Karnataka High Court
Shri.Uddappa S/O Balappa Jadennavar @ ... vs Smt.Lakkavva W/O Kareppa Nander on 2 April, 2024
-1-
NC: 2024:KHC-D:6059-DB
RFA No.100106 of 2020 C/W
RFA.CROB No.100035 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND 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.100106 OF 2020 C/W
RFA CROSS OBJ NO.100035 OF 2022
In RFA No.100106/2020
BETWEEN:
1. SHRI. UDDAPPA
S/O. BALAPPA JADENNAVAR @ JADINAVAR,
AGE: 52 YEARS,
OCC: AGRICULTURE AND SERVICE,
R/O: UPPAR GALLI, GURUWAR PETH,
GOKAK-591307, DIST: BELAGAVI.
2. SMT. TANGEWWA
W/O. BALAPPA JADENNAVAR @ JADINAVAR,
AGE: 80 YEARS,
OCC: HOUSEHOLD WORK,
SHIVAKUMAR
HIREMATH R/O: UPPAR GALLI, GURUWAR PETH,
Location: HIGH
COURT OF
GOKAK-591307, DIST: BELAGAVI.
KARNATAKA
DHARWAD BENCH
Date: 2024.04.16
...APPELLANTS
11:21:44 +0530
(BY SRI. P.G. NAIK, ADVOCATE)
AND:
1. SMT. LAKKAVVA W/O. KAREPPA NANDER,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO.170, 8TH CROSS MAIN,
2ND STAGE, BTM LAYOUT,
BENGALURU-560076.
2. SMT. RUKAMAWWA
-2-
NC: 2024:KHC-D:6059-DB
RFA No.100106 of 2020 C/W
RFA.CROB No.100035 of 2022
W/O. RAMAPPA JADENNAVAR
AGE: 89 YEARS, OCC: HOUSEHOLD WORK,
R/O: INDIRA NAGAR,
MAHA GANAPATI BUILDING,
CHIKKODI-591211, DIST: BELAGAVI.
3. SHRI. MARUTI S/O. RAMAPPA JADENNAVAR
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: UPPAR GALLI, GURUWAR PETH,
GOKAK-591307.
4. SMT. LAKKAWWA W/O. MANOHAR MANNIKERI
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: INDIRA NAGAR, MAHA GANAPATI BUILDING,
CHIKKODI-591211, DIST: BELAGAVI.
5. SMT. SAROJA W/O. VITHAL JADENNAVAR
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: UPPAR GALLI, GURUWAR PETH,
GOKAK-591307.
SHRI. RAJU W/O. VITHAL JADENNAVAR
SINCE DECEASED BY HIS LRs.,
RESP. NOS. 6 TO 9.
6. SMT. SUCHITRA W/O. RAJU JADENNAVAR
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O: VIVEKANAND NAGAR,
NEAR JYOTI PEG BAR, GOKAK-591307.
7. SHRI. RAMU @ CHINNU S/O. RAJU JADENNAVAR
AGE: 20 YEARS, OCC: STUDENT,
R/O: VIVEKANAND NAGAR,
NEAR JYOTI PEG BAR, GOKAK-591307.
8. SHRI. SUJAY S/O. RAJU JADENNAVAR
AGE: 18 YEARS, OCC: STUDENT,
R/O: VIVEKANAND NAGAR,
NEAR JYOTI PEG BAR, GOKAK-591307.
9. KUMARI. LAXMI D/O. RAJU JADENNAVAR
AGE: 16 YEARS, OCC: STUDENT,
-3-
NC: 2024:KHC-D:6059-DB
RFA No.100106 of 2020 C/W
RFA.CROB No.100035 of 2022
R/O: VIVEKANAND NAGAR,
NEAR JYOTI PEG BAR, GOKAK-591307
SINCE MINOR REPRESENTED BY HER
GUARDIAN MOTHER RESP. NO.6,
SMT. SUCHITRA W/O. RAJU JADENNAVAR.
10. SHRI. ASHOK S/O. VITHAL JADENNAVAR
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: VIVEKANAND NAGAR,
NEAR JYOTI PEG BAR, GOKAK-591307.
