Karnataka High Court
Sri Mahadevappa vs Sri Irappa on 27 July, 2023
Bench: Anil B Katti
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RSA No. 5178 of 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO. 5178 OF 2010
BETWEEN:
SRI. MAHADEVAPPA
S/O. IRAPPA CHIPPALAKATTI,
AGED 40 YEARS,
R/AT KATKOL VILLAGE,-591128
TQ. RAMDURG, DIST. BELAGAVI.
...APPELLANT
(BY SRI. MURUGHENDRA S. WANTMURI, ADV.)
Digitally AND:
signed by
ANNAPURNA
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL
DANDAGAL 1 . SRI. IRAPPA
Date:
2023.07.28 S/O. MAHADEVAPPA CHIPPALAKATTI
11:27:03 -0700
AGED 80 YEARS,
R/AT KATKOL VILLAGE-591128
TQ. RAMDURG, DIST. BELAGAVI
2 . SMT. ANNAPURNA
W/O. IRAPPA CHIPPALAKATTI,
AGED 73 YEARS,
R/AT KATKOL VILLAGE-591128
TQ. RAMDURG, DIST. BELAGAVI
3 . SMT. DANAWWA
D/O. IRAPPA CHIPPALAKATTI,
AGED 53 YEARS,
R/AT KATKOL VILLAGE-591128
TQ. RAMDURG, DIST. BELAGAVI
4 . SMT. MUTTAWWA
W/O. ASHOK CHIPPALAKATTI,
AGED 35 YEARS,
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RSA No. 5178 of 2010
R/AT KATKOL VILLAGE-591128
TQ. RAMDURG, DIST. BELAGAVI
5 . KUMAR. NEELAKANTAPPA
S/O. ASHOK CHIPPALAKATTI,
AGED 16 YEARS,
R/AT KATKOL VILLAGE-591128
TQ. RAMDURG, DIST. BELAGAVI
6 . KUMAR. MALLIKARJUN
S/O ASHOK CHIPPALAKATTI,
AGED 14 YEARS,
R/AT KATKOL VILLAGE-591128
TQ. RAMDURG, DIST. BELAGAVI
(RESPONDENTS 5 and 6 SINCE MINORS R/BY THEIR NATURAL
MOTHER RESPONDENT NO. 4)
...RESPONDENTS
(BY SRI. BASAVARAJ S. BYAKOD, ADV. FOR R1 TO R3,
SRI. PRAKASH B. UDIKERI, ADV. FOR R4
R5 AND R6 ARE MINORS REPTD. BY R4)
***
THIS REGULAR SECOND APPEAL FILED U/SEC.100 R/W. XLII
RULE 1 OF CPC AGAINST THE JUDGEMENT & DECREE DATED:10-12-
2009, PASSED BY THE VI ADDL. DISTRICT JUDGE, IN
R.A.NO.88/2007 SETTING ASIDE THE JUDGMENT AND DECREE
DATED 31.08.2007 PASSED BY THE COURT OF CIVIL JUDGE (SR.
DN), RAMDURG, IN O.S.NO:52/2007, AND RESTORE THE JUDGMENT
AND DECREE OF THE TRIAL COURT.
THIS REGULAR SECOND APPEAL COMING ON FOR FURTHER
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.06.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
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RSA No. 5178 of 2010
JUDGMENT
Appellant/plaintiff feeling aggrieved by judgment and
decree passed by the First Appellate Court on the file of VI
Addl. District and Sessions Judge, Belagavi in R.A.No.88/2007,
dated 10.12.2009, preferred this appeal.
2. Parties to appeal are referred with their ranks as
assigned before Trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff
can be stated in nutshell to the effect that suit property house
and open space was assigned with number as 1010 and
thereafter, panchayath has illegally divided the said property as
1010 and 1010/A. The suit property is ancestral joint family
property of plaintiff and defendants. The plaintiff and husband
of defendant No.4 deceased Ashok are sons of defendant Nos.1
and 2. Defendant Nos.4 to 6 are wife and children of deceased
Ashok. The 3rd defendant is unmarried sister of plaintiff and
deceased Ashok. On the death of plaintiff's brother Ashok,
defendant No.4 got entered her name in the records of suit
property illegally in collusion with panchayath authorities. The
plaintiff has got right of share and defendants have refused to
RSA No. 5178 of 2010
effect partition. Therefore, plaintiff was constrained to institute
suit for the relief claimed in suit.
4. In response to suit summons defendant No.1
appeared in person and defendant Nos. 2 and 3 were placed
Ex-parte; defendant Nos.4 to 6 appeared through their counsel.
Defendant No.4 for self and being minor guardian of defendant
Nos.5 and 6 filed written statement contending that plaintiff
has suppressed material facts of earlier partition and filed
present suit again for seeking relief of partition. It is the case of
defendants that there was a partition between plaintiff and
defendants and memorandum of partition was recorded on
6.3.1999. The first defendant has reported partition to
panchayath officials by giving varadi and accordingly,
panchayath officials after passing necessary resolution, ordered
to record the name of defendant No.4 with respect to property
bearing No.1010/A. The defendant No.4 since then is residing
in the house fallen to her share. The earlier suit of defendant
No.1 in O.S.No.51/2001 and the same was returned to present
before proper Court having jurisdiction to try the suit. The
defendant No.1 did not pursue the same, further instigated his
son to file present suit for relief of partition. Plaintiff and
defendant No.1 only with an intention to throw out defendant
RSA No. 5178 of 2010
Nos. 4 to 6 from the house in which they are residing, filed
present suit. Therefore, prayed for dismissal of the suit.
