Karnataka High Court
Doddesh S/O Basappa Sajjanar vs Smt. Hanamavva W/O. Lingappa Desai on 6 June, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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RFA No. 100139 of 2024
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
REGULAR FIRST APPEAL NO. 100139 OF 2024 (PAR/POS)
BETWEEN:
DODDESH S/O BASAPPA SAJJANAR,
AGE: 49 YEARS, OCC: CHARTED ACCOUNTANT,
R/O. MUNDARGI, TQ. MUDARAGI,
DISTRICT: GADAG, NOW RESIDING AT #327,
ROMM #103, 1ST FLOOR, "SUNRISE MANSION"
6TH BLOCK CIRCLE, RAJAJINAGAR,
BANGALORE-560010.
... PETITIONER
(BY SRI RAJASHEKHAR B. HALLI, ADVOCATE.)
AND:
1. SMT. HANAMAVVA W/O LINGAPPA DESAI,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: KALAKERI VILLAGE, TQ: MUNDARGI,
DIST: GADAG, PIN CODE-582118.
Digitally signed
by BHARATHI
HM
Location: HIGH
COURT OF
BHARATHI KARNATAKA
HM DHARWAD
BENCH
Date:
2024.06.12
15:23:48
+0530 2. SMT. SOMAVA W/O IRAPPA BARAKER,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: KALAKERI VILLAGE, TQ: MUNDARGI,
DIST. GADAG, PIN CODE-582118.
3. SMT. LOKAVVA @ LAXMAVVA
W/O. NINGAPPA BARAKER @ BIDANAL,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: BYALAWADAGI VILLAGE,
TQ: MUNDARAGI, DIST: GADAG,
PIN CODE-582118.
4. NINGANAGOUDA S/O. BIMANAGOUDA PATIL,
AGE. 60 YEARS, OCC. AGRICULTURE,
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RFA No. 100139 of 2024
R/O. TIPPAPUR VILLAGE, TQ. MUNDARGI,
DIST. GADAG, PIN CODE-582118.
... RESPONDENTS
(BY SRI AKSHAY A. KATTI AND
SRI ANAND ASHTEKAR, ADVOCATES FOR R1 & R2;
R3 AND R4 - NOTICE SERVED.)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
READ WITH ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE,
1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
23.09.2022 PASSED IN O.S.NO.128/2021 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, LAXMESHWAR, SITTING AT
MUNDARGI, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by defendant No.3 in
O.S.No.128/2021 questioning the judgment and decree
passed by the trial Court, which has decreed the suit of the
plaintiff.
2. For the purpose of convenience, the parties are
referred to as per their status before the trial Court.
3. The trial Court had decreed the suit of the plaintiff
granting 1/4th share each in schedule A item Nos.1 and 2 and
schedule B item Nos.1 and 2 properties. It is the case of the
appellant/defendant No.3 that the respondents No.1 and 2
are the plaintiffs before the trial Court. Respondents No.3
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and 4 are defendants No.1 and 2 and the appellant is the
defendant No.3 before the trial Court.
4. One Bhimanagouda Patil is a propositus of the
plaintiffs and defendants No.1, 2. It is contended by the
appellant that schedule A(1) and B properties fell to the
share of one Bhimanagouda Patil in the family partition along
with his other brothers and schedule A(2) property bearing
R.S.No.290/1 was purchased by the said Bhimanagouda Patil
under a registered sale deed dated 04.04.1968. It is also
contended that the said Bhimanagouda Patil died on
09.04.1969 and prior to him his mother also died long back.
The said Bhimanaguoda Patil died intestate leaving behind
the plaintiffs and defendants No.1 and 2 as Class-I heirs. The
plaintiffs and defendants No.1 and 2 are the members of a
Hindu undivided joint family governed by the Mithakshara
law. Learned counsel for the appellant further contends that
after the death of said Bhimanagouda, these schedule
properties are in common use and enjoyment and all of them
were residing in the marital home.
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5. This being the state of affairs, respondent No.3
herein colluding with the revenue officers, got the name
changed in the suit schedule properties and no opportunity
was given to enter the name of respondent No.4 i.e.,
defendant No.1. Therefore, the entry so made on the basis of
the collusion between respondent No.3 along with the
revenue officers is illegal, null and void and not binding on
the share of defendant No.1.
6. It is the contention of defendant No.3 who is the
appellant herein that defendant No.1 sold the suit schedule
A(2) property in his favour by virtue of a registered sale
deed dated 07.04.2021. Therefore, he contends that he is
the absolute owner of the suit schedule property for having
purchased the same by virtue of a valid registered sale deed
from defendant No.1, who succeeded to the property by
virtue of a partition entered into by the propositus
Bhimanagouda Patil.
7. This being the state of affairs, the plaintiffs filed a
suit against defendants No.1 to 3. Despite the service of
summons, defendant No.3 remained exparte. Defendants
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No.1 appeared before the Court, but did not file the written
statement, whereas, defendants No.2 and 3 were placed
exparte. Thereafter points for consideration were framed by
the trial Court, which read as under:
i) Whether the plaintiffs prove that the parties
to the suit are joint family members and
the plaintiffs are entitle for 1/4th share
jointly in the suit schedule-A and B
properties?
ii) Whether the plaintiffs prove that the sale
deed executed by defendant No.1 in favour
of defendant No.3 is not binding upon their
shares?
iii) What order or decree?
