Karnataka High Court
Dinkar Tambekar S/O Dadu Tambekar vs Sunil Khavare S/O Krishna Khavare on 27 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:4575
RSA No. 100196 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 100196 OF 2015 (PAR)
BETWEEN:
DINKAR TAMBEKAR S/O DADU TAMBEKAR,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: GAYAKWADI ARJUN (NIPANI),
TQ: CHIKODI, DIST: BELAGAVI.
...APPELLANT
(BY SRI NEELENDRA.D.GUNDE, ADVOCATE)
AND:
1. SUNIL KHAVARE S/O KRISHNA KHAVARE,
SUJATA AGE: 45 YEARS, OCC: AGRICULTURE,
SUBHASH R/O: GAYAKWADI, TQ: CHIKODI,
DIST: BELAGAVI 590 001
PAMMAR
Digitally signed by
2. ANIL KHAVARE S/O KRISHNA KHAVARE,
SUJATA SUBHASH AGE:64 YEARS, OCC:AGRICULTURE,
PAMMAR
Date: 2024.03.03
R/O: GAYAKWADI, TQ: CHIKODI,
23:15:08 -0800 DIST: BELAGAVI 590 001
3. SANJAY KHAVARE,
SINCE DEAD BY HIS L.R.S.,
3A. SAVITA KHAVARE,
S/O. SANJAY KHAVARE
AGE: 38 YEARS, OCC:HOUSEHOLD,
R/O: GAYAKWADI POST ARJUN (NIPANI),
TQ: CHIKODI, DIST: BELAGAVI-590 001
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NC: 2024:KHC-D:4575
RSA No. 100196 of 2015
3B. KU. SONYA KHAVARE,
S/O. SANJAY KHAVARE.
AGE: 15 YEARS, MINOR,
M/G: BY COURT, SHRI. A.B.PATIL,
ADVOCATE-NIPANNI,
R/O: GAYAKWADI, POST ARJUN (NIPANI),
TQ: CHIKODI, DIST: BELAGAVI-590 001
3C. KU. ANKITA KHAVRE D/O SANJAY KHAVARE,
AGE: 15 YEARS, MINOR,
M/G: BY COURT, SHRI. A.B. PATIL
ADVOCATE: NIPANNI
R/O:GAYAKWADI,
TQ:CHIKODI, DIST: BELAGAVI-590 001
4. SMT.SHEVANTA KHAVARE
W/O KRISHNA KHAVARE,
AGE: 60 YEARS, OCC: HOUSEWIFE,
R/O: GAYAKWADI, TQ: CHIKODI-590 001
...RESPONDENTS
(BY SRI VIJAYKUMAR B HORATTI, ADVOCATE FOR R1, R3 (A & C),
R4;
R3 (B) AND R3(C) ARE MINORS, REPRESENTED BY R3(A);
R2 - NOTICE SERVED.)
THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO ALLOW
THIS REGULAR SECOND APPEAL BY SETTING ASIDE THE JUDGMENT
PASSED BY THE CIVIL JUDGE SENIOR DIVISION, CHIKODI, IN CIVIL
MISC NO.29/2013 DATED 03.12.2014, THEREBY DISMISSING THE
APPEAL FILED BY THE APPELLANT ON THE GROUND OF DELAY AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 09.10.2012
PASSED BY THE LEARNED ADDL. CIVIL JUDGE AND JMFC, NIPANNI,
IN O.S.NO.91/2005, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:4575
RSA No. 100196 of 2015
JUDGMENT
This regular second appeal is filed by defendant No.5
challenging the order dated 03.12.2014, passed in Civil Misc.
No.29/2013, by the Senior Civil Judge, Chikkodi, and the
judgment and decree dated 09.10.2012, passed in
O.S.No.91/2005, by the Addl. Civil Judge and JMFC, Nipani.
2. For the purpose of convenience, the ranking of the
parties is referred as per their status before the trial Court.
3. The plaintiff has filed a suit for partition and for
possession by metes and bounds before the trial Court. The
trial Court has decreed the suit granting share to the plaintiff.
4. In the suit the defendants are placed ex-parte.
Defendant No.5 (appellant herein) was also placed ex-parte.
Therefore an ex-parte judgment and decree was passed against
the defendants.
5. Defendant No.5 has challenged the said ex-parte
judgment and decree before the first appellate Court by filing
petition under Order 41 Rule 1 of CPC praying to set aside the
judgment and decree passed by the trial Court. The said Civil
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Miscellaneous Petition was dismissed. Therefore, defendant
No.5 is before this Court in this second appeal.
