Karnataka High Court
Smt Uma vs Govind on 7 March, 2024
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NC: 2024:KHC-D:4989
RFA No. 1761 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MRS JUSTICE M.G.UMA
REGULAR FIRST APPEAL NO. 1761 OF 2007 (PAR)
BETWEEN:
SMT. UMA
D/O LATE NAGAPPA GOVINDAPPA SHETTY,
W/O SHIVANAND HONNAPPA SHETTY
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: ALAGERI VILLAGE, TAL: ANKOLA TALUK,
DIST: UTTARA KANNADA
...APPELLANT
(BY SRI: SANGRAM .S. KULKARNI, ADVOCATE)
AND:
1. GOVIND
S/O LATE NAGAPPA GOVINDAPPA SHETTY,
AGE: 77 YEARS, OCC: PRIVATE BUSINESS,
R/O. OPP. HIGHER PRIMARY SCHOOL,
AJJIKATTA, NEELAMPUR, ANKOLA TALUK,
UTTARA KANNADA DISTRICT
SINCE DECEASED BY HIS LR'S R1 A TO R1D
Digitally
signed by
R1(A) SMT. PADMA GOVIND SHEETY
MANJANNA E WIFE, AJJIKATTA,
Location: High
Court of
Karnataka
NEELAMPUR, ANKOLA.
R1(B) SAVITA MOHAN SHETTY
DAUGHTER, AGE: 33 YEARS.
R/O: NEW ARYA DURGA RESTAURANT|
IDUGUNDI VILLAGE, YELLAPURA TALUK,
UTTARA KANNADA DISTRICT
R1(C) ANITA NAGARAJA SHETTY,
DAUGHTER, AGE: 30 YEARS
R/O IDUGUNDI, VILLAGE,
YELLAPPA TALUK,
UTTARA KANNADA DISTRICT.
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RFA No. 1761 of 2007
R1(D) KAVITA VINOD SHETTY
DAUGHTER, AGE: 32 YEARS.
R/O POST BANKIKODLA,
KUNTA TALUK,
UTTARA KANNADA DISTRICT.
2. YAKUB KHAN
S/O YUSUF KHAN PATHAN,
(SINCE DECEASED REPRESENTED
BY HIS LR'S)
2A. RIYAZ KHAN
S/O YAKUB KHAN,
AGE: 52 YEARS, OCC: TEACHER,
R/O: AJJIKATTA ANKOLA
2B ILYAS KHAN
S/O YAKUB KHAN,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: AJJIKATTA ANKOLA
2C ASHFAQ KHAN
S/O YAKUB KHAN,
AGE: 49 YEARS, OCC: WASHER-MAN,
R/O: AJJIKATTA ANKOLA
2D JUNIBI D/O YAKUB KHAN,
AGE: 44 YEARS, OCC: HOUSEHOLD,
R/O: BANDER ROAD, ANKOLA
2E IRFAN KHAN
S/O YAKUB KHAN,
AGE: 42 YEARS, OCC: WASHER-MAN,
R/O: AJJIKATTA ANKOLA
2F JAVEED KHAN
S/O YAKUB KHAN,
AGE: 38 YEARS, OCC: WASHER-MAN,
R/O: AJJIKATTA ANKOLA
...RESPONDENTS
(BY SRI: VISHWANATH HEDGE ADVOCATE FOR
SRI: K.S. PATIL ADVOCATE FOR
SRI: JEEVAN J NEESARGI, ADVOCATE FOR R1(B), R1(C) AND R2
R1(A) -SD, R1(D) -SD
RAJASHEKHAR BURJI, ADVOCATE FOR R2(A TO D)
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RFA No. 1761 of 2007
V/O DTD: 08.11.2023 APPEAL IS DISMISSED AS
AGAINST PROPOSED R2 (E &F))
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT
AND DECREE DATED 21.04.2007 PASSED IN OS.NO.8/2006 ON THE
FILE OF THE CIVIL JUDGE (SR. DN.) KUMTA, DISMISSING THE SUIT
FOR PARTITION AND SEPARATE POSSESSION AND ETC.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
ORDER
Plaintiff in OS.No.8/2006 (old OS.No.31/2005) on the file
of the Civil Judge (Sr.Dn.) Kumuta is impugning the judgment
and decree dated 21.04.2007 dismissing her suit for partition
and separate possession.
2. For the sake of convenience, the parties shall be
referred to as per their ranks and status before the Trial Court.
