Karnataka High Court
Shri Rudragouda S/O Ramling Patil vs Shri Basangouda S/O Ramling Patil ... on 15 April, 2024
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RFA No. 100672 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100672 OF 2022 (PAR/POS)
BETWEEN:
SHRI. RUDRAGOUDA S/O. RAMLING PATIL
AGE: 82 YEARS,
OCCUPATION: AGRICULTURE,
R/O: KAGGANAGI, TQ: KHANAPUR,
DIST: BELAGAVI-591131.
...APPELLANT
(BY SRI.SUJEET S.HIREMATH, ADVOCATE FOR
SRI.HIREMATH R.M., ADVOCATE)
AND:
SHRI. BASANGOUDA S/O. RAMLING PATIL
SHIVAKUMAR
HIREMATH (DIED HIS LRs ARE R1 TO R3)
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2024.04.22
11:18:18 +0530
1. SHRI. RAVALNATH S/O. BASANGOUDA PATIL
AGE: 42 YEARS, OCC: AGRICULTURIST,
R/O: AVAROLLI, TQ: KHANAPUR,
DIST: BELAGAVI-591131.
2. SMT. NANDA W/O. DATTATRAY BELLIKOPP
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: AVAROLLI, TQ: KHANAPUR,
DIST: BELAGAVI-591131.
3. SMT. MANJULA D/O. BASANGOUDA PATIL
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: AVAROLLI, TQ: KHANAPUR,
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RFA No. 100672 of 2022
DIST: BELAGAVI-591131.
4. SMT. GANGAWWA W/O. YALLAPPA GOUDRA
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: MANGYANKOPP, TQ: KHANAPUR,
DIST: BELAGAVI-591106.
5. SMT. KASHAWWA W/O. CHANDRU ALABADI
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: BADAS, TQ AND DIST: BELAGAVI-591131.
6. SMT. IRAWWA W/O. SHIVAJI ALABADI
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: BADAS, TQ AND DIST: BELAGAVI-591106.
7. SHRI. MAHABALESHWAR S/O. YALLAPPA GOUDRA
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: MANGYANKOPP, TQ: KHANAPUR,
DIST: BELAGAVI-591106.
8. SHRI. RUDRAPPA S/O. YALLAPPA GOUDRA
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: MANGYANKOPP, TQ: KHANAPUR,
DIST: BELAGAVI-591106.
9. SHRI. BABU S/O. YALLAPPA GOUDRA
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: MANGYANKOPP, TQ: KHANAPUR,
DIST: BELAGAVI-591106.
10. SHRI. HANAMANT S/O. SHIVAPPA ALABADI
AGE: 82 YEARS, OCC: AGRICULTURE,
R/O: BADAS, TQ AND DIST: BELAGAVI-591131.
11. SHRI. KRISHNAPPA S/O. RAMAPPA KODOLLI
AGE: ABOUT 62 YEARS, OCC: AGRICULTURE,
R/O: AVAROLLI, TQ: KHANAPUR,
DIST: BELAGAVI-591131.
12. SHRI. YASHWANT S/O. RAVALAPPA KODOLLI
AGE: ABOUT 53 YEARS, OCC: AGRICULTURE,
R/O: AVAROLLI, TQ: KHANAPUR,
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RFA No. 100672 of 2022
DIST: BELAGAVI-591131.
13. SHRI. RAVINDRA S/O. RAVALAPPA KODOLLI
AGE: ABOUT 60 YEARS, OCC: AGRICULTURE,
R/O: AVAROLLI, TQ: KHANAPUR,
DIST: BELAGAVI-591131.
14. SHRI. RAVALAPPA S/O. RUDRAPPA PEJOLLI
AGE: ABOUT 48 YEARS, OCC: AGRICULTURE,
R/O: AVAROLLI, TQ: KHANAPUR,
DIST: BELAGAVI-591131.
