Karnataka High Court
Chandrappa S/O Shivappa Halageri vs Premila W/O Shivanandappa Angadi on 5 February, 2024
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RFA No. 100050 of 2015
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. 100050 OF 2015 (PAR)
BETWEEN:
1. CHANDRAPPA S/O. SHIVAPPA HALAGERI
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: HIREKABBAR, TQ: HIREKERUR,
DIST: HAVERI-581111.
2. SURENDRANATH S/O. SHIVAPPA HALAGERI
AGE: 52 YEARS, OCC: EX-MILITARY OFFICER,
R/O: HIREKABBAR, TQ: HIREKERUR,
TQ: HIREKERUR, NOW AT
HOUSING BOARD COLONY,
HIREKERUR, DIST: HAVERI-581111.
3. SMT. DEVAMMA W/O. RAMAPPA AJJAPPANAVAR
AGE: 50 YEARS, OCC: HOUSE WORK,
R/O: RAJANAHALLI, TQ: HARIHAR,
DIST: DAVANAGERE-577001.
Digitally signed
by
MOHANKUMAR
MOHANKUMAR B SHELAR
B SHELAR
Date:
2024.02.13
10:16:13 +0530 4. ANANDAPPA S/O. SHIVAPPA HALAGERI
AGE: 46 YEARS, OCC: T.V.REPAIR,
R/O: HIREKABBAR, TQ: HIREKERUR,
DIST: HAVERI-581111.
5. KHANDOJI S/O. SHIVAPPA HALAGERI
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: HIREKABBAR, TQ: HIREKERUR,
DIST: HAVERI-581111.
6. HANUMANTHAPPA S/O. SHIVAPPA HALAGERI
AGE: 39 YEARS, OCC: PRIVATE WORK,
R/O: HIREKABBAR, TQ: HIREKERUR,
NOW AT C/O: TEERTHAPPA BUDDHA,
BASAVANAGAR, GANDI NAGAR,
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RFA No. 100050 of 2015
NEAR POLICE STATION DAVANAGERE,
DIST: DAVANAGERE-577001.
7. BASAMMA S/O. ANANDAPPA HALAGERI
AGE: 42 YEARS, OCC: HOUSE WORK,
R/O: HIKEKABBAR, TQ: HIREKERUR,
DIST: HAVERI-581111.
8(A). BHAGAVAN S/O. GANESHAPPA ANGADI
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O: JIGALI, TQ: HARIHAR,
DIST: DAVANAGERE.
8(B). LAKSHMI D/O. GANESHAPPA ANGADI
AGE: 22 YEARS, OCC: AGRICULTURE,
R/O: JIGALI, TQ: HARIHAR,
DIST: DAVANAGERE.
8(C). SHIVARAJ S/O. GANESHAPPA ANGADI
AGE: 20 YEARS, OCC: AGRICULTURE,
R/O: JIGALI, TQ: HARIHAR,
DIST: DAVANAGERE.
8(D). SARASWATI D/O. GANESHAPPA ANGADI
AGE: 19 YEARS, OCC: AGRICULTURE,
R/O: JIGALI, TQ: HARIHAR,
DIST: DAVANAGERE.
...APPELLANTS
(BY SRI.AVINASH BANAKAR, ADVOCATE
APPEAL ABATED AGAINST APPELLANT NO.1 V/O/DTD 29.08.2023)
AND:
1. PREMILA W/O. SHIVANANDAPPA ANGADI
AGE: 44 YEARS, OCC: HOUSE WORK,
R/O: CHALAGERI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
2. PUSHPA W/O. HALESHAPPA JANGALI
AGE: 42 YEARS, OCC: HOUSE WORK,
R/O: YAKLASAPUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
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RFA No. 100050 of 2015
3. KALAVATI W/O. CHANDRAPPA
BHEEMARAYAPPANAVAR,
AGE: 40 YEARS, OCC: PRIVATE WORK,
R/O: RAJANAHALLI, TQ: HARIHAR,
NOW R/O. UMASHANKAR COLONY,
RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
4. SAROJINI W/O. MANJAPPA K.S.,
AGE: 36 YEARS, OCC: SERVANT,
R/O: KAKKARGOL, TQ: DAVANAGERE,
NOW R/O. CHALAGERI VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI-581115.
5. TEKOJIRAO S/O. NINGAPPA HALAGERI
AGE: 30 YEARS, OCC: PRIVATE WORK,
R/O: HIREKABBAR, TQ: RANEBENNUR,
NOW R/O. CHALAGERI VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI-581115.
