Smt. Sujata W/O Jagadish ... vs Adiveppa S/O Chanabasappa ...
2023 Latest Caselaw 328 Kant

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                                  RFA No. 100240 of 2015

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 5TH DAY OF JANUARY, 2023

                        PRESENT
     THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
                           AND
            THE HON'BLE MR JUSTICE C M JOSHI
           R.F.A.NO. 100240 OF 2015 (DEC/PAR)
BETWEEN:
1.    SMT. SUJATA W/O JAGADISH BHAIRAGONDA
      AGE: 54 YEARS, OCC:HOUSEHOLD WORK
      R/O:J.B.HOSPITAL, ILAKAL
      TQ:HUNAGUNDA-587125

2.    SMT.UMA SHIVANAND AGADI
      AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
      R/O:NEAR MOORUSAVIRAMATH, MADIHAL
      DHARWAD-580001

3.    SMT.JAYA IRAPPA INDI
      AGE:45 YEARS, OCC:HOUSEHOLD WORK
      R/O:PRATHAM SHETTY LANE, BOMMAPUR
      HUBBALLI, PIN CODE-580020

      ALL R/BY POWER OF ATTORNEY HOLDER
      SHRI.SHIVAKUMAR S/O SHIVANAND AGADI
      AGE:34 YEARS, OCC:PRIVATE SERVICE
      R/O:C/O:C.M.BHUJANAGANAVAR,
      SBI COLONY, MADIHAL, DHARWAD-580004
                                            ...APPELLANTS
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND:
1.     ADIVEPPA S/O CHANABASAPPA HEBBALLI
       AGE:52 YEARS,
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                                  RFA No. 100240 of 2015

     OCC:PRIVATE SERVICE
     R/O:PRATHAM SHETTY LANE,
     BOMMAPUR, HUBBALLI-580020

2.   GANGADHAR S/O CHANABASAPPA HEBBALLI
     AGE:50 YEARS,
     OCC:PRIVATE SERVICE
     R/O:PRATHAM SHETTY LANE,
     BOMMAPUR, HUBBALLI-580020

3.   SOMASHEKHAR
     S/O CHANABASAPPA HEBBALLI
     AGE:52 YEARS,
     OCC:PRIVATE SERVICE
     R/O:PRATHAM SHETTY LANE,
     BOMMAPUR, HUBBALLI-580020

4.   SAVAKKA W/O CHANABASAPPA HEBBALLI
     (DECEASED)
     RESPPONDENTS 1 TO 3, 5 & 6 ARE THE LR'S OF
     DECEASED RESPONDENT NO.4

5.   GURUSIDDAVVA W/O SHIVANAND BALIKAI
     AGE:53 YEARS,
     OCC:PRIVATE SERVICE
     R/O:PRATHAM SHETTY LANE,
     BOMMAPUR, HUBBALLI-580020

6.   RENUKA W/O SHANKRAPPA YENGADI
     AGE:51 YEARS,
     OCC:HOUSEHOLD WORK
     R/O:NEAR MARKET, ANNIGERI
     TQ:NAVALAGUNDA,
     DIST:DHARWAD-582201

7.   SMT.ANASUYA W/O BASAPPA HEBBALLI
     AGE:75 YEARS,
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                                 RFA No. 100240 of 2015

     OCC:HOUSEHOLD WORK
     R/O:PRATHAM SHETTY LANE,
     BOMMAPUR, HUBBALLI-580020

8.   SHANKRAPPA S/O BASAPPA HEBBALLI
     AGE:58 YEARS, OCC:PRIVATE SERVICE
     R/O:PRATHAM SHETTY LANE,
     BOMMAPUR, HUBBALLI-580020

9.   CHANDRASHEKAR S/O BASAPPA HEBBALLI
     AGE:56 YEARS,
     OCC:PRIVATE SERVICE
     R/O:PRATHAM SHETTY LANE,
     BOMMAPUR, HUBBALLI-580020

10. MRUTHYUNJAYA @ BABU
    S/O BASAPPA HEBBALLI
    AGE:51 YEARS,
    OCC:PRIVATE SERVICE
    R/O:PRATHAM SHETTY LANE,
    BOMMAPUR, HUBBALLI-580020

11. SIDDALIGESHWAR @ SIDDU
    S/O BASAPPA HEBBALLI
    AGE:47 YEARS,
    OCC:PRIVATE SERVICE
    R/O:PRATHAM SHETTY LANE,
    BOMMAPUR, HUBBALLI-580020.

