Karnataka High Court
Channayya S/O. Siddalingayya ... vs Gangavva W/O. Channayya Naduvinamath on 2 February, 2024
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RSA No. 6042 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.6042/2012(PAR)
BETWEEN:
1. SHRI CHANNAYYA S/O. SIDDALINGAYYA NADUVINAMATH,
AGE: 57 YEARS, OCC: AGRICULTURE.
2. SHIVAYYA S/O. SIDDALINGAYYA NADUVINAMATH,
SINCE DECEASED BY HIS LRS
2A. SMT. LEELAVATI W/O. SHIVAYYA NADUVINAMATH,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK.
2B. SHRI SIDDALINGAYYA S/O. SHIVAYYA NADUVINAMATH,
AGE: 19 YEARS, OCC: AGRICULTURE.
3. SHRI AJJAYYA S/O. SIDDALINGAYYA NADUVINAMATH,
SINCE DECEASED BY HIS LRS
3A. SMT. PRAMILADEVI W/O. AJJAYYA NADUVINAMATH,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK.
3B. SHRI VISHWANATH S/O. AJJAYYA NADUVINAMATH,
Digitally
signed by AGE: 18 YEARS, OCC: AGRICULTURE.
VINAYAKA
BV
3C. SHRI GANESH S/O. AJJAYYA NADUVINAMATH,
AGE: 16 YEARS, OCC: STUDENT.
[THE APPELLANT NO.3(C) MINOR,
REPRESENTED BY THEIR MOTHER
APPELLANT NO.3(A)], ALL RESIDENTS
OF NEAR MANOHAR TALKIES, DIST: HAVERI.
- APPELLANTS
(BY SIR NIRMALA B.G., ADVOCATE FOR
SRI JAGADISH PATIL, ADVOCATE)
AND:
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RSA No. 6042 of 2012
1. SMT. GANGAVVA W/O. CHANNAYYA NADUVINAMATH,
SINCE DECEASED BY HIS LR'S.
1A. SHRI REVANAYYA S/O. CHANNAYYA NADUVINAMATH
SINCE DECEASED BY HIS LR'S.
1A. SHRI NANJUNDAYYA S/O. REVANAYYA NADUVINAMATH,
AGE: 48 YEARS, OCC: BUSINESS,
R/O: NEAR MANOHAR TALKIES, TQ: DIST: HAVERI.
2. SHRI RUDRAYYA S/O. CHANNAYYA NADUVINAMATH,
SINCE DECEASED BY HIS LR.
2A. SMT. INDUMATHI @ INDRAVVA
W/O. RUDRAYYA NADUVINAMATH, AGE: 65 YEARS,
OCC: HOUSEHOLD WORK, R/O: NEAR MANOHAR TALKIES,
HAVERI, TQ : DIST: HAVERI.
3. SHRI CHANDRASHEKHARAYYA S/O. RUDRAYYA
NADUVINAMATH, SINCE DECEASED BY HIS LR'S.
3A. SMT. SHAILAJA,
W/O. CHANDRASHEKHARAYYA NADUVINAMATH,
AGE:35 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEAR MANOHAR TALKIES,
HAVERI, TQ AND DIST: HAVERI.
3B. SHRI SHIVANANDAYYA
S/O. CHANDRASHEKHARAYYA NADUVINAMATH,
AGE: 22 YEARS, OCC: AGRICULTURE,
R/O: NEAR MANOHAR TALKIES, TQ: DIST: HAVERI.
3C. SMT. GANGAMMA
D/O. CHANDRASHEKHARAYYA NADUVINAMATH,
AGE: 19 YEARS, OCC: STUDENT,
R/O: NEAR MANOHAR TALKIES,
TQ AND DIST: HAVERI.
3D. SMT. GOURAMMA
D/O. CHANDRASHEKHARAYYA NADUVINAMATH,
AGE: 18 YEARS, OCC: STUDENT,
R/O: NEAR MANOHAR TALKIES,
TQ AND DIST: HAVERI.
4. SHRI ISHWARAYYA @ VISHWANATHAYYA
S/O. RUDRAYYA NADUVINAMATH,
SINCE DECEASED LRS ARE ALREADY ON RECORD.
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RSA No. 6042 of 2012
5. SHRI GANGADHARAYYA S/O. RUDRAYYA NADUVINAMATH,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: NEAR MANOHAR TALKIES, HAVERI,
TQ: DIST: HAVERI.
6. SMT. NEELAVVA W/O. GANGADHARAYYA HIREMATH,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: HUKKERIMATH, TQ AND DIST: HAVERI.
7. SMT. CHANNAVVA W/O SHIVAMURTAYYA HIREMATH,
SINCE DECEASED.
8. SMT. RENUKA @ MAHADEVI,
W/O. PRABHAYYA KANAKERIMATH,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEAR MANOHAR TALKIES,
HAVERI, TQ AND DIST: HAVERI.