11. SHRI. SANJU S/O. VITHAL JADENNAVAR
AGE: 38 YEARS, OCC: BUSINESS,
R/O: UPPAR GALLI, GOKAK-501307.
12. SMT. MANGALA W/O. NARAYAN LUNAR
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O: VISHVAPRIYA LAYOUT,
14TH CROSS, BEGURHOLI,
BENGALURU-560008.
13. SMT. RENUKA W/O. PRABHU BYAKUD
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: KESARGOPPA-587312,
TQ: MUDHOL, DIST: BAGALKOT.
SMT. BASAVVA W/O. PARASAPPA JADENNAVAR
SINCE DECEASED BY HER LRS -
RESP. NOS. 14 TO 24.
14. SMT. HANAMAVVA W/O. BHIMASHI
JADENNAVAR, AGE: 54 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NAKA NO.1, MELAVANKI ROAD,
GOKAK-591307.
15. SHRI. MARUTI BHIMASHI JADENNAVAR
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: NAKA NO.1, MELAVANKI ROAD,
GOKAK-591307.
16. SHRI. DUNDAPPA BHIMASHI JADENNAVAR
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NC: 2024:KHC-D:6059-DB
RFA No.100106 of 2020 C/W
RFA.CROB No.100035 of 2022
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: NAKA NO.1, MELAVANKI ROAD,
GOKAK-591307.
17. SHRI. UDDAPPA PARAPPA JADENNAVAR
AGE: 54 YEARS,
OCC: EMPLOYEE IN PRABHA SUGARS,
R/O: PRABHA SUGAR FACTORY,
GOKAK-591307.
18. SMT. KALAWWA W/O. SHANKAR JADENNAVAR
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O: KUMBAR ONI, GOKAK-591307.
19. SHRI. MALLIKARJUN S/O. SHANKAR JADENNAVAR
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O: KUMBAR ONI, GOKAK-591307.
20. SMT. DEEPA D/O. SHANKAR JADENNAVAR
AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
R/O: KUMBAR ONI, GOKAK-591307.
21. SMT. RENUKA W/O. RAVI PAGADI
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: GOVT. QUARTERS,
NEAR TAHASILDAR OFFICE,
ATHANI-591304.
22. SMT. AKKAWWA W/O. BASAPPA YADRAVI
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O: HANAMGIRI-1, SAVADATTI,
TQ: SAVADATTI-591126.
23. SMT. NINGAWWA W/O. BALACHANDR GATTI
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O. UDDAPPA PARASAPPA
JADENNAVAR,
UPPAR ONI, GOKAK-591307.
24. SMT. GEETA W/O. SANJU KOLAVI
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O. KALAWWA W/O. SHANKAR
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NC: 2024:KHC-D:6059-DB
RFA No.100106 of 2020 C/W
RFA.CROB No.100035 of 2022
JADENNAVAR,
KUMBAR ONI, GOKAK-591307.
25. SHRI. PUNDALIK MARUTI JADENNAVAR
AGE: 44 YEARS, OCC: BUSINESS,
R/O: UPPAR ONI, GOKAK-591307.
...RESPONDENTS
(BY SRI.SANTOSH S.HATTIKATAGI, ADVOCATE FOR R1;
NOTICE TO R3, R5, R6, R10, R11, R14, R15, R17, R19, R22,
R23, R24, R25 ARE SERVED AND UNREPRESENTED;
NOTICE TO R4, R7, R8, R12, R13, R20 AND R21 ARE DISPENSED
WITH;
R9 IS MINOR REPRESENTED BY R6)
THIS RFA IS FILED UNDER SEC. 96 (1) READ WITH ORDER
41 RULE 1 AND 2 OF CPC., 1908, AGAINST THE JUDGMENT AND
DECREE DATED 09.10.2019 PASSED IN O.S.NO.390/2015 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, GOKAK, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
IN R.F.A. CROB NO.100035/2022
BETWEEN:
SMT. LAKKAVVA
W/O. GIREPPA NANDER,
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O: H.NO.170, 8TH CROSS MAIN,
2ND CROSS, 2ND STAGE, BTM LAYOUT,
BENGALURU-560076.
