Karnataka High Court
Shivappa S/O Adiveppa Desayar @ Kari @ ... vs Kashawwa W/O. Maruteppa Horakeri on 28 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:13933-DB
RFA No. 100249 of 2017
C/W RFA No. 100396 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH 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. 100249 OF 2017 (FDP)
C/W
REGULAR FIRST APPEAL NO. 100396 OF 2019
IN RFA NO. 100249/2017
BETWEEN:
SHIVAPPA
S/O. ADIVEPPA DESAYAR @ KARI @ KARIGAR,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: BETASUR, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
...APPELLANT
SAMREEN (BY SRI. SHIVANAND MALASHETTI FOR
AYUB SRI. SHIVARAJ P. MUDHOL, ADVOCATE)
DESHNUR
AND:
Digitally signed
by SAMREEN
AYUB DESHNUR 1. KASHAWWA W/O. MARUTEPPA HORAKERI,
Date: 2023.12.06
11:22:24 +0530 AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O: DADERKOPPA, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
2. FAKIRAVVA W/O. SHIVAPPA GADDI,
AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
R/O: BETASUR VILLAGE, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
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NC: 2023:KHC-D:13933-DB
RFA No. 100249 of 2017
C/W RFA No. 100396 of 2019
3. MARUTI S/O. ADIVEPPA DESAYAR,
@ KARI @ KARIGAR,
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: BETASUR VILLAGE, TALUK: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
4. FAKIRAPPA S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: BETASUR, TALUK: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
5. BHIMAPPA S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BETASUR, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
6. MAHADEV S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: BETASUR VILLAGE, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
7. SAHADEV S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: BETASUR, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
8. RUKAMAWWA W/O. NEELAPPA HORAKERI,
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O: DADERKOPPA, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
9. SHANTAWWA W/O. SHIVAPPA KARIKATTI,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O: DADERKOPPA, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
10. MARUTI S/O. ADIVEPPA HORAKERI,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: DODERKOPPA, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
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NC: 2023:KHC-D:13933-DB
RFA No. 100249 of 2017
C/W RFA No. 100396 of 2019
11. SHANTAWWA W/O. FAKIRAPPA SHERI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: HANCHINAL, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
12. NEELAPPA S/O. ADIVEPPA HORAKERI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: DADERKOPPA, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
13. YALLAMMA
W/O. KONSHETTAPPA KEPUDI @PATTIHAL,
AGE: 53 YEARS, OCC: HOUSE HOLD WORK,
R/O: BETASUR, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
14. SHIVANAND S/O. ADIVEPPA HORAKERI,
AGE: 51 OCC: AGRICULTURE,
R/O: DADERKOPPA, TQ: SOUDATTI,
DIST: BELAGAVI. PIN: 591126.
...RESPONDENTS
(BY SRI. H.M. DHARIGOND, ADVOCATE FOR R1;
SRI. S.B. DODDAGOUDAR, ADVOCATE FOR R5;
NOTICE SERVED TO R2 TO R4, R6 TO R14)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF C.P.C., PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED 12/07/2017 IN FDP NO. 31/2014 PASSED BY THE CIVIL
JUDGE SENIOR DIVISION SOUNDATTI BY ALLOWING THIS
APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
IN RFA NO. 100396/2019
BETWEEN:
BHIMAPPA ADIVEPPA DESAYAR @ KARI @ KARIGAR,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: BETASUR VILLAGE,
TAL: SAUNDATTI, DIST: BELAGAVI.
...APPELLANT
(BY SRI. S.B. DODDAGOUDAR, ADVOCATE)
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NC: 2023:KHC-D:13933-DB
RFA No. 100249 of 2017
C/W RFA No. 100396 of 2019
AND:
1. KASHAWWA W/O. MARUTEPPA HORAKERI,
AGE: 64 YEARS, OCC: HOUSEHOLD WORKS,
R/O: DADERKOPPA,
TAL: SAUNDDATTI, DIST: BELAGAVI.
2. SHIVAPPA ADIVEPPA DESAYAR @ KARI @ KARIGAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BETASUR,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
3. FAKKIRAVVA W/O SHIVAPPA GADDI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: BETASUR,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
4. MARUTI ADIVEPPA DESAYAR @ KARI @ KARIGAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BETASUR VILLAGE, TAL: SAUNDATTI,
DIST: BELAGAVI-591126.
