Karnataka High Court
Sri Shekhar S/O Shidramappa Katati vs Smt Sharada Alias Sharawwa W/O Sangappa ... on 22 April, 2024
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RFA No. 100025 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND 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.100025 OF 2022 (PAR/POS)
BETWEEN:
1. SRI. SHEKHAR S/O. SHIDRAMAPPA KATATI
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: CHAVADI GALLI, MUDHOL ROAD,
TQ: JAMKHANDI, DIST: BAGALKOT-587301.
2. SRI. CHANABASU S/O. SHIDRAMAPPA KATATI
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: CHAVADI GALLI, MUDHOL ROAD,
TQ: JAMKHANDI, DIST: BAGALKOT-587301.
...APPELLANTS
(BY SRI.RAVI S.BALIKAI, ADVOCATE FOR
SRI.GIRISH YADAWAD, ADVOCATE)
AND:
SHIVAKUMAR
HIREMATH
Location: HIGH 1. SMT. SHARADA @ SHARAWWA
COURT OF
KARNATAKA
DHARWAD BENCH
Date: 2024.04.25
W/O. SANGAPPA CHINNANNAVAR,
11:08:51 +0530
AGE: 69 YEARS, OCC: HOUSEHOLD WORK,
R/O: INGALAGI, TQ: MUDHOL,
DIST: BAGALKOT-581212.
2. SMT. SHANTAWWA W/O. MUDAMALLAPPA TELI
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
R/O: SHEGUNASHI, TQ: ATHANI,
DIST: BELAGAVI-591220.
3. SMT. SEVANTA W/O. NINGANGOUDA BIRADAR
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O: CHAVADI GALLI, MUDHOL ROAD,
TQ: JAMKHANDI, DIST: BAGALKOT-587301.
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RFA No. 100025 of 2022
4. SMT. MALLAAWWA W/O. GANESH CHINAGUNDI
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
NOW AT R/O: CHAVADI GALLI, MUDHOL ROAD,
TQ: JAMKHANDI, DIST: BAGALKOT-587301.
5. SMT. SUSHILA W/O. GANGAPPA NYAMAGOUD
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O: DARGA COLONY, TQ: JAMKHANDI,
DIST: BAGALKOT-587301.
6. SMT. MALLAWWA W/O. SADASHIV SHIRAHATTI
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: RAMESHWAR COLONY,
TQ: JAMKHANDI, DIST: BAGALKOT-587301.
7. SMT. MAHADEVI W/O. BASAPPA GANIGER
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: KALADAGI, TQ: JAMKHANDI,
DIST: BAGALKOT-587204.
8. SMT. NEELAWWA W/O. PARASHURAM SULIKERI
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O: MINI VIDHAN SOUDHA,
TAKKALAKI R.C. CENTRE,
TQ: BILAGI, DIST: BAGALKOT-587116.
9. SRI. CHANNABASAPPA S/O. PARAPPA KATATI
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: CHAVADI GALLI, MUDHOL ROAD,
TQ: JAMKHANDI, DIST: BAGALKOT-587301.
10. SRI. RAJU S/O. PARAPPA KATATI
AGE: 51 YEARS, OCC: AGRICULTURE
AND BUSINESS,
R/O: CHAVADI GALLI, MUDHOL ROAD,
TQ: JAMKHANDI, DIST: BAGALKOT-587301.
11. SRI. ASHOK S/O. PARAPPA KATATI
AGE: 47 YEARS, OCC: PRIVATE SERVICE,
R/O: CHAVADI GALLI, MUDHOL ROAD,
TQ: JAMKHANDI, DIST: BAGALKOT-587301.
12. SMT. SUSHILA W/O. SHIDAPPA KATATI
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: CHAVADI GALLI, MUDHOL ROAD,
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NC: 2024:KHC-D:6643-DB
RFA No. 100025 of 2022
TQ: JAMKHANDI, DIST: BAGALKOT-587301.
13. SRI. VINOD S/O. SIDDAPPA KATATI
AGE: 31 YEARS, OCC: PRIVATE SERVICE,
R/O: CHAVADI GALLI, MUDHOL ROAD,
TQ: JAMKHANDI, DIST: BAGALKOT-587301.
14. SMT. SHOBA W/O. PRAKASH KATATI
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: NYAMGOUDA GALLI, TQ: JAMKHANDI,
DIST: BAGALKOT-587301.
