Karnataka High Court
Sri. Hanamant S/O. Yashwant Patil vs Smt. Vasanti W./O. Ramachandra Patil on 5 February, 2024
-1-
NC: 2024:KHC-D:2509-DB
RFA No. 100493 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100493 OF 2018 (PAR/POS)
BETWEEN:
1. SRI. HANAMANT S/O. YASHWANT PATIL,
(SINCE DECEASED BY HIS LR'S)
1A. SMT. HEMA W/O. HANAMATH PATIL,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: #407, PATIL GALLI, MUTAGE,
TAL & DIST: BELAGAVI-591124.
1B. RESHMA D/O. HANAMANT PATIL,
AG: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O: #407, PATIL GALLI, MUTAGE,
TAL & DIST: BELAGAVI-591124.
Digitally signed
by
SHIVAKUMAR
HIREMATH 1C. YOGESH S/O. HANAMANT PATIL,
Date:
2024.02.09 AGE: 21 YEARS, OCC: COOLIE,
12:05:01 +0530
R/O: #407, PATIL GALLI, MUTAGE,
TAL & DIST: BELAGAVI-591124.
1D. BHAGYASHRI D/O. HANAMANT PATIL,
AGE: 19 YEARS, OCC: STUDENT,
R/O: #407, PATIL GALLI, MUTAGE,
TAL & DIST: BELAGAVI-591124.
2. SMT SUNITA W/O. BALASAHEB KILLEDAR
AGE:37 YEARS, OCC:HOUSEHOLD WORK,
R/O: SHIVAJI GALLI, PEERANWADI,
TAL AND DIST:BELAGAVI-590001
...APPELLANTS
-2-
NC: 2024:KHC-D:2509-DB
RFA No. 100493 of 2018
(BY SRI. CHETANA S. BIRAJ, ADVOCATE)
AND:
1. SMT. VASANTI W/O. RAMACHANDRA PATIL
AGE:52 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. HEMA HANAMANT PATIL,
H.NO.292,WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
2. SMT. HIRA W/O. JAYSING PATIL
AGE:51 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. HEMA HANAMANT PATIL,
H.NO.292,WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
3. SMT. SUNANDA BALAWANT DESAI
AGE:39 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. HEMA HANAMANT PATIL,
H.NO.292,WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
4. SMT. REKHA W/O. VASANT DESAI
AGE:44 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. HEMA HANAMANT PATIL,
H.NO.292,WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
5. SMT. SAVITRI W/O. ASHOK DESAI
AGE:42 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. HEMA HANAMANT PATIL,
H.NO.292,WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
6. SMT. MANISHA W/O. MANOHAR DESAI
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O. HEMA HANAMANT PATIL,
H.NO.292, WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
-3-
NC: 2024:KHC-D:2509-DB
RFA No. 100493 of 2018
7. SMT. SUBHANGI ANNASAHEB DESAI
AGE:52 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. HEROJI CHIMAJI PATIL,
H.NO.292/B,WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
8. SMT. SHALAN NARAYANRAO GAYAKAWAD
AGE:50 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. HEROJI CHIMAJI PATIL,
H.NO.292/B,WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
9. SMT. MEERADEVI AJIT PATIL
AGE:48 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. HEROJI CHIMAJI PATIL,
H.NO.292/A ,WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
10. SMT. KUSUM KISHOR PAWAR
AGE:46 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. HEROJI CHIMAJI PATIL,
H.NO.292/A ,WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
11. SMT. PALLAVI W/O. PANDURANG PATIL
AGE:42 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. HEROJI CHIMAJI PATIL,
H.NO.292/A ,WARD NO.II, MUTAGE,
TAL AND DIST:BELAGAVI-590001.
12. SMT. HIRABAI VIJAY JADHAV
AGE:55 YEARS, OCC:HOUSEHOLD WORK,
R/O: C/O. LATE NANA GOVIND APTIL,
H.NO.362, CTS NO. 4573, ANAGOL,
BHAGYANAGAR, BELAGAVI,
TAL AND DIST:BELAGAVI-590001.
13. SHRI SHIVAJI SAMBHAJI PATIL
AGE:37 YEARS, OCC:NIL,
R/O: CTS NO.4368, 4TH CROSS,
APTEKAR GALLI, MAHADWAR ROAD,
BELAGAVI-590001.
-4-
NC: 2024:KHC-D:2509-DB
RFA No. 100493 of 2018
14. SHRI. SHRIDHAR SAMBHAJI PATIL
AGE:35 YEARS, OCC:NIL,
R/O: CTS NO.4368, 4TH CROSS,
APTEKAR GALLI, MAHADWAR ROAD,
BELAGAVI-590001.
15. SMT. SHAMA W/O. PRASHANT PATIL
AGE:34 YEARS, OCC:HOUSEHOLD WORK,
R/O: CTS NO.4368, 4TH CROSS,
APTEKAR GALLI, MAHADWAR ROAD,
BELAGAVI-590001.