5. FAKIRAPPA
S/O. ADIVEPPA DESAYAR @ KARI @ KARIGAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BETASUR VILLAGE,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
6. MAHADEV
S/O. ADIVEPPA DESAYAR @ KARI @ KARIGAR
AGE: MAJOR, OCC: AGRICULTURE,
R/OL: BETASUR VILLAGE,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
7. SAHADEV ADIVEPPA DESAYAR @ KARI @ KARIGAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BETASUR VILLAGE,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
8. RUKMAWWA W/O. NEELAPPA HORAKERI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: DADERKOPPA,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
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NC: 2023:KHC-D:13933-DB
RFA No. 100249 of 2017
C/W RFA No. 100396 of 2019
9. SHANTAWWA W/O. SHIVAPPA KARIKATTI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: DADERKOPPA,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
10. MARUTI ADIVEPPA HORAKERI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: DADERKOPPA,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
11. SHANTAWWA W/O FAKIRAPPA SHERI
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: HANCHINAL,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
12. NEELAPPA ADIVEPPA HORAKERI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: DADERKOPPA,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
13. YALLAMMA W/O. SHETTAPPA KEPODI @ PATTIHAL
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: BETASUR,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
14. SHIVANAND ADIVEPPA HORAKERID
AGE: MAJOR, OCC: AGRICULTURE,
R/O: DADERKOPPAS,
TAL: SAUNDATTI, DIST: BELAGAVI-591126.
...RESPONDENTS
(BY SRI. H.M. DHARIGOND, ADVOCATE FOR R1;
SRI. SHIVANAND MALASHETTI FOR
SRI. SHIVARAJ P. MUDHOL, ADVOCATE FOR R2;
NOTICE SERVED TO R3 TO R14 )
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
READ WITH ORDER XLI, RULE 1 OF THE CODE OF CIVIL
PROCEDURE, 1908, PRAYING TO ALLOW THE PRESENT APPEAL
FILED BY THE APPELLANT BY SETTING ASIDE THE FINAL
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NC: 2023:KHC-D:13933-DB
RFA No. 100249 of 2017
C/W RFA No. 100396 of 2019
DECREE DATED 12/07/2017 PASSED BY HON'BLE PRINCIPLE
SENIOR CIVIL JUDGE SAUNDATTI IN FDP NO. 31/2014 WITH
COSTS ALL THROUGHOUT IN FAVOUR OF THE APPELLANT.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the appellant's counsel and also the counsel
appearing for the respondent.
2. Heard on I.A.No. 1/2019 for condonation of
delay of 682 days in filing RFA No.100396/2019. In
paragraph No.6 of the affidavit accompanying the
application to condone the delay of 682 days, it is stated
that, the appellant never participated in the proceedings
before the Court below both in O.S.No.3/2012 and in FDP
No.31/2014. But in paragraph No.10, he himself has
stated that he realized that his brother had kept him in
darkness about the proceedings and has taken his
signature on certain documents without making him aware
of the actual facts. It is further sworn in the affidavit that,
he was not aware of the above proceedings. When in his
absence the memo adopting the written statement was
NC: 2023:KHC-D:13933-DB
filed by his brother having considered, in his own affidavit
he can't say that he was not aware of the proceedings. In
other words, he says that he has signed the Vakalathnama
and also even the memo is filed adopting the written
statement by his brother and the very affidavit is contrary
to each other. When they engaged the counsel and
represented through counsel and also adopted the written
statement filed by other defendants, now they cannot
contend that his brother had kept him in dark.
3. Having perused the application and the affidavit
and also the reasons assigned in the affidavit is contrary
to his own affidavit, we do not find any ground to condone
the delay of 682 days in filing the appeal in RFA
No.100396/2019.
4. The records also disclose that the plaintiff has
sought the relief of partition and Trial Court granted 1/6th
share and accordingly preliminary decree was drawn and
final decree was also drawn. Hence there is also no ground
to entertain this appeal. So also in RFA No.100249/2017,
NC: 2023:KHC-D:13933-DB
the appeal is filed by the defendant No.1 and he also
contends that his share has not been determined.
5. Having perused the judgment and decree of the
Trial Court passed in FDP No.31/2014, it is very clear that
the preliminary decree is granted in favour of the plaintiff
granting 1/6th share to the plaintiff. Based on the same,
FDP proceedings was also initiated. In FDP proceedings,
Commissioner was appointed. From the order passed in
FDP proceedings, it is very clear that none of them have
objected the Court Commissioner report and not filed any
objections to Commissioner's report and hence the same is
accepted and decree is drawn in terms of the preliminary
decree passed by the Trial Court.
6. We do not find any ground for interfering with
the findings of the Trial Court passed in FDP proceedings.
However, the counsel appearing for the appellant in RFA
No.100249/2017 would submit that his share has not been
determined and the counsel also brought to the notice of
this Court the findings given by the Trial Court in respect
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of both issue Nos.1 and 2. Both the issues are answered in
the affirmative.
7. Hence, the appellant is at liberty to approach
the appropriate forum, in view of the findings on additional
issues Nos. 1 and 2.
8. With these observations, both the appeals are
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SMM
