Karnataka High Court
Shivappa vs Mallawwa And Anr on 12 February, 2024
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.200050 OF 2021 (PAR)
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REGULAR SECOND APPEAL NO.7040 OF 2013
IN R.S.A. NO.200050 OF 2021
BETWEEN:
SHIVAPPA
S/O NAGAPPA ANNABI,
AGE: 67 YEARS,
OCC.: AGRICULTURE,
R/O SHIVANAGI,
VIJAYAPURA TALUK,
VIJAYAPURA DISTRICT - 586 101.
...APPELLANT
Digitally signed (BY SRI. AJAY KUMAR A.K., ADVOCATE)
by SACHIN
Location: HIGH AND:
COURT OF
KARNATAKA
1. MALLAWWA
W/O GURANNA BIRADAR
AGE: 59 YEARS,
OCC.: AGRICULTURE,
R/O SHIVANAGI,
VIJAYAPURA TALUK,
VIJAYAPURA DISTRICT - 586 201.
PRESENTLY R/AT PADGANUR VILLAGE,
SINDAGI TALUK,
VIJAYAPURA DISTRICT- 586 201.
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2. SMT. GIRJABAI
W/O BAAPPA ANNABI
AGE: 59 YEARS,
OCC.: HOUSEHOLD, WORK,
R/O SHIVANGAI,
VIJAYAPURA TALUK,
VIJAYAPURA DISTRICT - 586 101.
...RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE FOR R2)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST THE
JUDGMENT AND DECREE DATED 13TH AUGUST, 2020 PASSED
IN REGULAR APPEAL NO.52 OF 2018 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE, VIJAYAPUR ALLOWING THE
APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED
10TH AUGUST, 2018 PASSED IN ORIGINAL SUIT NO.649 OF
2013 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND
JMFC., VIJAYAPURA.
IN R.S.A. NO.7040 OF 2013
BETWEEN:
1. GURUBAI
W/O NAGAPPA ANABI
SINCE DECEASED BY LEGAL HEIRS.
1(a). SHIVAPPA
S/O NAGAPPA ANABI
AGE: 62 YEARS,
R/O SHIVANAGI,
BIJAPUR TALUK,
BIJAPUR DISTRICT - 586 101.
...APPELLANTS
(BY SRI. AJAY KUMAR A.K., ADVOCATE)
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AND:
1. NINGAPPA ADOPTED FATHER
BASAPPA ANABI
AGE: 33 YEARS,
OCC.:NIL,
R/O SHIVANAGI, BIJAPUR TALUK,
BIJAPUR DISTRICT - 586 101.
2. SMT. GIRIJABAI
W/O BAAPPA ANABI
AGE: MAJOR,
OCC.: HOUSEHOLD,
R/O SHIVANAGI, BIJAPUR TALUK,
BIJAPUR DISTRICT - 586 101.
3. THE DISTRICT EDUCATIONAL OFFICER (DDPI)
BIJAPUR - 586 101.
4. THE BLOCK EDUCATION OFFICER (BEO)
BASAVANA BAGEWADI,
BIJAPUR DISTRICT - 586 203.
...RESPONDENTS
(BY SRI. SUMAN S. SIDHAPURKAR, ADVOCATE FOR
SRI. R.S. SIDHAPURKAR, ADVOCATE FOR R2;
R1, R3 AND R4 SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST THE
JUDGMENT AND DECREE DATED 09TH JANUARY, 2013 PASSED
IN REGULAR APPEAL NO.41 OF 2010 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-II, BIJAPUR,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 24TH FEBRUARY, 2010 PASSED IN
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ORIGINAL SUIT NO.382 OF 2002 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE, BIJAPUR.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Regular Second Appeal No.200050 of 2021 is filed
challenging the judgment and decree dated 13th August,
2020 passed in Regular Appeal No.52 of 2018 on the file of
the I Additional Senior Civil Judge, Vijayapura (for short,
hereinafter referred to as 'First Appellate Court), modifying
the judgment and decree dated 10th August, 2018 passed
in Original Suit No.649 of 2013 on the file of the I
Additional Senior Civil Judge, Vijayapura, wherein the suit
filed by the plaintiff came to be decreed in part.
2. Regular Second Appeal No.7040 of 2013 is filed
challenging the judgment and decree dated 09th January,
2013 passed in Regular Appeal No.41 of 2010 on the file of
the Presiding Officer, Fast Tract Court-II, Bijapura,
dismissing the appeal and confirming the judgment and
decree dated 24th February, 2010 passed in Original Suit
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No.382 of 2002 on the file of the I Additional. Senior Civil
Judge, Bijapur, wherein the suit filed by the plaintiffs came
to be dismissed and counter claim of the defendant No.2 is
decreed in part.