...CROSS OBJECTOR
(BY SRI.SANTOSH S.HATTIKATAGI, ADVOCATE)
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NC: 2024:KHC-D:6059-DB
RFA No.100106 of 2020 C/W
RFA.CROB No.100035 of 2022
AND:
1. SHRI. UDDAPPA
S/O. BALAPPA JADENNAVAR @ JADINAVAR,
AGE: 51 YEARS,
OCC: AGRICULTURE AND SERVICE,
R/O: UPPAR GALLI, GURUVAR PETH, GOKAK,
TALUKA: GOKAK, DIST: BELAGAVI-591307.
2. SMT. TANGEWWA
W/O. RAMAPPA JADENNAVAR,
AGE: 81 YEARS,
OCC: HOUSEHOLD WORK,
R/O: UPPAR GALLI, GURUVAR PETH, GOKAK,
TALUKA: GOKAK, DIST: BELAGAVI-591307.
3. SMT. RUKAMAWWA W/O. RAMAPPA JADENNAVAR
AGE: 91 YEARS, OCC: HOUSEHOLD WORK,
R/O: INDIRA NAGAR,
MAHA GANAPATI BUILDING,
CHIKKODI, TQ: CHIKKODI,
DIST: BELAGAVI-591211.
4. SHRI. MARUTI S/O. RAMAPPA JADENNAVAR
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: UPPAR GALLI, GURUVAR PETH, GOKAK,
TALUKA: GOKAK, DIST: BELAGAVI-591307.
5. SMT. LAKKAWWA
W/O. MANOHAR MANNIKERI,
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O: INDIRA NAGAR, MAHA GANAPATI BUILDING,
CHIKKODI, TQ: CHIKKODI, DIST: BELAGAVI-591211.
6. SMT. SAROJA W/O. VITHAL JADENNAVAR
AGE: 66 YEARS, OCC: HOUSEHOLD WORK,
R/O: UPPAR GALLI, GURUVAR PETH,
GOKAK, TALUKA: GOKAK, DIST: BELAGAVI-591307.
SHRI. RAJU S/O. VITHAL JADENNAVAR
SINCE DECEASED BY HIS LRs.,
-7-
NC: 2024:KHC-D:6059-DB
RFA No.100106 of 2020 C/W
RFA.CROB No.100035 of 2022
7. SMT. SUCHITRA W/O. RAJU JADENNAVAR
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O: VIVEKANAND NAGAR,
NEAR JYOTI PEG BAR, GOKAK,
TALUKA: GOKAK, DIST: BELAGAVI-591307.
8. SHRI. RAMU @ CHINNU S/O. RAJU JADENNAVAR
AGE: 22 YEARS, OCC: STUDENT,
R/O: VIVEKANAND NAGAR,
NEAR JYOTI PEG BAR, GOKAK,
TALUKA: GOKAK, DIST: BELAGAVI-591307.
9. SHRI. SUJAY S/O. RAJU JADENNAVAR
AGE: 20 YEARS, OCC: STUDENT,
R/O: VIVEKANAND NAGAR,
NEAR JYOTI PEG BAR, GOKAK,
TALUKA: GOKAK, DIST: BELAGAVI-591307.
10. KUMARI. LAXMI D/O. RAJU JADENNAVAR
AGE: 19 YEARS, OCC: STUDENT,
R/O: VIVEKANAND NAGAR,
NEAR JYOTI PEG BAR, GOKAK,
TALUKA: GOKAK, DIST: BELAGAVI-591307.
11. SHRI. ASHOK S/O. VITHAL JADENNAVAR
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: VIVEKANAND NAGAR,
NEAR JYOTI PEG BAR, GOKAK,
TALUKA: GOKAK, DIST: BELAGAVI-591307.
12. SHRI. SANJU S/O. VITHAL JADENNAVAR
AGE: 40 YEARS, OCC: BUSINESS,
R/O: UPPAR GALLI, GOKAK,
TALUKA: GOKAK, DIST: BELAGAVI-501307.
13. SMT. MANGALA W/O. NARAYAN LUNAR
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: VISHVAPRIYA LAYOUT,
14TH CROSS, BEGURHOLI,
BENGALURU-560008.
14. SMT. RENUKA W/O. PRABHU BYAKUD
-8-
NC: 2024:KHC-D:6059-DB
RFA No.100106 of 2020 C/W
RFA.CROB No.100035 of 2022
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: KESARGOPPA,
TQ: MUDHOL, DIST: BAGALKOT-587313.