6. TUKARAM S/O. NINGAPPA HALAGERI
AGE: 28 YEARS, OCC: PRIVATE WORK,
R/O: HIREKABBAR, TQ: RANEBENNUR,
NOW R/O. NEAR GUPTA HIGH SCHOOL,
RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
...RESPONDENTS
(BY SRI.DINESH M.KULKARNI, ADVOCATE FOR R1 TO R4 AND R6;
NOTICE TO R5 IS SERVED)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.01.2015,
PASSED IN O.S.NO.16/2013, ON THE FILE OF SENIOR CIVIL JUDGE
AND JMFC., HIREKERUR, PARTLY DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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RFA No. 100050 of 2015
JUDGMENT
This appeal is filed by the appellants challenging the
judgment and preliminary decree dated 14.01.2015
passed in O.S. No.16/2013 by the learned Senior Civil
Judge and JMFC, Hirekerur.
2. For the sake of convenience, the parties are
referred to as per their raking before the trial Court.
to 8. The respondents are the plaintiffs. The plaintiffs
filed a suit for partition and separate possession against
the defendants.
4. It is the case of the plaintiffs that the original
propositus Khandappa died on 21.11.1964 and his wife
Ranamma also died on 18.12.1972 leaving behind their
two sons namely Shivappa and Ningappa. Shivappa died
on 26.01.2009 and his wife Yallamma also died on
29.12.2012 leaving behind defendant Nos.1 to 7 as their
legal heirs. Similarly the 2nd son of the deceased
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proprositus Khandappa by name Ningappa died on
10.03.2011 whereas his wife Shivaputramma had
predeceased him. Ningappa and Shivaputramma died
leaving plaintiff Nos.1 to 6 as their legal heirs. The suit
schedule properties are the joint family properties of the
plaintiffs and the defendants. No partition took place
between the plaintiffs and the defendants. The plaintiffs
demanded for partition and separate possession, but the
defendants refused to effect a partition. Hence, cause of
action arouses for the plaintiffs to file a suit for partition
and separate possession.
5. Defendant No.4 filed written statement,
wherein the other defendants filed a memo adopting the
written statement filed by defendant No.4. Defendant No.4
denied the plaint averments and it is contended that the
suit schedule properties are not the joint family properties
of the plaintiffs and the defendants. It is contended that
the plaintiffs have no right to claim a share in the suit
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schedule properties. Hence, on these grounds, prayed to
dismiss the suit.
6. The trial Court on the basis of the pleadings of
the parties, framed the following issues:
"ISSUES
1. Whether the plaintiffs prove that, themselves and
defendant Nos. 1 to 8 are the joint family
members?
2. Whether the plaintiffs prove that, the suit
properties are the joint family ancestral properties
of themselves and the defendants?
3. Whether the plaintiffs further prove that, they
have got their legitimate half share in all the suit
properties?
4. Whether the defendants Nos. 1 to 8 prove that,
the suit property bearing R.S. No. 120/1 is the
self-acquired property of one Shivappa through
the Land Tribunal in his individual capacity?
5. Whether the defendant Nos. 1 to 8 further prove
that, the suit property N.A. Land bearing R.S.No.
23 measuring 2 guntas 8 annas is the self-
acquired property of defendant No. 5 from his self
and independent earnings?
6. Whether the defendant Nos. 1 to 8 further prove
that, the suit red-tiled house property bearing
VPC No. 190 is the self-acquired property of
Shivappa and the propositus of the branch of
defendants?
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7. Whether the defendant Nos. 1 to 8 further prove
that, the suit red-tiled house property bearing
VPC No. 222 situated at Hirekabbar Village is the
self-acquired property of the defendant No.8
Basamma by way of grant from the Government?
8. Whether the defendant Nos. 1 to 8 further prove
that, the suit house properties situated at
Hirekerur, K.H.B Colony property No. 2789/D-29,
measuring 33 X 18.5=619.25 sq.ft and also the
property bearing No. 2789/D-30, measuring 33.5
X 18.5=619.25 sq.ft are the self-acquired
properties of the defendant No.2?
9. Whether the plaintiffs are entitle for the relief of
partition and separate possession in respect of
their legitimate half share in all the suit properties
by metes and bounds, as sought-for in the plaint?
10. What order or decree?"
7. The plaintiffs in order to substantiate their case,
plaintiff No.6 was examined himself as PW-1 and got
marked 23 documents as Exs.P-1 to P-23. Though
opportunity was provided to the defendants by the trial
Court but the defendants did not lead any either oral or
documentary evidence. Hence, the trial Court has taken
the evidence of the defendants as Nil and thereafter
answered issue Nos.1 and 2 in the affirmative, issue Nos.3
and 9 partly in the affirmative and issue Nos.4 to 8 in the
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negative and consequently partly decreed the suit. It is
ordered and decreed that the plaintiffs are entitled for the
relief of partition and separate possession in respect of the
suit schedule properties item Nos."A to C" only, in respect
of their joint legitimate ½ share therein, by metes and
bounds by getting appointed an ADLR concerned or a Civil
Engineer as the Court Commissioner, whoever is
convenient to them, in due process of law and procedure.
8. Defendant Nos.1 to 3 and 5 to 8 aggrieved by
the judgment and preliminary decree passed by the trial
Court have filed this appeal.
9. Heard the learned counsel for the defendants
and also the learned counsel for the plaintiffs.
