Karnataka High Court
Suvarna W/O Mahadev Udgatti vs Tangewwa W/O Basappa Dattawade on 20 February, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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RFA No. 100233 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
REGULAR FIRST APPEAL NO. 100233 OF 2014 (PAR)
BETWEEN:
1. SUVARNA W/O MAHADEV UDGATTI
AGE: 59 YEARS, OCC: H/W AND AGRICULTURE
R/O NANDIKURALI, TQ: RAIBAG,
DIST: BELGAUM-590001.
2. SMT. BIBA W/O NINGAPPA VEERABHADRA
AGE 54 YEARS, OCC: H/W AND AGRICULTURE,
R/O KHANAPUR, TQ: KHANAPUR,
DIST: BELGAUM-590001.
3. SUSHABAI W/O BABU KHOT
AGE: 52 YEARS, OCC: H/W AND AGRICULTURE,
R/O NIDASOSHI, TQ: RAIBAG,
DIST: BELGAUM-590001.
4. SMT. GODHA W/O BHARAMA KOTIWALE
AGE: 49 YEARS, OCC: H/W AND AGRICULTURE,
BHARATHI R/O JUGAL, TQ: ATHANI,
HM DIST: BELGAUM-590001.
5. VATSALA W/O SHANTU DATTAWADE
AGE: 46 YEARS, OCC: H/W AND AGRICULTURE,
R/O SHAMNEWADI, TQ. CHIKODI,
DIST: BELGAUM-590001.
6. MALAVVA SHRISHAIL KADAPURE
AGE: 43 YEARS, OCC: H/W AND AGRICULTURE,
R/O NANDIKURALI, TQ. RAIBAG,
DIST: BELGAUM-590001.
7. LAXMIBAI W/O BALU KHOT
AGE: 40 YEARS, OCC: H/W AND AGRICULTURE,
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RFA No. 100233 of 2014
R/O SHIVAPURWADI, TQ. CHIKODI,
DIST: BELGAUM-590001.
8. SMT. BHARATI W/O SHAMU PATIL
AGE: 38 YEARS, OCC: H/W AND AGRICULTURE,
R/O KEMPATTI, TQ: RAIBAG,
DIST: BELGAUM-590001.
...APPELLANTS
(BY SRI RAMESH I ZIRALI & SHIVARAJ S BALLOLI, ADVOCATE.)
AND:
1. SMT. TANGEWWA W/O BASAPPA DATTAWADE
AGE: 79 YEARS, OCC: H.W AND AGRICULTURE,
R/O NANDIKURALI, TQ. RAIBAG,
DIST BELGAUM-590001.
2. SMT. TAMMANNI S/O BASAPPA DATTAWADE
AGE: 45 YEARS, OCC: H/W AND AGRICULTURE,
R/O NANDIKURALI,
TQ: RAIBAG, DIST: BELGAUM-590001.
3. SMT. SHOBHA W/O SHIVAJI DATTAWADE
AGE: 39 YEARS, OCC: H/W AND AGRICULTURE,
R/O NANDIKURALI, TQ. RAIBAG,
DIST: BELGAUM-590001.
4. KUM. RAHUL S/O SHIVAJI DATTAWADE
AGE: 19 YEARS, OCC: H/W AND AGRICULTURE,
R/O NANDIKURALI,
TQ. RAIBAG, DIST: BELGAUM-590001.
5. SHRI. NAGAPPA S/O MALLAPPA DATTAWADE
SINCE DECEASED REP. BY HIS LR'S.
5(A) SMT. SIDDAWWA W/O MALLAPPA DATTAWADE,
AGE: 85 YEARS, OCC: AGRICULTURE
R/O NANDIKURALI,
TQ: RAIBAG, DIST: BELAGAVI - 590 001
5(B) SMT. SUSHAWWA W/O NAGAPPA DATTAWADE
AGE: MAJOR, OCC: AGRICULTURE
R/O NANDIKURALI,
TQ: RAIBAG, DIST: BELAGAVI - 590 001
5(C) SMT. LAXMIBAI W/O SHANKAR CHOUGALA
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RFA No. 100233 of 2014
AGE 28 YEARS, OCC: HOUSEHOLD
R/O NANDIKURALI,
TQ: RAIBAG, DIST: BELAGAVI - 590 001
5(D) SMT. BHARATI W/O MUTTAPPA HULLOLI,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O NANDIKURALI,
TQ: RAIBAG, DIST: BELAGAVI - 590 001
5(E) KUM. MAHANANDA D/O NAGAPPA DATTAWADE,
AGE: 20 YEARS, OCC: STUDENT,
R/O NANDIKURALI,
TQ: RAIBAG, DIST: BELAGAVI - 590 001
6. KRISHNA S/O MALLAPPA DATTAWADE
AGE: 66 YEARS, OCC:AGRICULTURE,
R/O NANDIKURALI,
TQ: RAIBAG, DIST: BELGAUM-590001.
7. IRAPPA S/O MALLAPPA DATTAWADE
AGE: 64 YEARS, OCC:AGRICULTURE,
R/O NANDIKURALI,
TQ. RAIBAG, DIST: BELGAUM-590001.
8. RAYAPPA S/O MALLAPPA DATTAWADE
AGE: 61 YEARS, OCC:AGRICULTURE,
R/O NANDIKURALI,
TQ: RAIBAG, DIST: BELGAUM-590001.
9. MAHADEV S/O MALLAPPA DATTAWADE
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O NANDIKURALI,
TQ: RAIBAG, DIST: BELGAUM-590001.
...RESPONDENTS
(BY SRI SHRIHARSH A NEELOPANT ADVOCATE FOR R5 (A TO E) & R6
TO R9);
R2, R3, R4 - NOTICE SERVED;
APPEAL AGAINST R1 ABATED;
R2 TO R4 ARE LRS OF DECEASED R1.)
