Ramesh S/O. Gurunath Lamani vs Somavva W/O. Gurunath Lamani
2023 Latest Caselaw 21 Kant

                               IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                   DATED THIS THE 2ND DAY OFJANUARY, 2023
                                                     BEFORE
                                   THE HON'BLE MR JUSTICE RAVI V.HOSMANI
                                             R.S.A.NO.5842 OF 2013
                          BETWEEN:

                                 RAMESH
                          1.     S/O GURUNATH LAMANI,
                                 AGED 31 YEARS, OCC: AGRICULTURE
                                 R/O KALSAPUR TALUK,
                                 GADAG DISTRICT - 582 101.

                          2.     SMT. SHAKUNTALA
                                 S/ MOTESH LAMANI, AGED 28 YEARS,
                                 OCC: AGRICULTURE, COOLIE,
                                 R/O KALSAPUR, NOW R/O HARADKATTI,
                                 TALUK: SHIRAHATTI, DISTRICT: GADAG.
                                 PIN 582 108.
                                 GANESH,
                          3.     S/O GURUNATH LAMANI,
                                 AGED 25 YEARS, OCC: STUDENT,
                                 R/O KALSAPUR TALUK,
                                 GADAG DISTRICT - 582 101.


                                 MAHAMMED ALI,
ANNAPURNA                 4.     S/O NABISAB DYAMANNAVAR,
CHINNAPPA
DANDAGAL                         AGED 56 YEARS, OCC: AGRI. & PWD CLASS-I,
Digitally signed by
                                 CONTRACTOR, R/O BANKERS' COLONY,
ANNAPURNA
CHINNAPPA
DANDAGAL
                                 GADAG - 582 101.
Location: High court of
Karnataka, Dharwad
Bench, Dharwad
Date: 2023.01.17
10:52:36 -0800
                                                                            ...APPELLANTS

                          (By Sri. P.G.CHIKKANARAGUND, ADVOCATE)
                              2




AND:

1.   SMT. SOMAVVA,
     W/O GURUNATH LAMANI,
     AGED: 73 YEARS, OCC: HOUSE HOLD WORK,
     R/O SHINGATRAYANAKERI TANDA,
     TALUK: MUNDARGI, DIST. GADAG
     PIN 582 112.

2.   SMT. CHNDABAI
     S/O SOMAPPA LAMANI,
     AGED 43 YEARS, OCC: COOLIE,
     R/O SHINGATRAYANAKERI TANDA,
     TALUK: MUNDARGI, DISTRICT GADAG,
     PIN - 582 112.
3.   SMT. INDIRABAI,
     S/O SAMARTH RATHOD,
     AGED: 43 YEARS, OCC: COOLIE,
     R/O SHINGATRAYANAKERI TANDA,
     TALUK: MUNDARGI, DIST. GADAG,
     PIN 582 112.

4.   SMT. MEERABAI,
     W/O DHIRAJ NAIK,
     AGED: 35 YEARS, OCC: COOLIE,
     R/O SHINGATRAYANAKERI TANDA,
     TALUK MUNDARGI, DIST. GADAG,
     PIN 582 112.
5.   LAXMAPPA,
     S/O CHANNAPPA LAMANI,
     AGED 43 YEARS, OCC: SERVICE,
     R/O KALSAPUR TALUK,
     GADAG DISTRICT - 582 101.
                                             ...RESPONDENTS
[By SRI. SHRIKANT T. PATIL AND
    SRI. ROHIT S. PATIL, ADVOCATES FOR R1 TO R4;
    SRI. S.S.KOLIWAD, ADVOCATE FOR R5]
                                        3




     THIS RSA FILED U/S. 100 OF CPC 1908, AGAINST THE
JUDGEMENT    &   DECREE DATED      29.07.2013 PASSED  IN
R.A.NO.103/2010 ON THE FILE OF THE ADDL. DISTRICT AND
SESSIONS JUDGE AND GADAG, DISMISSING THE APPEAL, FILED
AGAINST THE JUDGMENT AND DECREE DATED 08.11.2010 AND
THE DECREE PASSED IN O.S.NO.29/2006 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM., GADAG, DECREEING
THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.08.2022, THIS DAY, THE COURT, PRONOUNCED
THE FOLLOWING:

                                JUDGMENT

Challenging impugned judgment and decree dated

29.07.2013 passed by Additional District and Sessions

Judge, Gadag (for short, "first appellate Court") in

R.A.no.103/2010 and judgment and decree dated

08.11.2010 passed by Principal Senior Civil Judge and

CJM, Gadag (for short "trial Court") in O.S.no.29/2006,

this appeal is filed.

2. Appellants herein were defendants no.1 to 4,

while respondents no.1 to 4 herein were plaintiffs no.1 to

4 and respondent no.5 herein was defendant no.5 in

original suit. For sake of convenience, they will be

referred to by their rank in original suit.

3. This second appeal is filed by defendants no.1

to 4 challenging judgment and decree passed by trial

Court decreeing plaintiffs suit for partition and separate

possession in respect of suit properties belonging to

propositus Gurunathappa, after dismissal of their first

appeal. This appeal was admitted on 16.11.2016 to

consider following substantial question of law:

"Whether judgment and decree of both Courts below are perverse in misreading evidence and material on record and allotting wrong share to parties?"

4. Brief facts of case are that lands bearing

Sy.no.23 measuring 31 acres 21 guntas, Sy.no.204/A/1

measuring 02 acres 11 guntas and Sy.no.165/B/3

measuring 01 acre 04 guntas situated at Kalasapur

Village, Gadag Taluk (hereinafter referred to as 'suit

properties') belonged to propositus Gurunathappa. He

had married Shantavva. Thereafter, he married Somavva

and begot three children namely, Chandabai, Indirabai

and Meerabai. After his death, Shantavva and her

children namely Ramesh, Shankuntala and Ganesh filed

application for entering their names in revenue records in

respect of suit properties on ground that they were only

legal heirs of deceased Gurunathappa. However, said

application was opposed by Somavva and her children.

Therefore, revenue authorities directed both parties to

approach Civil Court for establishing their rights.

5. Thereafter, Shantavva and her three children filed

O.S.no.802/1989 seeking for declaration that Somavva

was not wife and Chandabai, Indirabai and Meerabai were

not children of Gurunathappa and for permanent

injunction restraining them from interfering with

possession and enjoyment of suit properties. Said suit was

decreed on 30.01.1997, but was set aside in

R.A.no.9/1997 by judgment and decree dated 17.08.2005.

However, at time of allowing appeal, out of pity, first

appellate Court declared that except Shantavva, Ramesh,

Shankuntala and Ganesh were entitled to share in suit

properties along with Somavva and Chandabai, Indirabai

and Meerabai. Though said decree was challenged in

RSA.no.2177/2005 by Shantavva and others, this Court

dismissed appeal on 05.02.2008. Said judgment has

attained finality.

6. In meanwhile, on 18.12.2006 Somavva joined by

Chandabai, Indirabai and Meerabai filed present suit i.e.

O.S.no.29/2006 seeking for partition and separate

possession of their share in suit properties. In said suit,

they also arrayed defendants no.4, who had purchased 10

acres of land from Shantavva mother of defendants no.1

to 3 namely Ramesh, Shankuntala and Ganesh. Likewise,

defendant no.5 had purchased 03 acres in Sy.no.23 from

Shantavva was also added.

7. Said suit was opposed by defendants mainly

ground that there was customary divorce between

Gurunathappa and Somavva and that children born after

divorce could not claim share in properties of

Gurunathappa. During pendency of RSA.no.2177/2005

filed challenging judgment and decree passed in

R.A.no.9/1997 and issue regarding relationship of present

plaintiffs with Gurunathappa had not yet attained finality,

therefore, present suit was premature. It was also

contended that sale of portions of suit properties by

Shantavva, mother of defendants no.1 to 3 was for legal

necessities to discharge debts of Gurunathappa and

therefore, defendants no.4 and 5 were bonafide

purchasers.