10. The learned counsel for the defendants submits
that the trial Court has not provided sufficient opportunity
to the defendants to lead evidence, hence, he submits that
the trial Court has not properly appreciated the material
placed on record. He further submits that merely the
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defendants have not lead evidence, the trial Court could
not have decreed the suit of the plaintiffs in part. He
submits that an opportunity be provided to the defendants
to lead further evidence, as the suit involves right of
immoveable properties. Hence, on these grounds, he
prayed to allow the appeal and set aside the judgment and
prays to restore the suit and permit the defendants to lead
evidence in support of their defence.
11. Learned counsel for the plaintiffs submitted that
though sufficient opportunity was provided to the
defendants, the defendants have not utilized the
opportunity provided to them. The trial Court was justified
in taking the evidence of the defendant as Nil and rightly
decreed the suit in part. Hence, on these grounds, he
prays to dismiss the appeal.
12. The points that arises for our consideration are
as under:
i. Whether the defendants prove that the trial
Court has not granted sufficient opportunity to
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the defendants to adduce evidence in support
of their defence?
ii. Whether the defendants prove that the
judgment and decree passed by the trial Court
is perverse and arbitrary?
iii. What order or decree?
13. Point No.(i): The plaintiff filed a suit for
partition and separate possession. It is not in dispute in
regard to the relationship of the parties to the suit. Though
it is the case of the plaintiff that the suit schedule
properties are the joint family properties of the plaintiffs
and defendants, no partition is effected. The said fact has
been denied by the defendants contending that the suit
schedule properties are not the joint family properties of
the plaintiffs and the defendants. Further in order to
substantiate the case of the plaintiffs, plaintiff No.6 was
examined as PW.1 and got marked 23 documents as
Ex.P.1 to Ex.P.23. Though from the perusal of the order
sheet of the trial Court, it discloses that PW-1 has entered
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into witness box on 10.01.2014 and got marked
documents and it was posted for cross-examination of
PW.1 and the matter was adjourned to 31.10.2014. On
31.10.2014, PW-1 was present. At the request of the
learned counsel for the defendants, the matter was
adjourned to 21.11.2014. On the said day, the learned
counsel appearing for the defendants was not present.
Hence, the trial Court has taken the cross-examination of
PW-1 as Nil and closed the evidence of the plaintiffs' side
and the matter was listed for evidence of the defendants,
if any, and adjourned to 05.12.2014. On the said date,
learned counsel appearing for the defendants was absent,
there was no representation on behalf of the defendants
and the matter was adjourned to 12.12.2014. The
defendants were absent. On the request of the learned
counsel for the defendants, the matter was adjourned and
time was granted, as a last chance and adjourned to
06.01.2015. As there was no representation on the said
date, the trial Court has taken the evidence of the
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defendants as closed and posted the matter for arguments
and pronounced the judgment on 14.01.2015.
14. From the perusal of the order sheet, it discloses
that the trial Court has not provided sufficient opportunity
to the defendants to cross-examine PW-1 and also not
provided sufficient opportunity to the defendants to lead
evidence in support of their defence. Thus, we hold that
the trial Court, without providing sufficient opportunity,
has passed the judgment. Thus, the judgment passed by
the trial Court is in violation of principles of natural justice
and hence, we answer Point No.(i) in the affirmative.
15. Point No.(ii): As we have already recorded a
finding in Point No.(i) that no sufficient opportunity is
provided to the defendants to cross-examine PW-1 and
also to lead evidence by the defendants, the judgment and
decree passed by the trial Court is in violation of principles
of natural justice as the suit involves right of immoveable
properties and the parties cannot be thrown out of the
Court on technical grounds Hence, the trial Court could
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have given sufficient opportunity to the defendants to
cross-examined PW-1 and also permitted the defendants
to lead evidence. The trial Court has committed an error
in passing the impugned judgment. Hence, the judgment
and decree passed by the trial Court is in violation of the
principles of natural justice. Accordingly, we answer Point
No.(ii) in the affirmative.
16. Point No.(iii): Accordingly, we proceed to pass
the following order:
The appeal is allowed. The judgment and decree
dated 14.01.2015 passed in O.S. No.16/2013 by the
learned Senior Civil Judge and JMFC, HIrekerur14.01.2015
passed in O.S. No.16/2013 by the learned Senior Civil
Judge and JMFC, Hirekerur, is set aside subject to
payment of cost of Rs.50,000/- (Rupees fifty thousand
only) payable by the defendants to the plaintiffs on the
next date of hearing. The suit is restored. The trial Court
is directed to permit the defendants to cross-examine PW-
1 and grant an opportunity to the defendants to lead
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evidence and thereafter pass appropriate judgment in
accordance with law.
Further, this Court has not made any adjudication on
the merits of the case.
The parties are directed to appear before the trial
Court on 11.03.2024 without waiting any further notice.
All the contentions of the parties are kept open.
Registry is directed to transmit the trial Court records
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
kmv
Ct:vh