9. SMT. PARAVVA W/O KUMARASWAMY HIREMATH,
AGE: 30 YEARS, R/O: KAIPETH, GANAPATHI DEVASTHANA,
DAVANAGERI, TQ: DIST: DAVANAGERI.
10. SMT. NAGAVVA W/O SIDDALINGAYYA NADUVINAMATH,
SINCE DECEASED LRS ARE ALREADY ON RECORD.
11. SHRI REVANAYYA S/O CHANNAYYA NADUVINAMATH.
SINCE DECEASED LRS ARE ALREADY ON RECORD.
12. SHRI PANCHAYYA S/O GURUSHANTAYYA NADUVINAMATH,
SINCE DECEASED BY HIS LRS.
12A. SHRI SOMATHAYYA S/O PANCHAYYA NADUVINAMATH,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: NEAR MANOHAR TALKIES, HAVERI, TQ: DIST: HAVERI.
12B. SHRI SHADAKSHARAYYA S/O PANCHAYYA NADUVINAMATH,
AGE: 63 YEARS, OCC: RETD. TEACHER,
R/O: NEAR MANOHAR TALKIES,
HAVERI, TQ: DIST: HAVERI.
12C. SHRI CHANNAMALLAYYA S/O PANCHAYYA NADUVINAMATH,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: NEAR MANOHAR TALKIES,
HAVERI, TQ: DIST: HAVERI.
13. SHRI SHIVANANDAYYA,
S/O CHANDRASHEKHAR NADUVINAMATH,
SINCE DECEASED BY HIS LRS.,
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RSA No. 6042 of 2012
13A. SMT. NAGAVVA W/O SHIVANANDAYYA NADUVINAMATH,
AGE: 77 YEARS, OCC: BUSINESS,
R/O: NEAR MANOHAR TALKIES,
HAVERI,TQ: DIST: HAVERI.
13B. SHRI SHAMBHULINGAYYA
S/O SHIVANANDAYYA NADUVINAMATH,
SINCE DECEASED BY HIS LRS.,
13(B)(A) SMT. PUSHPA @ RAJESHWARI
W/O. SHAMBHULINGAYYA NADUVINAMATH,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O: HUBBALLI, R/O: NEAR MAHOHAR TALKIES,
HAVERI, TQ : DIST: HAVERI.
13(B)(B) SMT. CHANDRAVVA @ CHANDRA
W/O. MRUTYUNJAY SASALAWARMATH,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: NEAR MANOHAR TALKIES,
HAVERI, TQ: DIST: HAVERI.
14. SMT. BASAVVA,
W/O SIDDALINGAYYA KABBINKANTIMATH,
SINCE DECEASED BY HER LRS.,
14A. SMT. GANGAVVA W/O KOTRAYYA RITTIMATH,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O: YELLAPUR, TQ: RANEBENNUR, DIST: HAVERI.
15. SHRI CHANNABASAYYA
S/O KARIBASAYYA NADUVINAMATH,
SINCE DECEASED BY HIS LRS.,
16. SHRI BASAVARAJ S/O VEERATAPPA MALAGI,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: M.G. ROAD, HAVERI, TQ AND DIST: HAVERI.
17. SHRI VEERAPPA S/O. MURIGEPPA MATTIHALLI,
SINCE DECEASED BY HIS LRS.
RESPONDENT NO.17(A) AND (B) ARE DELETED
AS PER DATED 19.02.2014.
17C. SHRI SIDDALINGAPPA,
S/O. VEERAPPA MATTIHALLI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: NEAR MANOHAR TALKIES,
HAVERI, TQ: DIST: HAVERI.
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RSA No. 6042 of 2012
17D. SHRI RACHOTEPPA S/O. VEERAPPA MATTIHALLI,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: NEAR MANOHAR TALKIES,
HAVERI, TQ: DIST: HAVERI.
17E. SHRI SHIVAYOGAPPA S/O. VEERAPPA MATTIHALLI,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O: NEAR MANOHAR TALKIES,
HAVERI, TQ: DIST: HAVERI.
17F. SHRI MALLAPPA S/O. VEERAPPA MATTIHALLI,
SINCE DECEASED WITHOUT MARRIAGE
AS SUCH NO LRS.
17G. SHRI SHIVABASAPPA S/O. VEERAPPA MATTIHALLI,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: NEAR MANOHAR TALKIES,
HAVERI, TQ: DIST: HAVERI.
17H. SMT. AKKAMAHADEVI,
W/O. CHANNABASAYYA BOOKSHETTAR,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O: YALLAPUR VONI, RANEBENNUR,
DIST: HAVERI.
17I. SMT. SHIVABASAVVA,
W/O. CHANABASAYYA BEVINAMARAD,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: AVARAGOL, DAVANAGERI.