SMT. BASAVVA W/O. PARASAPPA JADENNAVAR
SINCE DECEASED BY HER LRs.,
RESP. NOS.15 TO 25.
15. SMT. HANAMAVVA W/O. BHIMASHI
JADENNAVAR,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: NAKA NO.1, MELAVANKI ROAD,
GOKAK, TQ: GOKAK, DIST: BELAGAVI-591307.
16. SHRI. MARUTI BHIMASHI JADENNAVAR
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: NAKA NO.1, MELAVANKI ROAD,
GOKAK, TQ: GOKAK, DIST: BELAGAVI-591307.
17. SHRI. DUNDAPPA S/O. BHIMASHI JADENNAVAR
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: NAKA NO.1, MELAVANKI ROAD,
GOKAK, TQ: GOKAK, DIST: BELAGAVI-591307.
18. SHRI. UDDAPPA S/O. PARAPPA JADENNAVAR
AGE: 56 YEARS,
OCC: EMPLOYEE IN PRABHA SUGARS,
R/O: PRABHA SUGAR FACTORY,
GOKAK, TQ: GOKAK, DIST: BELAGAVI-591307.
19. SMT. KALAWWA W/O. SHANKAR JADENNAVAR
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: KUMBAR ONI, GOKAK, TQ: GOKAK,
DIST: BELAGAVI-591307.
20. SHRI. MALLIKARJUN S/O. SHANKAR JADENNAVAR
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: KUMBAR ONI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI-591307.
21. SMT. DEEPA D/O. SHANKAR JADENNAVAR
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
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RFA No.100106 of 2020 C/W
RFA.CROB No.100035 of 2022
R/O: KUMBAR ONI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI-591307.
22. SMT. RENUKA W/O. RAVI PAGADI
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O: GOVT. QUARTERS,
NEAR TAHASILDAR OFFICE,
ATHANI, TQ: ATHANI, DIST: BELAGAVI-591304.
23. SMT. AKKAWWA W/O. BASAPPA YADRAVI
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: HANAMGIRI-1, SAVADATTI,
TQ: SAVADATTI, DIST: BELAGAVI-591126.
24. SMT. NINGAWWA W/O. BALACHANDRA GATTI
AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
R/O. C/O. UDDAPPA PARASAPPA
JADENNAVAR,
UPPAR ONI, GOKAK, TQ: GOKAK,
DIST: BELAGAVI-591307.
25. SMT. GEETA W/O. SANJU KOLAVI
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O. KALAWWA W/O. SHANKAR
JADENNAVAR, KUMBAR ONI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI-591307.
26. SHRI. PUNDALIK S/O. MARUTI JADENNAVAR
AGE: 42 YEARS, OCC: BUSINESS,
R/O: UPPAR GALLI, GOKAK,
TQ: GOKAK, DIST: BELAGAVI-591307.
...RESPONDENTS
(BY SRI.P.G.NAIK, ADVOCATE FOR R1 AND R2;
NOTICE TO R3 TO R26 ARE DISPNSED WITH)
THIS RFA CROB IN RFA NO.100106/2020 IS FILED UNDER
ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 09.10.2019 PASSED IN O.S.NO.390/2015 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, GOKAK, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
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RFA No.100106 of 2020 C/W
RFA.CROB No.100035 of 2022
THIS APPEAL AND RFA CROSS OBJECTION COMING ON
FOR HEARING, THIS DAY, E.S.INDIRESH, J., DELIVERED THE
FOLLOWING:
JUDGMENT
These appeal and cross objection are arising out of
judgment and decree dated 9th October 2019 in O.S.
No.390/2015 on the file of the II Additional Senior Civil
Judge & JMFC, Gokak (for short, hereinafter referred to as
'the Trial Court') decreeing the suit of the plaintiff in part.
2. For the sake of convenience, the parties in this
appeal are referred to in terms of their status and ranking
before the Trial Court.