15. SHRI. RUDRAPPA S/O. ARJUN KODOLLI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: AVAROLLI, TQ: KHANAPUR,
DIST: BELAGAVI-591131.
16. RAMESH S/O. ARJUN KODOLLI
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: AVAROLLI, TQ: KHANAPUR,
DIST: BELAGAVI-591131.
17. SHRI. VITHAL S/O. ARJUN KODOLLI
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: AVAROLLI, TQ: KHANAPUR,
DIST: BELAGAVI-591131.
18. SHRI. RAJU S/O. ARJUN KODOLLI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: AVAROLLI, TQ: KHANAPUR,
DIST: BELAGAVI-591131.
...RESPONDENTS
(BY SMT.DEEPA DODDATTI, ADVOCATE FOR R1 TO R3;
SRI.DINESH M.KULKARNI, ADVOCATE FOR R11 TO R18;
R4 TO R10 ARE SERVED AND UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 07.09.2022
PASSED IN O.S.NO.82/2011 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
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RFA No. 100672 of 2022
KHANAPUR, DISMISSING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, E.S. INDIRESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
This First Appeal is preferred by plaintiff
challenging the judgment and decree dated
07.09.2022 passed in Original Suit No.82 of 2011 on
the file of the Senior Civil Judge and JMFC Court,
Khanapur, (for short, hereinafter referred to as 'Trial
Court'), dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. It is the case of the plaintiff that, the plaintiff,
defendant No.1 and another brother by name
Shivalingappa, are children of Ramaling Shivaling Patil
@ Ramalingappa. It is further stated in the pliant that,
plaintiff's brother-Shivalingappa died leaving behind
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his children, namely, defendant Nos.2 to 4. Defendant
Nos.5 to 7 are the children of the defendant No.2.
Defendant No.8 is the maternal uncle of defendant
Nos.2 to 4. It is stated in the plaint that, the
defendant No.1 and defendant Nos.3 to 7 have sold
certain properties in favour of defendant Nos.9 to 11.
It is the case of the plaintiff that, the plaintiff being a
coparcener of the joint family, consisting of his two
brothers, is entitled for 1/3rd share in the suit schedule
properties. It is the allegation of the plaintiff that,
defendant No.2 without the consent of plaintiff,
entered his name in the mutation register and had
sold properties based on modified record of rights in
favour of defendant No.10 in respect of the land
bearing Survey No.132/4 of Avarolli village as per
registered Sale Deed dated 22.08.2011 and similarly,
defendant Nos.2 and 3 have sold property in favour of
the defendant No.11 and further defendant No.1 has
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sold land bearing survey No.132/2 in favour of
defendant No.9 and being aggrieved by the same, the
plaintiff has filed suit in OS No.82 of 2011 before the
trial Court, seeking relief of partition and separate
possession in respect of the suit schedule properties.
4. After service of summons, the defendants
entered appearance and filed written statement
denying the averments made in the plaint. It is the
contention of the defendant Nos.1(a) to 1(c) (children
of defendant No.1) that the suit is filed by the plaintiff
in collusion with defendant Nos.2 to 4. It is the
contention of these defendants that, the parties to the
suit are belong to Hanabar community and the custom
prevailing in their community provides that the female
heirs are not entitled for share in the property of the
father.
5. Defendant Nos.9 to 11 filed separate written
statement contending that, they are the bonafide
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purchasers of the land in question for valuable
consideration and also they alleged that, there was
family arrangement between the plaintiff and other
members of the family and therefore, sought for
dismissal of the suit.
6. It is the contention of the defendant No.3 in
his written statement that, the suit properties are the
ancestral properties of the plaintiff and defendant
Nos.1 to 4 and as such, stated that the plaintiff is
entitle for 1/3rd share, however, took up a contention
that, schedule B house property is not ancestral
property and accordingly, sought for disposal of the
suit.
