Karnataka High Court
Smt.Lalita W/O Basavanneppa ... vs Chandrashekar S/O Halappa ... on 8 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:14431-DB
RFA No.100217 of 2018
C/W RFA No.100186 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH 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.100217 OF 2018
C/W REGULAR FIRST APPEAL NO.100186 OF 2018
IN RFA NO.100217/2018
BETWEEN:
1. CHANDRASHEKHAR
S/O. HALAPPA SAKRAPPANAVAR
AGE: 68 YEARS,
OCC: RETD. TEACHER AND AGRIL,
R/O:1ST CROSS, BASAVANGUDI,
SHIVAMOGGA
DIST:SHIVAMOGGA 577201.
2. SMT. PARMEELA
SAMREEN W/O. SHANKRAPPA ARALI
AYUB AGE:57 YEARS, OCC:HOUSE HOLD,
DESHNUR
R/O:BETUR ROAD,
DAVANAGERE 577001.
Digitally signed
by SAMREEN
...APPELLANTS
AYUB DESHNUR (BY SRI. DINESH M. KULKARNI, ADVOCATE)
Date: 2023.12.15
14:32:55 +0530
AND:
1. SMT. LALITA
W/O. BASAVANNEPA SAKRAPPANAVAR
AGE:63 YEARS, OCC:HOUSE HOLD,
R/O:484, 2ND MAIN,
2ND CROSS, UMASHANKAR NAGAR,
RANEBENNUR, TQ:RANEBENNUR,
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NC: 2023:KHC-D:14431-DB
RFA No.100217 of 2018
C/W RFA No.100186 of 2018
DIST:HAVERI 581115
2. TIPPESHI @ TIPPERUDRAPPA
S/O. BASAVANNEPPA SAKRAPPANAVAR
AGE:40 YEARS, OCC:TEACHER,
R/O:G.H.SALANATH HIGH SCHOOL,
KANAKAPURA TALUKA
DIST:RAMANAGAR 562117
NOW AT R/O: 484, 2ND MAIN,
2ND CROSS, UMASHANKAR NAGAR,
RANEBENNUR,
TQ:RANEBENNUR, DIST:HAVERI 581115.
3. SMT.JOYTI
W/O. SHIVASHANKARGOUDA BASANAGOUDRA
AGE:37 YEARS, OCC:HOUSE HOLD,
R/O:484, 2ND MAIN, 2ND CROSS,
UMASHANKAR NAGAR,
RANEBENNUR, TQ:RANEBENNUR,
DIST:HAVERI 581115.
4. SMT. VEENA W/O. SHASHIDHARGOUDA PATIL
AGE:35 YEARS, OCC:HOUSE HOLD,
R/O:484, 2ND MAIN, 2ND CROSS,
UMASHANKAR NAGAR,
RANEBENNUR, TQ:RANEBENNUR,
DIST:HAVERI 581115.
5. SMT.SHILPA
W/O. BASAVANNEPPA SAKRAPPANAVAR
AGE:33 YEARS, OCC:HOUSE HOLD,
R/O:484, 2ND MAIN, 2ND CROSS,
UMASHANKAR NAGAR,
RANEBENNUR, TQ:RANEBENNUR
DIST:HAVERI 581115.
6. SMT. KOTRAMMA
W/O. SHIVAPPA SAKRAPPANAVAR
AGE:65 YEARS, OCC:HOUSE HOLD AND AGRIL,
R/O:C/O:PARIJATA GENERAL STORES,
KOTTUR ROAD, HARAPANAHALLI,
DIST:DAVANAGERE 573122.
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NC: 2023:KHC-D:14431-DB
RFA No.100217 of 2018
C/W RFA No.100186 of 2018
7. AJJANNA M. S/O. PUTTAPPA M.,
AGE:77 YEARS, OCC:AGRIL,
R/O:MATTER STREET, HARAPANAHALLI,
TQ:HARAPANAHALLI,
DIST:DAVANAGERE 573122.
8. SMT. SHARADA
W/O. GANAPATI SAKRAPPANAVAR
AGE:46 YEARS, OCC:HOUSE HOLD,
R/O:135/2, 4TH CROSS,
K.B.EXTENSION,
DAVANAGERE 577001.