6. Heard the arguments of the learned counsels
appearing for both the parties and perused the records.
7. Learned counsel for the appellant submitted that no
notice has been served on defendant No.5, otherwise, if notice
has been served on defendant No.5, then he would have
appeared and contested the suit; but by showing that
defendant No.5 has refused to receive notice, ex-parte
judgment and decree has been passed. Challenging the same,
Civil Miscellaneous Petition was preferred under Order 41
Rule 1 of CPC with delay of 225 days; but the said Civil
Miscellaneous Petition was rejected by the first appellate Court
for the reason that there is delay in preferring the Civil
Miscellaneous Petition.
8. It is contended by defendant No.5 that there was
earlier partition between plaintiff and defendants No.1 to 4 and
defendant No.1 has got his share in the partition. Accordingly
defendant No.1 has sold his property to defendant No.5. He
further submitted that the suit schedule property purchased by
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defendant No.5 is self acquired property of defendant No.1. It
is further submitted that defendant No.1 has sold the property
to defendant No.5 for his family and legal necessities.
Therefore, in order to establish these two factors, defendant
No.5 has evidence, but he was wrongly placed ex-parte.
Therefore he prays to remand the case to the trial Court for
fresh consideration.
9. On the other hand, learned counsel for respondents
submitted that the sale deed executed by defendant No.1 in
favour of defendant No.5 is not binding on the plaintiff and
other coparceners and selling of the property is not for family
and legal necessities. He further submitted that there is no
earlier partition. Hence the trial Court is justified in decreeing
the suit and is rightly confirmed by the first appellate Court.
Hence, prays to dismiss the second appeal.
10. Upon hearing the learned counsels for both the
parties and perusal of the records, the following substantial
question of law arises for consideration.
Whether, in the facts and circumstances
involved in the case, the trial Court as well as the
first appellate Court are justified in decreeing the
suit placing defendant No.5 ex-parte?
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11. In the present case defendant No.5 is contending
that there was an earlier partition and in the said partition
defendant No.1 has got his share and that his share was sold to
defendant No.5. In this regard learned counsel for defendant
No.5/appellant submitted that there was a partition deed,
which is in Marathi Language and because defendant No.5 was
placed ex-parte, he could not produce the same before the trial
Court.
12. It is further submitted that defendant No.1 has sold
the property for family and legal necessities. Therefore,
defendant No.1 has absolute right and in the interest of family
the said property was sold out.
13. Therefore considering this, even though defendant
No.5 might have been placed ex-parte by accepting the
endorsement that defendant No.5 refused to receive the notice,
but when postman or bailiff or process server have gone to
service of notice, there might have been chances of showing
refused to receive the notice by any other family members in
the family. Then issuance of notice could not be in the
knowledge of defendant No.5. This is one of the circumstances
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to be taken judicial notice of it. It is the case of defendant No.5
that there was earlier partition in the family and whatever
share was given to defendant No.1, that is sold to defendant
No.5. Further, whether defendant No.1 has legal and family
necessity is also to be considered. Both these factors are to be
decided on the facts. But defendant No.5 was not able to
contest the suit in the circumstances discussed above.
14. Therefore, answering the substantial question of
law in the negative, the matter is required to be remanded to
the trial Court for fresh consideration insofar as in the facts
whether there was earlier partition in the family of plaintiff and
defendants No.1 to 4 and whether defendant No.1 has sold the
property for legal and family necessities. Therefore the trial
Court is required to consider the matter on these two facts and
dispose of the case on merits in accordance with law. Hence, I
pass the following:
ORDER
i) The appeal is allowed.
ii) The order dated 03.12.2014, passed in Civil Misc.
No.29/2013, by the Senior Civil Judge, Chikkodi, and the
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judgment and decree dated 09.10.2012, passed in
O.S.No.91/2005, by the Addl. Civil Judge and JMFC, Nipani, are
set aside.
iii) The matter is remanded to the trial Court. All the
parties in the suit shall appear before the trial Court on
14.03.2024 without expecting notice from the trial Court
iv) The trial Court to dispose of the matter within a
period of six months thereafter.
v) Both the parties are at liberty to adduce any oral or
documentary evidence or both, if they are so advised.
vi) All contentions are left open.
vii) Send back the records to the Courts concerned.
Sd/-
JUDGE
MRK
CT:ANB
