Karnataka High Court
Shivanand And Anr vs Vijayalaxmi And Ors on 1 February, 2024
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RSA No. 200065 of 2019
C/W RSA No. 200158 of 2019
RSA No. 200159 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200065 OF 2019 (PAR)
C/W
REGULAR SECOND APPEAL NO. 200158 OF 2019
REGULAR SECOND APPEAL NO. 200159 OF 2019
IN RSA NO. 200065 OF 2019
BETWEEN:
1. SHIVANAND
S/O BASAPPA YENDIGERI,
AGE: 61 YEARS, OCC: SERVICE,
R/O BEHIND STATE BANK OF INDIA,
ADARSH NAGAR, VIJAYAPUR-586101.
Digitally signed
by 2. PRATIK S/O SHIVANAND YENDIGERI,
LUCYGRACE
Location: HIGH AGE: 32 YRS OCC: AGRICULTURE,
COURT OF
KARNATAKA R/O KWR-61, WARD NO.19 5.3.560-155B,
BEHIND STATE BANK OF INDIA,
ADARSH NAGAR, VIJAYAPUR-586101.
...APPELLANTS
(BY SRI. AJAYKUMAR A K, ADVOCATE)
AND:
1. VIJAYALAXMI
W/O GURUNATH JAINAPUR,
AGE: 37 YEARS, OCC: AGRICULTURE,
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RSA No. 200065 of 2019
C/W RSA No. 200158 of 2019
RSA No. 200159 of 2019
R/O BABALESHWAR,
TQ :& DIST: VIJAYAPUR-586101.
2. VIDYAVATI W/O SANGAPPA GHADAVE,
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O KALIKA NAGAR, ASHRAM ROAD,
TQ: & DIST: VIJAYAPUR-586101.
3. VEENA W/O SHRISHAIL BIRADAR,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O KAGGOD, TQ: & DIST: VIJAYAPUR-586101.
4. VINDYA W/O MUTTU ANNIGERI,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O BEHIND PEARL HOTEL,
JADAR GALLI, G.S. CHITTAPUR HOUSE,
STATION ROAD,TQ: & DIST: VIJAYPAURA-586101.
...RESPONDENTS
(BY SRI.GANESH S.KALBURGI, ADVOCATE FOR R-1 TO R-4)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING OT ALLOW THE APPEAL BE SETTING ASIDE,
JUDGMENT AND DECREE OF LOWER APPELLATE COURT IN
PARTLY REJECTING THE R.A.NO.106/2015 DATED 17.12.2018
PASSED IN BY THE IV ADDL.DISTRICT JUDGE VIJAYAPUR.
IN RSA NO. 200158 OF 2019
BETWEEN:
VIJAYLAXMI
S/O GURUNATH JAINAPUR,
AGE:37 YEARS, OCC:AGRICULTURE,
R/O BABLESHWAR,
TQ & DISTRICT: VIJAYAPURA-586101.
...APPELLANT
(BY SRI. GANESH S.KALBURAGI, ADVOCATE)
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RSA No. 200065 of 2019
C/W RSA No. 200158 of 2019
RSA No. 200159 of 2019
AND:
1. VIDYAVATI
W/O SANGAPPA GHADAVE,
AGE:35 YEARS, OCC:HOUSEHOLDN WORK,
R/O KALIKA NAGAR, ASHRAM ROAD,
VIJAYAPURA-586101.
2. VEENA W/O SHRISHAIL BIRADAR,
AGE:32 YEARS,
OCC:HOUSEHOLD WORK,
R/O KAGGOD,
TQ AND DIST:VIJAYAPURA-586101.
3. VINDYA W/O MUTTU ANNIGERI,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O BEHIND PEARL HOTEL, JADAR GALLI,
G.S.CHITTAPUR HOUSE, STATION ROAD,
VIJAYAPUR-586101.
4. SHIVANAND S/O BASAPPA YANDIGERI,
AGE: 61 YEARS, OCC: GOVT CONTRACTOR,
R/O KWR-61,WARD NO.19 5.3.560-155B,
BEHIND STATE BANK OF INDIA,
ADARASH NAGAR,
VIJAYAPURA-586101.
5. PRATIK S/O SHIVANAND YANDIGERI,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O KWR-61, WARD NO.19 5.3.560-155B,
BEHIND STATE BANK OF INDIA,
ADARASH NAGAR,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI. SANGANABASAVA B.PATIL, ADVOCATE FOR R-3,
SRI.AJAYKUMAR A.K., ADVOCATE FOR R-4 & R-5; NOTICE TO
R-1 SERVED BUT, UNREPRESENTED)
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RSA No. 200065 of 2019
C/W RSA No. 200158 of 2019
RSA No. 200159 of 2019
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING OT ALLOW THE APPEAL BE SET ASIDE,THE
JUDGMENT AND DECREE DATED : 17.12.2018 PASSED IN R.A
NO.106/2015 BY THE LEARNED IV ADDITIONAL DISTRICT
JUDGE, VIJAYAPURA, IN SETTING ASIDE THE JUDGMENT AND
DECREE DATED 01.07.2015 PASSED IN THE O.S.NO.39/2013
BY LEARNED III ADDL.SENIOR CIVIL JUDGE AT VIJAYAPURA.
