Karnataka High Court
Shri. Ramappa S/O Siddappa Dange vs Smt. Gourawwa W/O Siddappa Kalliguddi on 9 January, 2024
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RFA No. 100061 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100061 OF 2018 (PAR/POS)
BETWEEN:
1. SHRI. RAMAPPA S/O. SIDDAPPA DANGE
AGED: 57 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELAGAVI-591317.
2. SHRI. LAXMAN SIDDAPPA DANGE
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELAGAVI-591317.
3. SHRI. BHIMAPPA SIDDAPPA DANGE
AGED: 53 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELAGAVI-591317.
4. SMT. MAHADEVI W/O. SHANKAR GIRISAGAR
VIJAYALAKSHMI
AGE: 27 YEARS, OCC: HOUSEHOLD WORK,
M KANKUPPI
R/O: CHIMMAD, TAL: JAMAKHANDI,
Digitally signed by
VIJAYALAKSHMI M DIST: BAGALKOT-591317.
KANKUPPI
Date: 2024.01.18
11:32:43 +0530
5. SHRI. VIVEK S/O. VITHAL DANGE
AGED: 23 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI-591317.
6. SMT. RENUKA @ REKHA
W/O. SHRISHAIL MAHISHAWADGI,
AGE: 27 YEARS, OCC: HOUSEHOLD WORK,
R/O: SATTI, TAL: ATHANI,
DISTRICT: BELGAVI-591317.
7. SMT. UMASHRI W/O. RAMAPPA BASTADE
AGE: 25 YEARS, OCC: HOUSEHOLD WORK,
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RFA No. 100061 of 2018
R/O: VIJAYANAGAR, TAL: HUKKERI,
DISTRICT: BELGAVI-591309.
...APPELLANTS
(BY SRI. J.S.SHETTY, ADVOCATE)
AND:
1. SMT. GOURAWWA W/O. SIDDAPPA KALLIGUDDI
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O: KULIGOD, TAL: GOKAK,
DISTRICT: BELGAVI-591307.
2. SHRI. DHAREPPA S/O. BALAPPA BAGGOL
AGED: 51 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI-591317.
3. SHRI. BHIMAPPA S/O. BALAPPA BAGGOL
AGED: 49 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI-591317.
4. SHRI. SHRISHAIL S/O. BALAPPA BAGGOL
AGED: 46 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI-591317.
5. SHRI. VITHAL S/O. BALAPPA BAGGOL
AGED: 44 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELAGAVI-591317.
6. SHRI. IRAPPA S/O. BALAPPA BAGGOL
AGED: 42 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI -591317.
7. SHRI. MUREPPA S/O. BALAPPA BAGGOL
AGED: 39 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI -591317.
8. SHRI. PUNDALIK W/O. BALAPPA BAGGOL
AGED: 36 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELAGAVI-591317.
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RFA No. 100061 of 2018
9. SHRI. MALAKARI S/O. BALAPPA BAGGOL,
AGED: 34 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELAGAVI-591317.
10. SMT. DODDAWWA W/O. KAREPPA BEVANURE
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: KULLOLI, TAL: JAMAKHANDI,
DIST: BAGALKOT-587301.
11. SHRI. LAXMAN S/O. KAREPPA BEVANUR
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: KULLOLI, TAL: JAMAKHANDI,
DIST: BAGALKOT-587301.
12. SHRI. RAYAPPA S/O. KAREPPA BEVANUR
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: KULLOLI, TAL: JAMAKHANDI,
DIST: BAGALKOT-587301.
13. SMT. AKKAWWA W/O. SIDDAPPA SABASAR
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
NOW AT KULLOLI, TAL: JAMAKHANDI,
DIST: BAGALKOT-587301.
14. SMT. JAKKAWWA W/O. BHIMAPPA DANGE
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI -591317.
15. SHRI. BASAPPA S/O. BEERAPPA BAGGOL
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI -591317.
16. SMT. LAKKAWWA W/O. LAKKAPPA CHIGARI
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: ITNAL, TAL: RAIBAG,
DISTRICT: BELAGAVI-591317.
17. SMT. MAHADEVI W/O. RAMAPPA BADAKUNDRI
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O: ITNAL, TAL: RAIBAG,
DISTRICT: BELGAVI -591317.
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RFA No. 100061 of 2018
18. SMT. CHANDRAWWA W/O. CHIDANAND DANGE
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O: ITNAL, TAL: RAIBAG,
DISTRICT: BELGAVI -591317.
19. SHRI. MUREPPA S/O. SIDDAPPA BAGGOL
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI -591317.
20. SHRI. BASANING S/O. SIDDAPPA BAGGOL
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI -591317.
