Karnataka High Court
Sattevva W/O. Ramappa Kone vs Basappa S/O. Bhimagonda ... on 3 January, 2023
Bench: M.G.S. Kamal
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RSA No. 5787 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 5787 OF 2013 (PA/DE/IN)
BETWEEN:
SATTEVVA W/O. RAMAPPA KONE
AGE: 61 YEARS, OCC: AGRICULTURE AND
HOUSEHOLD WORK,
R/O. SHIRAGUR VILLAGE, TQ: RAIBAG,
BY HER GENERAL POWER OF HOLDER NATURAL SON
BASAPPA RAMAPPA KONE,
AGE: 39 YEARS, OCC: AGRICULTURE
R/O. SHIRAGUR VILLAGE,
TQ: RAIBAG - 591317.
...APPELLANT
(BY SRI. SHIVARAJ S.BALLOLI, ADVOCATE)
AND:
1. BASAPPA S/O. BHIMAGONDA ALLIKATTI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KHILEGAON VILLAGE,
TQ: ATHANI, DIST: BELGAUM - 591304.
Digitally signed
by ROHAN
2. SHIVAPPA S/O. BHIMAGONDA ALLIKATTI
HADIMANI T
ROHAN Location: HIGH
HADIMANI COURT OF
KARNATAKA
T DHARWAD
Date: 2023.01.07
13:25:25 +0530
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KHILEGOAN VILLAGE,
TQ: ATHANI, DIST: BELGAUM - 591304.
3. SHIVAMURTHI S/O. BHIMAGONDA ALLIKATTI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KHILEGOAN VILLAGE,
TQ: ATHANI, DIST: BELGAUM - 591304.
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RSA No. 5787 of 2013
4. MAHADEVI W/O. SHIVAPPA ALLIKATTI
AGE: MAJOR, OCC: AGRICULTURE,
R/O. KHILEGOAN VILLAGE,
TQ: ATHANI, DIST: BELGAUM - 591304.
...RESPONDENTS
(BY SRI. S.V.DESHPANDE AND
SRI. M.R.SHINDE, ADVOCATES FOR R1 TO R4;
SRI. SANGRAM S.KULKARNI, ADV. FOR R2 TO
R4 [NOC NOT OBTAINED])
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT & DECREE DTD:19.09.2013 PASSED
IN R.A.NO.96/2007 ON THE FILE OF THE VII ADDL. DIST. &
SESSIONS JUDGE, BELGAUM AT CHIKODI, DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT AND DECREE
DTD:25.09.2007 PASSED IN O.S. NO.137/2001 ON THE FILE
OF THE CIVIL JUDGE & ASSTT. SESSIONS JUDGE, ATHANI.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Present appeal filed by the plaintiff/appellant
aggrieved by the judgment and decree dated 25.09.2007
passed in O.S.No.137/2001 on the file of the learned Civil
Judge and Asstt. Sessions Judge, Athani (hereinafter
referred to as the 'Trial Court') in and by which the Trial
RSA No. 5787 of 2013
Court partly decreed the suit for partition filed by the
plaintiff/appellant declaring that she is entitled for 1/3rd
share in the suit properties except in Sy.No.133/1A and
for a separate possession of her share. Being aggrieved by
the same, the plaintiff/appellant preferred a regular appeal
in R.A.No.96/2007 on the file of the learned VII Additional
District and Sessions Judge, Belagavi at Chikkodi
(hereinafter referred to as the 'First Appellate Court'). The
First appellate Court by its judgment and order dated
19.09.2013 while dismissing the said appeal confirmed the
judgment and decree passed by the Trial Court. Being
aggrieved by the same, the plaintiff/appellant is before
this Court.
BRIEF FACTS:
2. It is the case of the plaintiff/appellant that one
Gurubasu Dhanale is the father of the appellant/plaintiff
and husband of one Smt. Laxmibai the original defendant
No.4 and the father of Smt. Mahadevi/defendant No.5.
