Karnataka High Court
Venkatraya S/O Beeranna Nayak vs Smt. Bhavani W/O Jalandhar Nayak on 7 February, 2024
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NC: 2024:KHC-D:2744-DB
RFA No. 100240 of 2017
C/W RFA No. 100015 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH 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. 100240 OF 2017 (PAR/POS)
C/W
REGULAR FIRST APPEAL NO. 100015 OF 2018
IN RFA NO. 100240/2017
BETWEEN:
1. VENKATRAYA S/O. BEERANNA NAYAK
AGED ABOUT 58 YEARS, OCC: TEACHER,
R/O: NEAR HONNARAKA TEMPLE,
VANDIGE, TALUK: ANKOLA,
DIST: UTTARA KANNADA-581314.
2. SRI.SANJEEVA S/O. BEERANNA NAYAK,
AGED ABOUT 32 YEARS, OCC: ENGINEER,
R/O: GUNGAJJIMANE, ALAGERI,
Digitally signed
by
SHIVAKUMAR
TALUK: ANKOLA, DIST: UTTARA KANNADA-581314.
HIREMATH
Date:
...APPELLANTS
2024.02.20
11:06:26 +0530
(BY SRI. NARAYAN V. YAJI, ADVOCATE)
AND:
1. SMT. BHAVANI
W/O. JALANDHAR NAYAK @ SMT.BHAVANI
D/O. TIMMANNA NAYAK,
AGED ABOUT 45 YEARS, OCC: AGRICULTURIST,
R/O: VASARE, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
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RFA No. 100240 of 2017
C/W RFA No. 100015 of 2018
2. SMT.USHA W/O. SHANTA NAYAK
@ SMT.USHA D/O. TIMMANNA NAYAK,
AGED ABOUT 42 YEARS, OCC: AGRICULTURIST,
R/O: THINGALABAIL, HILLUR, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
3. SRI.MANJUNOATH S/O. TIMMANNA NAYAK,
AGED ABOUT 39 YEARS, OCC: AGRICLTURIST,
ALAGERI, TALUK: ANKOLA,
DIST: UTTARA KANNADA-581314.
4. SMT.RAMA
W/O. PRAVEEN NAYAK @ SMT.RAMA
D/O. RAMACHANDRA NAYAK,
AGED ABOUT 36 YEARS, OCC: AGRICULTURIST,
R/O: BOLE, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
5. SMT.MANGALA
W/O. RAMACHANDRA NAYAK @ SMT.MANGALA
D/O. RAMACHANDRA NAYAK,
AGED ABOUT 34 YEARS, OCC: AGRICULTURIST,
R/O: BHAVIKERI, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
6. SRI.RAGHAVENDRA S/O. RAMACHANDRA NAYAK,
AGED ABOUT 32 YEARS, OCC: AGRICULTURIST,
R/O: ALAGERI, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
7. SMT.LAKSHMI W/O. UDDANDA NAYAK,
AGED ABOUT 48 YEARS, OCC: AGRICULTURIST,
R/O: KENKANISHIVAPUR, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
8. SMT.ROHINI W/O. RAMA NAYAK,
AGED ABOUT 37 YEARS, OCC: TEACHER,
R/O: HULIDEVARAWADA, ANKOLA TALUK,
DIST: UTTARA KANNADA-581374.
9. SMT.RAJAMMA W/O. SUBRAHMANYA NAYAK,
AGED ABOUT 36 YEARS, OCC: AGRICULTURIST,
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RFA No. 100240 of 2017
C/W RFA No. 100015 of 2018
R/O: KUNKAKANI, HILLUR, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
10. SMT.NALINI W/O. HAMMANNA NAYAK,
AGED ABOUT 34 YEARS, OCC: HOUSEHOLD,
R/O: BALEGULI, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
11. SMT.INDIRA D/O. BEERANNA NAYAK,
AGED ABOUT 38 YEARS,
OCC: GOVERNMENT SERVANT,
R/O: GUNGAJJIMANE, ALAGERI,
ANKOLA TALUK, DIST: UTTARA KANNADA-581314.
