Karnataka High Court
Smt.Shantavva W/O Mallappa ... vs Shri.Basappa W/O Yallappa Hallur on 28 February, 2024
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NC: 2024:KHC-D:4626-DB
RFA No. 100388 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100388 OF 2018 (PAR/POS)
BETWEEN:
SMT. SHANTAVVA
W/O. MALLAPPA ANTAKKANAVAR,
AGE: 56 YEARS,
OCC: HOUSE HOLD WORK,
R/O: HOOLI, TALUK: SOUNDATTI,
DIST: BELAGAVI-591126
...APPELLANT
(BY SRI.ANAND D.BAGEWADI, ADVOCATE)
AND:
1. SHRI. BASAPPA
W/O. YALLAPPA HALLUR,
SHIVAKUMAR
HIREMATH
AGE: 60 YEARS, OCC: AGRICULTURE,
Location: HIGH COURT
OF KARNATAKA
R/O: SULKATTI AGASI ONI,
DHARWAD BENCH
Date: 2024.03.06
10:21:25 +0530
MUNAVALLI, TALUK: SOUNDATTI,
DIST: BELAGAVI-591126.
2. PANCHAPA
S/O. YALLAPPA HALLUR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: SULKATTI AGASI ONI,
MUNAVALLI, TALUK: SOUNDATTI,
DIST: BELAGAVI-591126.
3. MALLAPPA
S/O. YALLAPPA HALLUR,
AGE: 46 YEARS, OCC: AGRICULTURE,
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NC: 2024:KHC-D:4626-DB
RFA No. 100388 of 2018
R/O: SULKATTI AGASI ONI,
MUNAVALLI, TALUK: SOUNDATTI,
DIST: BELAGAVI-591126.
4. SOMALINGAPPA
S/O. YALLAPPA HALLUR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. SULKATTI AGASI ONI,
MUNAVALLI, TALUK: SOUNDATTI,
DIST: BELAGAVI-591126.
5. SHIVANAND
S/O. IRAPPA HALLUR,
AGE: 16 YEARS, OCC: STUDENT,
SINCE MINOR
REPRESENTED BY HIS NATURAL FATHER
IRAPPA S/O. NAGAPPA HALLUR,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: SULKATTI AGASI ONI,
MUNAVALLI, TALUK: SOUNDATTI,
DIST: BELAGAVI-591126.
...RESPONDENTS
(BY SRI.SANTOSH B.RAWOOT, ADVOCATE FOR R2 AND R3;
NOTICT TO R5 IS SERVED;
NOTICE TO R1 AND R4 ARE HELD SUFFICIENT)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 26.06.2018 PASSED IN
O.S.NO.73/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE,
SAUNDATTI, REJECTING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
E.S. INDIRESH, J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:4626-DB
RFA No. 100388 of 2018
JUDGMENT
This First Appeal is preferred by plaintiff, challenging the
order dated 26th June 2018 passed in Original Suit No.73 OF
2014 on the file of the Senior Civil Judge, Saudatti (for short,
hereinafter referred to as 'Trial Court'), allowing I.A.No.15 filed
by the defendant Nos.3 and 4 under Order VII Rule 11(d) of
CPC, rejecting the plaint as not maintainable.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. It is the case of plaintiff that, plaintiff is the
daughter of Yallappa Shivappa Hallur and Kashavva Y. Hallur
(defendant No.1). It is further stated that, defendant Nos.2 to 5
are the brothers of the plaintiff. It is averred in the plaint that,
the suit schedule properties are the joint family properties of the
plaintiff and defendants and as such, the plaintiff made a claim
for her share in the joint family properties and same was denied
by the defendants, accordingly, plaintiff has filed
O.S.No.73/2014 on the file of the trial Court seeking relief of
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partition and separate possession in respect of the suit schedule
properties.
4. After service of notice, defendants entered
appearance and filed detailed written statement. The defendant
Nos.3 and 4 have taken a plea in the written statement that
there is already partition was effected through the registered
instrument on 23.07.2002 and accordingly sought for dismissal
of the suit as not maintainable on the ground that, the plaintiff
has no locus standi to seek partition in the schedule properties.
The defendant Nos.3 and 4 have filed application in I.A.No.15
under Order VII Rule 11(d) of CPC, seeking rejection of plaint on
the ground that, there is no cause of action to prefer the suit
seeking partition and separate possession as the suit schedule
properties have already been devolved among the joint family
members as per registered partition deed dated 22.07.2002.