That the properties bearing Sy.No.133/1A measuring 6
RSA No. 5787 of 2013
acres 6 guntas and Sy.No.133/1B measuring 6 acres 7
guntas and a house property bearing GPS.No.404 all
situated at Khilegaon, Athani Taluk absolutely belonged to
the said Gurubasu Dhanale.
2.1 That the said Gurubasu Dhanale passed
away on 15.05.1981 leaving behind the plaintiff,
defendants No.4 and 5 as his Class-I heirs to succeed
to the aforesaid properties in equal share.
2.2 That there has been no partition in respect
of the suit properties. That the defendants No.1 to 3
are not concerned with the family of Gurubasu Dhanale
and have no right of any nature over the suit
properties. However, the defendants No.1 to 3 had got
their names mutated in the revenue records in respect
of land in Sy.No.133/1A by filing Varadi on
01.02.1980.
2.3 That the said Varadi did not create any
right, title or interest in favour of the defendants No.1
to 3, as the same appear to have been effected on the
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basis of an unregistered relinquishment deed dated
01.02.1980.
2.4 That the suit properties remained the joint
family properties of the plaintiff, defendants No.4 and 5
and hence suit for partition.
2.5 Defendants No.1 to 3 filed written
statement contending that item No.1 of the suit
properties now in Sy.No.133/1A originally belonged to
their grandfather. Defendants No.1 to 3 are the
children of Smt. Indawwa who is none other than the
sister of the said Gurubasu Dhanale. That since the
mother of defendants No.1 to 3 was not given share in
her father's property, father of the plaintiff namely
Gurubasu Dhanale being her brother had settled the
item No.1 of the suit property in favour of defendants
No.1 to 3 as the share of the said Smt. Indawwa; that
since the said share was given a lieu of pre-existing
right of Smt. Indawwa, the same did not require any
registration and the Varadi was made during the life
RSA No. 5787 of 2013
time of Gurubasu Dhanale with his knowledge and
consent. Hence sought for dismissal of the suit.
2.6 The Trial Court based on the pleadings
framed following issues:
"1. Whether the Plaintiff proves that all the suit properties
are in joint possession and enjoyment of herself and
defts 4 and 5?
2. Whether the plff proves that she is having 1/3rd share
in the suit properties?
3. Whether the plff proves that M.E. No.1091 in respect
of R.S. No.133/1A is behind her back and of her
father, and it is not binding on her?
4. Whether the Plff proves that the Relinquishment deed
executed by deft. No.4 infavour of Deft No.5 is not
binding on her?
5. Whether the defts 1 to 3 proves that they are absolute
owner in possession of R.S.No.133/1A?
6. Whether the defts 4 and 5 prove that the deft No.5 is
absolute owner in possession of the land
R.S.No.133/1B, and the House bearing No.404 and
the suit open site No.7?
7. Whether the defts proves that the suit of the piff is
time barred?
8. What order or decree?"
2.7 Power of holder of plaintiff one Basappa
Ramappa Kone examined himself as PW.1 and
exhibited 6 documents marked as Exs.P1 to P6. 3
RSA No. 5787 of 2013
witness were examined on behalf of the defendants as
DWs.1 to 3 and exhibited 56 documents marked as
Exs.D.1 to D56.
2.8 The Trial Court on appreciation of pleading
and evidence, answered issue No.1, 2 and 5 in the
affirmative and issue Nos.3, 4, 6 and 7in the negative,
consequently decreed the suit as above. Being
aggrieved by the same, plaintiff preferred a regular
appeal before the First Appellate Court in
R.A.No.96/2007. Considering the grounds urged by the
plaintiff, the First Appellate Court framed the following
points for its consideration:
"1 Whether the appellant proves that, the impugned
judgment and decree of the trial court is not
sustainable and needs to be interfered?