RESPONDENT NO.18 TO 25 ARE LRS OF
DECEASED RESPONDENT NO.7,
I.E., SMT. CHANNAVVA,
W/O. SHIVAMURTAYYA HIREMATH.
18. MURAGEVVA W/O. REVANSIDDAYYA HIREMATH,
AGE: 40 YEARS, OCC: HOUSEHOLD.
19. KUM. PARAVATI D/O. REVANSIDDAYYA HIREMATH,
AGE: 12 YEARS, OCC: STUDENT.
20. KUM. VAISHALI D/O. REVANSIDDAYYA HIREMATH,
AGE: 8 YEARS, OCC: STUDENT.
21. KUM. VINAYAK S/O. REVANSIDDAYYA HIREMATH,
AGE: 7 YEARS, OCC: STUDENT.
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RSA No. 6042 of 2012
RESPONDENT NOS.18 TO 21 ARE MINORS
REPRESENTED BY APPLICATION NO1,
THEIR MOTHER AS MINOR GUARDIAN.
22. KUMARSWAMY S/O. SHIVAMURTHAYYA HIREMATH,
AGE: 40 YEARS, OCC: COOLIE.
23. RENUKA W/O. RAVINDRA PUTRAN,
AGE: 32 YEARS, OCC: HOUSE HOLD.
24. GANGADHAR S/O. SHIVAMUTHAYYA HIREMATH,
AGE: 29 YEARS, OCC: COOLIE.
25. RUDRAMUNI S/O. SHIVAMUTHAYYA HIREMATH,
AGE: MAJOR, OCC: COOLIE.
ALL THE RESPONDENTS NOS.18 TO 25
ARE RESIDENT OF NEAR MANOHAR
THEATER, GANDHI ROAD, HAVERI.
- RESPONDENTS
(BY SRI H.R.GUNDAPPA, ADVOCATE FOR R1(A)(I);
SRI VIJAYENDRA BHIMAKKANAVAR, ADVOCATE FOR R2(A),
R3(A TO D), R5 AND R6;
SRI N.P.VIVEKMEHTA, ADVOCATE FOR PROP R18 TO R25;
NOTICE TO R8, R9, R12(A), R12(C), R13(B)(I), R16, R17(C),
R17(D), R17(E), R17(G), R17(H) IS SERVED;
NOTICE TO R13(A), R13(B)(II), R17(i) IS HELD SUFFICIENT)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND
DECREE DATED 15.11.2011 PASSED IN R.A.NO.68/2009 ON THE
FILE OF THE DISTRICT JUDGE, (FAST TRACK COURT, HAVERI)
DISMISSING AND DECREE DATED 30.08.1995 PASSED IN
O.S.NO.162/1989 ON THE FILE OF THE MUNSIFF AND JMFC., HAVERI
AND ETC.,
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 6042 of 2012
JUDGMENT
The defendant no.1, LRs of defendant no.2 and LRs of
defendant no.3 have filed this regular second appeal
challenging the concurrent finding of fact recorded by both the
courts that the plaintiffs are entitled to an undivided share in
the suit schedule properties.
2. The parties shall henceforth be referred as they are
arrayed before the trial court. Appellants were the defendants
no.1 to 3 while the respondents no.1 to 6 were the plaintiffs /
legal heirs of the plaintiffs.
3. A suit for partition was filed in O.S. No. 162/1989
contending that Channayya was the propositus of a joint family,
who died in the year 1948 leaving behind his wife
Smt.Gangavva and three sons, namely, Siddalingaiah, Rudraiah
and Revanaiah. Gangavva filed a suit for partition in respect of
the properties held by the family, along with her son Rudraiah
against the sons of Siddalingaiah and the other son Revanaiah
and other persons who were the cousins of Channaiah and
some purchasers of suit schedule 'F' property. The plaintiffs
claimed that these properties were the joint family ancestral
properties where all of them had an undivided share and that
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the defendants had managed to get their names entered in the
revenue records and were trying to deprive them of their
legitimate share. The suit was contested by the defendants
no.1 to 7 who claimed that there was a partition in the family in
the year 1974 and that the suit properties were partitioned
amongst all the members of the family in terms of which the
suit schedule property fell to the share of defendants no.1 to 7.
4. The written statement filed by the defendants no.1 to 7
was adopted by defendants no.2 to 4 and 6. They also adopted
the additional written statement filed by the defendant no.1.
5. Defendant no.8 did not contest the suit. However, during
the pendency of the suit Smt. Gangavva (plaintiff no.1) died
leaving behind a Will dated 10.05.1982 in favour of her son
Revanaiah and therefore he was transposed as plaintiff no.1(a).
6. Based on these contentions the suit was set down for
trial. The plaintiff no. 1(a) was examined as PW1 and he
marked Exs.P.1 to P.44. A witness was examined as PW2.