12. SMT.DEVAMMA W/O. BEERANNA NAYAK,
AGED ABOUT 70 YEARS, OCC: AGRICULTURIST,
R/O: GUNGAJJIMANE, ALAGERI, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
13. SMT.PREMA W/O. TIMMANNA NAYAK,
AGED ABOUT 48 YEARS, OCC: AGRICULTURIST,
R/O: SHETAGERI, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
...RESPONDENTS
(BY SRI. P.R BENTUR, ADVOCATE FOR R1 TO R6;
SRI. VISHWANTH K. BHAT, ADVOCATE FOR R8 AND R11;
NOTICE SERVED TO R7, R9, R10, R12, R13)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96(1)
OF C.P.C., PRAYING SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE LEARNED SENIOR CIVIL JUDGE, ANKOLA DATED
26.04.2017 IN O.S.NO.6/2017, AS IT IS ILLEGAL AND
CONSEQUENTLY, PASS SUCH OTHER OR DIRECTION AS THIS
HON'BLE COURT DEEMS FIT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE, TO MEET THE ENDS OF JUSTICE
AND EQUITY.
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RFA No. 100240 of 2017
C/W RFA No. 100015 of 2018
IN RFA NO. 100015/2018
BETWEEN:
1. SMT. LAKSHMI W/O. UDDANDA NAYAK,
AGED ABOUT 48 YEARS, OCC: AGRICULTURIST,
R/O: KENKANISHIVAPUR, TALUK: ANKOLA,
DIST: UTTARA KANNADA-581314.
2. SMT. ROHINI W/O. RAMA NAYAK,
AGED ABOUT 37 YEARS, OCC: TEACHER,
R/O: HULIDEVARAWADA, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
3. SMT. RAJAMMA W/O. SUBRAHMANYA NAYAK,
AGED ABOUT 36 YEARS, OCC: AGRICULTURIST,
R/O: KUNKAKANI, HILLUR, TALUK: ANKOLA,
DIST: UTTARA KANNADA-581314.
4. SMT. NALINI W/O. HAMMANNA NAYAK,
AGED ABOUT 34 YEARS, OCC: HOUSEHOLD,
R/O: BALEGULI, TALUK: ANKOLA,
DIST: UTTARA KANNADA-581314.
5. SMT. INDIRA D/O. BEERANNA NAYAK,
AGED ABOUT 38 YEARS,
OCC: GOVERNMENT SERVANT,
R/O: GUNGAJJIMANE, ALAGERI, TALUK: ANKOLA,
DIST: UTTARA KANNADA-581314.
6. SMT. DEVAMMA W/O. BEERANNA NAYAK,
AGED ABOUT 70 YEARS, OCC: AGRICULTURIST,
R/O: GUNGAJJIMANE, ALAGERI,
TALUK: ANKOLA, DIST: UTTARA KANNADA-581314.
7. SMT. PREMA W/O. TIMMANNA NAYAK,
AGED ABOUT 48 YEARS, OCC: AGRICULTURIST,
R/O: SHETAGERI, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
...APPELLANTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
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RFA No. 100240 of 2017
C/W RFA No. 100015 of 2018
AND:
1. SMT. BHAVANI, W/O. JALANDHAR NAYAK,
@ SMT. BHAVANI,
D/O. TIMMANNA NAYAK,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURIST,
R/O: VASARE, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
2. SMT. USHA W/O. SHANTA NAYAK @
SMT. USHA, D/O. TIMMANNA NAYAK,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURIST,
R/O: THINGALABAIL,
HILLUR, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
3. SRI MANJUNATH S/O. TIMMANNA NAYAK,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURIST,
ALAGERI, TALUK: ANKOLA,
DIST: UTTARA KANNADA-581314.
4. SMT. RAMA
W/O. PRAVEEN NAYAK @ SMT. RAMA,
D/O. RAMACHANDRA NAYAK,
AGED ABOUT 36 YEARS,
OCC: AGRICULTURIST,
R/O: BOLE, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
5. SMT. MANGALA
W/O. RAMACHANDRA NAYAK @ SMT. MANGALA,
D/O. RAMACHANDRA NAYAK,
AGED ABOUT 34 YEARS, OCC: AGRICULTURIST,
R/O: BHAVIKERI, ANKOLA TALUK,
DIST: UTTARA KANNADA-581314.
6. SRI RAGHAVENDRA S/O. RAMACHANDRA NAYAK,
ABOUT 32 YEARS, OCC: AGRICULTURIST,
R/O: ALAGERI, TALUK: ANKOLA,
DIST: UTTARA KANNADA-581314.
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RFA No. 100240 of 2017
C/W RFA No. 100015 of 2018
7. VENKATRAYA S/O. BEERANNA NAYAK,
AGED ABOUT 58 YEARS, OCC: TEACHER,
R/O: NEAR HONNARAKA TEMPLE,
VANDIGE, TALUK: ANKOLA,
DIST: UTTARA KANNADA-581314.