9. RAVIKUMAR
S/O. AJJANNA MATTER
AGE:43 YEARS, OCC:BUSINESS,
R/O:MATTER STREET, HARAPANAHALLI,
DIST:DAVANGERE 573122.
10. SANJEEVKUMAR
S/O. AJJANNA MATTER
AGE:58 YEARS, OCC:BUSINESS,
R/O:MATTER STREET, HARAPANAHALLI,
DIST:DAVANGERE 573122.
11. VEERABHADRAPPA
S/O. HALAPPA SAKRAPPANAVAR
AGE:60 YEARS,
OCC:RTD. BANK EMPLOYEE
R/O:135/2, 4TH CROSS, K.B.EXTENSION,
DAVANAGERE,
DIST:DAVANAGERE 577001.
12. SMT.SAROJA W/O. BAKKESH NAGANUR
AGE 59 YEARS, OCC:AGRIL,
R/O:135/2, 4TH CROSS, K.B.EXTENSION,
DIST:DAVANAGERE 577001.
13. SMT.SHASHIKALA
W/O. VEERABHADRAPPA SAKRPPANAVAR
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NC: 2023:KHC-D:14431-DB
RFA No.100217 of 2018
C/W RFA No.100186 of 2018
AGE:49 YEARS, OCC:TEACHER
R/O:135/2, 4TH CROSS K.B. EXTENSION,
DAVANAGERE, DIST:DAVANAGERE 577001
...RESPONDENTS
(BY SRI. N.P. VIVEKMEHTA, ADVOCATE FOR R1 TO R5;
SRI. B.G. INDI FOR SRI. K.L. PATIL, ADV. R7, R8 AND R11;
(NOTICE SERVED TO R6, R9, R10, R12 AND R13)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96
READ WITH ORDER 41 RULE 1 OF CPC., 1908, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DTD:14.02.2018
PASSED IN O.S.NO.67/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND PRINCIPAL JUDICIAL MAGISTRATE
FIRST CLASS, RANEBENNUR.
IN RFA NO.100186/2018:
BETWEEN:
1. SMT.LALITA
W/O. BASAVANNEPPA SAKRAPPANAVAR
AGE: 65 YEARS, OCC: HOUSEHOLD WORK
R/O: 2ND MAIN, 2ND CROSS,
UMASHANKAR NAGAR,
RANEBENNUR, DIST: HAVERI-581115.
2. TIPPESHI @ TIPPERUDRAPPA
S/O. BASAVANNEPPA SAKRAPPANVAR,
AGE: 42 YEARS, OCC: TEACHER,
R/O: G.H.S. ALANATH HIGH SCHOOL,
TQ: KANAKAPURA, DIST: RAMANAGAR.
3. SMT. JYOTI
W/O. SHIVASHANKARGOUDA BASANAGOUDA
AGE: 39 YEARS, OCC: HOUSEHOLD WORK
R/O: 2ND MAIN, 2ND CROSS,
UMASHANKAR NAGAR, RANEBENNUR,
DIST: HAVERI-581115.
4. SMT. VEENA W/O. SASHIDHARAGOUDA PATIL
AGE: 37 YEARS, OCC: HOUSEHOLD WORK
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NC: 2023:KHC-D:14431-DB
RFA No.100217 of 2018
C/W RFA No.100186 of 2018
R/O: 2ND MAIN, 2ND CROSS,
UMASHANKAR NAGAR, RANEBENNUR,
DIST: HAVERI-581115.
5. SHILPA W/O. BASAVANNEPPA SAKRAPPANAVAR
AGE: 35 YEARS OCC: HOUSEHOLD WORK
R/O: 2ND MAIN, 2ND CROSS,
UMASHANKAR NAGAR, RANEBENNUR,
DIST: HAVERI-581115.
...APPELLANTS
(BY SRI. N.P. VIVEKMEHTA, ADVOCATE)
AND:
1. CHANDRASHEKAR
S/O. HALAPPA SAKRAPPANAVAR
AGE: 68 YEARS, OCC: RETIRED TEACHER
AND AGRI, R/O: 1ST CROSS,
BASAVANAGUDI,DIST: SHIVAMOGGA-577200.