12. SHANMUKH S/O SHIVALINGAPPA AGADI
    AGE:65 YEARS,
    OCC: PRIVATE SERVICE,
    R/O:NEAR MOORUSAVIRAMATH,
    NADIHAL, DHARWAD-580001

13. SHIVANAND S/O SHIVALINGAPPA AGADI
    AGE:62 YEARS,
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                                   RFA No. 100240 of 2015

    OCC:PRIVATE SERVICE,
    R/O:NEAR MOORUSAVIRAMATH,
    MADIHAL, DHARWAD-580001

14. BASAVARAJ S/O SHIVALINGAPPA AGADI
    AGE:54 YEARS,
    OCC:PRIVATE SERVICE
    R/O:SHETTAR COLONY,
    VIDYANAGAR, HUBBALLI-580021

15. RAGHAVENDRA S/O MARUTI GOKAK
    AGE:40 YEARS, OCC:NOT KNOWN
    R/OGANGADHAR NAGAR, SETTLEMENT
    HUBBALLI-580020
                                           ...RESPONDENTS

(R1- ABATED,
R4 DEAD - R1 TO R3, R5 AND R6 LR'S OF DECEASED R4;
R2, R3, R5 TO R9, R11, R14 & R15 - NOTICE SERVED;
R10, R12 & R13 - NOTICE DISPENSED WITH VIDE ORDER
DATED 04.03.2020 & 27.02.2017)

     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 26.06.2015 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN O.S.NO.131/2013
AND CONSEQUENTLY DECREE THE SUIT, IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
C M JOSHI, J., DELIVERED THE FOLLOWING:

                       JUDGMENT

Heard the learned counsel appearing for the

appellant Sri. Mahesh Wodeyar. The respondents, despite

service of notice, have remained absent.

RFA No. 100240 of 2015

2. The appellants herein are the plaintiffs before

the Trial Court in O.S.No.131/2013 and have approached

this Court in appeal aggrieved by the judgment of

dismissal dated 26.06.2015.

3. The facts in brief germane for disposal of this

appeal are as follows:

The plaintiffs contend that one Gurusiddappa had

three children by name Channabasappa, Parvathi and

Basappa. The defendant Nos.1 to 6 are the children of

Channabasappa, defendant No.7 is the wife of Basappa

and the plaintiffs herein are the daughters of Basappa and

defendant No.7. The other siblings of the plaintiffs are

arrayed as defendant Nos.8 to 11. Defendant Nos.12 to 14

are the children of deceased Parvathi. The plaintiffs

contend that the defendant No.11, who is brother of

plaintiffs had sold his 1/10th share in the suit schedule

property, which belongs to the joint family, to defendant

No.15 under a sale deed. It is the specific contention of

the plaintiffs that the defendant Nos.1 to 4 and 7 to 11

RFA No. 100240 of 2015

constitute a joint family and the suit schedule properties

are the joint family properties of the plaintiffs and

defendant Nos.1 to 11. Therefore, it is contended that

unless there is a partition, the defendant No.11 could not

have sold any of his share to the defendant No.15. The

plaintiffs alleged that the defendant No.11 has created a

sale deed in favour of defendant No.15 dated 15.11.2011

in respect of suit schedule A1 and 2 properties behind the

back of the plaintiffs and therefore, having their request

for partition being denied by the defendants, they were

constrained to approach the Trial Court for the relief that

the sale deed allegedly executed by the defendant No.11

in favour of defendant No.15 dated 15.11.2011 is null and

void and that the 1/10th share held by each of the plaintiffs

in the suit schedule properties be partitioned and the

separate possession may be awarded to them.