21. SMT. LAXMAWWA W/O. VITTAL KURIMANI
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O: MUGALKHOD, TAL: RAIBAG,
DISTRICT: BELGAVI -591317.
22. SHRI. MARUTI S/O. SIDDAPPA BAGGOL
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL:RAIBAG,
DISTRICT: BELAGAVI-591317.
23. SHRI. NINGAPPA S/O. MUREPPA BAGGOL
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: ITANAL, TAL: RAIBAG,
DISTRICT: BELGAVI -591317.
...RESPONDENTS
(BY SRI. SHRIHARSH A.NEELOPANT, ADVOCATE FOR R1 TO R9;
NOTICE TO R10 AND R23 ARE SERVED)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 14.12.2017 PASSED IN
O.S.NO.91/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, DISMISSING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR HEARING, THIS DAY,
RAJESH RAI K, J., DELIVERED THE FOLLOWING:
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RFA No. 100061 of 2018
JUDGMENT
This regular first appeal is filed challenging the
judgment and decree dated 14.12.2017 passed in
O.S.No.91/2014 by the Senior Civil Judge and JMFC,
Raibag wherein the suit filed by the plaintiffs was
dismissed.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial court.
3. Appellants are the plaintiffs and respondents
are the defendants.
4. It is the case of the plaintiffs that one Mureppa
was the propositus of the family. The plaintiffs and
defendants are the legal heirs of the said Mureppa. The
suit schedule properties are the ancestral properties of the
plaintiffs and defendants. Partition was not effected
between the plaintiffs and defendants. The plaintiffs
requested the defendants to effect partition, the request of
which was turned down by the defendants. Hence, on
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these ground a suit for partition and separation as per
metes and bounds came to be filed by the plaintiffs.
5. Pursuantly, on service of notice, defendants
have contested the matter and have filed written
statement by denying the averments made in the plaint
and contended that there was a prior partition and the
properties bearing R.S.Nos.126/1 and 126/6 are standing
in the name of defendant No.2 by virtue of the decree
passed in O.S.No.129/1981. Further defendant No.2 and
brothers have purchased the land bearing R.S.No.126/9
on 14.03.1997. They further avert that, Defendant No.2
also purchased land bearing R.S.No.130/2B/3, 130/2B/2
and the property bearing R.S.No.257/1A is the property of
one Ramappa Ningappa Bagagol who is not arraigned as a
party to the proceedings. It is further contended that land
bearing R.S.No.257/2C is property of defendant No.20 by
virtue of partition effected between the children of
defendant No.16 and as such it is contention addressed by
the defendants that notional partition has been already
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effected and implemented and after partition, the land
bearing R.S.Nos.257/2, 257/2A, 257/2B, 257/2C are
allotted to the share of Siddappa and Ningappa. C//// is
also made contending that, defendant Nos.2 to 9 are the
owners and in possession of the land bearing
R.S.No.135/6k of Itnal village and on the above grounds
the respondents prayed for dismissal of the suit by
confirming the notional partition.
6. The trial court based on the pleadings of the
parties, framed following issues:
1) Whether the plaintiffs prove that, the suit
properties are ancestral and joint family
properties?
2) Whether the defendant No.1 to 10 prove that,
the R.S.No.126/1, 126/6 are their properties
as per the decree passed in O.S.No.129/1981
on the file of Senior Civil Judge, Gokak?
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3) Whether these defendants prove that Sl.No.3
item was purchased by the 2nd defendant on
21.11.1991?
4) Whether these defendants prove that,
Sy.No.130/2B/3 (130/2B/2), it is purchased by
2nd defendant to the extent of 4.13 acres and
20 guntas as pleaded in para No.6 of the
written statement?
5) Whether these defendants prove that there
was a partition and properties allotted to the
sharers as pleaded in the written statement?
6) Whether the court fee paid is sufficient?
7) Whether the suit is bad for non-joinder of
parties?
8) Whether the plaintiffs are entitled for share? If
so, what extent?
9) What order or decree?
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7. In order to prove their case, plaintiff No.1 was
examined as P.W.1 and got marked 28 documents as
Exs.P1 to P28. Defendant No.2 was examined as D.W.1
and got marked 21 documents as Exs.D1 to D28. On
behalf of the defendants, two witnesses were examined as
D.Ws.2 and 3. On assessment of the oral and
documentary evidence adduced before the Trial Court, the
Trial Court answered issue Nos.1 and 6 to 8 in the
negative, issue Nos.2 to 5 in the affirmative and issue
No.9 as per the final order and thereby dismissed the suit
of the plaintiffs. The said judgment and decree is
challenged in this appeal.
