plaintiff and defendants
are the only class-1 legal heirs to the deceased Rangappa and
Venkavva. The suit schedule properties are the ancestral and
joint family properties of the plaintiff and defendants. After the
death of Rangappa, the names of the plaintiff and defendants
have been mutated in the suit schedule properties and the
plaintiff and defendants are in actual possession and enjoyment
of the suit schedule properties jointly. The plaintiff and
defendants are paying the tax jointly. The relationship between
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the plaintiff and defendants is strained due to the difference in
the women folk and there is no chance of continuing the joint
possession. The defendants are trying to oust the plaintiff from
the suit lands. Hence, the plaintiff requested the defendants to
not to commit such acts and defendants are not in a position to
hear the plaintiff and hence, the plaintiff approached and
requested the defendants to effect partition and hand over his
share in the suit schedule properties whereas the request of the
plaintiff went in vain. Hence, the plaintiff constrained to file a
suit for the relief of partition and separate position.
4. Despite service of suit summons, defendant No.1 to
4 have remained absent and hence, they were placed exparte.
Thereafter, the trial court allowed the plaintiff to lead his
evidence. The trial court having considered the pleadings of
the plaintiff as well as the evidence, granted 1/5th share each in
the suit schedule properties by metes and bounds. Being
aggrieved by the judgment and decree of the trial court, the
present appeal and cross appeal are filed before this Court.
5. The counsel for the appellants as well as the cross
objector submit that they have given assurance of compromise
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in the matter hence, they did not file the written statement and
did not represent before the trial court to contest the matter
but inspite of the said assurance, the plaintiff has obtained the
judgment and decree.
6. The appellant in RFA No.100277/2023 has filed
I.A.No.3/2023 under Order 41 Rule 27 read with Section 151 of
CPC praying the Court to permit him to rely on the additional
documents produced by him contending that some of the family
properties were left out while filing the suit and the documents
which are intend to produce are disclosed that the family is
having other properties also and hence, the said application has
to be considered.
7. The learned counsel appearing for respondent No.3
filed an objection to I.A.No.3/2023. The counsel would
vehemently contend that the sale deeds are standing in the
name of respondent No.3 thus, those properties are exclusive
properties of respondent No.3 hence, now, they cannot be
include those properties in the matter and in order to prove
that those properties are the family properties, no material has
been placed on record.
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8. The counsel for respondent No.1 would vehemently
contend that very records disclose that they have served with
suit summons, inspite of it, they did not make any efforts to
appear before the Court and the grounds urged in the appeal as
well as in the cross objection that there was an assurance of
compromise and the said contention is far from the truth since
no such assurance was given when the suit was pending before
the trial court.
9. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on
record, it is not in dispute that the defendants were placed
exparte and the trial court also having considered the pleadings
of the plaintiff as well as the documents, decreed the suit
granting 1/5th share each in the suit schedule properties.
Hence, the matter has not been considered on merits. The
contention of the counsel for the appellant and cross objector
that assurance was given for compromise and the said
contention cannot be considered at this stage unless the
materials are placed on record. However, the parties are
represented through their counsel and also an application is
filed under Order 41 Rule 27 of CPC seeking permission to
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produce the additional documents by the appellant. When the
judgment is not based on merits, it is appropriate to set aside
the said judgment and decree of the trial court and hence, the
matter requires to be reconsidered in view of the grounds
urged in the appeal as well as in the cross objection.
10. The appellant and cross objector though served
with suit summons, they did not chose to contest the matter
before the trial court and now, filed an application to produce
the additional documents. Thus, it is a fit case to impose the
cost of Rs.10,000/- each which is payable to the plaintiff in the
next date of hearing before the trial court. Accordingly, the
appeal and cross appeal are allowed and the judgment and
decree of the Trial Court is set aside.
11. It is made it clear that the defendants are directed
to file their written statement within a period of one month
from the date of first appearance before the trial court.
12. The parties are represented before this Court and
hence, there is no need to issue separate notice to each of the
parties by the Trial Court.
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13.
The parties are directed to appear before the trial
*2024
court on 08.01.2023 without expecting notice from the trial
court.
14. The appellant is directed to take back the
application filed under Order 41 Rule 27 of CPC along with the
documents and the documents shall be placed before the trial
court along with the written statement.
15. The parties are given liberty to lead their evidence
afresh.
16. The trial court is directed to consider the matter on
merits in accordance with law.
Sd/-
JUDGE
Sd/-
JUDGE
SN
*corrected vide chamber order dated
15.12.2023
Sd/-
JUDGE
