Karnataka High Court
Babu Jaiwanth Mirashi vs Pitambar S/O Somanna Mirashi on 12 January, 2024
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RSA No. 100116 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100116/2015(PAR)
BETWEEN:
BABU JAIWANTH MIRASHI,
AGE:42 YEARS, OCC:AGRICULTURE,
R/O: MUNDWADA VILLAGE,
TQ: HALIYAL, DIST: KARWAR - 581 329.
...APPELLANT
(BY SRI VINAY S. KOUJALAGI, ADVOCATE)
AND:
1. PITAMBAR S/O. SOMANNA MIRASHI,
AGE: 51 YEARS, OCC:AGRICULTURE,
R/O: MUNDWAD VILLAGE,
TQ: HALIYAL, DIST: KARWAR - 581 329.
2. MARUTI S/O. SOMANNA MIRASHI,
AGE: 36 YEARS, OCC:AGRICULTURE,
R/O: MUNDWAD VILLAGE,
Digitally TQ: HALIYAL, DIST: KARWAR - 581 329.
signed by
ROHAN
HADIMANI 3. RAMESH S/O. SOMANNA MIRASHI,
T AGE:41 YEARS, OCC:AGRICULTURE,
R/O: MUNDWAD VILLAGE,
TQ: HALIYAL, DIST: KARWAR - 581 329.
4. SMT. SANGEETHA YAJAPPA YAMANAPPAVAR,
AGE: 30 YEARS, OCC: HOUSE HOLD,
R/O: MUNDWAD VILLAGE,
TQ: HALIYAL, DIST: KARWAR - 581 329.
5. NAMDEV LAXMAN MARATI,
AGE: 23 YEARS, OCC: HOUSE HOLD,
R/O: MUNDWAD VILLAGE,
TQ: HALIYAL, DIST: KARWAR - 581 329.
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RSA No. 100116 of 2015
6. SRIDEVI LAXMAN MARATI,
AGE: 23 YEARS, OCC: HOUSEHOLD,
R/O: MUNDWAD VILLAGE,
TQ: HALIYAL, DIST: KARWAR - 581 329.
7. SAHADEV LAXMAN MARATI,
AGE: 18 YEARS, OCC: HOUSEHOLD,
R/O: MUNDWAD VILLAGE,
TQ: HALIYAL, DIST: KARWAR - 581 329.
8. MAHADEV FAKIRA MIRASHI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: MUNDWAD VILLAGE,
TQ: HALIYAL, DIST: KARWAR - 581 329.
9. SHANKAR FAKIRA MIRASHI,
SINCE DECEASED BY HIS LR'S.
9A. SMT. LAXMI W/O. RAMANNA PUJARI,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: JOIDA, TQ: JOIDA, DIST: KARWAR.
9B. SRI MASANU S/O. SHANKAR MIRASHI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: MUNDWAD,
TQ: HALIYAL, DIST: KARWAR.
9C. DEMANNA S/O. SHANKAR MIRASHI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: MUNDWAD, TQ: HALIYAL,
DIST: KARWAR.
9D. MANISHA W/O. MAHESH BARAGUNDI,
AGE: 35 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SAMBAJI ROAD, ALNAVAR,
TQ: DHARWAD, DIST: DHARWAD.
10. PARASHURAM FAKIRA MIRASHI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: MUNDWAD VILLAGE,
TQ: HALIYAL, DIST: KARWAR - 581 329.
11. BASAVANT RAMANNA MIRASHI,
AGE: 56 YEARS, OCC:AGRICULTURE,
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RSA No. 100116 of 2015
R/O: MUNDWAD VILLAGE,
TQ: HALIYAL,
DIST: KARWAR - 581 329.
12. NARAYAN RAMANNA MIRASHI,
AGE: 46 YEARS, OCC:AGRICULTURE,
R/O: MUNDWAD VILLAGE,
TQ: HALIYAL, DIST: KARWAR - 581 329.
...RESPONDENTS
[BY KUMARI SURABI KULKARNI, ADVOCATE FOR R1 TO R3;
R4 TO R8, R10 TO R12 ARE SERVED;
SRI M.L.VANTI, ADVOCATE FOR R9 (A TO D)]
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 30.06.2014 PASSED IN R.A.NO.19/2009 ON THE
FILE OF THE SENIOR CIVIL JUDGE YELLAPUR SITTING AT HALIYAL,
DISMISSING THE APPEAL, AND CONFIRMING THE JUDGMENT AND
DECREE DATED 09.02.2009 AND THE DECREE PASSED IN
O.S.NO.141/2008 ON THE FILE OF THE CIVIL JUDGE (JR.DN)
HALIYAL, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100116 of 2015
JUDGMENT
This regular second appeal is filed by the plaintiff in
O.S.No.141/2008 on the file of the Civil Judge (Jr.Dn.),
Haliyal, Uttar Kannada (hereinafter referred to as the 'trial
Court') challenging the judgment and decree dated
30.06.2014 passed by the Senior Civil Judge Yellapur
sitting at Haliyal (hereinafter referred to as the 'First
Appellate Court') in R.A.No.19/2009 by which, it modified
the judgment and decree dated 09.02.2009 passed by the
trial Court in O.S.No.141/2008 and declared that the
plaintiff, his mother and sisters together were entitled to
1/3rd share in the suit properties and since the plaintiff, his
mother and sisters had sold the entire extent in Block
No.91/2 of Joginakoppa village, the said land should be
allotted to their shares towards equalization by the final
decree Court.
