Karnataka High Court
Parvati W/O Babu Nagane And Ors vs Shivaji S/O Babu Nagane And Ors on 7 February, 2024
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NC: 2024:KHC-K:1351
RSA No. 200036 of 2023
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 SECOND APPEAL NO. 200036 OF 2023
(PAR/POS)
BETWEEN:
1. SMT.PARVATI
W/O BABU NAGANE,
AGE: 76 YEARS,
OCC: AGRICULTURE,
R/O DEGANAL, TQ: INDI,
DIST:VIJAYAPUR- 586211.
2. SMT.LEELAVATI @ RENUKA
W/O NABI @ CHANDRAKANT CHAVAN,
AGE: 53 YEARS, OCC : AGRICULTURE,
3. SMT.KALAVATI
Digitally W/O KONDIBA KADAM,
signed by
SACHIN AGE: 47 YEARS,
Location: OCC: HOUSEHOLD WORK,
HIGH
COURT OF
KARNATAKA
4. SMT.MINAXI
W/O SUBHAS CHAVAN,
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O: VIJAYAPURA-586101.
(ALLAPUR VES VIJAYAPURA)
5. SMT.BHARATI
W/O SHANKAR NALAVADE,
AGE: 43 YEARS,
OCC: AGRICULTURE,
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NC: 2024:KHC-K:1351
RSA No. 200036 of 2023
R/O: GANESH NAGAR,
VIJAYAPURA-586101.
...APPELLANTS
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
1. SHIVAJI S/O BABU NAGANE,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: DEGINAL, TQ: INDI,
DIST: VIJAYAPUR-586211.
2. SMT.SUNANDA
W/O LAXMAN NAGANE,
AGE: 46 YEARS, OCC: POLICE CONSTABLE,
R/O: TOWN POLICE STATION,
BAGALKOT, BAGALKOT-587101.
3. ROHINI D/O LAXMAN NAGANE,
AGE: 33 YEARS, OCC: NIL,
C/O SMT. SUNANDA W/O LAXMAN NAGANE,
WPC POLICE STATION, BAGALKOT,
BAGALKOT-587101.
4. ASHWINI
D/O LAXMAN NAGANE,
AGE: 30 YEARS, OCC: NIL,
C/O SMT.SUNANDA
W/O LAXMAN NAGANE,
WPC POLICE STATION, BAGALKOT,
BAGALKOT-587101.
5. NAVEEN S/O LAXMAN NAGANE,
AGE: 31 YEARS, OCC: NIL,
C/O SMT.SUNANDA W/O LAXMAN NAGANE,
WPC POLICE STATION, BAGALKOT,
BAGALKOT-587101.
...RESPONDENTS
(R-1 SERVED, UN-REPRESENTED)
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NC: 2024:KHC-K:1351
RSA No. 200036 of 2023
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
07.10.2021 PASSED IN R.A.NO.69/2017 ON THE FILE OF THE
IV ADDITIONAL SENIOR CIVIL JUDGE, VIJAYAPURA, AND TO
MODIFY THE JUDGMENT AND DECREE DATED 19.07.2017
PASSED IN O.S. NO.755/2010 ON THE FILE OF THE III
ADDITIONAL CIVIL JUDGE, VIJAYAPUR AT VIJAYAPURA, AND
SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
LOWER APPELLATE COURT AND MODIFY THE JUDGMENT AND
DECREE PASSED BY THE TRAIL COURT AND ORDER FOR
COSTS OF THIS APPEAL
THIS APPEAL COMING ON FOR ORDERS, THIS DAY THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the Appellants/plaintiffs are assailing
the judgment and decree dated 07.10.2021 in
R.A.No.69/2017 on the file of IV Additional Senior Civil
Judge, Vijaypur, confirming the judgment and decree
dated 19.07.2017 in O.S.No.755/2010 on the file of III
Addl. Civil Judge, Vijaypur, decreeing the suit in-part.
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. Heard the learned counsel appearing for the
parties.
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4. The plaintiff has filed suit for partition and
separate possession and the Trial Court passed the
following order, which reads as under :-
"The suit of the plaintiffs is hereby partly
decreed with cost.
The plaintiffs are entitled for 5/3rd share each
in the landed properties bearing R.S.No.104 of
Deginal Village.
The plaintiffs are not entitled for any share in
the suit plot measuring 30x40 feet situated at
R.S.No.745/5 of Mahalbagyat Village.
Office is directed to return the Ex.D23 to 26 to
the Tahsildar, Indi with proper acknowledgment."
(Emphasis supplied)
5. Having taken note of the operative portion of
the order, I feel that the learned Judge has not understood
the case on merits and allotment of share as shown in the
operative portion shouldn't have devolve among the
parties as it is stated that 5/3rd share, which is unknown to
the mathematical calculation.
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6. Nextly, I feel that, the First Appellate Court,
how far it has understood the case as required under
Order XLI Rule 31 of Code of Civil Procedure is unknown
from the perusal of the impugned judgment and decree
and has passed the following order :-
"Appeal filed under Section 96 of CPC by the
appellants/plaintiffs is hereby dismissed.
Consequently, the judgment and decree dated
19.07.2017 passed in O.S.No.755/2010 on the file of
III Additional Civil Judge, Vijayapur stands set-aside
and suit of the plaintiff is hereby dismissed.
Parties are directed to bear their own costs.
Consign the Trial Court records along with copy
of this judgment.
Draw decree accordingly."
(Emphasis supplied)
7. Perusal of the operative portion would indicate
that the appeal is dismissed and the impugned judgment
and decree passed by the Trial Court is set-aside and the
suit of the plaintiffs is dismissed. Only the author of the
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judgment would understand the impugned judgment and
decree passed in the above proceedings.
8. Having taken note of the judgments rendered
by both the Courts below, I am of the view that both the
Courts below have not understood the case on merits,
which is a simple suit for partition. Therefore, I am of the
view that both the judgment and decree passed by the
Courts below required to be set aside as the same would
mark judicial indiscipline and therefore the matter be
remanded to the Trial Court for fresh disposal.
9. It is made clear that the Trial court is directed
to dispose of the suit at the earliest and pass appropriate
orders in accordance with law after issuing notice to both
the sides, keeping in mind the judgment rendered by this
Court as well as the Hon'ble Supreme Court relating to
relief claimed in respect of suit for partition.
In the result, I pass the following :
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ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and decree
dated 19.07.2017 passed in
O.S.No.755/2010 by the III Addl. Civil
Judge, Vijaypur and the judgment and
decree dated 07.10.2021 passed in
R.A.No.69/2017 by the IV Additional
Senior Civil Judge, Vijaypur are set-
aside.
(iii) The matter is remanded to the Trial
Court for fresh disposal after issuing
notice to the parties.
The Additional Registrar General, High Court of
Karnataka, Kalaburagi is directed to send the copy of this
Judgment to the Principal District Judge, Vijaypur, who in-
turn place it before the learned Judges, who have
authored the impugned judgments.
Sd/-
JUDGE
SN