4. On being issued with the suit summons to the

defendants, the defendant No.1 to 5, 7 to 9 and 15

appeared before the Trial Court through their counsels, but

did not file any written statement. The defendant No.6 and

RFA No. 100240 of 2015

10 did not appear despite service of summons and

therefore, they were placed ex-parte.

5. The General Power of Attorney holder of the

plaintiffs entered the witness box and deposed as PW1. No

documents were marked on behalf of the plaintiffs. The

counsel for the plaintiffs having not appeared for

arguments, the Trial Court proceeded to dismiss the suit

by the impugned judgment.

6. Now the plaintiffs have approached this Court

contending that the Trial Court should have accepted the

evidence of PW1 and it should have decreed the suit. They

contend that there was no response by the defendants in

whatsoever manner and the evidence available on record,

adduced by the plaintiffs, was not considered in a proper

way and the approach of the Trial Court is incorrect and as

such, the impugned judgment is liable to be set-aside.

7. Notice having been issued to the respondent

Nos.2, 3, 5 to 9, 11, 14 and 15 by this Court, they did not

appear before the Court. Notice in respect of respondent

RFA No. 100240 of 2015

Nos.10, 12 and 13 was dispensed with at the instance of

the appellants. Respondent No.4 died during the pendency

of the appeal and respondent No.1 to 3, 5 and 6 were

treated as legal heirs of deceased respondent No.4.

Further, respondent No.1 also died during the pendency of

this appeal and despite ample opportunities, steps were

not taken to bring the legal heirs of deceased respondent

No.1 on record and the appeal against the respondent

No.1 got abated by order dated 18.02.2021, keeping open

the maintainability of the appeal.

8. Learned counsel appearing for the appellants

submits that the abatement of the respondent No.1 would

not foreclose the cause of action and the appeal would be

maintainable. It is submitted that the Trial Court has not

considered the evidence on record and it has wrongly

come to the conclusion that the available evidence is

insufficient and proceeded to dismiss the suit. It is

submitted that there was no reason to discard the

testimony of the PW 1.

RFA No. 100240 of 2015

9. It is pertinent to note that the claim of the

plaintiffs is based on oral testimony of the GPA holder of

the plaintiffs. There is absolutely no material placed on

record either in the form of documentary evidence or in

the form of ocular evidence in satisfactory manner. It is

evident that the PW1 has stepped into the shoes of the

plaintiffs by virtue of a power of attorney and has not

produced any documents in support of the claim of the

plaintiffs. The revenue records pertaining to the suit

schedule properties would have shown the flow of the title

to the joint family claimed by the plaintiffs. It is the

specific contention of the plaintiff that the defendant No.11

had sold his 1/10th share in the suit schedule property to

the defendant No.15. When the specific date of the sale

deed is also mentioned in the plaint, a copy of such sale

deed or any documentary evidence to establish that the

defendant No.11 had sold his share to defendant No.15

could have been produced by the plaintiff. When the best

evidence was available, it was expected from the plaintiffs

that such evidence is placed on record before the Court.

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RFA No. 100240 of 2015

Admittedly, PW1 is not a title holder and he has stepped

into the witness box as a power of attorney. Even such

power of attorney is also not marked before the Trial

Court. It is trite law that a person who is approaching the

Court is expected to produce the best evidence available in

support of his claim. In the absence of the material, which

could have been placed by the plaintiffs before the Trial

Court, the Trial Court has rightly rejected the claim of the

plaintiffs. It is settled principles of law that the plaintiff has

to stand on his own legs to prima facie establish his case.

The appellants herein cannot take shelter under the

contention that the defendants have not filed any written

statement. The burden to prove that the suit schedule

properties belong to the joint family of the plaintiffs and

defendants; and that the defendant No.11 had sold his

1/10th share to the defendant No.15, is on the plaintiffs.

They having not discharged such burden by producing the

best evidence which could have been produced, the Trial

Court has rightly come to the conclusion that the suit

deserves to be dismissed.

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RFA No. 100240 of 2015

10. Therefore, we do not find any merit in the

present appeal and accordingly, it deserves to be

dismissed with costs. Accordingly it is dismissed with

costs.

11. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are disposed of accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

YAN