3. Brief facts of the case are that plaintiff filed the suit
against defendant Nos.1 and 2 contending that she is the sister
of defendant No.1 and they are the children of late Nagappa
Govinda Shetty, who is the original owner of the suit
properties. Nagappa Govinda Shetty had two wives. Plaintiff
and defendant No.1 are the children from the first wife. Second
wife had no issues. Therefore, after the death of Nagappa
Govinda Shetty on 09.12.1983, the name of defendant No.1
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being the son, entered in the record of rights as per ME
No.4083 and 4025. Taking advantage of fact that the revenue
records stood in the name of defendant No.1, he sold 6 guntas
of land in Sy.No.64/A/6 of Shedgeri village, Ankola Taluk in
favour of defendant No.2 under a registered sale deed.
Defendant No.1 started denying legitimate share of the plaintiff
over the schedule properties. There was no partition in the
family and defendant No.1 refused to effect partition. The sale
effected by defendant No.1 in favour of defendant No.2 is not
binding on the plaintiff. Therefore, plaintiff sought for partition
and separate possession of the property by metes and bounds.
4. Defendant No.1 appeared before the trial Court and
denied the contentions taken by the plaintiff. The relationship
between the parties is denied. It is contended that defendant
No.1 is the son of Nagappa Govinda Shetty and he alone is
entitled for the schedule properties. Accordingly, the revenue
records stood in his name. He renovated the building in Ankola
town and constructed residential house at Agsoor village. He
made huge investments. The plaintiff is making false and
fractious claim over the suit properties and therefore, prays for
dismissal of the suit.
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5. Defendant No.2 filed a memo adopting the written
statement filed by defendant No.1.
6. On the basis of these pleadings the following issues
came to be framed.
1. Whether Plaintiff's prove that the suit schedule
properties are the joint family properties of herself
and the Defendants?
2. Whether the Plaintiff's prove that she is entitled
for half share in all the suit schedule properties?
3. Whether the Plaintiff's prove that the
Defendant's have refused to give her share in the
suit schedule properties?
4. Whether the Defendant's prove that the Plaintiff
has not paid correct court fee?
5. Weather the Defendant's prove that the Plaintiff
is no way the deceased Nagappa related to Shetty?
6.Whether the Plaintiff is entitled for the relief
sought for?
7.What order or decree?
7. Plaintiff examined herself as PW1 and got examined
PWs.2 and 3 and got marked Exs.P.1 to 15 in support of her
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contention. Defendant No.1 examined himself as DW1 and got
examined DWs.2 and 3 and got marked Exs.D1 to 15 in support
of his contention. The trial court after taking into consideration
all these materials on record, answered issue Nos.1 to 4 and 6
in the negative. Issue No.5 in the affirmative and proceeded to
dismiss the suit holding that the plaintiff has not proved her
relationship with defendant No.1. Being aggrieved by the same,
plaintiff is before this Court.
8. Heard Sri. Sangram S Kuklarni, learned counsel for
the petitioner and Sri. Vishwanath Hegde, Sri.K.S.Patil, learned
counsels for respondent No.1(b), Respondent No.1(c) and
Respondent No.2, Sri. Rajashekhar Burji, learned counsel for
respondent Nos.2(a to d), Respondent No.1(a) and 1(d) serve
but unrepresented.
9. Learned counsel for the appellant contended that
appellant is the sister of defendant No.1 and they are the
children of Nagappa Govinda Shetty, who died in the year
1983. His first wife Radha is the mother of the plaintiff and
defendant No.1. After death of Radha, Nagappa Govinda Shetty
had married Smt. Lakshmi. But she died issueless. Therefore, it
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is only the plaintiff and defendant No.1 who are the legal
representatives of Nagappa Govinda Shetty. Since defendant
No.1 is the son of Nagappa Govinda Shetty, he got mutated his
name in the revenue records in respect of the schedule
properties and managed to sell 6 guntas of land in favour of
defendant No.2 under the registered sale deed. He denied the
right of the plaintiff to give her legitimate share. Therefore, the
plaintiff has filed this suit seeking partition and separate
possession.
10. Learned counsel submitted that the burden to prove
the contention of defendant No.1 denying his relationship with
the plaintiff was on defendant No.1. Defendant No.1 during
cross examination categorically admitted that the plaintiff
Meera @ Uma is his sister. He also admitted that the Nagappa
Govinda Shetty of Islampur mentioned in Ex.P.15 is referring to
his father. Ex.P.15 is the birth certificate relating to the
plaintiff, which was issued at an undisputed point of time.
When defendant No.1 in unequivocal terms admits the
relationship of the plaintiff, the trial Court could not have
dismissed the suit. The trial Court has committed an error in
holding that Meera @ Shanta Bai is not the plaintiff and the
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plaintiff has not proved her relationship with defendant No.1.
Hence, prays for allowing the appeal and decreeing the suit as
prayed for.