3. Since, the subject matter of the suit and parties
in the suit are seeking partition and separate possession in
respect of the suit schedule properties and as such, the
appeals are clubbed together, heard and disposed of by
this common order.
4. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the Trial Court in Original Suit No.382 of
2002.
5. The plaint averments are that the deceased
Nagappa had three children namely, Basappa (since,
deceased, by his wife Smt. Girijabai-defendant No.2),
Shivappa (plaintiff No.1-A), and Bhimabai (plaintiff No.2).
It is stated that there was a dispute with regard to division
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of properties in joint family and as such, the plaintiffs have
filed suit in Original Suit No.382 of 2002, seeking relief of
partition and separate possession in respect of the suit
schedule properties.
6. After service of summons, defendants entered
appearance and filed written statement denying the plaint
averments. It is the contention of the defendants that the
suit schedule properties are the joint family properties and
therefore sought for equitable share in the suit schedule
properties.
7. On the basis of the rival pleadings, the Trial
Court has formulated issues for its consideration.
8. In order to establish their case, plaintiffs have
examined 3 witnesses as PW1 to PW3 and got marked 42
documents as Exhibits P1 to P42. On the other hand,
defendants examined 5 Witnesses as DW1 to DW5 and got
marked 12 documents as Exhibits D1 to D12.
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9. The Trial Court, after considering the material on
record, by its judgment and decree dated 24th February,
2010, dismissed the suit of the plaintiffs and allowed the
counter claim of the defendant No.2 in-part. Being
aggrieved by the same, plaintiffs have preferred Regular
Appeal No.41 of 2010 on the file of First Appellate Court
and the said appeal was resisted by the defendants. The
First Appellate Court, after re-appreciating the facts on
record, by its judgment and decree dated 09th January,
2013, dismissed the appeal and confirmed the judgment
and decree dated 24th February, 2010 passed by the Trial
Court in Original Suit No.382 of 2002. Being aggrieved by
the same, the appellant/plaintiffs have preferred Regular
Second Appeal No.7040 of 2012 under Section 100 of the
Civil Procedure Code.
10. The plaint averments in Original Suit No.649 of
2013 are that the plaintiff is the daughter of late Nagappa
and her brothers are Shivappa (defendant No.1), late
Basappa (husband of defendant No.2), and Bhimabai (died
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without leaving behind any children). Hence, plaintiff filed
suit seeking partition and separate possession in respect
of the suit properties, alleging that those properties are
the joint family properties of the plaintiff and defendants.
11. After service of summons, defendant No.1-
Shivappa entered appearance and took up a contention
that the schedule property bearing Survey No.536/2B of
the Shivanagi Village, Bijapur Taluk is the self acquired
property of the defendant No.1 having purchased the
same from one Khasimsab s/o Dastagirsab. Defendant
No.2 filed separate written statement denying the entire
averments in the plaint.
12. On the basis of the rival pleadings, the Trial
Court has formulated issues for its consideration.
13. In order to establish the case, plaintiff herself
was examined as PW1 and got marked 8 documents as
Exhibits P1 to P8. On the other hand, defendant No.2 was
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examined as DW1 and produced 6 documents as Exhibits
D1 to D6.
14. The Trial Court, after considering the material on
record, by its judgment and decree dated 10th August,
2018, decreed the suit of the plaintiff in-part, holding that
the plaintiff is entitled for one-sixth share in the suit
schedule properties. Being aggrieved by the same, the
plaintiff has preferred Regular Appeal No.52 of 2018 on
the file of First Appellate Court and the said appeal was
resisted by the defendants. The First Appellate Court,
after re-appreciating the facts on record, by its judgment
and decree dated 13th August, 2020 allowed the appeal
holding that the plaintiff is entitled for one-third share in
the 'B' schedule properties. Being aggrieved by the same,
the appellant/defendant No.1-Shivappa has preferred
Regular Second Appeal No.200050 of 2021 under Section
100 of the Civil Procedure Code.
15. This Court, by order dated 09.04.2021,
formulated the following substantial question of law:
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"Whether, under the facts and circumstances
of the case, is it permissible of operation of two
decrees in respect of the very same suit properties
and between very same parties, but excluding one
of the coparceners?"
16. Having taken note of the pleadings on record,
the following substantial is framed:
"1) Whether, the defendant No.1-Shivappa
has proved that the land bearing Survey
No.536/2B of Shivanagi Village is a self
acquired property on his own earnings?
2) Whether modification of the share is
required?
3) What order?
