Smt. Fakeerawwa W/O Hanchyalappa ... vs Smt. Parawwa W/O Tippanna Itagi ...
2023 Latest Caselaw 7507 Kant

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                                                     NC: 2023:KHC-D:12862-DB
                                                     RFA No.100079 of 2023




                  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                          DATED THIS THE 3RD DAY OF NOVEMBER, 2023

                                           PRESENT

                            THE HON'BLE MR JUSTICE H.P.SANDESH

                                             AND

                      THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR


                       REGULAR FIRST APPEAL NO.100079 OF 2023 (PAR/POS)

                 BETWEEN:


                 1.    SMT. FAKEERAWWA W/O. HANCHYALAPPA
                       @ HANCHINALAPPA UPPAR,
                       AGED ABOUT 56 YEARS, OCC: AGRICULTURE,
                       R/AT: KUKANOOR, TQ: YELBURGA,
                       DIST: KOPPAL.

                 2.    SMT. SIDDALINGAWWA
                       W/O. KALLAPPA METI (SIDDALINGAWWA
                       D/O. HANCHYALAPPA UPPAR),
SAROJA
HANGARAKI              AGED ABOUT 36 YEARS,
HIGH COURT OF
KARNATAKA
DHARWAD
                       OCC: AGRICULTURE,
BENCH
2023.11.09
05:32:39 +0000
                       R/AT: YADIYAPUR VILLAGE,
                       TQ: YELBURGA, DIST: KOPPAL.
                                                                ...APPELLANTS

                 (BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)


                 AND:

                 1.    SMT. PARAWWA W/O. TIPPANNA ITAGI
                       (PARAWWA D/O. HANUMAPPA UPPAR),
                       AGED ABOUT 61 YEARS,
                       OCC: AGRICULTURE,
                       R/AT B.HOSALLI VILLAGE,
                                   -2-
                                            NC: 2023:KHC-D:12862-DB
                                           RFA No.100079 of 2023




     TQ. AND DIST. KOPPAL-583236.

2.   SMT. HULIGEMMA
     W/O. HUNUMAPPA UPPAR (HULIGEMMA
     D/O. HUNUMAPPA UPPAR)
     AGED ABOUT 50 YEARS, OCC: AGRICULTURE,
     R/AT: DAMBAL VILLAGE,
     TQ: YELBURGA, DIST: KOPPAL-583236.

3.   SMT. HANUMAWWA
     W/O. SHIVATRAPPA UPPAR (HANUMAWWA
     D/O. SHIVATRAPPA UPPAR),
     AGED ABOUT 54 YEARS,
     OCC: AGRICULTURE,
     R/AT: DAMBAL VILLAGE,
     TQ: YELBURGA, DIST: KOPPAL-583236.

4.   THE SEPECIAL LAND ACQUISITION
      OFFICER, KARNATAKA INDUSTRIAL AREA
     DEVELOPMENT BOARD (KIADB), (LAND
     ACQUISITION GADAG - WADI RAILWAY TRACK
     SECTION), ZONAL OFFICE,
     DHARWAD-580001.
                                         ...RESPONDENTS

(BY SRI. VISHWANATH ALLANNAVAR, ADV. FOR
         SRI. D.M.KULKARNI, ADV. FOR R1 TO R3;
    SMT.SHARMILA M. PATIL, ADV. FOR R4)

        THIS   RFA   IS   FILED   UNDER    SECTION      96   OF    CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 01.04.2022
PASSED IN O.S.NO.122/2017 ON THE FILE OF THE SENIOR
CIVIL    JUDGE    AND     JUDICIAL      MAGISTRATE   FIRST        CLASS,
YALABURGA,       PARTLY     DECREEING      THE   SUIT    FILED      FOR
PARTITION AND SEPARATE POSSESSION.


        THIS RFA, COMING ON FOR ADMISSION, THIS DAY,
SANDESH, J., DELIVERED THE FOLLOWING:
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                                          NC: 2023:KHC-D:12862-DB
                                         RFA No.100079 of 2023




                           JUDGMENT

Though this appeal is listed for Admission, with the

consent of the learned counsel for the parties, the same is

taken up for final disposal.

2. This appeal is filed challenging the judgment and

decree, dated 1st April 2022, passed in O.S.No.122/2017 by

the Senior Civil Judge & JMFC, Yelburga (for short, 'the Trial

Court') decreeing the suit filed by the plaintiffs for the relief

of partition and separate possession.

3. Heard the learned counsel for the appellants and

the learned counsel for the respondents.