7. Defendant No.12 has filed written statement
contending that, he is the bonafide purchaser of the
land in question for valuable consideration and he has
improved the land pursuant to the purchase made
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from the contesting defendants, and accordingly,
sought for dismissal of the suit.
8. It is the contention of the defendant No.5 in
the written statement that, the schedule properties
are the Inam lands and belongs to their ancestors and
further contended that, the deceased Ramalingappa
had two wives, namely, Taravva and Gangavva,
wherein, plaintiff and deceased defendant No.1 are
the sons of second wife Gangavva. Shivalingappa is
the son of the deceased Ramalingppa through his first
wife-Taravva. It is also stated that, as there is dispute
between the children of these two wives and it was
also alleged that, Basanagouda (defendant No.1-son
of Ramalingappa through his second wife-Gangavva)
murdered Shivalingappa (son of Ramalingappa
through his first wife) and therefore, it is contended
that, the defendant No.1 and plaintiff being sons of
second wife of Ramalin Shivaling Patil are not entitle
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for share the in the ancestral properties. Accordingly,
sought for dismissal of the suit.
9. Defendant No.13 filed written statement
contending that the plaintiff and defendant Nos.1 to 7
have partitioned the joint family properties as per
family arrangement and the defendant Nos.13 to 16
are the bonafide purchasers of the land in question as
per registered Sale Deeds dated 13.07.2017 and
18.09.2019 respectively for valuable consideration and
therefore, contended that the suit filed by the plaintiff
requires to be dismissed.
10. The Trial Court, based on the pleadings on
record, has formulated following issues and additional
issue for its consideration:
1. Whether the plaintiffs prove that he is entitled
to seek partition and separate possession of suit
properties ?
2. What share each of the parties is entitled to ?
3. What order ?
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Additional Issues dated 10.01.2013
1. Whether the plaintiff proves that suit
properties are ancestral properties of plaintiff ?
Additional Issues dated 06.02.2021
1. Whether the plaintiff proves that the
genealogy furnished by him is correct and
complete ?
2. Whether the defendants No.9 to 16 prove that
an oral partition / family arrangement had taken
place in the year 1973-74 between the plaintiff,
defendant No.1 and Shivalingappa's family as
contended by them in their respective written
statements ?
3. Whether the defendants No.9 to 16 prove that
they are bonafide purchaser as claimed by them
in their respective written statements ?
11. In order to establish their case, plaintiff
himself was examined as P.W.1 and produced 29
documents and the same were marked as Ex.P.1 to
Ex.P.29. Defendants have examined 05 witnesses as
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D.W.1 to D.W.5 and produced 130 documents and the
same were marked as Ex.D.1 to Ex.D.130.
12. The Trial Court, after considering the
material on record, by its judgment and decree dated
07.09.2022, dismissed the suit and being aggrieved
by the same, plaintiff has preferred this Regular First
Appeal.
13. We have heard Sri Sujeet S.Hiremath
learned counsel appearing on behalf of Sri Hiremath
R.M., for the appellant; Smt Deepa Doddatti, learned
counsel appearing for the respondents 1 to 3 and Sri
Dinesh M. Kulkarni, learned counsel appearing for the
respondents 11 to 18.
14. Sri Sujeet S. Hiremath, learned counsel
appearing for appellant argued that, the trial Court
has misconstrued the genealogical tree of the parties
and therefore, disputed the genealogical tree
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produced by the defendant No.5 in the suit. Referring
to the document produced as Exhibit D62, learned
counsel appearing for the appellant contended that,
the said document does not disclose the division of
properties between the plaintiff and the defendants
and accordingly, he sought for interference of this
Court.
15. Per contra, Smt Deepa Doddatti learned
counsel appearing for respondents 1 to 3 supported
the contentions raised by the learned counsel for the
appellant.
16. Sri Dinesh M.Kulkarni, learned counsel for
the respondents 11 to 18 sought to justify the
impugned judgment and decree passed by the Trial
Court.