8. SRI SANJEEVA, S/O. BEERANNA NAYAK,
AGED ABOUT 32 YEARS, OCC: ENGINEER,
R/O: GUNGAJJIMANE,
ALAGERI, TALUK: ANKOLA,
DIST: UTTARA KANNADA-581314.
(RESPONDENT NO. 7 AND 8 ARE PRESENTLY
RESIDING AT #20, FIRST FLOOR,
6TH CROSS, 1ST MAIN ROAD,
J.S. NAGAR (NEAR AGB 2ND STAGE)
NANDINI LAYOUT, BENGALURU-560096.
...RESPONDENTS
(BY SRI. P.R. BENTUR, ADVOCATE FRO R1 TO R6;
SRI. NARAYAN V. YAJI, ADVOCATE FOR R7 R8)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96(1)
OF C.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE LEARNED SENIOR CIVIL JUDGE, ANKOLA DATED
26.04.2017 IN O.S.NO.6/2014, AS IT IS ILLEGAL AND
CONSEQUENTLY, PASS SUCH OTHER ORDERS OR DIRECTION AS
THIS HON'BLE COURT DEEMS FIT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE, TO MEET THE ENDS OF JUSTICE
AND EQUITY.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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RFA No. 100240 of 2017
C/W RFA No. 100015 of 2018
JUDGMENT
These appeals are filed by the appellants, challenging
the Judgment and preliminary decree dated 26.04.2017
passed in OS No.06/2017 by the Senior Civil Judge, Ankola.
2. For the sake of convenience, the parties are
referred to as per their rankings before the trial Court.
3. Appellants are the defendant Nos.1 and 7,
respondent Nos.1 to 6 are the plaintiffs and respondent Nos.7
to 13 are the defendants No.2 to 9.
4. Brief facts leading to file this appeal are as under:
Plaintiffs filed a suit for partition and separate
possession declaring that plaintiff Nos.1 to 7 are entitled for
3/8th share in 'A' Schedule properties and sought for relief of
partition in respect of 'B' Schedule properties to the extent of
3/8th share to the plaintiff Nos.1 to 7. The plaintiffs claimed
3/8th share in enhancement of compensation acquired in land
bearing Sy. No.455 to the extent of 31 guntas 8 ana. It is
contended that Beeranna Hammanna Nayak, Ramachandra
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Hammanna Nayak, Timmanna Hammanna Nayak, Vithoba
Hammanna Nayak were the children of Hammanna Nayak
and Smt. Venkamma Hammanna Nayak. Hammanna Nayak
and Venkamma were died long back. During the lifetime of
Venkamma W/o. Hammanna Nayak and Ramachandra and
when Timmanna and Vithoba were minors, this Venkamma
Hammanna Nayak has filed requisition before the revenue
officers and transferred the entire family property in the
name of Beeranna Hammanna Nayak her eldest son and
mutation was effected. Beeranna Hammanna Nayak was the
Kartha of the family died on 18.01.1996, Vithoba Hammanna
Nayak died on 12.12.2003, Ramachandra Hammanna Nayak
died on 01.12.2007 and Timmanna Hammanna Nayak died
on 19.06.2009.
5. Plaintiff Nos.1 to 3 are the legal heirs of Timmanna
Hammanna Nayak. Plaintiff Nos.4 to 7 are the legal heirs of
deceased Ramachandra Hammanna Nayak. Defendants No.1
and 6 to 7 are the LRs of Beeranna Hammanna Nayak.
Vithoba was died issueless. Plaintiffs and defendants are the
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joint family members and the suit schedule properties are the
ancestral and joint family properties of plaintiffs and
defendants. Properties in Sy.Nos.454, 455, 456, 434/3,
434/1 and 430/k and other properties were allotted to the
father of the plaintiffs and Vithoba Hammanna Nayak by the
Land Tribunal, Ankola on 26.12.1975. It is contended that
suit schedule properties were cultivated by the plaintiffs and
defendants as per their possession. However, 'A' schedule
properties are still in joint possession and enjoyment of the
plaintiffs and defendants. It is contended that 'B' schedule
properties were acquired by Navy, plaintiffs and defendants
are entitled for compensation as well as enhancement of
compensation amount. The plaintiffs demanded for partition
and separate possession, but the defendants refused to effect
partition. Hence, cause of action arose for the plaintiffs to file
the suit for partition and separate possession.
