Karnataka High Court
Smt Gangawwa vs Prabhugouda on 8 January, 2024
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RSA No. 963 of 2007
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.963 OF 2007 (PAR)
BETWEEN:
1. SMT. GANGAWWA
W/O GURAPPAGOUDA PATIL,
AGE: 65 YEARS, OCC: H.H. WORK,
R/O MUDUR, TQ. MUDDEBIHAL,
SINCE DECEASED
1A SANGAMMA D/O GURUPPAGOUDA PATIL
W/O SHIVAGOUDA KALAGI,
AGE: 63 YEARS, OCC: HOUSEHOLD,
1B HANUMANGOUDA S/O GURUPPAGOUDA PATIL,
AGE: 61 YEARS, OCC: AGRICULTURE,
BOTH ARE R/O MUDUR,
Digitally signed
by SACHIN TQ. MUDDEBIHAL.
Location: HIGH
COURT OF
KARNATAKA 2. SMT SHAVANTRAWWA
W/O CHANNABASAPPAGOUDA GOUDAR,
AGE: 66 YEARS, OCC: H.H. WORK,
R/O DOMANAL, TQ. & DIST. BAGALKOT.
...APPELLATNS
(BY SRI. SHIVANAND PATIL, ADVOCATE)
AND:
1. PRABHUGOUDA
S/O BASANAGOUDA KALAGI,
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RSA No. 963 of 2007
AGE: 36 YEARS, OCC. GOVT. SERVICE,
R/O KALAGI, TQ. MUDDEBIHAL,
DIST. VIJAYAPUR-586 212.
2. SHIVANAGOUDA
S/O SIDDANAGOUDA KALAGI,
SINCE DECEASED BY HIS LRS
2A. SMT. SANGAMMA W/O SHIVANAGOUDA KALAGI,
AGE: 55 YEARS, OCC: H.H. WORK,
R/O KALAGI, TQ. MUDDEBIHAL,
DIST. VIJAYAPUR-586 212.
2B. AVVAPPAGOUDA SHIVANAGOUDA KALAGI,
AGE: 38 YEARS, OCC: AGRIUCLTURE,
R/O KALAGI, TQ. MUDDEBIHAL,
DIST. VIJAYAPUR-586 212.
2C. CHANDRASHEKHAR
S/O SHIVANAGOUDA KALAGI,
SINCE DECEASED BY HIS LRS
2(C)1 ANUSUYYA W/O CHANDRASHEKHAR KALAGI,
AGE: 35 YEARS, OCC: H.H. WORK,
2(C)2 LAXMIBAI D/O CHANDRASHEKHAR KALAGI,
AGE: 12 YEARS, MINOR, OCC: STUDENT,
2(C)3 VIJAYYA D/O CHANDRASHEKHAR KALAGI,
AGE: 12 YEARS, MINOR, OCC: STUDENT,
2(C) 2 TO 2(C) 3 THROUGH NEXT FRIEND
AND NATURAL MOTHER
ANSUYYA W/O CHANDRASHEKHAR,
ALL ARE R/O VILLAGE MONKANI,
TQ. & DIST. BAGALKOT.
2D. SMT.SUMITRA
W/O MALAGOUDA GOUDAR,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O DOMANAL, TQ. BAGALKOT.
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RSA No. 963 of 2007
2E. NEELAM W/O SANGANAGOUDA PATIL,
SINCE DEAD ALREADY ON RECORD AS
DEFENDANT RESPONDENT NO.4.
2F. SHANKARAGOUDA
S/O SHIVANAGOUDA KALAGI,
AGE: MAJOR, OCC: STUDENT,
R/O KALAGI, TQ. MUDDEBIHAL.
2G. CHANABASAPAGOUDA
S/O SHIVANAGOUDA KALAGI,
AGE: MAJOR, OCC: STUDENT,
R/O KALAGI, TQ. MUDDEBHIAL.
3. NAGANAGOUDA
S/O SIDDANAGOUDA KALAGI,
AGE: 62 YEARS, OCC: GOVT. SERVICE,
R/O KALAGI, TQ. MUDDEBIHAL.
4. SANGANAGOUDA
S/O GURAPPAGOUDA PATIL,
AGE: MAJOR, R/O MUDUR,
TQ. MUDDEBIHAL.
