Karnataka High Court
Venkappa S/O Govindappa Marenni ... vs Gurubasayya S/O Gurupadayya ... on 27 March, 2023
Bench: C M Joshi
-1-
MSA No. 200022 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCL SECOND APPEAL NO. 200022 OF 2015
BETWEEN:
1. VENKAPPA S/O GOVINDAPPA MARENNI
AGED ABOUT 47 YEARS,
OCC: AGRICULTURE,
R/O AT PRESENT DYAWAPUR
TQ & DIST. VIJAYAPUR.
2. KASHAVVA
D/O GOVINDAPPA MARENNI,
OCC: HOUSE HOLD WORK,
AGE: 52 YEARS
R/O AT PRESENT DYAWAPUR,
TQ & DIST: VIJAYAPUR.
...APPELLANTS
Digitally signed
by SOMANATH
PENTAPPA
MITTE (BY SRI. MANVENDRA REDDY,ADVOCATE)
Location: High
Court of
Karnataka
AND:
GURUBASAYYA
S/O GURUPADAYYA MATHAPATI
SINCE DECEASED BY HIS LRS.
1.
SHIVAPPA S/O GURUBASAYYA MATHAPATI,
AGED ABOUT 40 YEARS
OCC: AGRICULTURE,
R/O HOSUR TQ. VIJAYAPUR
DIST. VIJAYAPUR 586101.
-2-
MSA No. 200022 of 2015
2. MALLAYYA S/O GURUBASAYYA MATHAPATI,
AGED ABOUT 35 YEARS,OCC: AGRICULTURE,
R/O HOSUR TQ. VIJAYAPUR
DIST: VIJAYAPUR 586 101.
3. DHARMANNA S/O KRISHTAPPA GUBACHI,
AGED ABOUT 47 YEARS,OCC:AGRICULTURE,
R/O BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOT-587101.
4. ARJUN S/O KRISHTAPPA GUBACHI,
AGED ABOUT 45 YEARS,OCC:AGRICULTURE,
R/O BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOT-587101.
5. HANAMANT S/O KRISHTAPPA GUBACHI
AGED ABOUT 42 YEARS,OCC:AGRICULTURE,
R/O BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOT 587101.
...RESPONDENTS
(BY SRI. KOUJALAGI CHANDRAKANT LAXMAN.,ADVOCATE FOR
R1 AND 2; R3 TO 5 SERVED)
THIS MSA IS FILED U/S. 104 R/W ORDER 43 RULE 1 (U)
OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED
22.01.2015 PASSED IN R.A. NO. 58/2013 ON THE FILE OF THE
I ADDL. DISTRICT JUDGE AT VIJAYAPUR, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 28.09.2011 PASSED IN F.D.P. NO. 18/2002 ON THE
FILE OF THE PRL. SENIOR CIVIL JUDGE, AT BIJAPUR.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-3-
MSA No. 200022 of 2015
JUDGMENT
By consent of both the parties, the matter is taken up for
final disposal at the stage of admission itself.
2. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for respondents.
3. On a perusal of the impugned judgment dated
22-01-2015 passed by the learned I Additional District Judge,
Vijayapra in RA No.58/2013, it is found that the matter was
remanded to the Principal Senior Civil Judge, Vijayapura, by
setting aside the order dated 18-2-2013 passed in FDP
No.18/2022 to consider the passing of the Final Decree in the
light of the observations made by the First Appellate Court.
4. The factual matrix of the case is that, a decree for
partition was granted in OS No.83/1979 ON 11.7.1984,
wherein, it was decreed that the plaintiffs Venkappa and
Sitawwa are entitled for partition of 2/3rd share in the plaint
schedule properties i.e. RS No.26/1, RS No.26/2A, RS No.90/1
and RS No.90/2 and house properties bearing Nos. 194 and
195 of Bidri village. It was also ordered that the partition shall
MSA No. 200022 of 2015
be effected in a way that the entire RS No.90/1 measuring 10
acres be allotted to the share of defendant No.1-Govindappa,
since he has already sold the said property to the prospective
purchasers.
5. The said decree passed by the Trial Court came to be
confirmed in RA No.14/1984 on 31-8-1988. The said decree
has become final. Final decree proceeding was filed in FDP
No.18/2002 wherein, the Trial Court appointed a Court
commissioner and proceeded with effecting the partition. While
effecting the partition, the equities were not worked out as
directed in the Preliminary decree. Therefore, the respondents/
defendants had approached the First Appellate Court in RA
No.58/2013. The First Appellate Court by its judgment dated
22-01-2015 remanded the matter to the trial Court to
reconsider the matter and pass a fresh final decree. It is the
said judgment of the First Appellate Court in RA No.58/2013
which is challenged before this Court.
6. It is relevant to note that the First Appellate Court has
noted that the Trial Court has not taken into effect the
observations made in OS No.83/1979 that the two alienations
MSA No. 200022 of 2015
made by Govindappa in respect of RS No.26/1+2A and RS
No.90/1 were not binding on the plaintiffs when they are
available for partition and in the meantime, the sale
transactions which took place by the children of Krishtappa
were not given notices to the vendees to hold liable that all
those sale transactions were null and void. Therefore, the sale
transaction should have been considered by the FDP court and
it having not considered those transactions, it was necessary
that those transactions be noted with and an equitable
partition has to be worked out.
7. It is submitted that Sy.No.90/1 measuring 10 acres
was sold by defendant No.1 in favor of defendant No.3. Further
Sy.No.90/2 was sold with the consent of the parties for the
purpose of marriage of the plaintiff. It is also submitted that a
portion of property has also been sold to defendant No.2.
These aspects were not considered by the FDP court in passing
the final decree. Therefore, the remand of the case to the Trial
Court by the First Appellate Court is justifiable. I do not find
any merit in the present miscellaneous second appeal, as the
First Appellate Court has rightly observed that the equities were
not worked out as directed in the Preliminary Decree in OS
MSA No. 200022 of 2015
No.83/1979. Hence, the appeal is bereft of any merits and it
do not warrant admission of the same for the detailed hearing.
Therefore, the appeal is dismissed at the stage of admission
itself.
Registry to send back the records along with copy of this
order.
Sd/-
JUDGE
tsn*