8. Based on pleadings, trial Court framed following:

ISSUES:

1. Whether plaintiffs proves that plaintiff no.1 was the legally wedded wife of Gurunathappa & plaintiffs 2 to 4 are his children?

2. Whether plaintiffs prove that sale deeds executed in favour of defendants no.4 & 5 are not binding upon them?

3. Whether plaintiffs prove their joint possession and enjoyment of the suit properties along with defendants 2 to 4?

4. Whether plaintiffs prove that they have share in the suit properties as alleged?

5. Whether suit is not maintainable as defendant-3 was a minor as on the date of suit?

6. Whether suit is premature?

7. Whether suit is bad for non-joinder of necessary parties?

8. Whether defendants prove that Smt. Shantamma the mother of defendants 2 to 4 is the legally wedded wife of Gurunathappa?

9. Whether defendants prove that Gurunathappa had divorced plaintiff no.1 as per customs prevailing in their community?

10. Whether suit is not maintainable without seeking declaration to the status of the plaintiffs?

11. Whether defendants prove that properties were sold to defendants 4 & 5 for legal and family necessities?

12. Whether suit is not maintainable unless the relief of cancellation of sale deeds in favour of defendants 4 and 5 has been sought?

13. Whether plaintiff is entitled to the reliefs sought for?

14. What order or relief?

Additional Issues:

1. Whether the defendant no.4 proves that suit of the plaintiff is barred by time against him?

2. Whether defendant no.5 proves that he is bonafide purchaser?

NOTE: Issue no.8 is recasted as:

8. Whether defendants prove that Smt.Shantamma the mother of defendants 1 to 3 is the legally wedded wife of Gurunathappa?

9. Thereafter, plaintiffs no.1 and 4 were examined

as PWs.1 and 2 and got marked Exs.P1 to P9. On other

hand, defendants no.1 and 3 to 5 and three others were

examined as DWs.1 to 7 and got marked Exs.D1 to D54.

10. On consideration, trial Court answered issues

no.1 to 4 and 7 in affirmative; issues no.5, 6 and 8 to 12

and additional issues no.1 and 2 in negative; and issue

no.13 by decreeing suit declaring that plaintiffs were

entitled for 1/7 t h share each in suit properties and

declaring sale deed executed by defendants no.1 to 3 and

their mother Somavva in favour of defendants no.4 and 5

as not binding on share of plaintiffs.

11. Aggrieved by said judgment and decree,

defendants no.1 to 3 and 4 jointly filed R.A.no.103/2010

on several grounds. It was contended that trial Court

failed to appreciate true scope of Section 4 of Hindu

Marriage Act, in light of definitions while holding divorce

between Gurunathappa and Somavva as not proved. It

was contended that since Gurunathappa belonged to

Lamani community, he had divorced Somavva as per

customs prevailing in said community. Therefore,

plaintiffs were not entitled for share in Gurunathappa's

property. It was further contended that though trial Court

had directed plaintiffs to implead Shantavva, plaintiffs had

failed to obey direction. There was no proper appreciation

of oral and documentary evidence while concluding that

sale deed executed in favour of defendants no.4 and 5 as

not binding on plaintiffs.

12. Based on contentions urged, first appellate

Court framed following points for its consideration:

(1) Whether impugned judgment and decree passed by lower Court in O.S.no.29/2006 dated 08.11.2010 is perverse, capricious, against law and merits of case and interference of this Court is needed?

(2) Whether impugned judgment and decree passed by trial Court is sustainable in eye of law?

(3) What order?

13. Upon hearing counsel, first appellate Court answered

point no.1 in negative, point no.2 in affirmative and point no.3 by

dismissing appeal.

14. Assailing said judgment and decree, defendants

no.1 to 4 preferred this appeal.