The said application was resisted by the plaintiff.
5. In order to establish their case, plaintiff herself was
examined as PW-1 and produced 27 documents, which were
marked as Exhibits P1 to P27. On the other hand, no oral and
documentary evidence was adduced by the defendants.
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6. The Trial Court after considering the material on
record, allowed I.A.No.15 filed by the defendant Nos.3 and 4,
consequently rejected the plaint by order dated 26.06.2018.
Feeling aggrieved by the same, the plaintiff has preferred the
present appeal.
7. We have heard Sri. Anand D. Bagewadi, learned
counsel appearing for appellant; Sri. Santosh B. Rawoot, learned
counsel appearing for respondent Nos.2 and 3.
8. Sri. Anand Bagewadi, learned counsel appearing for
appellant contended that the appellant has filed an application
seeking amendment of the plaint inter alia questioning the
earlier partition deed dated 22.07.2002 and the said aspect was
not considered by the trial Court as the said registered partition
deed is not applicable to the plaintiff. He further contended that,
mere registration of the partition deed ipso facto do not deprive
the legitimate share of the plaintiff and therefore, learned
counsel appearing for the appellant sought for interference of
this Court.
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9. Per contra, Sri. Santosh Rawoot, learned counsel
appearing for respondent Nos.2 and 3 supported the impugned
order passed by the Trial Court and sought for dismissal of the
appeal.
10. Having heard the learned counsel appearing for the
parties, we have given our anxious consideration to the grounds
urged in the memorandum of appeal and perused the original
records and thereby we thought it fit that the following points
arise for consideration in this appeal;
1) Whether the finding recorded by the Trial Court
based on registered partition deed dated 22.07.2002 is
just and proper?
2) Whether the trial Court is justified in rejecting the
plaint as the plaintiff has no cause of action in the suit ?
3) What order?
11. Having taken note of the submissions made by
learned counsel appearing for the parties and in order to
understand the relationship between the parties, the following
genealogical tree reads as follows:
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Yallappa Shivappa Hallur (died)
(Wife - Kashavva-D1)
Basappa Shantavva Panchcappa Mallappa Somalingappa
(D2) (Pltff) (D3) (D4) (D5)
12. On perusal of the genealogical tree, the same would
indicate that plaintiff and defendant Nos.2 to 5 are the children
of Yallappa Shivappa Hallur and Kashavva Y. Hallur (defendant
No.1). It is not in dispute that, the suit schedule property is the
joint family property of the parties, however, on perusal of the
records it would indicate that, there was partition between the
parties and the same was registered on 22.07.2002. The
contesting defendants have placed registered sale deeds dated
23.04.2007 and 16.06.1998 in which the suit schedule
properties have been sold in favour of the contesting defendants
pursuant to the execution of the partition deed dated
22.07.2002. In that view of the matter, taking into account the
declaration of law made by the Hon'ble Apex Court in the case of
Vineeta Sharma Vs. Rakesh Sharma and others, reported in
AIR 2020 SC 3717, we are of the opinion that, the contentions
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raised by the learned counsel appearing for the appellant cannot
be accepted.
13. It is also pertinent to mentionhere that, the
registered partition deed was executed on 22.07.2002 and suit
was filed during 2014, which would makes it clear that it is the
after thought of the plaintiff to claim suit schedule properties,
subsequent to the execution of the registered partition deed
dated 22.07.2002 and that apart, the schedule properties have
been sold in favour of the contesting defendants and in that
view of the matter, the finding recorded by the trial Court that
there is no cause of action for filing suit by the plaintiff seeking
relief of partition and separate possession in respect of the suit
schedule property, is just and proper and there is no perversity
in the impugned order.
14. We are also conscious of the fact that, while
considering the application filed under Order VII Rule 11(d) of
CPC, the jurisdictional Court is required to look into the
averments made in the plaint alone, however, in the present
case, the plaintiff herself has filed an application challenging the
registered partition deed itself, would indicate the fact of
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execution of the registered partition deed and therefore, the
impugned order passed by the trial Court allowing the
application filed by the defendant Nos.3 and 4 is just and proper
and therefore, the appellant has not made out a case for
interference in this appeal. Points for consideration referred to
above favours the defendants.
In the result, the appeal fails.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
