Karnataka High Court
Shiddalingappa S/O Kariyappa ... vs Smt Channavva W/O Shiddalingappa ... on 8 June, 2023
Bench: M.G.Umaj
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RFA No. 1639 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
REGULAR FIRST APPEAL NO.1639 OF 2007 (PAR)
BETWEEN:
1. SHIDDALINGAPPA S/O. KARIYAPPA ITAGI,
@ CHAVADANNAVAR, AGED:65 YEARS,
R/O: BASAPUR, (TQ) SHIRAHATTI,
DISTRICT: GADAG 582 120.
2. ISHAPPA S/O. SHIDDALINGAPPA ITAGI,
@ CHAVADANNAVAR,
SINCE DECEASED BY HIS LRS.
2(A) SMT. HALAVVA W/O. ISHAPPA ITAGI,
AGE: 39, OCC: AGRIUCLTURE,
R/O: BASAPUR, TQ: SHIRAHATTI.
2(B) RAMESH S/O. ISHAPPA ITAGI,
AGE: MINOR, BY NEXT FRIEND HIS
MOTHER HALAVVA W/O. ISHAPPA ITAGI,
Digitally
R/O: BASAPUR, TQ: SHIRAHATTI.
signed by
ROHAN
HADIMANI 2(C) SANDEEP S/O. ISHAPPA ITAGI,
T
AGE: MINOR, BY NEXT FRIEND HIS
MOTHER HALLAVVA W/O. ISHAPPA ITAGI,
R/O. BASAPUR TQ: SHIRAHATTI.
3. RAMESH S/O. ISHAPPA ITAGI,
AGED ABOUT 9 YEARS, MINOR BY GUARDIAN, ISHAPPA
S/O. SHIDDALINGAPPA, ITAGI @ CHAVADAPPANAVAR ,
R/O: SANTI - SHIGLI, (TQ) SHIRAHATTI,
DISTRICT, GADAG.
...APPELLANTS
[BY SRI V.R.PATIL AND
SRI ASHOK T. KATTIMANI, ADVOCATES FOR A2(A TO C)]
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RFA No. 1639 of 2007
AND:
1. SMT. CHANNAVVA W/O. SHIDDALINGAPPA
ITAGI @ CHAVADANNAVAR,
AGED ABOUT 52 YEARS,
R/O: BASAPUR, (TQ)SHIRAHATTI,
DISTRICT : GADAG.
2. YELLAPPA S/O. SHIDDALINGAPPA ITAGI
@ CHAVADANNAVAR, AGED: 35 YEARS,
R/O: BASAPUR, (TQ)SHIRAHATTI,
DISTRICT: GADAG.
3. REVANAPPA S/O. SHIDDALINGAPPA ITAGI
@ CHAVADANNAVAR,AGED: 33 YEARS,
R/O: BASAPUR, (TQ)SHIRAHATTI,
DISTRICT : GADAG.
4. BASAPPA S/O. SHIDDALINGAPPA ITAGI
@ CHAVADANNAVAR, AGED:20 YEARS,
R/O: BASAPUR, (TQ)SHIRAHATTI,
DISTRICT : GADAG.
...RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, ADVOCATE
FOR R2 TO R4;
R1 IS DECEASED (R2 TO R4 AND A2 ARE
TREATED AS LR'S OF DECEASED)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE
1 OF THE CODE OF CIVIL PROCEDRUE AGAINST THE JUDGEMENT
AND DECREE DATED 03.04.2007 PASSED IN OS.NO.143/2003 ON
THE FILE OF THE II ADDL.CIVIL JUDGE (SR.DN.) HUBLI, PARTLY
DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR FINAL HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 1639 of 2007
JUDGMENT
Defendant Nos.1 to 3 have preferred this appeal
being aggrieved by the impugned judgment and decree
dated 03.04.2007 passed in O.S.No.143/2003 on the file
of learned II Additional Civil Judge (Sr.Dn.), Hubballi,
(herein after referred to as "the Trial Court" for short)
decreeing the suit of the plaintiffs in part and declaring
that the plaintiffs are entitled for 4/5th share jointly in
Sy.No.137/1 situated in Sultanpur village 4/6th share
jointly in Sy.No.380/3+2B while rejecting the claim of the
plaintiffs over schedule-B properties.
2. Parties are referred to as per their ranks before
the Trial Court for the sake of convenience.
3. Brief facts of the case are that, plaintiff No.1
being the wife of defendant No.1 and plaintiff No.2 to 4
being their children have filed the suit seeking partition
and separate possession of Schedule-A & B properties. It
is contended by the plaintiffs that the Schedule-A and B
RFA No. 1639 of 2007
properties are the family properties in which they are
entitled for equal share. It is stated that defendant No.2 is
the son of defendant No.1 and plaintiff No.1. Defendant
No.3 is the son of defendant No.2.
4. Schedule-A appended to the plaint describes
R.S.No.137/1 measuring 7.31 acres of Sulthanpur village,
of Kundagol taluk and Sy.No.380/3+2B measuring 5.14
acres situated at Kalas village of Kundagol Taluk.
