Karnataka High Court
Gurunath And Anr vs Manojkumar And Anr on 7 February, 2024
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RFA No. 200125 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR FIRST APPEAL NO.200125 OF 2018
(PAR/POS)
BETWEEN:
1. GURUNATH
S/O LATE NARAYAN BHATT,
AGE: 52 YEARS,
OCC: AGRICULTURE & LECTURER,
R/O BASVESHWAR NAGAR, YADGIRI,
TQ: & DIST: YADGIR-585 201.
2. RAGHAVEENDRA
S/O LATE NARAYAN BHATT,
AGE: 48 YEARS,
OCC: AGRICULTURE & PRIVATE SERVICE,
R/O BASVESHWAR NAGAR, YADGIRI,
Digitally signed
TQ: & DIST: YADGIR-585 201.
by
LUCYGRACE
Location: HIGH MALUBAI
COURT OF W/O LATE NARAYAN BHATT,
KARNATAKA
SINCE DECEASED BY LR,
SHARADABAI
W/O LATE GURUNATH BHATT,
SINCE DECEASED
...APPELLANTS
(BY SRI. AMEETH KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI. DESHPANDE G.V., ADVOCATE)
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RFA No. 200125 of 2018
AND:
1. MANOJKUMAR
S/O LATE DADAM BHATT,
AGE: 48 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O: SHIVANAGAR STATION AREA,
YADGIRI, TQ: & DIST: YADGIR-585 201.
2. SUMITRABAI W/O LATE DADAM BHATT,
AGE: 68 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O: SHIVANAGAR STATION AREA,
YADGIRI, TQ: & DIST: YADGIR-585 201.
...RESPONDENTS
(BY SRI. V.K. NAYAK, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND
DECREE DATED 20.06.2015 PASSED IN O.S.NO.09/2010 ON
THE FILE OF THE SENIOR CIVIL JUDGE, SHORAPUR.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by defendant Nos.1 and 2/
appellants, challenging the judgment and decree dated
20.06.2015 in O.S. No.09/2010 on the file of Senior Civil
Judge at Shorapur, sitting at Shahapur (for short 'Trial
Court'), decreeing the suit of the plaintiff in part.
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2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiffs that, one Dadam
Bhatt had two sons namely, Gurunath Bhatt and Shankar
Bhat. The first son - Gurunath Bhatt died leaving behind
his wife Sharadabai (defendant No.4). The second son -
Shankar Bhatt died leaving behind his two sons namely,
Narayan Bhatt and Dadam Bhatt. Narayan Bhatt died
leaving behind his wife Malubai (defendant No.3) and two
sons Gurunath (defendant No.1) and Raghavendra
(defendant No.2). The second son of Shankar Bhatt
namely, Dadam Bhatt died leaving behind his wife
Sumitrabai (plaintiff No.2) and a son Manojkumar (plaintiff
No.1). It is the case of the plaintiffs that, properties in
question are not the subject matter of the partition
previously held as per registered partition deed dated
21.04.2001 and therefore, the plaintiffs have sought for
partition in respect of 'A' and 'B' of suit schedule properties
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mentioned in the plaint. It is also stated in the plaint that,
Narayan Bhatt (uncle of plaintiff No.1) had filed
O.S.No.30/1996 against his father - Dadam Bhatt and
same is pending consideration before the competent Court
and during the pendency of the said suit, the partition
deed dated 21.04.2001 came into existence and pursuant
to the same, suit in O.S.No.30/1996 was disposed of as
settled out of the Court. It is the specific case of the
plaintiffs that, plaintiffs have approached defendant Nos.1
and 3 to divide the property, however, they refused to
acceded to the claim made by the plaintiffs. Therefore,
plaintiffs have filed O.S.No.09/2010 before the Trial Court,
seeking relief of partition and separate possession ,seeking
half share in the 'A' schedule properties and 1/3rd share in
'B' schedule property, interalia sought for declaration that
the registered sale deed dated 21.04.2001 is not binding
on them as well as on defendant No.4.
4. After service of summons, defendant Nos.1 and
3 appeared and filed detailed written statement, denying
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the averments made in the plaint. Defendant No.2
remained absent and placed exparte. Defendant No.4
appeared and filed written statement and during the
pendency of the suit, defendant No.4 died and as per the
memo dated 23.10.2010 filed by the plaintiffs that the
deceased defendant No.4 has no legal representatives, the
same was accepted. It is the specific contention of
defendant Nos.1 and 3 that, it is the suit for partition and
separate possession in respect of the suit schedule
properties and therefore, seeking relief of nullifying the
registered partition deed itself is not maintainable. It is
further contended by defendant Nos.1 and 3 that, as the
properties were divided in terms of partition deed dated
21.04.2001, the plaintiffs cannot maintain the suit on the
very same ground. It is also contended in the written
statement that, O.S.No.30/1996 was dismissed as settled
out of Court in terms of the partition deed dated
21.04.2001 and therefore, the plaintiffs have no right to
challenge the partition deed, which has attained finality by
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efflux of time and accordingly sought for dismissal of the
suit.