2 What order?"
2.9 Re-appreciating the evidence, the First
Appellate Court answered the point No.1 in the
negative and consequently passed the impugned
judgment and order by dismissing the appeal and
RSA No. 5787 of 2013
confirmed the judgment and decree of the Trial Court.
Being aggrieved by the same, the plaintiff/appellant is
before this Court.
3 Sri. Shivaraj S.Balloli, learned counsel for the
appellant reiterating the grounds urged in the memo of
appeal submitted that the Trial Court and the First
Appellate Court failed to appreciate that the suit property
was originally belonging to Gurubasu Dhanale and
defendants No.1 to 3 were strangers to the family; that
they did not have any right, title or interest in respect of
the properties; that merely on the basis of the un-
registered relinquishment deed produced as Ex.D.1
purportedly executed by the Gurubasu Dhanale, which do
not have the effect of creating right in respect of the
property; the defendants No.1 to 3 cannot claim any right.
The First Appellate Court and the Trial Court ought to have
seen that no right, title or interest in respect of immovable
property can be created merely on the basis of the Varadi
which has no legal effect of creation of right, title or
RSA No. 5787 of 2013
interest in respect of any immovable property; that the
right, title or interest in respect of immovable proper can
only be created in the manner known to law namely by
executing a registered document and that not having
done, the Trial Court and the First Appellate Courts are not
justified in upholding the transaction purported to have
taken place between the father of the plaintiff and the
defendants No.1 to 3. that the Trial Court and the First
Appellate Court not having appreciated this legal and
factual aspect of the matter, grossly erred in excluding
aforesaid property in Sy.No.133/1A from the partition.
Thus, appeal gives rise to substantial question of law.
4 On the other hand, Sri. S.V.Deshpande, learned
counsel appearing on behalf of the defendants No.1 to 4
justifying the order passed by the Trial Court and the First
Appellate Court submits that there is no pleading in the
plaint regarding the source of the property through which
the said Gurubasu Dhanale acquired the same. It is
contended that the properties were acquired by way of
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RSA No. 5787 of 2013
inheritance by said Gurubasu Dhanale and Smt. Indawwa
through their father and it is undisputed fact that there
was no partition between Gurubasu Dhanale and his said
sister Smt. Indawwa. Therefore, one of the suit properties
namely in Sy.No.133/1A measuring 6.6 guntas was given
by the father of the plaintiff namely Gurubasu Dhanale to
defendants No.1 to 3 lieu of share of his sister, who is
mother of defendants No.1 to 3. Since the said property
was given in lieu of her share, same is in recognition of
the pre-existence right of mother of defendants No.1 to 3,
require no registration of the document for the purpose of
creation of right. Therefore he submits that the Trial Court
and the First Appellate Court are justified in passing the
order granting the share of the plaintiff excluding the
aforesaid property in Sy.No.133/1A.
5 Heard and perusal records.
6 As rightly contended by the learned counsel for
the respondents, there is no whisper in the plaint, that the
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RSA No. 5787 of 2013
suit properties more particularly land in Sy.No.133/1A
measuring 6.6 guntas was the self acquired property of
the father of the plaintiff. The case of defendants No.1 to 3
has also not been refuted or disputed by the plaintiff; that
the Trial Court and the First Appellate Court have taken
note of the fact that land measuring 6 acres 6 guntas in
Sy.No.133/1A was allotted by the father of the plaintiff
during his life time in favour of defendants No.1 to 3 in
lieu of the share of their mother, who had a pre-exiting
right over the property of her father. That the suit
properties are admittedly the properties of the father of
Gurubasu Dhanale and Indawwa.
7 That apart, the mutation of names of
defendants No.1 to 3 in the revenue records by placing
varadi has also taken place during the life time of the
father of the plaintiff and he has not objected or disputed
the same. The Trial Court and the First Appellate Court
have adverted to all aspect of the matter. In that view of
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RSA No. 5787 of 2013
the matter, there is no substantial question of law involved
in this case. Appeal is therefore dismissed.
sd
JUDGE
RH