2. SMT. SAROJA W/O. BAKKESH NAGANUR
AGE: 58 YEARS OCC: AGRICULTURE,
R/O: K.B. EXTENTION,
DIST: DAVANGERE-577001.
3. SMT. PRAMEELA W/O. SHANKRAPA ARALI
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: BETUR ROAD,
DIST: DAVANGERE-577001.
4. SMT. SHASHIKALA
W/O. VEERABHADRAPPA SAKRAPPANAVAR
AGE: 48 YEARS, OCC: TEACHER
R/O: 4TH CROSS, K.B. EXTENSION,
DIST: DAVANGERE-577001.
5. SMT. KOTRAMMA
W/O. SHIVAPPA SAKRAPPANAVAR
AGE: 65 YEARS, OCC: HOUSEHOLD WORK
C/O: PARIJATA GENERAL STORES,
KOTTUR ROAD, HARAPANAHALLI,
DIST: DAVANGERE-583131.
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NC: 2023:KHC-D:14431-DB
RFA No.100217 of 2018
C/W RFA No.100186 of 2018
6. AJJANNA M. S/O. PUTTAPPA M
AGE: 77 YEARS, OCC: AGRICUTLRUE
MATTER STREET, HARAPANAHALLI,
DIST: DAVANGERE-583131.
7. SMT. SHARADA
W/O. GANAPATI SAKRAPPANAVAR
AGE: 46 YEARS, OCC: HOUSEHOLD WORK
R/O: 4TH CROSS, K.B. EXTENSION,
DIST: DAVANGERE-577001.
8. RAVIKUMAR S/O. AJJANNA MATTER
AGE: 45 YEARS, OCC: BUSINESS,
MATTER STREET, HARAPANAHALLI,
DIST: DAVANGERE-583131.
9. SANJEEVKUMAR S/O. AJJANNA MATTER
AGE: 58 YEARS,OCC: BUSINESS
MATTER STREET, HARAPANAHALLI,
DIST: DAVANGERE-583131.
10. VEERABHADRAPPA
S/O. HALAPPA SAKRAPPANAVAR
AGE: 59 YEARS, OCC: RETIRED BANK EMPLOYER
R/O: K.B. EXTENSION
DIST: DAVANGERE-577001.
...RESPONDENTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE FOR R1 AND R3)
(NOTICE SERVED TO R2, R4 TO R10)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96
READ WITH ORDER 41 RULE 1 OF CPC., PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED:14.02.2018
PASSED IN O.S.NO.67/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE ADN PRINCIPAL JUDICIAL MAGISTRATE
FIRST CLASS, RANEBENNUR, AND DECREE FOR THE CLAIM OF
APPELLANTS / DEFENDANTS BY ALLOWING THIS APPEAL.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:14431-DB
RFA No.100217 of 2018
C/W RFA No.100186 of 2018
JUDGMENT
Heard the appellants' counsel and also counsel appearing
for respondent Nos.1 to 5 and counsel for respondent Nos.7, 8
and 11.
2. The parties are referred as per their original ranks
before the Trial Court for the purpose of convenience of this
Court.
3. Factual matrix of the case of the plaintiffs before
the Trial Court that suit schedule properties are the ancestral
joint family properties available for partition. The plaintiffs
while filing the suit included total 8 items of the properties
which are more fully described in schedule 'B'. The defendant
No.1 took up the defence in his written statement that already
there was a partition in the year 1986 and plaintiffs were given
their shares and they have in turn sold some of the properties
and received the sale amount and hence they are not entitled
to seek any partition.
4. The defendant No.1 took up the defence in the
written statement that she is entitled for 1/4th share in the suit
NC: 2023:KHC-D:14431-DB
schedule properties. The defendant No.1 states that all the
family properties are not included for the relief of partition.
5. The Trial Court has framed issues and allows the
parties to lead evidence. The plaintiffs have examined the first
plaintiff as PW.1 and got marked documents at Ex.P.1 to P.18.
On the other hand first defendant examined herself as DW.1
and defendant No.6 also examined herself as DW.2.
Defendants have relied upon the documents at Ex.D.1 to D.22
including copy of the earlier order passed in FDP No.3/1993 and
so also the sale deeds at Ex.D.20 and D.21. They also relied
upon the record of rights at Ex.D.1 to D.11, mutation extracts
at Ex.D.12 to D.18 and M.R. No.29/2013-14 at Ex.D.19.