5. The trial Court has framed necessary issues.
Plaintiff to prove his case relied on evidence of PW.1 and
documents EXs.P.1 to 2. Defendants relied on evidence of
DW.1 and document Ex.D.1. The trial Court after appreciation
of evidence on record, decreed the suit of plaintiff for partition
and separate possession of 1/4th share of plaintiff.
6. The defendant No.4 being for self and minor
guardian of defendant Nos.5 and 6, challenged the judgment
and decree of trial Court before the first appellate Court on file
of VI Addl. District and Sessions Judge, Belagavi in
R.A.No.88/2007. The First Appellate Court after re-appreciation
of evidence allowed the appeal and set aside judgment of the
trial Court and dismissed the suit of plaintiff.
7. Appellant/plaintiff feeling aggrieved by judgment
and decree of the first appellate Court filed this appeal
contending that the first appellate Court has conveniently
ignored admission of DW.1 in her cross examination with
regard to nature of suit property and committed serious error in
holding that there was earlier partition. The mere entry of
RSA No. 5178 of 2010
name of defendant No.4 and her children in the records and
separate residence in the same house of suit property does not
mean that there is partition by metes and bounds. The
observations and findings recorded by the first appellate Court
for not taking required steps to represent the interest of
defendant No.3, suit itself is not maintainable cannot be legally
sustained. The approach and appreciation of evidence by the
first appellate Court is contrary to law and evidence on record.
Therefore, prayed for allowing the appeal and to set aside
judgment and decree of the First Appellate Court. Consequently
to restore judgment and decree of the trial Court.
8. In response to notice of appeal, respondents
appeared through counsel.
9. This Court, by order dated 16.4.2014 has framed
following substantial question of law.
"Whether the first appellate Court is justified
in dismissing a well considered judgment of
the trial Court holding that unnecessarily
casting the burden on the plaintiff to prove
that there was no earlier partition of the suit
property and thus the judgment of the first
RSA No. 5178 of 2010
appellate Court has become perverse and
illegal?"
10. Heard arguments of both sides.
11. On careful perusal of oral and documentary
evidence on record by the parties to the suit, it would go to
show that suit property is ancestral property of plaintiff and
defendants; further relationship between the parties to suit is
not in dispute. When that being so, naturally plaintiff is entitled
for right of share in the suit property. The said right can be
defeated only by proving factum of earlier partition as claimed
by defendant Nos.4 to 6.
12. It is the contention of defendant Nos.4 to 6 in the
written statement that there was partition between plaintiff and
defendants before elders and accordingly, memorandum of
partition dated 6.3.1999 was recorded. The first defendant has
reported the same to Grampanchayath. The Grampanchayath
after passing necessary resolution dated 28.10.1999, has
ordered to record the name of defendant No.4 and assigned
separate No.1010/A to the extent of house fallen to share of
defendant No.4. Thereafter, defendant No.1 challenged by filing
appeal in CR.No.15/2000-2021 and same came to be
RSA No. 5178 of 2010
dismissed. The another contention of defendants is that
defendant No.1 earlier filed O.S.No.59/2001. In view of finding
of the trial Court on issue No.1, plaint was ordered to be
returned to present the suit before proper Court having
jurisdiction to try the suit. The defendant No.1 did not pursue
the same and instigated his son to file present suit again
seeking for relief of partition.
13. On perusal of oral and documentary evidence of
P.W.1, it would go to show that defendant Nos.4 to 6, who are
wife and children of deceased Ashok and brother of deceased
Ashok i.e plaintiff are residing in one portion of the house and
in another portion of house, plaintiff and defendant Nos.1 to 3
are residing. It has been elicited in the cross examination of
P.W.1 that on the basis of application given by defendant No.1,
there was panchayath resolution recorded in the name of
defendant Nos.4 to 6. However, P.W.1 has stated that his
father has objected. The assessment extract Ex.P.1 would go to
show that name of defendant No.1 is appearing with respect to
property No.1010; Ex.P.2 discloses the portion assigned to
defendant Nos.4 to 6 numbered as property No.1010/A. The
defendant No.4 apart from her own evidence relied on
document Ex.D.1, which is certified copy of order passed by the
RSA No. 5178 of 2010
trial Court in O.S.No.59/2001 has not produced any documents
evidencing earlier portion as claimed by defendant Nos.4 to 6 in
their written statement. On perusal of order of the trial Court in
O.S.No.59/2001 as per Ex.D.1, it would go to show that plaint
came to be returned in terms of 7 Rule 10 of Cr.P.C to present
the same before the proper Court. It appears that defendant
No.1 did not further peruse the said suit by presenting the
plaint to proper Court having jurisdiction to try the suit. The
said suit was for the relief of declaration and injunction to
declare that suit property is undivided property of plaintiff and
defendants and consequently, relief of permanent injunction,
further to restrain defendant Nos.4 to 6 from alienating house
property bearing No.1010/A. On the basis of their name being
recorded in the records of suit property, the said finding
recorded by the trial Court cannot come in the way of plaintiff
for seeking the relief of partition.