15. SRI. SADASHIV S/O. PRAKASH KATATI
AGE: 29 YEARS, OCC: PRIVATE SERVICE,
R/O: NYAMGOUDA GALLI, TQ: JAMKHANDI,
DIST: BAGALKOT-587301.
...RESPONDENTS
(BY SRI.C.S.SHETTAR, ADVOCATE FOR R1 AND R2;
SRI.PRAKASH HOSAMANE, ADVOCATE FOR R9 TO R15)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 14.09.2021 PASSED
IN O.S.NO.128/2016 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE, JAMAKHANDI, PARTLY DECREEING THE SUIT FILED
FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
This First Appeal is preferred by defendant Nos.1 and 2
challenging the judgment and decree dated 14.09.2021 passed
in Original Suit No.128/2016 on the file of the Additional Senior
Civil Judge, Jamakhandi (for short, hereinafter referred to as
'Trial Court'), decreeing the suit of the plaintiffs in part.
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2. For the sake of convenience, the parties are referred
to as per their ranking before the Trial Court.
3. The plaint averments are that, the plaintiffs and
defendants are the descendents of original propositus Parappa.
It is averred that, there was a registered partition in the family
consisting of plaintiffs and defendants on 04.06.1960 and
thereafter, the families of the plaintiffs and defendants residing
separately. It is further averred in the plaint that, except the
suit schedule property all other properties were divided among
the families of plaintiffs and defendants and the land bearing
Survey No.257/1 was fallen to the share of both the sons of
Parappa namely Siddappa and Channabasappa and the said
suit schedule property has been used by both plaintiffs and
defendant Nos.1 to 6. It is the contention of the plaintiffs that,
the plaintiffs have got half share in the common area and
defendant Nos.1 to 6 had remaining half share in the suit
schedule property. The plaintiffs have converted the portion of
the land for non-agricultural purpose and on the other hand the
defendant Nos.1 to 6 have sold their respective share to
different purchasers namely Manohar Ainapur, Vijayalaxmi
Malaghan and Shashikant Kale. It is the contention of the
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plaintiffs that the area for open cattle ground and open well to
store water from city drain was being used by the members of
the joint family. It is further stated in the plaint that, the
defendant Nos.1 to 6 are trying to convert the suit area for
non-agricultural purpose. Hence, the plaintiffs filed suit seeking
relief of partition and separate possession.
4. After service of notice, the defendants entered
appearance and filed written statement. It is the contention of
the defendants that, as the plaintiffs have converted the entire
land in survey No.257 allotted to their share for non-
agricultural purpose and sold certain plots thereunder, and as
such, the plaintiffs cannot interfere with the suit schedule
property which is in possession of the defendants. Relationship
between the parties is not disputed. It is the further contention
of the defendants that, area of 06 acres 35 guntas in Survey
No.257/1 and land bearing survey No.257/1B/1, measuring 7
guntas is standing in the name of defendants and as such, the
defendants contended that, the plaintiffs cannot maintain a suit
for partition and separate possession in respect of the subject
matter of the suit property. It is also contended by the
defendants that, plaintiff No.2 has filed O.S.No.316/1987
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against the defendants, which came to be dismissed and
ultimately confirmed by this Court in RSA No.322/2003 and
therefore, it is contended by the defendants that, the suit is hit
by Order II Rule 2 of CPC. Hence, the defendants sought for
dismissal of the suit.
5. The Trial Court, based on the pleadings on record, has
formulated following issues and additional issue for its
consideration:
Issues
(i) Whether plaintiffs prove that, in a registered
partition deed dated 04.06.1960 the suit properties were
kept for common use of the ancestors of plaintiffs and
ancestors of defendants 1 to 6 wherein the plaintiffs
collectively entitled for ½ share?
(ii) Whether the defendants - 1 & 2 prove that,
due to violation of condition imposed in the partition deed
dated 04.06.1960 the plaintiffs are not entitled for share
in the suit property?
(iii) Whether suit is barred by limitation?
(iv) Whether plaintiffs are entitled for decree as
sought for ?
(v) What order or decree ?
Recasted Issue - (i)
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(i) Whether plaintiffs prove that in the
registered partition deed dated 04.06.1960, the suit
property bearing RS No.257/1 measuring 2As 20Gs out of
13As 12 Gs was kept for common use of the ancestors of
plaintiffs and ancestors of defendants-1 to 6 wherein the
plaintiffs collectively entitled for ½ share?
Additional Issue
Whether suit is hit by the principles of Res-
Judicata?