15. Sri. P.G.Chikkanaragund, learned counsel

appearing for defendants - appellants submitted that

impugned judgment and decree passed by both Courts

were contrary to law. It was submitted that provisions of

Hindu Marriage Act contemplated customary practices.

During her cross-examination, Somavva examined as PW.1

admitted that she had no records to show that plaintiffs

no.2 to 4 were born to her from Gurunathappa. She also

admitted that in school admission records of Meerabai -

plaintiff no.4, her surname was entered as Kalasapur. It

was further contended that independent witnesses

examined by defendants as stated that there was

customary divorce between Gurunathappa and Somavva.

Therefore, plaintiffs were not entitled for share in

properties of Gurunathappa.

16. It was further contended that though Shantavva

was alive, she was deliberately not arrayed as party and

therefore, suit was defective. It was further contended

that trial Court had in fact answered Issue no.7 in

affirmative, but directed plaintiffs to implead her as

defendant. However, plaintiffs had failed to comply with

said direction and therefore, suit was liable to be

dismissed on ground of non-joinder of necessary party.

Consequently, impugned judgment and decree was

unsustainable. On above grounds learned counsel sought

for answering substantial question of law in favour of

defendants and set aside impugned judgment and decree.

17. On other hand, Sri. Shrikanth T. Patil, learned

advocate for plaintiffs and Sri. S.S.Koliwad, learned

counsel appearing for defendant no.5 supported impugned

judgment and decree. They contended that both Courts

had concurrently held that plaintiffs were wife and

children of propositus Gurunathappa and were entitled for

share in suit properties along with defendants no.1 to 3.

Based on said findings, plaintiffs suit was decreed. Since

finding was concurrent and did not suffer from perversity,

no interference was warranted in second appeal and

sought for dismissal.

18. Heard learned counsel, perused impugned

judgment and decree and records.

19. From above submissions, it is not in dispute

that suit properties belonged to propositus Gurunathappa.

It is also not in dispute that prior to present suit,

defendants no.1 to 3 herein along with their mother -

Shantavva had filed O.S.no.802/1989 for declaration that

plaintiffs herein were not wife and children of

Gurunathappa and for consequential relief of permanent

injunction restraining interference with peaceful

possession and enjoyment of suit properties. Said

proceedings ended with finding against present

defendants - appellants, with an observation that except

Shantavva, defendants no.1 to 3 herein were entitled for

share in suit properties along with plaintiffs herein. It is

further not in dispute that said finding attained finality in

RSA.no.2177/2005, therefore, appellants - defendants

cannot raise same contention once again as urged in

previous proceedings, after having suffered findings which

had attained finality.

20. On perusal of grounds urged in first appeal as

well as in present appeal, it is seen that there is no

challenge of impugned judgment and decree on ground of

quantum of shares. Only ground was of perversity in

findings. On perusal of deposition of DWs.2 to 5, it is seen

that they have all admitted in cross-examination that

plaintiff no.1 - Somavva was legally wedded wife of

Gurunathappa. Though, they stated in examination-in-

chief about customary divorce, same is without any

particulars. They have also not specifically stated about

existence of customary divorce amongst Lamanis and

about its legal recognition.

21. Insofar as contention urged about defendants

no.4 and 5 being bonafide purchasers, same is only to be

recorded for rejection, firstly, as defendant no.5 not

preferred appeal and secondly, same was neither

substantiated by any evidence nor was present appeal

admitted on said substantial question of law.

22. Hence, substantial question of law is answered

in negative. Consequently, following:

O R D E R

i. Appeal is dismissed with costs.

            ii.    Judgment       and        decree      dated       29.07.2013
                   passed by Additional            District      &     Sessions
                   Judge,    Gadag           in    R.A.no.103/2010            and
                   judgment       and        decree      dated       08.11.2010
                   passed by       Principal Senior Civil Judge and
                   CJM,     Gadag            in        O.S.no.29/2006         are
                   confirmed.



                                                         Sd/-
                                                        JUDGE

GRD