6. The Trial Court having considered the pleadings and
also the oral and documentary evidence available on record
comes to the conclusion particularly in paragraph Nos.26 and
27 of the judgment that defendant No.1 has claimed 1/6th
share in the suit schedule properties. It is also mentioned by
D.W.2 in her cross-examination that she has no objection to
decree the suit if the legitimate share of her husband was
granted in the suit. Defendants No.1 to 5 also states that, no
NC: 2023:KHC-D:14431-DB
partition, by metes and bounds, has been effected as per the
decree drawn in O.S. No.58/1987. The Trial Court has also
taken note of the contention of defendant No.6 that very claim
made by defendant No.6 is that the suit is bad for non-inclusion
of the other joint family properties mentioned in para 2 of the
written statement. It is also taken note of the fact that
defendant No.6 had not produced any document pertaining to
the properties mentioned in paragraph 2 of her written
statement. But the Trial Court has taken note of the fact that,
in O.S. NO.58/1987, 13 properties were shown as the suit
schedule properties and all the 13 properties were considered
as joint family properties; that some of the parties to the
present suit including the plaintiffs No.2 to 4 were also
parties/plaintiffs in O.S. No.58/1987. The Trial Court has also
taken note of the final decree proceedings in FDP NO.3/1993
and also the modification made by the Trial Court in FDP
No.3/1993 with regard to defendant No.12. Hence, the Trial
Court comes to the conclusion that the suit for partial partition
is not maintainable in law. The Trial Court has also observed
that when in earlier suit there were 13 properties and also
Court comes to the conclusion that they were joint family
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properties. The Trial Court has also made an observation that if
those properties were already sold out and if those properties
are not joint family properties, the plaintiff ought to have filed
documents before the Court to show that the other 5 properties
mentioned in FDP No.3/1993 were already sold out with the
consent of all the joint family members and those properties
are not now joint family properties. It was for the plaintiff to
establish that defendant No.6 or other defendants have
consented for the sale of 5 properties mentioned in FDP
No.3/1993. The Trial Court has, in detail, discussed the earlier
judgment and decree and subsequent order passed in FDP
No.3/1993 and hence comes to the conclusion that the very
suit is not maintainable under law unless all the properties were
included as properties available for partition. The Trial Court
has also taken note of the defence of defendant No.1 that
already there was partition in the year 1986 and comes to the
conclusion that the same is not substantiated by defendant
No.1 and answered issued No.1 though affirmative that the
same is an ancestral property. But, in view of non-inclusion of
all the joint family properties not entitled for any relief by
answering issue No.3 as negative.
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7. Being aggrieved by the judgment and decree of
dismissal of the suit, these two appeals are filed by the plaintiff
as well as defendants No.1 to 5.
8. Learned counsel for the appellants would
vehemently contend that the very approach of the Trial Court is
erroneous and ought not to have dismissed the suit in its
entirety, instead of considering the claim made by the plaintiff
and the defendants. The respective counsels would also submit
that earlier a suit in O.S. No.58/1987 was initiated by
defendant nO.6 and her share was determined and other
plaintiffs and defendants share has not been determined in the
earlier suit. The counsel also brought to the notice of this Court
the final decree proceedings in FDP No.3/1993. In the F.D.P.
only modified and granted the preliminary decree in respect of
defendant No.12 as instead of 3/14 it is made as 5/14. In final
decree proceedings also rights of these appellants have not
been determined by the FDP Court and in the absence of
determination of rights of the present appellants, the question
of dismissing the suit does not arise.
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9. Per contra, counsel appearing for respondents No.7,
8 and 11 submits that the Trial Court committed an error in
dismissing suit and it ought to have considered the rights of the
parties when the parties have approached seeking the relief of
partition.
10. Having heard the appellants' counsel and the
counsel appearing for the respondents and also considering the
reasoning given by the Trial Court and the grounds urged in the
respective appeals, the following points arise for consideration
of this Court:
i) Whether the Trial Court committed an error in
dismissing the suit in its entirety without
determining the right of the appellants?
ii) What order?