6. In order to establish their case, plaintiffs have
examined plaintiff No.1 as P.W.1 and produced 10 documents
as Ex.P.1 to Ex.P.10. Defendant No.2 was examined as D.W.1
and 08 documents were marked as Ex.D.1 to Ex.D.8.
7. The trial Court after considering the material on
record by its Judgment and decree dated 14.09.2021 decreed
the suit in part, holding that the plaintiffs along with defendant
Nos.7 to 10 are entitle for half share in the schedule property
and remaining half share was given to defendant Nos.1 to 6.
Feeling aggrieved by the Judgment and decree passed by the
trial Court, defendant Nos.1 and 2 have preferred this appeal.
8. We have heard Sri. Ravi S. Balikai, learned counsel
appearing on behalf of Sri. Girish Yadawad, learned counsel for
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the appellants; Sri. C.S.Shettar, learned counsel for the
respondent Nos.1 and 2 and Sri, Prakash N. Hosmane,
appearing for caveator/respondent Nos.9 to 15.
9. It is submitted by the learned counsel appearing for
the appellants that, the finding recorded by the trial Court that
there was earlier partition between the plaintiffs and
defendants is not correct. He also submitted that, granting half
share to the plaintiffs along with defendant Nos.7 to 10 is
contrary to law and opposed to the factual aspects on record.
Learned counsel further submitted that, the defendant Nos.1 to
6 alone are entitle for share in the suit schedule property and
the plaintiffs have not furnished the entire details relating to
description of the suit schedule property and accordingly he
sought for interference of this Court. Sri. Ravi S. Balikai,
learned counsel appearing for the appellants, further,
contended that the description of the property in the plaint
itself is not correct and there is no existence of the well and the
shed as shown in the description of the property as the same is
in dilapidated condition and as the plaintiffs are not in
possession of the portion of the suit schedule property as
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contended in the plaint and accordingly sought for setting aside
the Judgment and decree passed by the trial Court.
10. Per contra learned counsel appearing for the
respondents justifies the impugned Judgment and decree
passed by the trial Court. It is the contention of learned counsel
Sri. Prakash Hosamane that, the arguments advanced by the
learned counsel appearing for the appellants relating to the
description of the property and the existence of well and shed
is incorrect and he further contended that, the finding recorded
by the trial Court with regard to share of the properties
between two branches of plaintiffs and defendants is just and
proper and same cannot be interfered with in this appeal. Sri.
C.S.Shettar, learned counsel appearing for the respondent
Nos.1 and 2 argued on the similar lines that the existence or
absence of the well and shed in the schedule property could be
ascertained in the final decree proceedings and as such, sought
for dismissal of the appeal.
11. Having heard the learned counsel appearing for the
parties and taking into consideration the grounds urged in the
memorandum of appeal, the following points arise for
consideration:
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(i) Whether the finding recorded by the trial
Court granting half share of the suit schedule property
to plaintiffs and defendant Nos.7 to 10 is justifiable?
(ii) Whether the Judgment and decree passed
by the trial Court requires interference?
(iii) What order?
12. Having taken note of the submission made by
learned counsel appearing for the parties and in order to
understand the relationship between the parties, the following
genealogical tree reads as under:
Parappa (propositus died long back)
Siddappa (died) Channabasappa(died)
Neelawwa (wife died) Mallawwa(died)
Parappa (Adopted son) died
Sidramappa(died) Sidlingappa (died)
Bagawwa (died)
Sharawwa Shantawwa Sevanta Shekhar Chanabasu Mallawwa
(D-3) (D-4) (D-5) (D-1) (D-2) (D-6)
Parawwa (died)
Sushila Siddapa Prakash Channabasappa Mallavva Mahadevi Raju Ashok
(D-7) (Died) (Died) (P-1) (D-8) (D-9) (P-2) (P-3)
Sushila Vinod
(P-4) (P-5)
Shobha Sadashiv Neelawwa
(P-6) (P-7) (P-10)
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13. It is evident from the aforementioned genealogy
that the original propositus Parappa had two sons namely,
Siddappa and Channabasappa. Siddappa adopted one Parappa
and he died leaving behind Sushila (D-7), Siddappa, who died
leaving behind Sushila (P-4) and Vinod (P-5), Prakash died
leaving behind Shobha (P-6), Sadashiv (P-7) and Neelavva (P-
10), Channabasappa (P-1), Mallavva (D-8), Mahadevi (D-9),
Raju (P-2) and Ashok (P-3). On the other hand, the second son
of original propositus Parappa - Channabasappa had two sons
Sidramappa and Sidlingappa. Sidramappa died leaving behind
Sharavva (D-3), Shantavva (D-4), Sevanta (D-4), Shekhar (D-
1), Channabasu (D-2) and Mallavva (D-6). Siddalingappa died
without leaving behind issues. Taking into consideration the
fact that, there is already registered partition between the
plaintiffs and defendants as per registered partition deed dated
04.06.1960, the trial Court rightly comes to the conclusion
that, the schedule property was not the subject matter in the
aforementioned registered partition deed and therefore, equally
divided the property into two parts in favour of both the
branches of Siddappa and Channabasappa. In that view of the
matter, taking into consideration the evidence on record
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particularly P.W.1 as well as D.W.1 who himself has admitted
the severance of status of the parties as per registered partition
deed and same was acted upon by the parties, the trial Court
has rightly decreed the suit in part and therefore, the
appellants herein have not made out a case for interference in
this appeal.
