Dyamappa S/O Ullavappa Hatarki vs Rachappa S/O Veerbhadra
2024 Latest Caselaw 18344 Kant

Karnataka High Court

Dyamappa S/O Ullavappa Hatarki vs Rachappa S/O Veerbhadra on 24 July, 2024

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                                                       NC: 2024:KHC-D:10415
                                                         MSA No. 100156 of 2017




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 24TH DAY OF JULY, 2024

                                              BEFORE
                            THE HON'BLE MR JUSTICE VENKATESH NAIK T
                        MISCELLANEOUS SECOND APPEAL NO. 100156 OF 2017


                   BETWEEN:

                        DYAMAPPA S/O. ULLAVAPPA HATARKI
                        SINCE DECEASED BY HIS LRS.

                   1.   SMT. GANGAWWA W/O. DYAMAPPA HATARKI,
                        AGE: 72 YEARS, OCC. AGRICULTURE,
                        R/O. NARENDRA, DEVAGIRI MAHAL,
                        TQ & DIST. DHARWAD.

                   2.   SHRI. IRAPPA S/O. DYAMAPPA HATARKI,
                        AGE: 50 YEARS, OCC. AGRICULTURE
                        R/O. NARENDRA, TQ & DIST. DHARWAD.

                   3.   SMT. NEELAWWA D/O. DYAMAPPA HATARKI,
                        AGE: 40 YEARS, OCC. AGRICULTURE,
                        R/O. NARENDRA, TQ & DIST. DHARWAD.

                   4.   SHRI. UDAY S/O. DYAMAPPA HATARKI,
Digitally signed        AGE: 45 YEARS, OCC. AGRICULTURE,
by MANJANNA
E                       R/O. NARENDRA, TQ & DIST. DHARWAD.
Location: HIGH                                                     ...APPELLANTS
COURT OF           (BY SRI. VIJAY MALALI, ADVOCATE)
KARNATAKA
                   AND:

                          RACHAPPA S/O. VEERABHADRA
                          SINCE DECEASED BY HIS LRS.

                   1.     SIDDAVVA W/O. RACHAPPA HATARKI
                          AGE: 95 YEARS, OCC. HOUSEHOLD,
                          R/O. NARENDRA, TQ & DIST. DHARWAD.

                   2.     CHANNABASAVVA
                          W/O. NAGAPPA BHADRASHETTY,
                          AGE: 74 YEARS, OCC. AGRICULTURE,
                             -2-
                                  NC: 2024:KHC-D:10415
                                    MSA No. 100156 of 2017




      R/O. NARENDRA-580113
      TQ & DIST. DHARWAD.
      NOW AT LAKHAMAPUR-580113,
      TQ/DIST. DHARWAD.

      SMT. NIRMALA W/O. DANAPPA UKLI,
      SINCE DECEASED BY LRS.

3.    DANAPPA S/O. KALLAPPA UKLI,
      AGE: 72 YEARS, OCC. AGRICULTURE,
      R/O. KURBAGATTI-580113,
      TQ & DIST. DHARWAD.

4.    SIDDARUD S/O. DANAPPA UKLI,
      AGE: 47 YEARS, OCC. AGRICULTURE,
      R/O. TALE MORAB-580113,
      TQ. NAVALGUND, DIST. DHARWAD.

5.    SMT. ANNAPURNA W/O. FAKIRAPPA MASTI
      AGE: 45 YEARS, OCC. HOUSEHOLD,
      R/O. KOGILAGERI, POST. ARVATAGI,
      TQ & DIST. DHARWAD.

6.    SMT. RATNA
      W/O. BASANGOUDA MUDDEGOUDAR,
      AGE: 43 YEARS, OCC. HOUSE HOLD,
      R/O. BANAHATTI, TQ. NARGUND,
      DIST. GADAG.

7.    SMT. GANGAVVA W/O. YALLAPPA UKLI,
      AGE: 64 YEARS, OCC. HOUSE HOLD
      R/O. NARENDRA, TQ. DHARWAD.

8.    AJJAPPA S/O. RACHAPPA HATARKI,
      AGE: 54 YEARS, OCC. AGRICULTURE,
      R/O. NARENDRA, TQ & DIST. DHARWAD.

09.   SHRI BASAVARAJ S/O. RACHAPPA HATARAKI,
      AGE: 49 YEARS, OCC. HOUSEHOLD,
      R/O. NARENDRA-580113, TQ/DIST. DHARWAD.

10.   SMT. SHANTAVVA
      W/O/ BASAPPA CHIKKANNAVAR.
      AGE: 66 YEARS, OCC. HOUSEHOLD,
      R/O. NAYAKAN HULIKATTI-581201,
      TQ/DIST. DHARWAD.
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                                      MSA No. 100156 of 2017




11.    SMT. GOURAVVA
       W/O. DEVENDRAPPA CHIKKANNAVAR,
       AGE: 62 YEARS, OCC. HOUSEHOLD,
       R/O. NAYAKAN HULIKATTI-581201,
       TQ/DIST. DHARWAD.