4. The factual matrix of the case of the plaintiffs is

that one Laxman Uppar is the original propositus of the

family and he had a son by name Hanumappa. The said

Hanumappa had a son by name Hanchinalappa and three

daughters, who are the plaintiffs, through his wife

Shivawwa. It is the case of the plaintiffs that they, along

with Hanchinalappa, are also the legal heirs of the

NC: 2023:KHC-D:12862-DB RFA No.100079 of 2023

Hanumappa; that Hanchinalappa is no more and his wife

and daughter (defendants No.1 and 2) are his only legal

heirs. It is also the case of the plaintiffs that the suit

schedule property belongs to the family and the same being

an ancestral property, they have a equal share along with

their brother Hanchinalappa, but however, the wife of

Hanchinalappa i.e., defendant No.1 got mutated her name

in respect of the suit schedule property. It is also contended

that a portion of the suit schedule property was acquired by

the Special Land Acquisition Officer, Karnataka Industrial

Area Development Board (SLAO), in the year 2017 and

defendant No.1, the wife of Hanchinalappa, got the suit

schedule property mutated in her name by giving a false

'wardi' and taking undue advantage of the same, she is in a

hurry to get the entire compensation from the SLAO. The

plaintiffs have immediately got issued a legal notice dated

13.06.2017 addressed to the SLAO not to disburse any

compensation in favour of Fakeerawwa-defendant No.1 in

respect the suit schedule property. The said Fakeerawwa

has no right to take the entire compensation amount and

NC: 2023:KHC-D:12862-DB RFA No.100079 of 2023

hence, the plaintiffs filed a suit seeking 3/4th legitimate

share i.e., 1/4th share to each of the plaintiffs in respect of

the suit schedule property and also to declare that the

plaintiffs together are entitled for 3/4th share in the

compensation amount awarded by the SLAO and costs of

the suit.

5. Defendant No.1 filed the written statement

before the Trial Court denying the averments made in the

plaint and contended that the plaintiffs are not entitled to

1/4th share in the suit schedule property.

6. The Trial Court having considered the plaint

averments and also the written statement, framed issues as

to whether the suit schedule property is ancestral and joint

family property, and whether the plaintiffs are entitled to

3/4th share in the suit schedule property and in the

compensation amount awarded by the Special Land

Acquisition Officer. The plaintiffs, in support of their case,

examined plaintiff No.1 as P.W.1 and one more witness as

P.W.2 and got marked 27 documents as Exs.P.1 to P.27.

NC: 2023:KHC-D:12862-DB RFA No.100079 of 2023

The defendants did not lead any oral evidence nor marked

any documents. The Trial Court considering the evidence

and other material on record granted the relief of 1/4th

share each i.e., 3/4th share in favour of the plaintiffs in the

property as well as compensation.

7. Being aggrieved by the judgment and decree,

the present appeal is filed by defendant Nos.1 and 2,

contending that the Trial Court has failed to take note of the

material on record and committed an error in granting the

decree. It is also contended that the original propositus i.e.,

the father of the plaintiffs and Hanchinalappa (husband of

defendant No.1) died prior to 1991 and all the three sisters

(the plaintiffs) of Hanchinalappa were got married prior to

1994 and hence, the judgment of the Trial Court granting

decree is wholly erroneous. It is also contended that the

Trial Court erred in not granting sufficient opportunity to

the defendants and hence, the judgment and decree of the

Trial Court requires interference. Learned counsel for the

appellants would reiterate the same in his arguments.

NC: 2023:KHC-D:12862-DB RFA No.100079 of 2023

8. Learned counsel for the respondents would

contend that the defendants have not led any evidence,

and relationship not disputed and the property ancestral

property is also not in dispute and hence the Trial Court has

not committed any error.

9. Having heard the learned counsel for the parties

and the learned counsel for the respondents and also

having perused the material, it is clear that there is no

dispute that the suit schedule property is an ancestral

property and also there is also no dispute that the

appellants are the sisters of Hanchinalappa, the husband of

defendant No.1, and they constitute a joint family. No

material is placed on record to establish that earlier there

was a partition. The plaintiffs contend that the father died

prior to 1991 and all of them were married prior to 1994.

No material is placed before this Court with regard to the

partition that had taken place among them. In view of the

judgment of the Apex Court in Vineeta Sharma Vs. Rakesh

NC: 2023:KHC-D:12862-DB RFA No.100079 of 2023

Sharma and Others1 case, the respondents No.1 to

3/plaintiffs, who are the sisters of husband of defendant

No.1, are also entitled to an equal share along with husband

of defendant No.1. The respondents/plaintiffs-daughters are

also co-parceners and in view of the amendment brought to

the Hindu Succession Act as well as the judgment of the

Apex Court in Vineeta Sharma's case (supra), they are

entitled to an equal share in the property as that of a son as

co-parceners. When such being the material on record and

in the absence of any material with regard to the

relationship between the parties and the nature of the

property is concerned, we do not find any error committed

by the Trial Court in granting a decree holding that the

plaintiffs have a share in the suit schedule property and the

plaintiffs together are entitled for 3/4th share of the

compensation awarded in respect of the portion of the suit

schedule property acquired in the year 2017.

ILR 2020 KAR 4370

NC: 2023:KHC-D:12862-DB RFA No.100079 of 2023

10. Learned counsel for the appellants would submit

that no opportunity was given to the appellants/defendants

to lead evidence. Having considered the material on record,

when there is no dispute with regard to the nature of the

property as well as the relationship between the parties,

and when defendants No.1 having filed the written

statement, has not exercised the right to lead oral evidence

or adduce documentary evidence, no purpose would be

served by remanding the matter to the Trial Court and on

this ground, considering the question of remanding the

matter to the Trial Court does not arise.

Under these circumstances, no grounds are made out

to admit the appeal. Accordingly, the appeal is dismissed.

Sd JUDGE

Sd JUDGE KMS