IN RSA NO. 200159 OF 2019
BETWEEN:
1. VIDYAVATI
W/O SANGAPPA GHADAVE,
AGE:35 YEARS,
OCC: HOUSEHOLD WORK,
R/O KALIKA NAGAR,
ASHRAM ROAD,
VIJAYAPURA.
2. VEENA
W/O SHRISHAIL BIRADAR,
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O KAGGOD, TQ AND DIST: VIJAYAPURA.
...APPELLANTS
(BY SRI. GANESH S KALBURGI, ADVOCATE)
AND:
1. VIJAYLAXMI
W/O GURUNATH JAINAPUR,
AGE:37 YEARS,
OCC: AGRICULTURE,
R/O BABLESHWAR,
DISTRICT: VIJAYAPURA-586101.
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RSA No. 200065 of 2019
C/W RSA No. 200158 of 2019
RSA No. 200159 of 2019
2. VINDYA W/O MUTTU ANNIGERI,
AGE:30 YEARS, OCCU: HOUSEHOLD WORK,
R/O C/O HUCHCHAPPA S/O RACHAPPA ANNIGERI,
ARALIKATTI ONI, GULEDGUDDA,
DIST: BAGALKOT-586101.
3. SHIVANANDA S/O BASAPPA YANDIGERI,
AGE: 61 YEARS, OCCU: GOVT CONTRACTOR,
R/O KWR-61, WARD NO.19 5.3.560-155B,
BEHIND STATE BANK OF INDIA,
ADARASH NAGAR, VIJAYAPURA-586101.
4. PRATIK S/O SHIVANAND YANDIGERI,
AGE:32 YEARS, OCC: AGRICULTURE,
R/O KWR-61, WARD NO.19 5.3.560-155B,
BEHIND STATE BANK OF INDIA,
ADARASH NAGAR, VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI.AJAYKUMAR A.K, ADVOCATE FOR R-3 AND R-4)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THIS APPEAL AND TO SET ASIDE THE
JUDGMENT AND DECREE DATED 17.12.2018 PASSED IN R.A
NO.106/2015 BY THE LEARNED IV ADDITIONAL DISTRICT
JUDGE, VIJAYAPURA IN SETTING ASIDE THE JUDGMENT AND
DECREE DATED 01.07.2015 PASSED IN THE O.S.NO.39/2013
BY THE LEARNED III ADDL.SENIOR CIVIL JUDGE AT
VIJAYAPURA.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 200065 of 2019
C/W RSA No. 200158 of 2019
RSA No. 200159 of 2019
JUDGMENT
1. These second appeals are filed by the parties in O.S.
No.39/2013, challenging the Judgment and Decree dated
17.12.2018 in R.A. No.106/2015 on the file of IV Addl. District
Judge, Vijayapur, allowing the appeal in part and setting aside
the Judgment and Decree dated 01.07.2015 in O.S.
No.39/2013 on the file of III Addl. Senior Civil Judge,
Vijayapur, decreeing the suit of the plaintiff.
2. For the sake of convenience, parties are referred with
reference to their rank before the Trial Court.
3. The relevant facts for adjudication of these appeals are
that the father of plaintiff and defendants 1 to 3 - Sidramappa
@ Siddappa is the Karta of the Hindu Undivided Family and the
schedule properties are inherited by the father of the plaintiff
and defendants 1 to 3 - Sidramappa, from his father. It is the
case of the plaintiff that, the father of the plaintiff sold land
bearing Sy. No.186/2A to an extent of 2.00 Acres as per
registered sale deed dated 15.09.2010 in favour of the
defendant No.5 and to an extent of 2.20 Acres as per oral sale
deed dated 28.08.2000 in favour of defendant No.4 and these
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sale deeds are not binding on the plaintiff as the properties in
question are joint family properties and as such the plaintiff
filed O.S. No.39/2013 before the Trial Court seeking relief of
partition and separate possession in respect of suit schedule
properties.
4. On service of notice, defendants entered appearance and
defendant No.1 has prayed for decree of the suit to the extent
of 1/4th share each in the suit schedule properties. Defendant
Nos.4 and 5 have denied the averments in the plaint and
contended that, sale deeds have been executed by the father of
the plaintiff for family necessities and therefore sought for
dismissal of the suit.
5. Based on the pleadings on record, issues have been
framed by the Trial Court.
6. In order to establish their case, plaintiff examined herself
as P.W.1 and produced nine documents as Exs.P1 to P9.