12.    SHRI. VEERASANGAPPA
       S/O. GANGAPPA HOSMANI,
       AGE: 79 YEARS,
       OCC. RETIRED GOVERNMENT OFFICER,
       R/O. MALLIKARJUN NILAYA,
       MAHATMA BASAVESHWAR NAGAR,
       DHARWAD-580008.

13.    SHRI. DANAPPA
       S/O. BASALINGAPPA GONDAGAVI
       AGE: 60 YEARS, OCC. AGRICULTURE,
       R/O. KURUBAGATTI-5800113,
       TQ/DIST. DHARWAD.

14.    SHRI. SHRISHAILAPPA
       S/O. BASALINAPPA GONDAGOVI,
       AGE: 35 YEARS, OCC. AGRICULTURE,
       R/O. KURBGATTI-580113,
       TQ/DIST. DHARWAD.

15.    SMT. BHADRAVVA
       D/O. BASALINGAPPA GONDAGAVI,
       AGE: 33 YEARS, OCC. HOUSEHOLD,
       R/O. KURBAGATTI-580113,
       TQ/DIST. DHARWAD.

16.    SMT. RUDRAVVA
       W/O. CHENNAPPA GONDAGAVI
       SINCE DECEASED BY HER LRS.

16A.   SMT. SAROJINI W/O. ASHOK KORI,
       AGE: 58 YEARS, OCC: HOUSEHOLD,
       R/O. KURUBAGATTI-580113,
       TQ/DIST: DHARWAD.

16B    SMT. ANJANA NAGAPPA KORI,
       AGE: 50 YEARS, OCC: HOUSEHOLD,
       R/O. SIDDARODHA COLONY,
       MADIHAL, TQ/DIST: DHARWAD.
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                                      MSA No. 100156 of 2017




16C    SMT. RATNAVVA BASAPPA INGALAGI
       AGE: 52 YEARS, OCC: HOUSEHOLD,
       R/O. KURUBAGATTI-280113,
       TQ/DIST: DHARWAD.

16C    KALLAPA RATNAPPA KORI,
       AGE: 47 YEARS, OCC: AGRICULTURE,
       R/O. KURUBAGATTI-280113,
       TQ/DIST: DHARWAD.

16D. SHANTAVVA PATIL,
     AGE: 43 YEARS, OCC: HOUSEHOLD,
     R/O. KURUBAGATTI-280113,
     TQ/DIST: DHARWAD.

17.    SHRI. VIRUPAKSHAPPA
       S/O. NINGAPPA HATARKI
       SINCE DECEASED BY HIS LRS.

17A.   SMT. BASALINGAVVA
       W/O. VEERUPAXAPPA HATARKI,
       AGE: 52 YEARS, OCC: HOUSEHOLD,
       R/O. NARENDRA-280113,
       TQ/DIST: DHARWAD.

17B.   SMT. MAHADEVI BASAVARAJ YADAVATTI,
       AGE: 31 YEARS, OCC: HOUSEHOLD,
       R/O. NEAR MARUTIGUDI TAMPLE, DHARWAD.

17C.   SHRISHAIL S/O. VEERUPAXAPPA HATARKI,
       AGE: 28 YEARS, OCC:AGRICULTURE,
       R/O. NARENDRA-280113,
       TQ/DIST: DHARWAD.

       SMT. SHIVAVVA W/O. PARAPPA GONDAGAVI
       SINCE DEAD (NO LEGAL REPRESENTATIVES).

18.    SHRI. IRAPPA S/O. GANGAPPA ANGADI,
       AGE: 67 YEARS, OCC. AGRICULTURE,
       R/O. CHANNAMMA NAGAR, DHARWAD.

19.    SHRI. CHANDRASHEKHAR
       S/O. GANGAPPA ANGADI,
       AGE: 63 YEARS, OCC. AGRICULTURE,
       R/O. CHANNAMMA NAGAR, DAHRWAD.
                              -5-
                                   NC: 2024:KHC-D:10415
                                     MSA No. 100156 of 2017




20.   SMT. SAVAKKA W/O. ALLAPPA UKKALI,
      AGE: 75 YEARS, OCC. HOUSEHOLD,
      R/O. TALE-MORAB-580112,
      TQ. NAVALAGUND, DIST. DHARWAD.

21.   SMT. PUSHPA W/O. ASHOK UKKALI,
      AGE: 40 YEARS, OCC. HOUSE HOLD WORK,
      R/O. MORAB-580112,
      TQ NAVALAGUND, DIST. DHARWAD.
22.   SMT. SHILPA W/O. UMESH BUDARKATTI
      AGE: 37 YEARS, OCC. HOUSE HOLD WORK,
      R/O. KOGILAGERI-580112,
      TQ AND DIST. DHARWAD.
23.   KUM. ROOPA D/O. BASAVRAJ HATARKI,
      AGE: 35 YEARS, OCC. STUDENT,
      R/O. -DO-
24.   SMT. SHARADA W/O. BASAVARAJ HATARKI,
      AGE: 55 YEARS, OCC. HOUSE HOLD,
      R/O. NARENDRA, TQ AND DIST. DHARWAD.
                                               ...RESPONDENTS