3. Facts, in nut-shell, are that, one Uddappa was
original propositus, died leaving behind his children viz.,
Ramappa, Parasappa and Balappa. All these children of
Uddappa are no more. Defendant No.18 is the wife of late
Balappa (third son of Uddappa). Plaintiff, defendant No.19
and defendant No.20 are the children of late Balappa and
Tangewwa (defendant No.18). It is averred in the plaint
that, defendants No.1 to 9 and 24 are the legal heirs of late
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RFA No.100106 of 2020 C/W
Ramappa (first son of Uddappa). Defendants No.10 to 17
and 21 to 23 are the legal heirs of late Parasappa (second
son of Uddappa). It is the case of the plaintiff that suit
properties are the ancestral properties of plaintiff and
defendants and there is no partition in the joint family and
the plaintiff and defendants are cultivating the suit schedule
properties jointly. It is further stated in the plaint that item
Nos.5 and 6 of the schedule properties were transferred
into the name of defendant No.19, and after the death of
Balappa (father of the plaintiff), item Nos.1 to 4 of the
schedule properties are standing in the name of defendant
No.19 and therefore, the plaintiff sought for share in the
property belonging to her father - late Balappa, and same
was refused by defendant No.19. Hence, the plaintiff has
filed O.S. NO.390/2015 seeking relief of partition and
separate possession in respect of the suit schedule
properties.
4. After service of summons, defendants No.2, 4, 6,
7 and 15 to 19 appeared through their counsel. Defendant
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RFA No.100106 of 2020 C/W
No.1, 3, 5(a), 8 to 14 and 20 to 24 remained absent and
accordingly placed ex parte. During the pendency of the
suit, defendants No.5 and 10 were dead and their legal
representatives were brought on record as defendants
No.5(a) to 5(d). Insofar as deceased defendant No.10, the
legal heirs are defendants No.11 to 17 and 21 to 23.
5. Defendant No.19 has filed the written statement
denying the averments made in the plaint and the same
was adopted by defendants No.2, 4, 6, 7 and 15 to 18. It is
the specific contention of defendant No.19 that, after the
death of Ramappa (first son of Uddappa), the lineal
descendants of late Ramappa got divided the property in
terms of the judgment and decree in O.S. No.57/2012 and
therefore, the present suit filed by the plaintiff is not
maintainable. It is also contended by defendant No.19 that,
the plaintiff and defendant No.20 had executed consent
deed and relinquished their right in respect of the suit
schedule property in favour of defendant No.19 and
therefore, defendant No.19 urged in the written statement
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RFA No.100106 of 2020 C/W
that he had perfected his title by way of adverse
possession. It is also contended in the written statement
that there was a partition between the original propositus
Uddappa and his children as per registered partition deed
dated 22.12.1954 and therefore, it is contended that the
suit is not maintainable for suppressing the material fact. It
is further pleaded by defendant No.19 that, item No.5 and 6
of the properties are not the ancestral properties and
accordingly, sought for dismissal of the suit.
6. Defendant No.5(b) to 5(d) filed separate written
statement, denying the genealogical tree and further
contended that the suit is liable to be dismissed for lack of
cause of action. It is also contended by defendant No.5(b)to
5(d) are minors and therefore, sought for safeguarding
their interests and accordingly sought for dismissal of the
suit.
7. The Trial Court, after considering pleadings on
record, formulated the following issues and additional
issues:
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RFA No.100106 of 2020 C/W
"ISSUES
1. Whether the plaintiff proves that the genealogical tree
given by her is completely true and correct?
2. Whether the plaintiff proves that suit schedule
properties are all ancestral and joint family properties
of her and the defendants?
3. Whether the defendant No.19 proves that suit is bad
for non-joinder of necessary parties?
4. Whether the defendant No.19 proves the earlier
partition?
5. Whether the defendant No.19 proves the ouster as
contended in paragraph No.12 of the written
statement?
6. Whether the plaintiff is entitled to the relief claimed in
the suit? If so, to what extent?
7. What order or decree?
ADDL. ISSUES
1. Whether the defendant No.19 proves there was already
a partition among the sons of late Uddappa and
partition deed registered on 22.12.1954?
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RFA No.100106 of 2020 C/W
2. Whether the defendant No.19 proves that the suit is
bad for mis joinder of the defendant No.1 to 17?