5. Based on the pleadings on record, the Trial
Court framed the following issues for its consideration:
"ISSUES
1. Whether the plaintiffs prove that the suit
schedule properties are the ancestral
properties?
2. Whether the plaintiffs prove that, deceased
Gurunath Bhatt and his wife Sharadabai died
in-testate?
3. Whether the plaintiffs prove that they and the
defendants have succeeded to the suit
schedule properties?
4. Whether the plaintiffs prove that deceased
Narayana Bhatt fraudulently concocted the
registered partition deed dated 21.04.2001
with respect to the suit schedule property?
5. Whether the plaintiffs prove that, the suit
schedule properties are undivided ancestral
and joint family properties of them and
defendants?
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6. Whether the plaintiffs prove that, they are
having half share in the 'A' schedule
properties?
7. Whether the plaintiffs prove that, they are
having 1/3rd share in the 'B' schedule
properties?
8. What order or decree"
6. In order to substantiate their case, the plaintiffs
have examined two witnesses as PW.1 and PW.2 and got
marked 35 documents as Exs.P1 to P35. On the other
hand, defendants have examined two witnesses as DW.1
and DW.2, however, no documentary evidence was
adduced on behalf of the defendants.
7. The Trial Court after considering the material on
record, by its judgment and decree dated 20.06.2015,
decreed the suit of the plaintiffs in part, holding that the
plaintiffs are entitled for share in item Nos.1 to 5 in 'A'
schedule properties and 'B' schedule house property.
However, suit in respect of item No.6 of 'A' schedule
property came to be dismissed, interalia it was declared
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that, registered partition deed dated 21.04.2001 is not
binding on the plaintiffs. The Trial Court, further held that,
plaintiff Nos.1 and 2 together are entitled for half share in
item Nos.1 to 5 of 'A' schedule properties and 'B' schedule
house property. Feeling aggrieved by the same, defendant
Nos.1 and 2 have preferred this Regular First Appeal.
8. I have Heard Sri Ameet Kumar Deshpande,
learned Senior Counsel appearing on behalf of
Sri Deshpande G.V., learned counsel for the appellants
and Sri V.K. Nayak, learned counsel appearing for the
respondents.
9. Sri Ameet Kumar Deshpande, learned Senior
Counsel appearing for the appellants argued that, the Trial
Court has not considered the material on record in right
perspective and issue Nos.1 and 3 to 5 were considered
together. He further contended that, the plaintiffs cannot
be permitted to claim the relief of partition and separate
possession as well as declaring the registered sale deed
dated 21.04.2001 as null and void. Continuing his
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submission, he argued that, the Trial Court was well
versed about the fact that, there was a partition in the
joint family properties of the parties and without
considering the said aspect, passed the impugned
judgment and decree, which requires to be set aside in
this appeal. Having invited the attention of the Court to
Exs.P1 and P5, learned Senior Counsel contended that,
those documents do not depict the joint status of the
plaintiffs and defendant Nos.1 to 3 and accordingly, sought
for interference of this Court.
10. Per contra, Sri V.K. Nayak, learned counsel
appearing for the respondents sought to justify the
impugned judgment and decree passed by the Trial Court
and argued that the Trial Court has properly framed the
issues based on the pleadings on record and answered the
same with cogent reasons and therefore, sought for
dismissal of the appeal.
11. Having heard the learned counsel appearing for
the parties and taking into account the finding recorded by
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the Trial Court, the following points would arise for
consideration in this appeal:
1. Whether the Trial Court was justified in
decreeing the suit of the plaintiffs in part
holding that, the suit schedule properties are
undivided joint family properties?
2. Whether the finding recorded by the Trial Court
on issue No.4 requires interference in this
appeal?
3. What order?
12. Having taken note of the factual aspects on
record, it is necessary to deduce the genealogical tree of
the parties, which is as under:
Dadambhatt Jahagirdar
Gurunath(Died) Shankarbhatt(Died)
Sharadabai (wife) Mathurabai(wife)(Died)
(no children)(def-4)
Narayanabhatta(Died) Dadambhatta(died)
Malubai (wife) (def-3) Sumitrabai(wife)(pltf-2)
Gurunath(son) Raghavendra (Son) Manojkumar(Son)
(def-1) (def-2) (pltf-1)
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13. Perusal of the genealogical tree would indicate
that, the father of defendant Nos.1 and 2 - Narayan Bhatt
and father of plaintiff No.1 - Dadam Bhatt are the brothers
and children of Shankar Bhatt and Mathurabai. It is also
forthcoming from the finding recorded by the Trial Court
that, the plaintiffs have disputed the registered partition
deed dated 21.04.2001. Undisputably, Ex.P10 is the
certified copy of registered partition deed. The argument
canvassed by Sri V.K. Nayak, learned counsel appearing
for the respondents is that, the defendants have admitted
during the evidence that the original registered partition
deed is with Gurunath - defendant No.1 and the said
registered partition deed has not been produced by the
defendants. In the backdrop of this argument, it is replied
by Sri Ameet Kumar Deshpande, learned Senior Counsel
appearing for the appellants, referring to the order sheet
in O.S.No.30/1996 (Ex.P17), particularly, order dated
27.06.2001, which reads as under:
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"Advocate for plaintiff filed a Memo by stating that,
the parties have settled out of the Court and prays
to dismissal of it.