16. SRI CHANDU @ CHANRAKANT
S/O. GOVIND PATIL
AGE:57 YEARS,
R/O: CTS NO.4368,
4TH CROSS, APTEKAR GALLI,
MAHADWAR ROAD, BELAGAVI-590001.
17. SHRI. HIROJI S/O. CHIMAJI PATIL
AGE:57 YEARS, OCC:NIL,
HOUSE NO. 292/A, WARD NO.II,
MUTAGE, BELAGVI TALUK,
BELAGAVI-590001.
...RESPONDENTS
(BY SRI. PRASHANT S. KADADEVAR, ADVOCATE FOR R1 TO R6,
R9 TO R11, R17;
R7, R8, R12 TO R16 NOTICE DISPENSED WITH)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF C.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 29-06-2018 PASSED BY THE III ADDITIONAL
SENIOR CIVIL JUDGE, AT: BELAGAVI IN O.S. NO.109/2016
AND DECREE THE SUIT OF THE APPELLANTS/PLAINTIFFS IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
-5-
NC: 2024:KHC-D:2509-DB
RFA No. 100493 of 2018
JUDGMENT
This appeal is filed by the appellants challenging the
Judgment and preliminary decree dated 29.06.2018 passed in
O.S.No.109/2016 by the III Additional Senior Civil Judge, at
Belagavi.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court.
3. The appellants are the plaintiffs and the
respondents are the defendants.
4. The plaintiffs have filed a suit for partition and
separate possession in respect of the suit schedule property. It
is the case of the plaintiffs that, originally the suit schedule
properties were owned by Sri. Dhanaji Patil who was the main
propositus of the family. During his life time, he was a police
patil of Mutge village and was doing hosiery business in 'B'
Schedule property in CTS No.4573. The main propositus died
leaving behind three sons namely (i) Govind (ii) Yashwant, and
(iii) Chimaji. The said Govind died leaving behind his sons by
name Nana, Sambhaji, Ganapati, Chandu @ Chandrashekhar.
NC: 2024:KHC-D:2509-DB
The wife of Govind is also no more. The son of Govind by name
Nana died leaving behind the defendant No.12. Sri. Sambhaji
died leaving behind defendant Nos.13 and 14. Another son of
Govind, namely Ganpati died leaving behind his son Prashant
Patil who is also no more and he died leaving behind his wife
defendant No.15. Another son Chandu @ Chandrashekhar is
the defendant No.16. The second son of propositus, Yashwant
died leaving behind his wife Smt. Parvati, who also died leaving
behind plaintiffs and defendant Nos.1 to 6. The third son of
propositus by name Chimaji, died leaving behind his wife Smt.
Shakuntala who also died leaving behind defendant Nos.7 to 11
and defendant No.17. It is the case of the plaintiffs that, the
plaintiffs and the defendants are the joint owners in possession
and enjoyment of 'A' and 'B' schedule properties. There is no
partition effected by metes and bounds since many years. The
plaintiff No.1 had filed O.S.No.579/2013 seeking the relief of
declaration and consequential relief of permanent injunction on
the file of the I Additional Civil Judge and JMFC Court, Belagavi.
The plaintiff No.1 filed a memo seeking leave of the Court to
withdraw the aforesaid suit. The said suit was dismissed as not
pressed with a permission to file a fresh suit. The plaintiff has
NC: 2024:KHC-D:2509-DB
filed the present suit for partition and separate possession.
Though summons were issued to the defendants, the
defendants did not appear and they were placed ex-parte. The
plaintiff in support of his case, examined himself as P.W.1 and
got marked 34 documents as Ex.P.1 to Ex.P.34. The trial Court
after recording the evidence of the parties, framed the following
points for consideration :
(i) Whether the plaintiffs proves that 'A' and 'B'
schedule properties are their joint family properties and
they are in joint possession, use and enjoyment of the
same along with defendants ?
(ii) Whether the plaintiffs are entitled for the relief of
partition as sought in the suit?
(iii) What order or decree ?
5. The trial Court on appreciation of oral and
documentary evidence dismissed the suit of the plaintiffs. The
plaintiffs aggrieved by the Judgment and preliminary decree
filed this appeal.
6. Smt. Chetana S. Biraj, learned counsel for the
plaintiffs/appellants submits that, it is the case of the plaintiffs
that the suit schedule properties are the joint family properties
of the plaintiffs and defendants. She submits that, in order to
NC: 2024:KHC-D:2509-DB
demonstrate that the suit schedule properties are owned by the
original propositus i.e. Sri. Dhanaji Patil, has produced the
records. She submits that, the plaintiffs have produced
documents to establish that the suit schedule properties are the
joint family properties of the plaintiffs and defendants, but the
trial Court has recorded a finding that except the revenue
records the plaintiffs have not produced any documents to
establish that the suit schedule properties are the joint family
properties. She further submits that, though summons were
served on the defendants, the defendants did not appear and
contest the suit. She submits that, the trial Court could have
decreed the suit, but on the contrary dismissed the suit. She
submits that, the trial Court has committed an error in not
considering the documents produced by the plaintiffs to
establish that the suit schedule properties are the joint family
properties. Hence, she prays to allow the appeal.