8. In order to establish his case, plaintiff got
examined herself as P.W.1 and produced 145 documents
and same were marked as Exs.P.1 to P.145. Defendants
have examined two witnesses as D.W.1 and D.W.2 and
produced three documents and same were marked as
Exs.D.1 to D.3. The Trial Court, after considering the
material on record, by judgment and decree dated 9th
October 2019, decreed the suit in part and the operative
portion of the order reads as under:
"ORDER
Suit of the plaintiff is decreed in part.
It is declared that the plaintiff is entitled to 1/8th
share, defendants No.18 and 20 are entitled to 1/8th share
each and defendant No.19 is entitled to 5/8th share in the
suit item Nos.1 to 4 properties viz., RS No.47/1 measuring
5 acres 12 guntas, RS No.342/2 measuring 2 acres 8
guntas, RS No.46/1 measuring 2 acres 6 guntas and RS
No.26/1A measuring 20 guntas of Gokak.
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RFA No.100106 of 2020 C/W
The defendants No.11 to 17 and 21 to 23 being the
legal heirs of Parasappa together are entitled to ½ share in
the said properties.
The defendants No.11 to 23 are at liberty to draw
decree by paying required court fee on their share.
Both the parties shall bear their own costs.
Draw preliminary decree accordingly."
9. Feeling aggrieved by the judgment and decree
passed by the Trial Court, defendants No.18 & 19 have filed
RFA No.100106/2020 and plaintiff has filed RFA Crob
No.100035/2022 challenging the findings recorded by the
Trial Court. Hence, this appeal and cross-objection are
placed before us.
10. We have heard Smt. P.G.Naik, learned counsel
appearing for the appellants and Sri. Santosh S.Hattikatagi,
for the respondent/cross-objector.
11. Smt. P.G.Naik, learned counsel appearing for the
appellants contended that, the Trial Court has committed an
error in awarding share to the plaintiff and defendant
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RFA No.100106 of 2020 C/W
Nos.11 to 23 in respect of suit items 1 to 4 of suit schedule
properties. She further contended that the Trial Court lost
sight of the earlier partition effected between the original
propositus - Uddappa and his three sons, and the said
partition deed was produced as Ex.D.1, despite the same,
the Trial Court has passed the impugned judgment and
decree which requires to be interfered with in this appeal.
Therefore, it is contended that the cross-objection filed by
the plaintiff is to be dismissed by awarding just share to the
defendants.
12. Sri. Santosh S.Hattikatagi, learned counsel
appearing for the respondents/cross-objectors contended
that the Trial Court has not given any finding in respect of
item Nos.5 and 6 of the suit schedule properties and further
pleaded that the cross-objector, being Class-I legal heir of
original propositus - Uddappa and therefore, the Trial Court
has not properly allotted the share in favour of cross-
objector and accordingly, sought for allowing the cross-
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objection by dismissing the appeal preferred by the
appellants.
13. In the light of the submissions made by the
learned counsel for the parties, we have carefully examined
the original records, and given our anxious consideration to
the findings recorded by the Trial Court. For appropriate
adjudication of this appeal, the following points are to be
answered in this appeal which read as under:
i) Whether the Trial Court has properly appreciated
the right of the plaintiff in respect of item Nos.1
to 4 of the schedule properties?
ii) Whether the Trial Court has committed an error
in allotment of share in respect of the branch of
Balappa, Son of Uddappa (father of plaintiff,
defendants No.19 & 20)?
iii) Whether the judgment and decree passed by the
Trial Court requires interference?
iv) What Order?
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14. In order to understand the relationship between
the parties, family tree of the parties is as extract below:
Uddappa(Dead)
= Lakkavva (Dead)
Ramappa (Dead) Parasappa(Dead) Balappa (Dead)
=Rukamawwa(D1) =Basawwa(D10) =Tangewwa(D18)
Vithal Maruti Lakkawwa Lakkawwa Uddappa Renuka
(Dead) (D2) (D3) (Plff) (D19) (D20)
Pundalik(D24)
=Saroja
(D4) Bhimashi Uddappa Shankar Akkawwa Ningawwa
(Dead) (D14) (Dead) (D21) (D22)
= Hanamawwa(D11) = Kalawwa (D15)
Maruti(D12) Dundappa(D13)
Mallikarjun(D16) Deepa(D17) Geeta(D23)
Raju Ashok Sanju Mangala Renuka
(D5) (D6) (D7) (D8) (D9)
15. Perusal of the genealogical tree would indicate
that the original propositus Uddappa had three children viz.,
Ramappa, Parasappa and Balappa. Ramappa died leaving
behind his wife-Rukmavva (defendant No.1) and three
children viz., Vitthal, Maruthi (defendant No.2) and
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Lakkawwa (defendant No.3). Vitthal died leaving behind his
wife Saroja (defendant No.4) and five children viz., Raju
(defendant No.5), Ashok (defendant No.6), Sanju
(defendant No.7), Mangala (defendant No.8) and Renuka
(defendant No.9). Defendant No.24 is son of Maruthi
(defendant No.2).