6. Defendant No.1 filed written statement contending
that suit of the plaintiffs is not maintainable either in law or
in facts. Defendant No.1 contended that plaintiffs have not
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taken contention that suit schedule properties are not
remained as joint family properties of plaintiffs and
defendants. It is contended that deceased Beeranna,
Ramachandra, Timmanna and Vithoba were partitioned their
family properties and cultivated their share independently. It
is contended that at the time of filing of the suit, there was
no status of joint family. The suit schedule properties are not
the ancestral and joint family properties of plaintiffs and
defendants. Hence, prayed to dismiss the suit.
7. On the basis of the pleadings of the parties, the
trial court framed following issues:
1) Whether the plaintiffs prove that the Suit Schedule
properties are the joint family properties of
plaintiffs and defendants?
2) Whether the defendants prove that the suit
schedule properties are in separate possession and
enjoyment of the parties?
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3) Whether the defendants prove his possession and
enjoyment of suit schedule properties as
contended in para 4 and 5 of W.S.?
4) Whether the defendants prove that item NO.2 of
plaint B schedule property is the self acquired
property of the father of defendant No.1?
5) Whether the plaintiffs prove that they are entitled
for partition and separate possession of suit
schedule properties?
6) Whether the plaintiffs are entitled for the relief
claimed?
7) Whether the plaintiffs prove that they are entitle
for the relief of declaration as claimed?
8) What order or decree?
8. The plaintiffs in order to prove their case, plaintiff
No.3 was examined as P.W.1 and got marked 26 documents
as Exs.P1 to P26. Defendant No.1 was examined as D.W.1
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and got marked 7 documents as Exs.D1 to D7. The trial court
on assessment of oral and documentary evidence, answered
issue Nos.1 and 7 in the affirmative, issue Nos.2 to 4 in the
negative, issue Nos.5 and 6 partly in the affirmative and
issue No.8 as per the final order. The suit of the plaintiffs is
partly decreed. It is ordered and decreed that the children of
Beeranna Nayak, Timmanna Nayak, Ramachandra Nayak will
get 1/3rd share in the suit schedule properties each in the
total extent of the suit schedule allotted to them as well as in
the compensation amount and also in case of enhancement
of compensation.
9. The defendants Nos.1 and 7 aggrieved by the
judgment and preliminary decree dated 26.04.2017 passed in
O.S.No.6/2017 by the Senior Civil Judge, Ankola have
preferred these appeals.
10. Heard the learned counsel for defendant Nos.1 and
7 and also learned counsel for the plaintiffs.
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submits that there was a partition in the family of plaintiffs
and defendants and parties were put in possession of their
respective shares. He submits that suit schedule properties
are no more joint family ancestral properties and the trial
court failed to consider the said aspect and proceeded to pass
the impugned judgment. He submits that the trial court has
not properly appreciated the material placed on record and
committed an error in passing the impugned judgment.
Hence, he prays to allow the appeal.
12. The other defendants i.e., defendant Nos.2 to 9
aggrieved by the impugned judgment have preferred RFA
No.100015/2018. Learned counsel for defendant Nos.2 to 9
have adopted the arguments of the learned counsel for
defendant Nos.1 and 7.
13. Per contra, learned counsel for the plaintiffs
submits that learned counsel for the defendants before the
trial court has made a submission before the trial court that
the plaintiffs and defendants have come to a common terms
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and shares may be allotted as per the succession. She
further submits that the trial court on the basis of the
submission made by the learned counsel for the defendants
has passed the impugned judgment. She further submits that
when the defendants have made such submission before the
trial court, defendant Nos.1 and 7 have no right to challenge
the impugned judgment. Hence, she prays to dismiss the
appeals.
14. We have perused the records and considered the
submission of the learned counsel for the parties. The points
that arise for our consideration are:
1) Whether the defendants have right to
challenge the impugned judgment when the
defendants made a submission before the trial
court that parties i.e., plaintiffs and
defendants have come to a common terms
and share may be allotted as per succession?
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2) Whether judgment and decree passed by the
trial court is perverse and illegal?
3) What order of decree?
15. Point Nos.1 and 2 are interlinked to each other
and they have taken up together for common discussion to
avoid repetition.
16. Plaintiffs have filed a suit for partition and
separate possession contending that suit schedule properties
are the joint family properties of the plaintiffs and defendants
and plaintiffs and defendants are the members of Hindu
undivided family. Further, no partition was effected between
the plaintiffs and defendants in respect of the suit schedule
properties. Plaintiffs requested the defendants to effect
partition, but the defendants did not effect the same.