11. Having heard the respective counsel and on perusal
of the material on record, there is no dispute with regard to the
fact that earlier, defendant No.6 had approached the Court in
O.S. No.58/1987 claiming her share. It is also not in dispute
that in the said suit only her right has been determined and
determined as she is entitled for 1/14th share. It is also
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important to note that now both parents were not alive and
four children were also not there and four legal heirs had
passed away and their legal heirs are already brought on record
and their rights has to be determined. It is also the contention
of the respective counsel also that parents are no more and
there was no partition among the family member and though
defendant No.1 took the contention that there was already a
partition and the Trial Court answered the issue No.3 as
negative and also on perusal of the judgment of the trial Court,
the Trial Court has not given any definite finding in making
discussion as to whether already there was partition in the year
1986 or not. The Trial Court ought to have given a definite
finding whether there was partition or not and committed an
error. It is also important to note that only on the ground that
other properties have not been included, the Trial Court comes
to the conclusion that unless the other properties are included,
the question of determining their rights does not arise. No
doubt, the Trial Court also while considering the material on
record has taken note of the fact that earlier suit filed by
defendant No.6 there was 13 properties and in the subsequent
suit i.e. the present suit only 8 properties were made as joint
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family properties. It is also emerged in the evidence, some of
the properties have been sold and no such details were given,
but defendant No.6 in the written statement mentioned the
details of the properties. But no documents were placed before
the Trial Court however, some sale deeds are placed before the
Trial Court, when the Trial Court comes to know about non-
inclusion of other properties ought to have given an opportunity
to the parties to make those properties as properties available
for partition and whether they have been sold and right has
been created and whether those properties partiable for
partition ought to have been considered. But the same has not
been done. First of all, no finding has been given with regard to
the earlier partition as contended by defendant Nos.1 to 5 and
hence, it is appropriate to remand the matter to the Trial Court
for fresh consideration and give an opportunity to respective
parties to include all the properties and lead their evidence and
then determine what are all the properties partiable among the
joint family properties because earlier also the Trial Court has
given finding in O.S. No.58/1987 and that there were 13 joint
family properties are ancestral properties and the Trial Court
also while answering issue No.1 has given a finding that the
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suit schedule properties are ancestral properties and when such
being the case, instead of dismissing the suit ought to have
given an opportunity and decided the matter of the rights of
the parties and hence we are of the opinion that the Trial Court
committed an error in dismissing the suit out rightly and
without answering the proper issues also including issue No.3
whether there was a earlier partition or not as contended by
defendant NO.1 to 5 in the written statement. It is also
important to note that when defendant No.6 also makes claim
in the suit that other properties are also she is entitled for a
share and the said issue also to be considered by the Trial
Court but the same has not been considered. It is also
important to note that the suit is filed for the relief of partition
and in the said suit all the parties are like plaintiffs and their
share also to be determined and the Trial Court has not
ventured to consider the same also and in a suit for partition,
ought to have decided the share of each of the joint family
members whether they paid the court fee or not. Even the
Court can make an order for payment of court fee after
determining the share of each co-parceners and on that ground
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also it requires remand for reconsideration. Hence, we answer
the point in the affirmative.
12. In view of the above discussion, we pass the
following:
ORDER
i) Both the appeals are allowed.
ii) The impugned judgment and decree, dated
14.02.2018, passed by the Principal Senior civil Judge
& Principal JMFC, Ranebennur, in O.S. No.67/2015 is
hereby set aside.
iii) The matter is remitted back to the Trial Court to decide
the case in accordance with law in view of the
observations made by this Court and also keeping in
mind the principles laid down by the Hon'ble Apex
Court in the case of Vineeta Sharma Vs. Rakesh
Sharma and Others reported in (2020)9 SCC 1.
iv) The parties are directed to appear before the Trial
Court on 10th January 2024 without expecting any
separate notice from the Trial Court.
v) However, the Trial Court is directed to issue Court
notice to defendant No.6 simultaneously through Court
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as well as RPAD in order to secure the presence of
defendant No.6.
vi) The Trial Court is directed to dispose the suit within
one year from 10th January 2024.
Registry is directed to transmit the records of the Trial
Court to enable the Trial Court to take up the matter without
fail on 10.01.2024.
Registry is also directed to communicate this order to the
Trial Court forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
SMM/KMS