None of the defendants no.1 to 7 entered the witness box and
did not produce any documents to establish their claim that
there was a prior partition in the family and that the suit
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properties were allotted to the share of defendants no.1 to 7.
The only witness who was examined for the defendants, was
the defendant no.14 who was examined as DW1 and he
claimed that he had purchased 'F' property. He marked the
sale deed under which he purchased the property.
7. Based on the oral and documentary evidence the trial
court held that the plaintiffs had proved that the suit property
was the joint ancestral property that was owned and possessed
by Channaiah and that after his death, his wife and children
were entitled to an equal share. It held that deceased plaintiff
no.1 Gangavva executed a will in favour of her son (Revanaiah,
defendant no.8 transposed as plaintiff no. 1[a]) and therefore
held that defendant no. 8 was entitled to not only his share but
also the share of Gangavva and consequently decreed the suit
and declared the respective shares of the parties.
8. Being aggrieved by the said judgment and decree, the
defendant no.1, LRs of defendant no.2, LRs of defendant no.3,
defendants no. 4 and 7 have filed R.A. No. 68/2009. The first
appellate court secured the records of the trial court, heard the
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counsel for the parties and framed the following points for its
consideration.
1. Whether the defendants no. 1 to 4 and 7 / appellants
have proved that no opportunity was given to them before the
trial court to adduce their evidence?
2. Whether the plff. No. 1(a) has proved that the deceased
plff. No. 1 had executed a Will in his favour on 10.05.1982
bequeathing her interest in the suit properties?
3. Whether the plaintiffs are entitled for the decree for
partition and possession as prayed in the suit?
4. Whether the defendants No. 1 to 7 have proved that
there was already a partition in the joint family of plaintiff and
defendants in the year 1975 during the lifetime of deceased
Siddalingayya?
5. Whether the judgment and decree of the trial court is
illegal and calls for interference in this appeal?
6. To what order?
9. The first appellate court noticed that the defendants
though contended that there was an earlier partition in the year
1974, they did not enter the witness box to prove the said
contention. It further held that contention of the defendants
that 'A' schedule properties were the self acquisition of
Siddalingaiah was not proved by any evidence. Consequently,
it held that the plaintiffs though proved that they are entitled to
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an undivided interest in the suit property and there was no
reason to revisit the judgment and decree of the trial court.
Consequently, it dismissed the appeal in terms of the judgment
and decree dated 15.11.2011. Being aggrieved by the said
judgment, the defendants have filed this appeal.
10. Learned counsel for the defendants contended that the
fact that the suit properties were partitioned in the year 1974
were borne out from the revenue records and therefore the trial
court and the first appellate court could not have lightly
considered the case of the defendants. He contends that the
first appellate court must have granted an opportunity to the
defendants to lead evidence, as the judgment and decree of the
Trial Court unsettled the position as it stood from the year
1974.
11. Per contra, learned counsel for the plaintiffs contended
that the defendants have not even entered the witness box let
alone producing documents to establish that the suit properties
were subjected to partition in the year 1974. He submits that
the documents produced by the plaintiffs establish beyond
doubt that suit properties were ancestral properties in the
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hands of Channaiah. He contends that the very contention of
the defendants that the suit properties were partitioned in the
year 1974 probabalizes the case of the plaintiffs that the suit
properties are ancestral in nature. Therefore, he contends that
the trial court and the first appellate court were right in
decreeing the suit.
12. I have considered the submission of the learned counsel
for the plaintiffs as well as the learned counsel for the
defendants.
13. The plaintiffs filed the suit for partition contending that
the suit properties were joint family ancestral properties.
Defendants no. 1 to 7 filed the written statement contending
that there was a prior partition in the year 1974 in terms of
which the suit properties fell to the share of their father
Siddalingaiah and therefore contended that it was the self
acquisition of Siddalingaiah. In order to establish the said
contention, the defendants were bound to enter the witness
box and establish it by acceptable evidence. Since that is not
done, there is no acceptable evidence on record and it cannot
be accepted that there was a prior partition and that 'A'
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schedule properties were the self acquisition of defendants no.1
and 2. The trial court and the first appellate court had no other
alternative than to decree the suit filed by the plaintiffs. The
first appellate court had noticed that the suit was filed in the
year 1980 and was dragged by the defendants through
nefarious means for nearly 31 years. Therefore no indulgence
can be shown to the defendants permitting them to lead
evidence in the case.
14. Thus there is no error committed by t he trial court and
the first appellate court in upholding the right of the plaintiffs in
the suit schedule properties, warranting interference by this
court.
15. As no substantial question of law arises for consideration,
the appeal is dismissed.
Pending IAs, if any, also stand disposed off.
SD/-
JUDGE
BVV
CT-ASC