14. In the light of the submission made by the learned
counsel appearing for the appellants with regard to the right of
the parties to use common well and the shed, we have carefully
examined the registered partition deed dated 04.06.1960
(Ex.P.1). A translated copy of Ex.P.1 is marked as Ex.P.1(a).
The recital in the registered partition deed reads as under:
"dªÀÄRArAiÀÄ°è j.¸À.£ÀA.257£ÉÃzÀÝgÀ d«Ää£À°è ªÉÄÃ¯É £ÀªÀÄÆzÀÄ
ªÀiÁrzÀ ¥ÀæPÁgÀ JgÀqÀÄ ¥Á®Ä DVzÉ. ºÁUÉAiÉÄà d«Ää£À°è MAzÀÄ ¨sÁ«¬ÄzÀÄÝ
D ¨Á«AiÀÄ°èAiÀiÁzÀgÀÄ JgÀqÀÄ ¥Á®Ä DVzÉ. DzÀgÉ £ÀªÀÄä ¥ÉÊQ E®èªÉ £ÀªÀÄä
ªÁgÀ¸ÀÄzÁgÀ AiÀiÁgÁzÀgÀÆ ¸ÀzÀj vÀªÀÄä ¥Á°£À d«ÄãÀÄ ºÉÆgÀUÉ AiÀiÁjUÀzÀgÀÆ
ªÀiÁgÀĪÀÅzÀÄ DzÀgÉ D PÁ®PÉÌ d«ÄãÀÄ ¥sÀPÀÛ ªÀiÁgÀĪÀÅzÀÄ CzÉ. ªÀÄvÀÄÛ
¨Á«AiÀÄ°èAiÀÄ CªÀgÀ ºÀPÀÄÌ G½zÀ »¸ÉìzÁgÀjUÉ ¹UÀvÀPÌÀ zÀÄÝ CzÉ."
(Emphasis supplied)
15. On careful examination of the aforementioned
recital in the registered partition deed dated 04.06.1960
(Ex.P.1) makes it clear that, both the branches of the family
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members of Siddappa and Channabasappa (sons of original
propositus - Parappa) are entitle for half share in the suit
schedule property. Insofar as the land bearing Survey No.257,
wherein out of total extent of 26 acres 24 guntas, it is reflected
that, a well (pond) and shed is situate towards western portion
of half share to an extent of 13 acres 12 guntas, and both the
family members of Siddappa and Channabasappa have equal
right to utilize the same for their livelihood or for using
agricultural purpose. In the event, if any co-owner intends to
sell his share in respect of using well and shed, the same shall
not curtail the right of remaining family members of another
branch. In that view of the matter, the intention of the parties
is very clear in the registered partition deed dated 04.06.1960
and if at all any such member of the joint family sells his
interest/right in respect of the well and shed, the right of the
purchasers of such undivided interest in well and shed, have to
workout their remedy at the time of conclusion of final decree
proceedings. It is also made clear that, it is open for the parties
to appoint a Commissioner for division of properties or
existence or otherwise of such joint family property during final
decree proceedings. In the present appeal this Court is having
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jurisdiction to interfere only if the finding recorded by the trial
Court in the preliminary decree is contrary to law or not and as
the defendant Nos.1 and 2 have not produced any cogent
material for interference in the impugned Judgment and decree
to declare that the contesting respondents herein have no right
or title in respect of using well and the shed, hence, the point
for consideration refers to above favour the plaintiffs and
accordingly, the appeal is liable to be dismissed as devoid of
merits as there is no perversity in the Judgment and decree
passed by the trial Court.
In the result, appeal fails.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