14. When the nature of property being joint family
property of plaintiff and defendants and the relationship
between the parties is being not in dispute, right of each share
to have partition in such property cannot be denied, unless
ouster or the earlier partition is proved. Therefore, it is for the
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RSA No. 5178 of 2010
defendant Nos.4 to 6 to prove earlier partition as claimed in
paragraph No. 8 of written statement.
15. The evidence of DW.1 would go to show that
plaintiff and defendant Nos.1 to 3 are residing in one portion of
suit house and in another portion defendant Nos.4 to 6 are
residing. Defendant No.4 claims that defendant No.1 has
effected partition between plaintiff and defendants and
memorandum of partition dated 6.3.1999 is recorded.
Accordingly, defendants reported the said family arrangement
to panchayath, Kadkol and by resolution, panchayath assigned
property No.1010/A allotted to the share of defendant Nos.4 to
6. However, no any documents have been produced by
defendants to prove the said partition and whether the same is
acted upon parties to the said memorandum of partition. D.W.1
herself has admitted in the cross examination that there is no
partition between defendant No.1 and herself. However,
volunteers that before elders, portion of property in the same
house was given to her. If for the sake of convenience to reside
separately in the same house is made by members of joint
family to reside separately that itself does not mean that there
is partition by metes and bonds. The partition has to be
effected amongst all members of joint family. The evidence of
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RSA No. 5178 of 2010
D.W.1 is totally silent as to the share allotted to plaintiff and
defendant Nos.1 and 3. Indisputably, they have got their right
in the suit property. The first appellate Court with reference to
the above referred admission of D.W.1 in her cross examination
has interpreted that it is not an admission that there was no
partition, but it means only that there was no partition in other
property of joint family. However, no any such contention was
taken by defendant Nos.4 to 6 in their written statement that
there is exist 8 power looms and two hand power looms and
there was no partition in the said property as stated in cross
examination of D.W.1. The first appellate Court appears to have
carried away by the said evidence on record in holding that
above referred evidence of DW.1 is with respect to those
property. However, defendants have not pleaded anything to
that effect about existence of the said properties and there was
no partition when earlier partition was effected as claimed by
defendant Nos.4 to 6 in paragraph No.8 of the written
statement. Therefore, the said finding of first appellate Court
that there was partition with respect to suit property and not in
the other properties refereed above cannot be legally
sustained.
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RSA No. 5178 of 2010
16. The first appellate Court has also recorded finding
based on admission of D.W.1 in the cross examination that
defendant No.3 is unmarried sister and she is of unsound mind.
The defendant No.3 is not represented by next guardian and
without filing any application and effective representation of
defendant No.3, judgment and decree of the trial Court cannot
be legally sustained. It is pertinent to note that defendant Nos.
4 to 6 in their written statement have not taken any such
contention that defendant No.3 is incapable of taking care of
herself because of unsound mind and never questioned that
there is no proper representation by next friend of defendant
No.3. Therefore, in the absence of any pleading to that effect
and evidence on record, it cannot be contended that defendant
No.3 was of unsound mind and there was no representation by
her next friend to hold that judgment and decree of the trial
Court cannot be legal sustained. The trial Court has granted
decree to defendant No.3 also by awarding legitimate 1/4th
share in the suit property. Therefore, finding of the first
appellate Court that judgment and decree of the trial Court is
nullity without there being any pleading and issue on that score
cannot be legally sustained.
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RSA No. 5178 of 2010
17. The first appellate Court has also committed serious
error in casting burden on plaint to prove that there was
partition of suit property while dealing with point No.2 for
consideration. It is case of plaintiff that there is no partition in
the suit property. The nature of suit property and relationship
between plaintiff and defendants is not disputed by defendant
Nos. 4 to 6. It is the contention of defendants that there was
earlier partition. Therefore, burden is on defendant Nos.4 to 6
to prove that there was earlier partition to negate claim of
plaintiff that he is not entitled for partition in view of earlier
partition set up by defendants. Therefore, for the reasons
recorded above, judgment and decree of the first appellate
Court in holding that there was earlier partition, which is
against the evidence on record cannot be legally sustained,
which requires interference of this Court and accordingly,
substantial question of law is answered in affirmative.
Consequently proceed to pass the following:
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RSA No. 5178 of 2010
ORDER
Appeal filed by appellant/plaintiff is hereby allowed.
The judgment of the first appellate Court on the file of VI
Addl. District and Sessions Judge, Belagavi in R.A.No.88/2007,
dated 10.12.2009 is hereby set aside.
The judgment of the trial Court on the file of Civil Judge
(Sr.Dn), Ramdurg, in O.S.No.52/2007, dated 31.8.2007 is
ordered to be restored.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Vb/-