Schedule-B refers to the house property bearing No.41
and Plot No.27 situated at Basapur village of Shirhatti
Taluk. Therefore, the plaintiffs sought for partition and
separate possession of their share in schedule properties.
5. Defendant No.1 filed written statement denying
the contentions taken by the plaintiffs. The relationship
between the parties is not disputed. He contended that
the house property described in Schedule-B was acquired
by him from his grandmother Fakeeramma Chandannavar
and therefore it is his self acquired property. He also
contended that he sold the house property situated at
RFA No. 1639 of 2007
Hattiimattur of Savanur Taluk and out of sale proceeds
and from his own earnings acquired R.S.No.380/3+2B and
therefore it is also his self acquired property. He gifted the
said land in favour of defendant No.3 and the plaintiffs are
not entitled for any right over the same, accordingly he
prays for dismissal of the suit.
6. Defendant Nos.2 & 3 have filed the memo
adopting the written statement filed by defendant No.1.
7. On the basis of these pleadings, the following
issues came to be framed.
1. Whether plaintiffs prove that suit properties
are the joint family properties of plaintiffs?
2. Whether plaintiffs prove that they have
4/6th share in the suit properties?
3. Whether defendants prove that this Court
has no jurisdiction to try this suit as alleged
in para 2 of the written statement?
4. Whether first defendant proves that
R.S.No.380/3+2B is self acquired property
RFA No. 1639 of 2007
of him as alleged in para 11 of the written
statement?
5. Whether plaintiffs are entitled for reliefs
sought for?
6. What Order or decree?
8. The plaintiffs examined PWs.1 to 4 and got
marked Exs.P.1 to P12 in support of their contention.
Defendants examined DWs.1 and 2 and got marked
Exs.D.1 to D3 in support of their defence.
9. The Trial Court after taking into consideration
all these materials on record answered Issue No.1 and 5
partly in the affirmative, Issue No.3 & 4 in the negative,
deleted issue No.2 and accordingly the suit of the plaintiffs
is partly decreed declaring that they are entitled for share
in Sy.No.137/1 and Sy.No.380/3+2B while rejecting the
claim of the plaintiffs in respect of Schedule-B properties.
10. Being aggrieved by the same, the defendants
have preferred this appeal.
RFA No. 1639 of 2007
11. Heard Sri Ashok T.Kattimani learned counsel for
the appellants and Smt.Girija S.Hiremath, learned counsel
appearing for respondent No.2 to 4.
12. Learned counsel for the appellants contended
that even though defendant No.1 has taken a specific
stand that Sy.No.380/3+2B is his self acquired property,
the Trial Court has ignored the same. The sale deed is
produced by the plaintiffs as per Ex.P.5. Inspite of that the
suit in respect of the same was decreed without any basis.
Hence, he prays for allowing the appeal and rejecting the
claim of the plaintiffs for partition and separate possession
in respect of R.S.No.380/3+2B.
13. Per contra, learned counsel for the
respondents-plaintiffs opposing the appeal submitted that
as per Ex.P.5 defendant No.1 sold the family property
situated at Hattiimattur village of Savanur Taluk and out
of the sale proceeds, he purchased Sy.No.380/3+2B
situated at Kalas Village of Kundagol Taluk. Under such
circumstances, the Trial Court rightly held that it is the
RFA No. 1639 of 2007
family property in which the plaintiffs are also entitled for
share. There are no reasons to interfere with the
impugned judgment and decree passed by the Trial Court
and accordingly she pays for dismissal of the appeal with
costs.
14. Perused the materials on record including the
Trial Court Records. The point that would arise for my
consideration is as under:
"The impugned judgment and decree
passed by the Trial Court calls for any
interference by this Court?"
15. My answer to the above point is in the
'Negative' for the following:
REASONS
16. The short point involved in the present case is
that, whether defendant No. is successful in proving
R.S.No.380/3+2B measuring 5.14 acres described in
Plaint Schedule-A is his self acquired property.
RFA No. 1639 of 2007
17. Defendant No.1 relying on Ex.P.5, the copy of
the registered sale deed contended that he had purchased
the above said property out of his own income, but the
recitals in Ex.P.5 disclose that he had sold the property
situated at Hattiimattur village of Savanur Taluk and out
of sale proceeds he purchased 5.14 acres of land in
R.S.No.380/3+2B. While such clinching materials are
placed before the Court, defendant No.1 cannot contend
that it is his self acquired property.
18. No other materials are placed before the Court
inspite of defence taken by defendant No.1 to deny the
claim of the plaintiffs. Therefore I am of the opinion that
the Trial Court has rightly arrived at a conclusion to
decree the suit of the plaintiff partly, while rejecting the
claim in respect of schedule-B properties.
19. In view of the above, I do not find any reason
to interfere with the impugned judgment and decree
passed by the Trial Court. Hence, I answer the above
point in the negative and produced to pass the following.
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RFA No. 1639 of 2007
ORDER
1. The appeal is hereby dismissed with costs.
2. The impugned judgment and decree dated
03.04.2007 passed in O.S.No.143/2003
by the II Additional Civil Judge (Sr.Dn.),
Hubbali, is hereby confirmed.
Registry is directed to send back the Trial Court
records along with copy of this judgment.
SD/-
JUDGE
EM