16. The second son of Uddappa - Parasappa died
leaving behind his wife Basawwa (defendant No.10),
Bhimashi, Uddappa (defendant No.14), Shankar, Akkawwa
(defendant No.21) and Ningawwa (defendant No.22).
Bhimashi died leaving behind his wife - Hanamawwa
(defendant No.11), Maruthi (defendant No.12) and
Dundappa (defendant No.13). Shankar died leaving behind
his wife Kalawwa (defendant No.15) and three children viz.,
Mallikarjun (defendant No.16), Deepa (defendant No.17)
and Geetha (defendant No.23).
17. The third son of Uddappa i.e., Balappa died
leaving behind his wife Tangewwa (defendant No.18), and
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three children viz., Lakkawwa (plaintiff), Uddappa
(defendant No.19) and Renuka (defendant No.20).
18. Perusal of the finding recorded by the Trial Court
and the documents produced at Ex.D1- partition deed
dated 22.12.1954 indicates the division of the properties
between the original propositus and his three children. The
original propositus Uddappa died intestate. Item Nos.1 and
3 to 6 of the schedule property was not subject matter of
the partition deed dated 22.12.1954. Item Nos.5 & 6 are
the tenanted properties granted by the competent Land
Tribunal in favour of Ramappa (first son of Uddappa).
Balappa died on 09.01.1996 leaving behind plaintiff and
defendants No.18 to 20. It is also forthcoming from the
record that, as per the compromise petition, in O.S.
No.57/2012 (Ex.D.3) and final decree as per Ex.D.2, the
legal heirs of Ramappa got partition in respect of Item
Nos.5 & 6 of the suit schedule properties. The suit property
fallen to the share of late Balappa is Item No.1 to 4 of the
schedule property and in the said property, plaintiff,
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defendants No.18 to 20 are entitled for 1/4th share each in
the suit schedule property, since item Nos.1 to 4 properties
are joint family properties of plaintiff and defendants No.18
to 20. On the other hand, the plaintiff has failed to prove
that item Nos.5 & 6 of the schedule properties are the joint
family properties of late Uddappa and his children and item
Nos.5 & 6 of the schedule property was granted to
Ramappa as a tenant by the Land Tribunal and therefore,
we are of the view that the finding recorded by the Trial
Court holding that the plaintiff proved that the entire
schedule property is the ancestral property is not correct.
That apart, defendant No.19 has proved partition amongst
the sons of late Uddappa as per registered partition deed
dated 22.12.1954. In that view of the matter, the appellant
has made out a case for allowing RFA No.100106/2020 with
regard to re-allotment of share. On the other hand, the
plaintiff is entitled for 1/4th share in item Nos.1 to 4 of the
schedule properties excluding items Nos.5 & 6 of the
schedule properties.
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19. In the result, the points for consideration
referred to above favours defendants No.18 and
19/appellants in RFA No.100106/2020 and thereby
modification of share has been made. Therefore, we pass
the following order:
ORDER
i) R.F.A. No.100106/2020 is allowed.
ii) R.F.A. Crob. No.100035/2022 is allowed in part
holding that the plaintiff is entitled for 1/4th
share in item Nos.1 to 4 of schedule properties
and not entitled for share in item Nos.5 and 6 of
the schedule properties; plaintiff, and defendants
No.18 to 20 are entitled for 1/4th share each in
item Nos.1 to 4 of the schedule properties.
Sd/-
JUDGE
Sd/-
JUDGE