Hence, in view of the Memo and in view of the
submission the suit of the plaintiff is dismissed as
settled out of the Court. Refund half Court Fee
either to the plaintiff or his Advocate."
(Emphasis supplied)
14. Perusal of the plaint in O.S.No.30/1996
(Ex.P16) reveals that, Narayan Bhatt - father of defendant
Nos.1 and 2 has filed suit, seeking relief of declaration,
injunction and rectification of record of rights against
Sharadabai (defendant No.4 in OS No.09/2010) and
Dadam Bhatt (father of plaintiff No.1). The said suit came
to be disposed of on 27.06.2001 as settled out of Court. In
the meanwhile, the registered partition deed dated
21.04.2001 came into force. Be that as it may be, issue
No.4 refers to the fact that, the plaintiffs have disputed
the registered partition deed dated 21.04.2001 and
contended that father of plaintiff No.1 - Dadam Bhatt
(defendant No.2 in O.S.No.30.1966) has not signed the
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registered partition deed. In this regard, I have carefully
examined the finding recorded by the Trial Court and the
Trial Court arrived at a conclusion, affirmatively, holding
that the registered partition deed is non est.
15. Perusal of paragraphs 19 and 20 of the
impugned judgment, wherein the finding recorded by the
Trial Court would indicate that the Trial Court has accepted
the plea raised by the plaintiffs. Undisputably, the original
partition deed was not produced before the Trial Court and
on the other hand, suit in O.S.No.30/1996 disposed of on
27.06.2001 pursuant to the execution of the
aforementioned partition deed said to have been executed
on 21.04.2001. If such being the case, the question would
arise, as to why the execution of the alleged partition deed
was not referred to in the proceedings in O.S.No.30/1996.
The said question is unanswered by the Trial Court, which
requires further enquiry in the matter to determine the
veracity of the partition deed dated 21.04.2001. Hence,
this Court is of the opinion that, the finding recorded by
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the Trial Court on issue No.4 is incomplete, which requires
further assessment on merits by the Trial Court. However,
the entire relief sought for by the plaintiffs rests on the
registered partition deed dated 21.04.2001 and therefore,
though this Court find fault with the deliberation made by
the Trial Court on issue No.4, it is expedient for this Court
to remand the matter to the Trial Court for further enquiry
on issue no.4, however, the same would have foundation
on answering the remaining issues. Therefore, looking into
the scope and ambit of Order XLI Rule 23A of CPC, the
entire matter requires reconsideration by the Trial Court.
16. On this score, this Court found force in the
submission made by the learned Senior Counsel appearing
for the appellants. The points for determination favours
the defendants and as such, it is appropriate to remand
the matter to the Trial Court.
17. I have also noticed the applications filed by the
appellant in I.A. 1/2020 under Order XLI Rule 27 of CPC
for production of additional documents and also the
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application filed by the respondents in I.A.1/2024 under
Order XI Rule 14 of CPC. As this court has arrived at a
conclusion to remand the matter to the Trial Court under
order XLI Rule 23A of CPC in terms of the observation
made above, it is expedient that, these two applications
filed by either of the parties shall be considered by the
Trial Court and pass appropriate orders.
18. In the result, I pass the following:
ORDER
i. Appeal is allowed.
ii. The judgment and decree dated 20.06.2015 in
O.S.No.09/2010 on the file of Senior Civil Judge
at Shorapur, sitting at Shahapur is hereby set
aside and matter is remanded to the Trial Court
for fresh disposal on merits.
iii. All contentions of the parties are kept open.
iv. The Trial Court is directed to extend fair
opportunity to the parties to adduce further
evidence, if any, in the circumstances of the
case and dispose of the suit on merits.
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v. In order to avoid further delay in the matter, as
the parties are represented through their
learned counsels, they are directed to appear
before the Trial Court on 04.03.2024 at
11.00 a.m.
vi. On their appearance, the Trial Court is directed
to dispose of the suit within an outer limit of six
months from the date of their appearance, as
the suit is of the year 2010.
Sd/-
JUDGE
LG