(BY SRI. VENKATESH M. KHARVI, ADV. FOR R3 TO R5 & R20 TO R24;
    SRI. DAYANAND M. BANDI, ADV. FOR R4, R23, R2, R5 TO R8,
    R10, R11, R20, R21, R22 & R24;
    SRI. HEMANTHKUMAR L. HAVARAGI, ADV. FOR R1,R2, R5 TO R8,
    R10, R11, R20 (THROUGH GPA HOLDER & PROP. R17(A) TO (C);
    SRI. SANTOSH B. MANE, ADV. FOR PROP. R12(A) TO R12(D);
    SRI. MAHANTESH R. PATIL, ADV. FOR PROP. R16(A) TO R16(B)
    NOTICE TO R16(C) SERVED;
    SRI. V. L. KULKARNI, ADV. FOR R16(D) & R16(E);
    SRI. M. M. KORIMATH & S. S. HIREMATH, ADV. FOR R17(A TO C)
    NOTICE TO R13, R14, R15 SERVED)
    R9-DECEASED;
    NOTICE TO R18 & R19 HELD SUFFICIENT
    SRI. IRANAGOUDA KABBUR, ADV. FOR R16B).

     THIS MSA IS FILED U/S.41 FULE 1(U) OF CPC, PRAYING TO
THE JUDGMENT AND DECREE PASSED IN R.A. NO.172/2003 DATED
18/11/2017 ON THE FILE OF IV ADDITIONAL DISTRICT AND
SESSION JUDGE DHARWAD BE SET ASIDE AND ETC.

     THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                                  NC: 2024:KHC-D:10415
                                    MSA No. 100156 of 2017




                       JUDGMENT

1. The appellants filed this appeal under Order 43

Rule 1 of the Civil Procedure Code (for short, 'the CPC')

aggrieved by the judgment and decree dated 18.11.2017

passed in R.A. No.172/2003 on the file of learned IV

Additional District and Sessions Judge, Dharwad, whereby

the first appellate Court allowed the appeal filed against

the judgment and decree dated 19.04.2003 passed in

O.S.No.46/1982 on the file of II Additional Senior Civil

Judge, Dharwad, decreeing the suit filed for partition and

separate possession of plaintiffs share and future mesne

profits. However, the first appellate Court, while allowing

the appeal, remanded back to the trial Court for fresh

disposal. Being aggrieved by the same, the appellants filed

this appeal. Now, learned counsel for the appellants has

filed a memo for withdrawal of the appeal.

2. The contents of the memo is as under:

NC: 2024:KHC-D:10415

MEMO FOR WITHDRAWAL BY THE APPELLANTS.

The appellants herein have filed this Miscellaneous Second Appeal challenging the judgment and decree of remand dated 18/11/2017 passed by the Court of IV Additional District and Sessions Judge, Dharwad in R.A No.172/2003. Now the appellants does not wish to continue this Miscellaneous Second Appeal in M.S.A No.100156/2017 and wishes to withdraw the same. So it is most humbly submitted to dismiss this miscellaneous Second Appeal as withdrawn in the interest of justice and equity.

Learned counsel for respondents submits that he has no objection to allow the withdrawal of appeal filed by appellants.

3. Learned counsel for proposed respondent No.25

contended that I.A.No.5/2024 is filed under Order 1 Rule

10(2) read with Section 151 of the Cr.P.C. to implead

proposed respondent No.26 as one of the respondent.

4. I.A.No.6/2024 is filed under Order 41 Rule

27(1b) read with Section 151 of the Cr.P.C. to permit the

proposed respondent No.25 to produce additional

documents.

5. I.A.No.7/2024 is filed under Section 151 of the

Cr.P.C. to take necessary action against legal

NC: 2024:KHC-D:10415

representatives of deceased respondent No.12, who

disobeyed the order of stay granted on 01.06.2018 in

W.P.No.100100/2021 dated 09.06.2023.

6. I.A.No.8/2024 is filed under Order 39 Rule 1

and 2 read with Section 151 of the Cr.P.C. to grant

temporary injunction in favour of respondent No.25

against proposed respondent No.26 restraining him from

alienating suit scheduled properties till disposal of the

dispute.

7. Learned counsel for respondent No.25 submits

that I.A's No.5 to 8 2024 filed by him to be considered, if

the appeal is permitted to be withdrawn by the appellants,

in that eventuality, he be permitted to file similar I.A's

before the trial Court.

8. The submission is placed on record.

9. In view of memo for withdrawal filed by the

appellants, the appeal is dismissed as withdrawn and

liberty is granted to respondent No.25 to file similar IA's to

NC: 2024:KHC-D:10415

I.A's No.5 to 8 of 2024 before the trial Court and the trial

Court shall pass the appropriate orders in accordance with

law, if such I.A's are filed before it.

10. The Registry is directed to send copy of the

order, along with trial Court records within two weeks.

11. In view of disposal of main appeal, pending

I.A's if any, shall stands disposed off.

Sd/-

JUDGE AC/ct-an