Plaintiffs in order to substantiate their case, plaintiff No.3 was
examined as P.W.1 and he has re-iterated the plaint
averments in the examination-in-chief. In order to establish
that suit schedule properties are the joint family properties of
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plaintiffs and defendants, plaintiffs have produced record of
rights in respect of the suit schedule properties marked as
Exs.P1 to P18 and the said properties were standing in the
name of Beeranna i.e., the propositus. They have also
produced Ex.P20 mutation registers, Exs.P23 is the certified
copy of the judgment passed in LAC No.15/2007, which
discloses that one was of the land was acquired by the Navy.
Further plaintiffs have also produced certified copy of the
decree passed in LAC No.15/2007. Ex.P25 is the death
certificate of Vithoba and Ex.P26 is the death certificate of
Laxmi. On perusal of the records produced by the plaintiffs, it
discloses that suit schedule properties are standing in the
name of Beeranna Nayak. Further, all the children of
Beeranna are no more and plaintiffs and defendants are the
legal heirs of the children of Beeranna Nayak. Further, the
plaintiffs and defendants are the members of Hindu undivided
joint family. Plaintiffs produced the records to show that Land
Tribunal granted occupancy rights in respect of 'A' schedule
properties in favour of Beeranna. Further, there is no
partition effected between the plaintiffs and defendants.
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17. In rebuttal, the defendant No.1 was examined as
D.W.1 and also he has reiterated the contents of his written
statement in the examination-in-chief and further produced
documents i.e. Ex.D.1 to Ex.D.3 certified copies of the
mutation register, Ex.D.4 certified copy of the form No.10,
Ex.D.5 certified copy of order of Land Tribunal, Ex.D.6
certified copy of Form No.10 and Ex.D.7 certified copy of
order of Land Tribunal, Ankola.
18. From perusal of the documents produced by the
defendant No.1, it discloses that, the Land Tribunal has
granted occupancy right in favour of Beeranna Naik, under
Ex.D.5 and Ex.D.7 in respect of 'A' Schedule property and
further the defendant has not produced any record to show
that, there was a prior partition between the plaintiffs and
defendants. Further, during the course of arguments before
the trial Court, learned counsel for the parties have made a
submission before the trial Court. The trial Court has
recorded the submission of the learned counsel for the
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parties in paragraph No.51 of the impugned Judgment which
reads as under:
"51. Further, the property in Sy.No.434/1 is in total
extent of 18 guntas of land as per the contention of the
plaintiff and defendant. However, as per the order of the
Land Tribunal, the plaintiff is entitled for 16 guntas and the
defendant is entitled for 19 guntas of land, which is totally
mi-matching to the total extend claimed by them. All the
properties referred in the Land Tribunal order is very
inconsistent to the total extent allotted to the plaintiff and
defendant. Finally, at the time of argument, both the
counsel for plaintiff and defendant comes to the common
terms and submitted to the court that as per the succession,
the extent may be allotted to the plaintiff and defendant.
The counsel for the plaintiff Mr.A.N.Talger and the counsel
for the counsel for the defendant Mr.M.P.Bhat comes to the
common terms that the share may be allotted as per
succession."
(Emphasis supplied)
19. From perusal of paragraph No.51 of the impugned
Judgment, it discloses that, both the counsel for the plaintiff
and defendant comes to the common terms and submitted to
the court that as per the succession, the extent of share may
be allotted to the plaintiffs and defendants. The trial Court
has passed the impugned Judgment on the basis of
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concession made by the learned counsel for the parties. In
view of the concession made by the learned counsel for the
parties, the defendants have no right to challenge the
impugned Judgment. Hence, in view of the above discussion,
we answer point No.1 in the negative. As we have answered
point No.1 in the negative, holding that the counsel
appearing for the defendant before the trial Court has made a
submission that the properties may be allotted to the party
as per the succession and further the trial Court has also
recorded that all the properties referred in the Land Tribunal
Order is inconsistent to the total extent allotted to the
plaintiffs and defendants, and on the basis of the submission
made by the learned counsel for the parties, the trial Court
has decreed the suit. Hence, we do not find any error in the
impugned Judgment. Accordingly, we hold that the Judgment
and decree passed by the trial Court is just and proper and
does not call for any interference. Accordingly we answer
point Nos.1 and 2 in the negative and point No.3 as follows:
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ORDER
(i) The appeals are dismissed;
(ii) The Judgment and preliminary decree dated
26.04.2017 passed in O.S.No.6/2017 by the
Senior Civil Judge, at Ankola is confirmed;
(iii) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
PJ para 1 to 4
MBS para 5 to 16
SVH para 17 to end