17. Heard Sri. Ajay Kumar A.K., learned counsel
appearing for the appellant/defendant No.1-Shivappa and
Sri. Suman S. Sidhapurkar, learned counsel on behalf of
Sri. R.S. Sidhapurkar, appearing for respondent 2 and
perused the material on record.
18. Sri. Ajay Kumar A.K., learned counsel for the
appellants contended that the finding recorded by the
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Courts below that the land bearing Survey No.536/2B of
Shivanagi Village, Bijapur Taluk is the joint family property
of the parties is by ignoring the Exhibit P17-Sale Deed
dated 23rd July, 1984 produced before the Trial Court. It
is the categorical submission of Sri. Ajay Kumar A.K.,
learned counsel appearing for appellants that the
aforementioned property was purchased by the defendant
No.1-Shivappa on his own earnings and in this regard,
vendor and the witness to the Sale Deed dated 23rd July,
1984 (Exhibit P17) have been examined and accordingly,
sought for interference of this Court.
19. Per contra, Sri. Suman S. Sidhapurkar, learned
counsel appearing for respondent No.2 in Regular Second
Appeal No.7040 of 2013 argued that both the Courts
below have concurrently held that the land bearing Survey
No.536/2B of Shivanagi Village, Bijapur Taluk is the joint
family property, where the defendant No.1-Shivappa had
purchased the same out of the joint nucleus of the family
and therefore, sought for dismissal of the appeals.
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20. In the light of the submission made by learned
counsel appearing for the parties, undisputably, there are
three properties namely, two agricultural lands and one
house property. Undisputably, the plaintiff in Original Suit
No.649 of 2013 Mallawwa has not been made party in
Original Suit No.382 of 2002. In order to ascertain the
relationship between the parties, the genealogical tree is
reproduced as under:
Nagappa (Father of plaintiff)
(Died on 29.04.1998)
=
Gurubai (expired on 13.02.2006)
Basappa Shivappa Bheembai Mallavva
(Expired on) Defendant No.2 (expired on 26.06.2006) Plaintiff
27.08.2002)
= Girijabai D-2
21. Perusal of the above genealogical tree would
indicate that the original propositor Nagappa died on 29th
April, 1988 leaving behind his wife-Gurubai (died on 13th
February, 2006) and four children namely, Basappa,
Shivappa, Bhimabai and Mallavva. Basappa died leaving
behind his wife Smt. Girijabai. Bhimabai died on 26th
June, 2006, without leaving behind any legal
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representatives. Therefore, the property has to be
devolved amongst Basappa (husband of Girijabai),
Shivappa and Mallavva. The only question to be answered
as contended by the learned counsel appearing for the
appellants is with regard to land bearing Survey
No.536/2B of Shivanagi Village, Bijapur Taluk that the said
property has been purchased by Shivappa on his own
earnings or not. In this regard, I have carefully examined
Exhibit P17. The recital in the Exhibit P17-Sale Deed do
not depict the source of income and therefore, as the
other parties have questioned the veracity of the
contention raised by the defendant No.1-Shivappa, the
evidence of the parties would indicate that the PW1 in
Original Suit No.382 of 2002 deposed that the suit
property was purchased in the name of Shivappa as the
Basappa was working as Teacher in the school. It is also
forthcoming from the evidence that both the brothers
Shivappa and Basappa were in cultivation of the said land
together. In that view of the matter, as the appellants
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failed to establish the source of income on which the Sale
Deed said to have been executed on 23rd July, 1984,
where the Shivappa had purchased the land from
Khasimsab s/o Dastagirsab and therefore, the finding
recorded by both the Courts below that the plaintiff and
defendants are entitled for equal share in the suit schedule
property as the late Nagappa died behind three children
namely Basappa, Shivappa and Mallavva is just and
proper. Therefore, the substantial question of law favors
the respondents herein holding that the schedule
properties in the suit are the joint family properties of the
parties. In the result, I pass the following:
ORDER
1) Regular Second Appeals are dismissed;
2) Judgment and Decree dated 13th August,
2020 passed in Regular Appeal No.52 of
2018 on the file of the I Additional Senior
Civil Judge, Vijayapura and Judgment and
Decree dated 09th January, 2013 passed in
Regular Appeal No.41 of 2010 on the file of
the Presiding Officer, Fast Track Court-II,
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Bijapur are hereby confirmed except the
shares of the parities;
3) The defendant No.1-Shivappa, defendant
No.2-Girijabai w/o Basappa and plaintiff-
Mallawwa are entitled for one-third share in
all the suit schedule properties.
In view of the disposal of the appeals, pending IA's
stands dismissed.
Sd/-
JUDGE
ARK