Defendants have examined one witness as D.W.1 and no
documents were produced by them. The Trial Court after
considering the material on record, by Judgment and Decree
dated 01.07.2015, decreed the suit holding that plaintiff and
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defendant Nos.1 to 3 are entitled for 1/4th share each in the
suit schedule properties. Feeling aggrieved by the same,
defendant Nos.4 and 5 filed R.A. No.106/2015 before the First
Appellate Court and the appeal was resisted by the plaintiff and
other defendants. The First Appellate Court after re-
appreciating the material on record, by its Judgment and
Decree dated 17.12.2018, set aside the Judgment and Decree
passed by the Trial Court and held that the plaintiff and
defendant Nos.1 to 3 are entitled for equal share in property
bearing Sy. No.186/2A situate at Kaggodu Village and
confirmed the sale deed dated 15.09.2010 made in favour of
the defendant No.5. Feeling aggrieved by the same, the
plaintiff and her sisters have preferred appeals in RSA
No.200158/2019 and RSA No.200159/2019 and the defendant
Nos.4 and 5 have filed RSA No.200065/2019.
7. I have heard Sri. Ganesh S. Kalburgi, learned counsel
appearing for the plaintiff and defendant Nos.1 to 3, Sri. Ajay
Kumar A.K. for defendant Nos.4 and 5.
8. Sri. Ganesh S. Kalburagi, learned counsel appearing for
the plaintiff and defendant Nos.1 to 3 contended that the Trial
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Court rightly decreed the suit in favour of the plaintiff and
defendant Nos.1 to 3 awarding 1/4th share each in the suit
schedule properties, however the First Appellate Court on
erroneous assumption of law, declared that the sale deed said
to have been executed by the father of the plaintiff -
Sidrammappa in favour of defendant No.5 is valid and the said
finding is not correct since the suit schedule properties are the
ancestral properties of the plaintiff and defendant Nos.1 to 3.
9. On the other hand, Sri. Ajay Kumar A.K., learned counsel
appearing for the defendant Nos.4 to 5 argued that firstly the
Trial Court has not properly appreciated the facts on record and
has decreed the suit. Secondly he urged that the First Appellate
Court has confined relief only in respect of the registered sale
deed dated 15.09.2010 said to have been executed by late
father of the plaintiff - Sidramappa in favour of defendant No.5
however, was reluctant to grant relief in so far as the sale deed
said to have been executed by father of the plaintiff -
Sidramappa in favour of defendant No.4 pertaining to the land
bearing Sy. No.186/4 of Kaggodu Village and accordingly,
sought for interference by this Court.
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10. Having heard the learned counsel appearing for the
parties, the relationship between the plaintiff and defendant
Nos.1 to 3 is not disputed. Perusal of the genealogical tree
indicates as follows:
Siddappa @ Sidramappa S/o. Sharanappa Yandigeri
(Died on 9-6-2012)
Shantabai(widow)
(died since 20 years back)
Vijaylaxmi Vidyavati Veena Vindya
Plaintiff Def No.1 Def.No.2 Def.No.3
11. Admittedly there are two suit schedule properties as set
out in paragraph (2) of the plaint which reads as under:
(i) land bearing Sy. No.186/2A measuring 2 Acres and
(ii) land bearing Sy. No.186/4 measuring 2.20 Acres.
Both the properties are situate at Kaggodu Village,
Vijayapura Taluk and District. There is no dispute that these
two properties are ancestral properties of plaintiff and
defendant Nos.1 to 3. The father of the plaintiff - Sidramappa
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sold land bearing Sy. No.186/2A to an extent of 2 Acres as per
the registered sale deed dated 14.09.2010 (Ex.P8). The
recitals in the sale deed would indicate that the sale of the
schedule property has been made for family necessities. It is
also to be noted that the father of plaintiff No.1 - Sidramappa
died on 09.06.2012 and as plaintiff and defendant Nos.1 to 3
have not taken any plea or raised dispute during the life time of
the father and thereafter stating that the sale has been made
contrary to the family necessities and that apart, filed the suit
during 2013 after the death of their father. The said aspect
would clearly indicate that the plaintiff and defendant Nos.1 to
3 are colluded with each other and perusal of written statement
filed by defendant Nos.1 to 3 supports tne averments made in
the plaint.
12. In so far as the land bearing Sy. No.186/4, to an extent
of 2.20 Acres, defendant No.4 claims that as per the oral sale
deed dated 20.08.2000, father of the plaintiff has sold the
property, however, the said sale deed as urged by defendant
No.4 cannot be accepted under law as sale of immovable
properties are required to be made only through registered
instruments. In that view of the matter, the Trial Court has
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committed an error in granting 1/4th share each to plaintiff and
defendant Nos.1 to 3 in both the properties mentioned above,
however the same has been set right by the First Appellate
Court after re-appreciating the material on record, holding that
the plaintiff and defendant No.1 to 3 are entitled for equal
share to an extent of 2.20 Acres as mentioned above, despite
confirming the registered sale deed dated 15.09.2010 (Ex.P8).
In that view of the matter, appellants in these appeals have not
made out a case for interference and therefore, no substantial
question of law is required to be framed in the aforementioned
appeals in terms of Section 100 of CPC and all the appeals are
dismissed at the admission stage itself.
Sd/-
JUDGE
sac