...RESPONDENTS
[SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE FOR R1 & R3;
SRI SANDDEP PATIL, ADVOCATE FOR R2 (A, E & F);
NOTICE TO R2(B), R2(C) (i), R2(D), R2(G) & R4 - SERVED;
R2(C) (ii) & R2 (C) (iii) ARE MINORS, REP. BY R2(C) (i)]
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
07-09-2006 PASSED BY THE CIVIL JUDGE (SR.DN.),
MUDDEBIHAL, IN REGULAR APPEAL NO.104/2001, UPHOLDING
THE JUDGMENT AND DECREE DATED 23.09.1998 PASSED BY
THE CIVIL JUDGE (JR.DVN.) MUDDEBIHAL, IN O.S.NO.65/1993
AND ALLOW THE APPEAL WITH COSTS THROUGHOUT.
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RSA No. 963 of 2007
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the plaintiffs/appellants,
challenging the judgment and decree dated 07.09.2006 in
R.A.No.104/2001 on the file of Civil Judge (Sr. Dn.),
Muddebihal, confirming the judgment and decree dated
23.09.1998 in O.S. No.65/1993 on the file of Civil Judge
(Jr. Dn.), Muddebihal, dismissing the suit of the plaintiffs.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiffs that, the suit
schedule properties are the ancestral properties of the
plaintiffs and defendants and they are in joint possession
and enjoyment of the properties in question. It is the case
of the plaintiffs that, the original propositus Ninganagouda
had two children by name, Chanabasappagouda (father of
the plaintiffs) and Siddanagouda (father and grand father
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of defendants). It is stated in the plaint that, as the
schedule properties are the ancestral properties, the
plaintiffs got half share in the suit schedule properties.
However, the defendants, without the consent of the
plaintiffs, based on the Watni dated 14.09.1948, changed
the mutation entries and feeling aggrieved by the same,
plaintiffs have filed O.S. No.65/1993, seeking half share in
the suit schedule properties.
4. After service of notice, defendants entered
appearance and filed detailed written statement and took
up a specific contention that, the father of plaintiffs by
name Chanabasappagouda had relinquished his right in
respect of one of the schedule properties and has sold the
remaining properties in favour of Siddanagouda (father
and grand father of defendants) and pursuant to the
same, mutation entries have been changed by the
competent revenue authorities. Accordingly, the
defendants sought for dismissal of the suit.
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5. Based on the pleadings on record, the Trial
Court framed the issues for its consideration.
6. In order to substantiate their case, plaintiffs
have examined 2 witnesses as PW.1 and PW.2 and got
marked 12 documents as Exs.P1 to P12. The defendants
have examined 4 witnesses as DW.1 to DW.4 and got
marked 44 documents as Exs.D1 to D44.
7. The Trial Court after considering the material on
record, by its judgment and decree dated 23.09.1998,
dismissed the suit and feeling aggrieved by the same, the
plaintiffs have filed R.A. No.104/2001 before the First
Appellate Court and the appeal was contested by the
defendants.
8. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
07.09.2006, dismissed the appeal and as such, confirmed
the judgment and decree passed by the Trial Court.
Feeling aggrieved by the same, the plaintiffs have
preferred this Regular Second Appeal.
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9. This Court, vide order dated 19.10.2022,
framed the following substantial question of law.
"1. Whether the Courts below having
held that there was a partition between the
father of the plaintiffs Channabasappagouda
and the father of defendant No.2 Siddanagouda
on 16.09.1948 erred in dismissing the suit by
placing reliance on mutation entries vide
Exs.D.1 and D.4 indicting that the plaintiffs'
father Channabasappagouda has relinquished
his share by receiving a sum of Rs.5,000/- and
Rs.10,000/- respectively?
2. Whether the Courts below erred in
dismissing the suit ignoring the settled
proposition of law that there cannot be a
relinquishment by way of Varadi and therefore,
the findings of the Courts below in dismissing
the partition suit by placing reliance on EXs.D.1
and D.4 suffers from serious perversity?"
10. I have heard Sri Shivanand Patil, learned
counsel appearing for the appellants, Smt. Ratna N.
Shivayogimath, learned counsel appearing for respondent
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Nos.1 and 3 and Sri Sandeep Patil, learned counsel
appearing for respondent Nos.2 (A, E and F).
11. Sri Shivanand Patil, learned counsel appearing
for the appellants contended that, both the Courts below
have not properly appreciated the material on record on
the ground that the entire case of the defendants revolves
around the relinquish deed said to have been executed by
Chanabasappagouda in favour Siddanagouda as well as
the sale transaction between themselves. However, the
defendants have not produced any documents to establish
the conveyance of the properties made between
Chanabasappagouda and Siddanagouda and accordingly,
sought for interference of this Court.