11. Per contra, learned counsel for respondent No.1 (b)
and (c) opposing the appeal submitted that defendant has
taken a specific stand in the written statement denying his
relationship with the plaintiff. During cross examination of
DW1, a stray evidence was elicited regarding the plaintiff being
his sister and the same cannot be taken advantage by the
plaintiff, when there are absolutely no other materials to prove
her relationship. Plaintiff pleaded her ignorance regarding
relatives of defendant No.1. If infact she was the sister of
defendant No.1, she would have been in a position to speak
about other relatives. Issue No.5 framed by trial Court is
answered in affirmative in favour of defendant No.1.
12. Learned counsel further submitted that defendant
No.1 is the absolute owner got his name entered in the revenue
records, none of the revenue entries were challenged by the
plaintiff. Moreover, plaintiff sold 6 guntas of land in favour of
defendant No.2 under a registered sale deed. Under such
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circumstances, plaintiff is not entitled for any relief.
Accordingly, prays for dismissal of the appeal.
13. Learned counsel for respondent Nos. 2 (a to d)
contended that defendant No.2 is the bonafide purchaser of 6
acres of land from defendant No.1 under the registered sale
deed. Therefore, his right may be protected even if the appeal
is to be allowed.
14. Perused the materials, including the Trial Court
records.
15. In view of the rival contentions urged by learned
counsel for the parties, the point that would arise for my
consideration is:
"Whether the impugned judgment and decree passed
by the Trial Court suffers from perversity or illegality
and calls for interference by this Court?"
My answer to the above point is in the 'Affirmative' for
the following:
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REASONS
16. It is the contention of the plaintiff that she is the
sister of defendant No.1, being the daughter of Nagappa
Govinda Shetty and his first wife Radha. This fact is denied by
defendant No.1 by filing written statement. Plaintiff examined
herself as PW1. Even though witness was cross examined at
length, nothing has been elicited from her to disbelieve her
version. Plaintiff has also examined PWs.2 and 3. She got
marked Ex.P.15-the birth certificate issued by the Tahasildar,
Ankola. According to which, Meera Bai @ Shanta Bai was born
to Nagappa Govinda Shetty of Islampur on 16.05.1946.
17. Defendant No.1 examined himself as DW1. Even
though he denied that plaintiff is his sister, he categorically
states that except Meera @ Uma, he has no other sisters. This
admission goes a long way in proving the relationship of the
plaintiff with defendant No.1. If in fact plaintiff was not related
to defendant No.1, there was no occasion for defendant No.1 to
give such fatal admission. If at all DW1 was not referring to the
plaintiff, when he says except Meera @ Uma he has no other
sisters, he could have explained it. No such attempt was made
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by the witness. Interestingly, defendant No.1 admits that
Nagappa Govinda Shetty of Islampur, referred to in Ex.P.15-the
birth certificate is his father. Ex.P.15 was issued at an
undisputed point of time by the competent authority and there
is no reason to disbelieve this document. If Ex.P.15 is
considered along with the admission made by DW1, I do not
find any reason to doubt the relationship of plaintiff with
defendant No.1. Therefore, I am of the opinion that the
relationship of the plaintiff with defendant No.1 is proved.
18. Once relationship of the plaintiff with defendant
No.1 is proved, she will be entitled for half share in the
schedule properties, which were admittedly left behind by her
father Nagappa Govinda Shetty. Apart from plaintiff and
defendant No.1, there are no other legal representatives left
behind by Nagappa Govinda Shetty. Therefore, I am of the
opinion that the plaintiff is entitled for half share in the
schedule property.
19. Admittedly, defendant No.1 sold 6 guntas of land in
the schedule property in favour of defendant No.2 under a the
registered sale deed. Defendant No.2 being respondent No.2 in
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this appeal is entitled to work out equity in the final decree
proceedings.
20. I have gone through the impugned judgment and
decree passed by the trial Court. The trial Court has committed
an error in ignoring the fatal admissions given by defendant
No.1 and proceed to answer all the issues except issue No.5 in
the negative. The reasons assigned by the trial Court is
perverse and it is not convincing. Therefore, I am of the
opinion that the same is liable to be set aside.
Accordingly, I answer the above point in the Affirmative
and proceed to pass the following;
ORDER
i) The appeal is allowed with cost.
ii) The impugned judgment and decree dated
21.04.2007 passed in OS.No.8/2006 (Old
number OS.No.31/2005) by Civil Judge
(Sr.Dn.) Kumuta is set aside.
iii) Consequently, suit of the plaintiff in
OS.No.8/2006 (Old number
OS.No.31/2005) is decreed as prayed for
holding that the plaintiff is entitled for half
share in the suit property.
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iv) Defendant No.2 is entitled to workout
equity in the final decree proceedings.
v) In view of the disposal of the main
petition, pending IAs are disposed off.
vi) Office is directed to send back the TCR to
the Trial Court along with the copy of this
judgment.
SD/-
JUDGE
BH