8. Thereafter the plaintiff No.1 examined himself as
PW.1 and got marked exhibits P.1 to P.24, so also examined
another witness as PW.2. Since no evidence was adduced on
behalf of defendants and no cross examination was
conducted, all the points raised for consideration came to be
answered in the affirmative. Admittedly even according to
the trial Court and the submissions of the learned counsel for
both parties, defendant No.1 though has appeared before the
Court, has not filed the written statement and defendants
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No.2 and 3 were placed exparte. There is absolutely no
contest against the suit filed by the plaintiff. No cross
examination has also been conducted by defendant No.1 who
appeared before the Court. Hence, it is a one sided decision
passed by the trial Court.
9. It is the vehement contention of learned counsel
for the appellant/defendant No.3 that he is a valid title
holder having purchased the suit schedule A(2) property
from defendant No.1. Pursuant to purchase, the record of
rights pertaining to the property, i.e., survey number
290/1+2+3A+3B, measuring 04 acres 04 guntas situated at
Korlahalli village, Mundargi taluk, for the period 2020-21, in
column Nos.9 and 12, the name of Doddesh son of Basappa
Sajjannar and Patil Ninganagouda son of Bhimanagouda are
forthcoming i.e., defendants No.3 and 1. The names of
defendants No.3 and 1 are forthcoming even according to
the judgment of the trial Court. Therefore, there is some
material to show that pursuant to the registered sale deed,
at column No.9 and 12 of the record of rights, the name of
defendants No.3 and 1 are forthcoming with regard to the
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suit schedule A(2) property. No doubt the defendants have
not contested the matter, though service of summons has
been treated as sufficient, now it is the contention of the
appellant/defendant No.3 that service of summons was not
complete and he has not received the notice from the Court.
10. The appellant/defendant No.3 has narrated that
the service was not effectively completed as required under
law in the grounds of appeal urged in this present appeal.
But learned counsel for the respondent/plaintiffs has filed
objections contending that the service of notice was
completed in accordance with law and defendant No.3 was
served on the address described in the Sale Deed, a
document which is relied by the appellant/defendant No.3.
So therefore, he has kept silent and watched the proceedings
before the Trial Court and he is now trying to prolong and
protract the proceedings has approached this Court in a
belated stage and the application accordingly deserves to be
rejected with exemplary costs. It is also contended by
learned counsel for the respondent/plaintiffs that if at all, the
appellant/defendant No.3 is entitled for any right over the
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property, he could agitate the same in the final decree
proceedings.
11. I have heard the learned counsel for both parties
and perused the impugned Judgment and Decree. It is not in
dispute that defendant No.3 has purchased the suit
schedule-A-2 property from defendant No.1 by way of a
registered Sale Deed as stated herein above and so also, the
same is reflected in the column No.9 and 12 of the record of
rights describing the name of defendant No.1 and defendant
No.3. Therefore, there is some truth in the statement made
by the appellant/defendant No.3 that he is the owner of the
suit schedule property by way of a registered Sale Deed. But
the fact remains that he has not contested the matter. He
was placed ex-parte, though to some extent contentions of
learned counsel for respondent/plaintiffs is to be accepted,
for the reason that the notice is taken out on the address
mentioned in the registered Sale Deed shown by the
appellant/defendant No.3. The fact remains that there is no
contest. He has not participated in the proceedings. The
appellant/defendants No.2 and 3 have remained ex-parte
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and defendant No.1 has not contested the matter apart from
filing vakalat. Under the circumstances, there is absolutely
no defense put forth before the Trial Court to counter the
averments of the plaint and the statements and the evidence
put forth by the plaintiffs before the Trial Court in the
original suit. Under the circumstances, the appellant, who is
approached this Court after the pronouncement of the
Judgment and Decree on the ground that he was placed ex-
parte will have to be considered sympathetically and
leniently, and he deserves to be provided an opportunity to
contest the matter and agitate his rights before the Trial
Court. However, since other defendants are not before the
Court, this order would not enure to the other defendants as
they have not challenged the Judgment and Decree before
this Court. Under circumstances, the appeal deserves to be
allowed and the appellant/defendant No.3 be permitted to
contest the matter and put forth his defense and place all
relevant materials to establish his case. Therefore, I pass the
following:
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ORDER
(i) Appeal is allowed.
(ii) The Judgment and Decree dated 23.09.2022
passed in O.S.No.128/2021 by the Senior
Civil Judge and JMFC, Laxmeshwar sitting at
Mundargi is hereby set aside so far as the
appellant/defendant No.3 is concerned.
(iii) The Trial Court shall permit the
appellant/defendant No.3 to contest the
matter by filing his written statement and
adducing evidence and place all such
materials to defend and contest his case.
(iv) The Trial Court is hereby directed to dispose
of the matter within an outer limit of six
months, providing a reasonable opportunity
to the appellant/defendant No.3 to contest
the matter by filing written statement within
a reasonable time and thereafter permit the
defendant No.3 to adduce his evidence and
place all such materials along with witnesses,
if any. The entire task shall be completed
within an outer limit of six months from the
date of receipt of copy of the order.
(v) It is made clear that this Court has not
expressed any opinion on the merits of the
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matter, including the registered Sale Deed so
alleged and agitated by the learned counsel
for the appellant/ defendant No.3.
(vi) Since the appellant/defendant No.3 and
plaintiffs are present before the Court, they
shall appear before the Trial Court that is the
Court of Senior Civil Judge Laxmeshwar
sitting at Mundurgi in O.S.No.128/2021 on
26.06.2024 without awaiting any further
notice either from the Trial Court or this
Court.
(vii) All parties shall co-operate with the trial
Court for time bound disposal.
(viii) In view of disposal of the appeal,
I.A.No.3/2024 would not arise for
consideration.
Sd/-
JUDGE
MRK-para 1 to 9.
CKK-para 10 to end.
CT:BCK
