Karnataka High Court
Ramchanderrao S/O Shivaram vs Laxumanrao S/O Shivram And Ors on 9 January, 2024
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RSA No. 200090 of 2014
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200090 OF 2014 (DEC/INJ)
BETWEEN:
RAMCHANDERRAO S/O SHIVARAM,
AGE ABOUT 74 YEARS, OCC: AGRICULTURE,
R/O VILLAGE KOTGYAL WADI,
TALUKA BHALKI,
DISTRICT BIDAR-585 401.
...APPELLANT
(BY SRI. K.M. GHATE, ADVOCATE)
AND:
1. LAXUMANRAO S/O SHIVRAM,
AGE ABOUT 61 YEARS,
Digitally signed OCC: GOVERNMENT SERVANT
by SACHIN AND AGRICULTURE,
Location: HIGH R/O VILLAGE KOTGYAL WADI,
COURT OF TALUKA BHALKI,
KARNATAKA
DISTRICT BIDAR-585 401.
2. SMT. PRABHAVATI
W/O LATE VISHWANATHRAO,
AGED ABOUT 60 YEARS,
OCC: AGRICULTURE,
RESIDENT OF KOTGYAL WADI,
TALUKA BHALKI,
DISTRICT BIDAR-585 401.
3. VAIJNATH S/O VISHWANATH,
AGE ABOUT 31 YEARS,
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RSA No. 200090 of 2014
OCC : AGRICULTURE,
RESIDENT OF KOTGYAL WADI,
TALUKA BHALKI,
DISTRICT BIDAR-585 401.
4. MADAN S/O RAMCHANDERRAO,
AGED ABOUT 45 YEARS,
OCC : AGRICULTURE,
RESIDENT OF KOTGYAL WADI,
TALUKA BHALKI,
DISTRICT BIDAR-585 401.
5. DHONDIBA S/O RAMCHANDER,
AGED ABOUT 40 YEARS,
OCC : AGRICULTURE,
RESIDENT OF KOTGYAL WADI,
TALUKA BHALKI,
DISTRICT BIDAR-585 401.
6. KASHINATH S/O RAMCHANDER,
AGED ABOUT 35 YEARS,
OCC: AGRICULTURE,
RESIDENT OF KOTGYAL WADI,
TALUKA BHALKI,
DISTRICT BIDAR-585 401.
7. KASHIBAI W/O RAMCHANDER,
AGED ABOUT 65 YEARS,
OCC: HOUSEHOLD & AGRICULTURE,
RESIDENT OF KOTGYAL WADI,
TALUKA BHALKI,
DISTRICT BIDAR-585 401.
8. BHARATIBAI W/O LAXUMANRAO,
AGE: 50 YEARS,
OCC: HOUSEHOLD,
RESIDENT OF KOTGYAL WADI,
TALUKA BHALKI,
DISTRICT BIDAR-585 401.
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RSA No. 200090 of 2014
9. PANDHARINATH S/O LAXUMAN RAO,
AGED ABOUT: 30 YEARS,
OCC: AGRICULTURE,
RESIDENT OF KOTGYAL WADI,
TALUKA BHALKI,
DISTRICT BIDAR-585 401.
10. RATNABAI DIED HER LRS.,
(A) RAJABAI W/O VENKATRAO PATIL,
AGED ABOUT 31 YEARS,
OCC: HOUSEHOLD,
RESIDENT OF KALSADAL,
TALUKA BHALKI,
DISTRICT BIDAR-585 401
...RESPONDENTS
(SMT. VEERANI V. NANDI, ADVOCATE FOR
SRI. RAVI B. PATIL, ADVOCATE FOR R1, R8 & R9;
R2, R3, R7 - SERVED & UNREPRESENTED;
APPEAL AGAINST R4 TO R6 & R10 STANDS DISMISSED)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT
AND DECREE OF THE FIRST APPELLATE COURT IN REGULAR
APPEAL NO.27/2010 ON THE FILE ADDITIONAL DISTRICT JUDGE,
BIDAR, CAMP AT BHALKI, DATED 7TH NOVEMBER 2013 AND THE
JUDGMENT AND DECREE DATED 29TH JANUARY 2010 IN
O.S.NO.08/2008 PASSED BY THE CIVIL JUDGE (S.D), BHALKI
AND THEREBY PLEASE TO DISMISS THE SUIT OF RESPONDENT
NO.1/PLAINTIFF WITH COSTS THROUGHOUT.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/defendant No.1,
challenging the judgment and decree dated 07.11.2013 in
R.A. No.27/2010 on the file of Additional District Judge at
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Bidar, sitting at Bhalki, confirming the judgment and decree
in O.S. No.08/2008 dated 29.01.2010 on the file of Civil
Judge (S.D) at Bhalki, decreeing the suit of the plaintiff.