8. Heard the learned counsel for the plaintiffs and
learned counsel for the defendants.
9. Learned counsel for the plaintiffs submits that
judgment and decree passed by the Trial Court is perverse
and arbitrary. He submits that the Trial Court has
committed an error in passing the impugned judgment. He
submits that the Trial Court has not assigned proper
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reasons by appreciating the evidence adduced by the
parties. He further submits that the Trial Court wrongly
relied on the judgment of the Hon'ble Apex Court in
Prakash Vs. Phulavati reported in (2016) 2 SCC 36,
and on this ground learned counsel would further submit
that matter may be remanded back to the trial court for
fresh consideration.
10. Per contra, learned counsel for the defendants
supporting the impugned judgment and decree would
contend that judgment and decree passed by the trial
court does not call for any interference. He submits that
the trial court after appreciating the evidence adduced by
the parties as per the law laid down by the Hon'ble Apex
Court in the judgment cited supra has rightly dismissed
the suit. Hence, he prayed to dismiss the appeal.
11. Having heard the learned counsel for the parties
and also perusing the documentary evidence available
before us, the points that arise for our consideration are:
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1) Whether the judgment and decree passed by
the trial court is perverse and suffers from
illegality?
2) Whether the trial court is justified in
dismissing the suit of the plaintiffs?
12. Since Point Nos. 1 and 2 are interlinked to each
other both are taken up together for consideration.
13. From perusal of the evidence and material
placed before us, it can be seen that the trial court
dismissed the suit mainly placing reliance on the judgment
of the Hon'ble Apex Court in the judgment cited supra and
without appreciating the evidence adduced by the parties.
Moreover, we find that the above findings recorded by the
Apex Court has been partly overruled by subsequent Full
Bench decision of the Top Court in Vineeta Sharma Vs.
Rakesh Sharma, reported in (2020) 9 SCC 1, wherein,
the Hon'ble Apex Court in paragraph No.80 has held as
under:
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"80. A finding has been recorded in
Prakash v. Phulavati [Prakash v. Phulavati, (2016) 2
SCC 36 : (2016) 1 SCC (Civ) 549] that the rights
under the substituted Section 6 accrue to living
daughters of living coparceners as on 9-9-2005
irrespective of when such daughters are born. We find
that the attention of this Court was not drawn to the
aspect as to how a coparcenary is created. It is not
necessary to form a coparcenary or to become a
coparcener that a predecessor coparcener should be
alive; relevant is birth within degrees of coparcenary
to which it extends. Survivorship is the mode of
succession, not that of the formation of a coparcenary.
Hence, we respectfully find ourselves unable to agree
with the concept of "living coparcener", as laid down
in Prakash v. Phulavati [Prakash v. Phulavati, (2016) 2
SCC 36 : (2016) 1 SCC (Civ) 549] . In our opinion, the
daughters should be living on 9-9-2005. In substituted
Section 6, the expression "daughter of a living
coparcener" has not been used. Right is given under
Section 6(1)(a) to the daughter by birth. Declaration
of right based on the past event was made on 9-9-
2005 and as provided in Section 6(1)(b), daughters by
their birth, have the same rights in the coparcenary,
and they are subject to the same liabilities as provided
in Section 6(1)(c). Any reference to the coparcener
shall include a reference to the daughter of a
coparcener. The provisions of Section 6(1) leave no
room to entertain the proposition that coparcener
should be living on 9-9-2005 through whom the
daughter is claiming. We are unable to be in unison
with the effect of deemed partition for the reasons
mentioned in the latter part."
(Emphasis supplied by us)
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14. Under these circumstances, we are of the
considered view that the trial court has erred in only
relying on the judgment of the Hon'ble Apex Court in
Prakash Vs. Phulavati's case while dismissing the suit.
Hence, the matter requires reconsideration at the hands of
the Trial Court afresh. Hence, we answer point Nos.1 and
2 in the affirmative. Accordingly, we proceed to pass the
following:
ORDER
i) The appeal filed by the plaintiffs is allowed.
ii) The judgment and decree dated 14.12.2017
passed by the Senior Civil Judge and JMFC,
Raibag in O.S.No.91/2014 is set aside.
iii) The matter is remitted back to the trial court to
consider the matter afresh by giving
opportunity to both the parties to lead evidence
and file additional pleadings if necessitates and
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pass appropriate order, in accordance with law
by assigning detailed reasons.
iv) Parties are relegated back to the Trial Court and
they shall appear before Trial Court on
15.02.2024 without waiting further notice.
v) All contentions of the parties are kept open.
vi) Registry is directed send back the records to
the trial court.
In view of the disposal of the appeal, I.A.No.1/2018
does not survive for consideration and the same is
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
MBS