7. Per contra, learned counsel for the defendants
submits that, since the defendants have not filed any written
statement, the matter may be remanded to the trial Court with
a liberty to the defendants to file written statement. Hence, on
this ground he prays to dispose of the appeal.
NC: 2024:KHC-D:2509-DB
8. Perused the records and considered the
submissions of the learned counsel for the parties. The
points that would arise for our consideration are:
(i) Whether the plaintiffs prove that the trial
Court has committed an error in dismissing the suit
in the absence of written statement?
(iii) What order or decree ?
9. The plaintiffs have filed a suit for partition and
separate possession. It is the case of the plaintiffs that, the suit
schedule properties were owned by the propositus namely
Dhanaji Patil. It is contended that, there is no partition effected
between the plaintiffs and defendants. The plaintiffs in order to
substantiate their case, plaintiff No.1 was examined as P.W.1
and reiterated the plaint averments in the examination-in-chief
and also produced documents at Ex.P.1 to Ex.P.11 i.e. RTC
extracts in respect of the suit lands and Ex.P.12 is the property
Register Card in respect of CTS No.4573. Ex.P.13 to Ex.P.16
are the RTC extracts. Es.P.17 is the certified copy of
M.E.No.613. Ex.P.18 is the mutation register extract. Ex.P.19 is
the certified copy of property register card of CTS No.4573.
Ex.P.20 is the certified copy of ruled card of CS No.4922/73.
- 10 -
NC: 2024:KHC-D:2509-DB
Ex.P.21 is Raseedi patta. Ex.P.22 is the certified copy of ME
No.437 and 439. Ex.P.23 is the certified copy of ME No.4917.
Ex.P.24 is the extract of ME No.2261. Ex.P.25 is the certified
copy of plaint in OS No.568/2007. Ex.P.27 is the certified copy
of deposition of Sambhaji Patil in O.S.No.568/07. Ex.P.28 is the
certified copy of deposition of Pramod Khannurkar in
O.S.No.568/07. Ex.P.30 to Ex.P.33 are the RTC extacts. E.P.34
is the tax paid receipt.
10. Though the plaintiffs have produced records to
show that, the said properties stood in the name of Sri. Dhanaji
Patil, but however, the trial Court has dismissed the suit only
on the basis that, the suit schedule properties are the joint
family properties of the plaintiffs. The Court has recorded a
finding that, merely on the basis of RTC extract and mutation
entries, the Court cannot come to the conclusion that the suit
schedule properties were originally owned by Sri. Dhanaji Patil
and his children. Without looking into the records produced by
the plaintiffs, the trial Court has committed an error in
recording the finding that, there are no materials on record to
show that the suit properties are the joint family properties of
the plaintiffs and defendants. The defendants have not denied
- 11 -
NC: 2024:KHC-D:2509-DB
the contents of the plaint by filing written statement. Learned
counsel for the plaintiffs also fairly concedes that, since the
defendants have not filed their written statements, the
Judgment be set aside and remitted back to the trial Court to
restore the suit with a liberty to the defendants to file written
statements. Her submissions are placed on record.
11. In view of the above discussion, the trial Court has
committed an error in dismissing the suit on the ground that
the plaintiffs have not placed any material on record to
establish that the suit schedule properties are the joint family
properties of the plaintiffs and defendants. As the suit
properties are immoveable properties, the defendants have not
filed their written statements and however, as we already
observed above that, the trial Court has committed an error in
dismissing the suit of the plaintiffs, we are of the view that, an
opportunity be provided to the defendants to file their written
statements before the trial Court. Accordingly, we answer point
No.1 in the affirmative and point No.2 as per the following:
ORDER
(i) The appeal is allowed;
- 12 -
NC: 2024:KHC-D:2509-DB
(ii) The Judgment and preliminary decree dated
29.06.2018 passed in O.S.No.109/2016 by the
III Additional Senior Civil Judge, Belagavi is set
aside. The suit is restored, liberty is reserved
to the defendants to file their written
statement within 15 days from the date of
appearance, failing which the defendants are
not entitled for the benefit of this Judgment;
(iii) The parties are directed to appear before the
trial Court on 18.03.2024 without awaiting any
further notice;
(iv) This Court has not made any adjudication on
the merits in issue;
(v) All contentions of the parties are kept open;
(vi) The trial Court is directed to dispose of the suit
in accordance with law.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