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 plaintiff that, plaintiff has filed
suit seeking relief of declaration and perpetual injunction in
respect of the lands in question. In order to ascertain the
relationship between the parties, the genealogical tree
mentioned in the plaint is extracted as under:
SHIVARAM (died)---Deft.No.10 Wife-(died)
/
------------------------------------------------------------------------------------------------------------------
/ / /
Ramchander Rao D-1 Vishwanath (died) LaxumanRao (Pltf)
/ / /
------------------------- ------------------------------- ----------------------------
/ / / / / /
Defts. D-7 wife D-2 D-3 D-8 D-9
4 to 6 Kasibai Prabhavati Vaijinath Bharatbai Pandarinat
(sons) w/o D-1 (Wife) (Son) (Wife) (Son)
It is case of the plaintiff that, plaintiff, defendant No.1
and the husband of defendant No.2 - Vishwanath are the
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children of Shivaram (husband of deft. No.10). It is stated in
the plaint that, the plaintiff and defendants constitute the
joint family and having 75 acres of land. After the death of
Shivaram, defendant No.1 became the kartha of the joint
family and it is stated in the plaint that, there was partition
in the family on 28.04.1993. The said partition has been
acted upon by the parties. By virtue of the said partition,
plaintiff, defendant No.1 and the legal representatives of
Late Vishwanath were allotted 24 acres 5 guntas of land
each. It is also stated that, defendant No.1 being kartha of
the joint family, has mutated the names of different
members of the joint family in the record of rights for the
purpose of getting benefits. It is further stated that, though
the plaintiff has been allotted 24 acres 5 guntas of land,
however, the revenue records stands in the name of plaintiff
and defendants and as the defendants tried to alienate the
property in question, the plaintiff has filed suit, seeking relief
of declaration and consequential relief of injunction in
O.S.No.08/2008 before the Trial Court.
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4. After service of notice, the defendants entered
appearance and filed separate written statement. Defendant
Nos.1 and 4 to 7 have contended that, there was no
partition in the family and denied the averments made in the
plaint and accordingly sought for dismissal of the suit.
5. Based on the pleadings on record, the Trial Court
framed the issues for its consideration.
6. In order to substantiate their case, plaintiff has
examined 3 witnesses as PW.1 to PW.3 and got marked 23
documents as Exs.P1 to P23. The defendants have examined
2 witnesses as DW.1 and DW.2 and got marked one
document as Ex.D1.
7. The Trial Court after considering the material on
record, by its judgment and decree dated 29.01.2010,
decreed the suit of the plaintiff holding that the plaintiff is
the absolute owner in possession of plaint schedule
properties by virtue of partition deed dated 28.04.1993
(Ex.P5). Feeling aggrieved by the same, defendant Nos.1
and 4 to 7 have filed R.A. No.27/2010 before the First
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Appellate Court and the appeal was resisted by the plaintiff
and defendant Nos.2, 3 and 8 to 10.
8. The First Appellate Court after re-appreciating the
material on record, by its judgment and decree dated
07.11.2013, dismissed the appeal and as such confirmed the
judgment and decree passed by the Trial Court in
O.S.08/2008. Feeling aggrieved by the same, defendant
No.1 has preferred this Regular Second Appeal.
9. I have heard Sri K.M. Ghate, learned counsel
appearing for the appellant and Smt. Veerani V. Nandi,
learned counsel appearing on behalf of Sri Ravi B. Patil,
learned counsel for respondent Nos.1, 8 and 9.
10. Sri K.M. Ghate, learned counsel appearing for the
appellant submitted that, the judgment and decree passed
by the Courts below requires to be interfered with, as the
partition said to have been effected on 28.04.1993 as stated
by the plaintiff has not been proved before the Trial Court
with cogent evidence and accordingly sought for interference
of this Court.
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11. Per contra, Smt. Veerani V. Nandi, learned
counsel appearing on behalf of learned counsel for
respondent Nos.1, 8 and 9 sought to justify the impugned
judgment and decree passed by the Courts below.
12. In the light of the submission made by the
learned counsel appearing for the parties, there is no dispute
with regard to the relationship between the parties. It is the
case of the plaintiff that, there was partition on 28.04.1993
(Ex.P5) and in this regard, taking into consideration the
evidence of PW.2 and PW.3, the plaintiff has proved that he
is entitled for share in the suit schedule properties and the
perusal of the deposition of DW.1 demonstrates the
severance of the joint family pursuant to the execution of
the partition deed dated 28.04.1993. In that view of the
matter, I am of the view that the finding recorded by both
the Courts below is just and proper and the appellant has
not made out a case for framing of substantial question of
law required under Section 100 of the Code of Civil
Procedure. Accordingly the appeal is dismissed.
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In view of dismissal of the appeal, I.A.2/2014 for stay
does not survive for consideration and is accordingly
dismissed.
Sd/-
JUDGE
LG