17. Having heard the learned counsel appearing
for the parties and taking into consideration the
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grounds urged in the memorandum of appeal, the
following points arise for consideration:
(i) Whether the trial Court has appreciated
the oral and documentary evidence on
record in right perspective?
(ii) Whether the trial Court is justified in
dismissing the suit?
(iii) What order?
18. Having taken note of the submission made
by learned counsel appearing for the parties, we have
given our anxious consideration to the finding
recorded by the trial Court and perused the original
records. In order to understand the relationship
between the parties, the genealogical tree is produced
as under:
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Ramalingappa
Propositus
(died long back)
Smt Tarawwa Smt Gangawwa
Ist wife IInd wife
(died) (died)
Shivalingappa
(son) (died) Basangouda Rudragouda
(died)
Smt Bayawwa Smt Nilawwa
Ist wife (died) IInd wife (died) Gulabi Ravalappa Nanda Manjula
Smt Kashawaa Smt Irawwa
Smt Gangawwa Mahabaleshwar Rudrappa Babu
19. On perusal of the genealogical tree, it could
be concluded that, the original propositus-
Ramalingappa had two wives, namely, Smt Taravva
and Smt Gangavva. Smt Taravva had a son, by name,
Shivalingappa. The said Shivalingappa had two wives
namely, Smt Bayamma and Smt Neelavva.
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Shivalingappa had four children through his first wife-
Bayamma, namely, Gangavva (defendant No.2),
Mahabaleshwar (defendant No.5), Rudrappa
(defendant No.6) and Babu (defendant No.7) and also
Shivalingappa had two children through his second
wife-Neelavva namely, Kashavva (defendant No.3)
and Eravva (defendant No.4). It is also to be noted
that, original propositus-Ramalingappa had two
children through his second wife namely, Basanagouda
(defendant No.1) and Rudragouda (plaintiff). On
careful examination of the finding recorded by the trial
Court, though there are two distinct Genealogical
Trees produced by the plaintiff as well as the
defendants, however, there is no discussion by the
trial Court with regard to the relationship between the
parties. It is also to be noted that, the entire case
rests on the mutation register entries made as per M.R
No.38/2010-11 (Exhibit D62), however, there is no
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discussion by the trial Court in respect of the alleged
change of entry made in respect of suit schedule
property as culled out in Exhibit D62.
20. It is also to be noted that, the father of the
plaintiff died on 10.12.1943 and by the said time,
plaintiff and defendant No.1 were born on 09.08.1942
and 15.07.1940 respectively. It is also to be noted
from the records that, there is discrepancy with regard
to the averments made in the additional written
statement filed by the defendants with that of their
earlier written statement and these aspects ought to
have been appreciated or considered by the trial Court
at length and same is required to be re-looked into by
the trial Court. Therefore, without expressing any
opinion on the merits of the case, the suit is required
to be re-appreciated based on the oral and
documentary evidence produced by the parties. The
trial Court, has not discussed the aforementioned
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aspects in the impugned judgment and decree while
dismissing the suit of the plaintiff. Hence, the point for
determination favours the plaintiff and accordingly, we
pass the following:
ORDER
i) The Regular Second Appeal is allowed;
ii) The judgment and decree dated
07.09.2022 passed in O.S.No.82/2011 on
the file of Senior Civil Judge and JMFC,
Khanapur is set aside and the matter is
remanded to the Trial for fresh
consideration in terms of observations
made above;
iii) All contentions of the parties are kept
open; The trial Court shall expedite the
hearing.
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iv) As the parties appeared before the Court
through learned counsels, in order to
expedite the hearing, the parties are
directed to appear before the Trial Court
on 27.05.2024 at 11.00 a.m., without
waiting for further notice from the Trial
Court;
v) It is made clear that till the disposal of the
suit, the parties shall maintain status-quo
in respect of possession of the suit
schedule properties.
Sd/-
JUDGE
Sd/-
JUDGE
SB