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41
RULE 1 READ WITH SECTION 96 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED:31.10.2014, PASSED IN
O.S.NO.171/2010, ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC.,
RAIBAG BY ALLOWING THE TOP NOTED APPEAL TO MEET THE ENDS
OF JUSTICE AND EQUITY, AND ETC.,.
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RFA No. 100233 of 2014
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs are currently in appeal and they initiated a
suit in O.S.No.171/2010 for partition and separate possession
of their legitimate share in the suit schedule properties.
2. The case of the plaintiffs is that, one Basappa was
the propositus, and he died leaving behind plaintiffs No.1 to 8
and defendants No.1 to 4 as his legal heirs. There was an oral
partition between Basappa and his bahubands and as per the
partition, the suit lands were allotted to the share of Basappa
and some lands were allotted to the bahubands of Basappa.
Defendants No.5 to 9 illegally behind the back of defendants
No.1 to 4 got their names entered in the revenue records in
respect of the land bearing Sy.No.276/P1 allotted to the share
of Basappa. The suit schedule properties are the ancestral joint
family properties of the plaintiffs and defendants No.1 to 4. The
defendants having refused to accede to the request of the
plaintiffs to effect partition, the present suit is filed.
3. The defendants No.1 to 4 entered appearance and
filed the written statement supporting the case of the plaintiffs.
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Defendants No.5 to 9 entered appearance and filed written
statement stating that the plaintiffs are not entitled for share in
the property bearing R.S.No.276/P1 measuring 04 acres
contending that Basappa during his lifetime had exchanged the
said property with property bearing R.S.No.241/6 measuring 24
guntas. Therefore sought for dismissal of the suit insofar it
relates to the said property.
4. The trial Court after reviewing the pleadings of the
parties, framed the following issues:
ISSUES
i) Whether plaintiffs prove that, the suit
acres out of 26 acres 7 guntas is also the
joint family property of themselves and
defendant No.1 to 4 as alleged?
ii) Whether defendants No.5 to 9 prove that, the
suit property at R.S.No.276/P1 has been
given to them in exchange of the land at
R.S.No.241/6 as contended by them?
iii) Whether defendant No.5 to 9 prove that they
have perfected their title over suit 4 acre 1
gunta of land out of R.S.No.276/P1 by way of
adverse possession?
iv) Whether suit suffers from non-joinder of
necessary parties?
v) Whether suit suffers from non inclusion of all
the family properties?
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vi) Whether valuation of the suit properties and
the court fees paid thereon is not proper?
vii) Whether plaintiffs are entitled for the reliefs
sought?
viii) What decree or order?
5. The plaintiffs to prove their case examined PW.1
and marked documents Exs.P.1 to P.11. The defendants No.5
to 9 examined DW.1 and DW.2 and marked documents at
Ex.D.1 to D.45. The trial Court after appreciating the evidence
on record, recorded the finding that the suit schedule
properties except land bearing R.S.No.276/P1 measuring 04
acres are the joint family properties and the plaintiffs are
entitled for 1/44th share in the suit properties. Being aggrieved
by the impugned judgment and decree, insofar it relates to
refusing to allot share in R.S.No.276/P1 measuring 04 acres,
the plaintiffs are before this Court.
6. Heard the learned counsels for the parties and
perused the trial Court records.
7. To substantiate that the plaintiffs are not entitled
for share in R.S.No.276/P1 measuring 04 acres, defendants
No.5 to 9 produced the Exchange Deed dated 12.01.1980 at
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Ex.D.43, by which, deceased Basappa i.e., propositus and
defendants No.5 to 9 agreed to exchange the said property
with the property bearing R.S.No.241/6 measuring 24 guntas
and in pursuance of the Exchange Deed, which was
unregistered, the names of defendants No.5 to 9 were mutated
in the revenue records in respect of land bearing
R.S.No.276/P1 measuring 04 acres and similarly the name of
deceased Basappa was mutated in the revenue records in
respect of the land bearing R.S.No.241/6 measuring 24 guntas.
8. The perusal of Ex.D.43 indicated that the parties
had agreed to execute a registered exchange deed. Though the
exchange deed is required to be registered as stated under
section 17 of the Registration Act, that would not alone
invalidate the exchange which is acted upon by the deceased
Basappa and defendants No.5 to 9 in respect of the properties
which are the subject matter of the Exchange Deed, and also
joint wardi given by deceased Basappa and defendants No.5 to
9 to mutate the names of the defendants No.5 to 9 in the
revenue records. The defendants No.5 to 9 have also
mortgaged the R.S.No.276/P1 with the State Bank of India
towards security for repayment of loan, which is evident from
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Ex.D.17 to D.22 and Ex.D.23 and also obtained loan from PLD
Bank and State Bank of Mysore.
9. The revenue records coupled with the documents at
Ex.D.17 to D.23 establishes that the defendants No.5 to 9 are
in exclusive possession and enjoyment of the land bearing
R.S.No.276/P1 since the date of exchange deed came into
existence. The plaintiffs have also not included the land bearing
R.S.No.241/6 measuring 24 guntas which is standing in the
name of defendants No.2 and 3 who are jointly in possession
with the plaintiffs and therefore the property having not been
included in the suit for partition, the claim of the plaintiffs for
legitimate share in R.S.No.276/P1 is not maintainable.
10. I do not find any illegality in the impugned
judgment and decree passed by the trial Court so far it relates
to refusing to allot share in R.S.No.276/P1. Accordingly the
appeal stands dismissed.
Sd/-
JUDGE
MRK
CT:CNB