12. Per contra, Smt. Ratna N. Shivayogimath,
learned counsel appearing for respondent Nos.1 and 3 and
Sri Sandeep Patil, learned counsel appearing for
respondent Nos.2 (A, E and F) sought to justify the
impugned judgment and decree.
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13. Having heard the learned counsel appearing for
the parties, the core question to be answered in this
appeal is, whether the plaintiffs have made out a case for
interference?
14. In order to understand the relationship between
the parties, the genealogical tree is relevant for
adjudication of the dispute, which is extracted as under:
Ningangouda (dead)
Chanabasappagouda Siddanagouda
(dead) (died on 08.11.76)
Gangawwa Shavantrawwa
(Pltf.1) (Pltf.2)
Basangouda Nagangouda Basalingawwa
(Died on 28.10.83) (Deft.3)
Irawwa Shivangouda Neelagangawwa Mallawwa
(Wife) (Def.2)
Prabhugouda (Deft.1) Neelangouda
Vasant Sunanda
15. Perusal of genealogical tree would indicate that,
the original propositus Ninganagouda had two children by
name, Chanabasappagouda (father of the plaintiffs) and
Siddanagouda (father and grand father of defendants). It
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is not in dispute with regard to the fact that the properties
were ancestral properties of the plaintiffs and defendants.
The case of the defendants is that, the said
Chanabasappagouda had executed the relinquishment
deed insofar as property bearing Sy. No.24/2, item No.1 of
the plaint is concerned. It is also stated by the defendants
that, the said Chanabasappagouda had executed sale deed
in respect of remaining four properties. But, in order to
ascertain the said fact, the defendants have not produced
any registered relinquishment deed, nor registered sale
deed to establish the same made in favour of
Siddanagouda by Chanabasappagouda. In that view of
the matter, as there is no dispute with regard to the
relationship between the parties and the Nignanagouda
died leaving behind two children - Chanabasappadouga
and Siddanagouda, both the sons are entitled for half
share in the suit schedule properties.
16. Having taken note of the findings recorded by
the Courts below, both the Courts have misconstrued the
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pleading, records and evidence adduced by the parties.
The entire case was decided by both the Courts below
based on the mutation entries produced at Exs.D1, D3,
D20 and on the assumption that there is partition between
Chanabasapagouda and Siddanagouda on 14.09.1948.
Undisputably, no partition deed has been produced before
the Courts below. If at all any partition had been taken
place between the parties and the same is acted upon by
the parties, the defendants ought to have shown before
the Trial Court under what circumstances the mutation has
been made by the competent authorities. On careful
examination of Exs.P2 and D1, the entries have been
made based on the alleged partition deed dated
14.09.1948. In the absence of the said document, the
revenue authorities ought not to have entered the name of
Siddanagouda in the mutation register without giving an
opportunity of hearing to Chanabasappagouda. In that
view of the matter, as both the Courts below have
erroneously dismissed the suit of the plaintiffs without
appreciation of the material on record, I am of the view
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that, both the Courts below were erred in dismissing the
suit. Accordingly, both the Courts below have erred in
ignoring the material evidence on record produced by the
plaintiffs and the defendants fails to corroborate the
factum of partition said to have been made on
14.09.1948. In that view of the matter, as there is no
cogent evidence to establish the said partition took place
between the parties and as the defendants failed to
establish by producing the registered relinquishment deed
and the sale deed said to have been executed by the said
Chanabasappagouda in favour of Siddanagouda as alleged
in the written statement, following the declaration of law
made by the Hon'ble Apex Court in the case of Yellapu
Uma Maheswari and Another vs. Buddha
Jagadheeswararao and Others reported in (2015) 16
SCC 787, I am of the view that mere entry in the revenue
records would not confer any title to the defendants and in
that view of the matter, the plaintiffs have made out a
case for interference in this appeal. In the result, I pass
the following:
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ORDER
i. Appeal is allowed
ii. The judgment and decree dated 07.09.2006 in
R.A.No.104/2001 on the file of Civil Judge
(Sr. Dn.), Muddebihal and the judgment and
decree dated 23.09.1998 in O.S. No.65/1993
on the file of Civil Judge (Jr. Dn.), Muddebihal
are set aside.
iii. The suit of the plaintiffs is decreed as prayed in
the plaint.
Sd/-
JUDGE
LG