2. The suit in O.S.No.141/2008 was filed for
partition and separate possession of the suit schedule
properties. The plaintiff claimed that his grandfather was
the propositus of the joint family who died on 24.02.1942
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leaving behind his three children namely Jaiwanth,
Fakeera and Ramanna. The father of the plaintiff was
Mr. Jaiwanth Mirashi. The father of the plaintiff died 12
years prior thereto while his uncle Fakeera died 30 years
prior thereto leaving behind the defendant Nos.1 to 4
while Ramanna died 12 years prior thereto leaving behind
defendant Nos.5 and 6. The plaintiff claimed that all the
suit properties were the joint family ancestral properties
and that no partition was effected in respect of the said
properties. He claimed that schedule 'A' and 'B' properties
were granted in the name of his father and two brothers of
his father namely Fakeera and Ramanna in terms of an
order dated 27.08.1977 while he claimed that schedule 'C'
to 'E' properties were the ancestral properties and that he
was entitled to an undivided 1/3rd share in the same.
3. Defendant Nos.1 to 4 were placed exparte.
Defendant Nos.5 and 6 contested the suit by filing their
statements. They claimed that, apart from the suit
properties, the property bearing No.4 of Gadiyal Village,
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Block No.76 and 65 of Mundawada Village and Block
No.91/2 of Joginakoppa Village were not specifically
included in the suit. They claimed that the said properties
were partitioned and the suit 'A' and 'B' properties were
also partitioned equally. The suit 'E' and 'D' properties
were allotted to the share of their father. Suit 'C' property
was allotted to the share of the father of defendant Nos.1
to 4 and Block NO.91/2 of Joginakoppa Village was allotted
to the share of the father of the plaintiff. They claimed
that, after the death of the father of the plaintiff, he, his
mother and sisters sold the said property on 05.05.1998.
Thus, they claimed that the plaintiff is not entitled to again
claim for partition. Based on these contentions, the trial
Court framed the following issues:
"1. Whether the plaintiff proves that the suit properties are
joint family properties and he is entitled to 1/3rd share in
the suit property?
2. Whether the defendants No.5 and 6 prove that plaintiff
has not mentioned the Block No.91/2 of Joginakoppa
village intentionally in this suit?
3. Whether the defendant No.5 and 6 proves that partition
had already taken place in respect of suit properties and
other properties among the family members of plaintiff
and themselves?
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4. Whether the plaintiff is entitled for the relief as prayed
for?
5. What order or decree?"
4. The plaintiff was examined as PW1 and he
marked Exs.P1 to P14. Defendant No.5 was examined as
DW1 and he marked Exs.D1 to D16.
5. Based on the oral and documentary evidence,
the trial Court held that the plaintiff had proved that all
the suit properties belonged to the family and that the
plaintiff and defendants were entitled to 1/3rd share in all
the suit properties. It thus, decreed the suit and declared
that the plaintiff and defendants are entitled to 1/3rd share
in all the suit properties.
6. Being aggrieved by the said judgment and
decree, the legal representatives of defendant No.1 and
defendant Nos.5 & 6 filed R.A.No.19/2009 before the First
Appellate Court. They contended that the land bearing
Block No.91/2 of Joginakoppa Village which was not
included in the suit for partition was also a property which
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belonged to the joint family which was sold by the plaintiff
along with his mother and sisters and therefore, the said
property also had to be included and to be allotted to the
share of the plaintiff and adjusted against his share in the
other suit schedule properties. The First Appellate Court
perused the evidence on record and in terms of its
judgment and decree dated 30.06.2014 allowed the
appeal in part and modified the judgment and decree
passed by the trial Court and held that the plaintiff, his
mother and sisters were entitled to 1/3rd share in the suit
schedule property and also held that the plaintiff is entitled
to 1/3rd share in the land bearing Block No.91/2 of
Joginakoppa Village.
7. Having regard to the fact that the plaintiff, his
mother and sisters had sold the entire extent in Block
No.91/2, the First Appellate Court directed that the said
land shall be allotted to their share while passing a final
decree. Being aggrieved by the same, the plaintiff has filed
this regular second appeal.
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8. Learned counsel for the appellant/plaintiff
contended that the land bearing Block No.91/2 of
Joginakoppa Village was not the suit schedule property as
it was disposed off in the year 1998 when the family was
joint and the proceeds of sale was utilized for the well
being of the family. He therefore contends that the said
property cannot be allotted to the share of the plaintiff. He
submitted that plaintiff is entitled to 1/3rd in all the suit
schedule properties and the judgment and decree passed
by the First Appellate Court directing the land bearing
Block No.91/2 to be allotted to the share of the plaintiff for
equalization of his share is improper and warrants
interference. He also contends that the defendants claimed
that there was a partition in the family in terms of which
the land bearing Block No.91/2 was allotted to the share of
the plaintiff and contended that the defendants miserably
failed to prove the said fact.
9. A perusal of the evidence on record which is
noticed by the First Appellate Court indicates that the
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plaintiff did admit that the land bearing Block No.91/2 was
a property belonging to the joint family. He also admitted
that he, his mother and sisters had sold the said property
in the year 1998. There is no evidence that the defendants
had consented to sell the property to meet any legal
necessities. Therefore, there is no error committed by the
First Appellate Court in directing the allotment of 3 acres
21 guntas of land in Block No.91/2 of Joginakoppa Village
towards 1/3rd share of the plaintiff for the purposes of
determining his entitlement in all the suit schedule
properties. There is no error committed by the First
Appellate Court in moulding the relief so as to workout
equities in between the plaintiff and defendants. In that
view of the matter, no substantial question of law would
arise for consideration in this appeal and hence it is
dismissed.
SD/-
JUDGE
RH
CT-ASC
