Karnataka High Court
Tippawwa W/O Hanmanth Gorav vs Vithal S/O Holabasappa Gorav And Anr on 28 May, 2024
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RFA No. 200081 of 2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200081/2015 (PAR/POS)
BETWEEN:
TIPPAWWA
W/O HANMANTH GORAV,
AGE: 48 YEARS,
OCC:AGRICULTURE AND HOUSEHOLD WORK,
R/O: HOSUR, TQ. & DISTRICT:BIJAPUR
...APPELLANT
(BY SRI GANESH SUBHASHCHANDRA KALBURGI, ADVOCATE)
AND:
Digitally signed by 1. VITHAL S/O HOLABASAPPA GORAV
BASALINGAPPA
SHIVARAJ AGE: 44 YEARS,
DHUTTARGAON
Location: HIGH COURT
OCC:AGRICULTURE,
OF KARNATAKA R/O: KANABUR,
TQ & DISTRICT:BIJAPUR-586101.
2. RACHAPPA @ RACHANNA
S/O HOLABASAPPA GORAV @ HUGAR,
AGE: 39 YEARS, OCC:AGRICULTURE,
R/O KANABUR,
TQ & DIST:BIJAPUR-586101.
...RESPONDENTS
(BY SRI. VINAYAK APTE, ADVOCATE FOR R1;
R2 SERVED)
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RFA No. 200081 of 2015
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND
DECREE DATED 27.08.2015 PASSED IN O.S. NO.176/2013 ON
THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE, VIJAYAPUR,
AND TO PASS ANY OTHER APPROPRIATE ORDERS, IN THE
INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY ASHOK S. KINAGI, DELIVERED THE FOLLOWING:
JUDGMENT
This regular first appeal is filed by the
appellant/plaintiff challenging the judgment and
preliminary decree dated 27.08.2015 in O.S.No.176/2013
by the III Addl. Senior Civil Judge, Bijapur.
2. For the sake of convenience the parties are
referred to as per their ranking before the trial court.
3. The appellant is the plaintiff and respondents
are the defendants.
4. Brief facts leading rise to filing of this appeal
are as under;
The plaintiff filed a suit for partition and separate
possession, on the ground that Narasappa was the original
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propositus. He died leaving behind his daughter
Rachawwa. Rachawwa died on 01.10.1984 leaving behind
the plaintiff and the defendants as her LR's. It is
contended that Narasappa was the absolute owner of the
suit schedule properties and he had no male issues. After
the death of deceased Narasappa, his daughter Rachawwa
succeeded to the properties of Narasappa and she became
the absolute owner and in actual possession of the suit
schedule properties. Consequently, the name of Rachawwa
was entered in the revenue records vide M.E.No.184 of
Kanabur village of Vijaypur Taluk vide order dated
13.06.1956.
It is further case of the plaintiff, that plaintiff and
defendants are the daughter and sons of said Rachawwa.
After the death of said Rachawwa, the plaintiff and
defendants have succeeded to the properties left by her.
The plaintiff demanded for partition and separate
possession in the suit schedule properties, but the
defendants refused to effect the partition. Therefore, the
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plaintiff constrained to file a suit for partition and separate
possession in O.S. No.315/1997 on the file of Prl. Civil
Judge (Sr.Dn.), Bijapur and at the intervention of elders,
plaintiff filed a memo for not pressing the suit and said
suit came to be dismissed as not pressed. After the
dismissal of the suit, the defendants have not taken any
steps to effect partition and separate possession. Again
the plaintiff requested the defendants to effect the
partition, but the defendants instead of effecting partition,
got the properties transferred in their name behind the
back of the plaintiff vide ME No.851 of Kanabur village of
Bijapur. The said mutation extract is not binding upon the
plaintiff. Thus, cause of auction arises for the plaintiff to
file suit for partition and separate possession.
5. Defendant No.1 filed the written statement
denying the averments made in the plaint. It is contended
that, the plaintiff was given in the marriage about 30
years back to one Hanamanth of Hosur. At the instigation
of her husband, plaintiff claiming her 1/3rd share in the
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compensation amount of the house properties and landed
properties. It is contended that, the defendants and
plaintiff have settled the dispute in the meeting of elders
by paying Rs.12 lakh to the plaintiff towards her /3rd
share in all the suit schedule properties. The defendants
paid the said amount in the presence of elders in the
village. Hence, the plaintiff has withdrawn the suit by
filing a memo after the receipt of Rs.12 lakh from the
defendants. As such, the suit filed by the plaintiff is not
maintainable and hence pray to dismiss the suit.
6. The trial court on the basis of rival pleadings
framed the following issues:
i) Whether the plaintiff proves that, the suit
properties are joint family properties of plaintiff
and defendants?
ii) Whether the plaintiff further proves that, ME
No.851 is concocted, behind the back of plaintiff
and same is not binding on her?
iii) Whether the plaintiff is entitled 1/3rd share in
the suit property?
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iv) Whether the defendant No.1 proves that, the
plaintiff received an amount of Rs.12,00,000/-
and withdraw the suit OS No.315/97 as
contended in para No.3 of the written
statement?
v) Whether there is no cause of action to the
plaintiff for filing the present suit?
vi) Whether the plaintiff is entitled to the relief
sought for?
vii) What order or decree?
7. The plaintiff in support of her case examined
herself as P.W.1 and examined one witness as P.W.2 and
got marked 09 documents as Exs.P.1 to 9. In rebuttal,
defendant No.1 was examined as D.W.1 and also
examined 04 witnesses as D.Ws.2 to 5 and got marked 09
documents as Exs.D.1 to 9.
8. The trial court after recording the evidence,
hearing on both sides and on the assessment of oral and
documentary evidence, answered issue Nos.1 and 2 and 5
in the Affirmative and answered issue Nos.3, 4 and 6 in
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the Negative and issue No.7 as per the final order. The
suit of the plaintiff was dismissed by the trial court vide
judgment dated 27.08.2015. The plaintiff aggrieved by the
judgment and preliminary decree passed in the aforesaid
suit, has filed this regular first appeal.
9. Heard the learned counsel for the plaintiff and
the defendants.
10. Learned counsel for the plaintiff submits that,
the instant suit filed by the plaintiff is maintainable and
admittedly the suit schedule properties are the joint family
properties of the plaintiff and the defendants and they are
the legal heirs of Rachawwa and she died intestate. He
submits that the plaintiff is entitled for 1/3rd share in the
suit schedule properties as per Section 15 of the Hindu
Succession Act,1956. He submit that prior to filing of the
instant suit, the plaintiff filed a suit in O.S. No.315/1997.
During the pendency of the said suit, the defendants
agreed to allot the share to the plaintiff. On the assurance
of the defendants, the plaintiff has withdrawn the said
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suit. After the withdrawal of the suit, the defendants have
not taken any steps to effect the partition. He further
submits that it is well established principle of law that any
number of suits can be filed for partition and separate
possession unless partition is effected by metes and
bounds. He submits that the trial court has answered
issue Nos.1 and 2 in the Affirmative. The trial court could
have decreed the suit, on the contrary dismissed the suit
only on the ground that the plaintiff has already filed a suit
in O.S. No.315/1997 and withdrawn the suit without
liberty. Therefore the trial court committed an error in
dismissing the suit of the plaintiff. Hence, on these
grounds, he prays to allow the appeal.
11. Per contra, learned counsel for the defendants
supports the impugned judgment and submits that the
plaintiff prior to the filing of the instant suit, filed a suit in
O.S.No.315/1997 and withdrawn the suit without
reserving liberty to file a fresh suit for partition and
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separate possession. Hence, he prays to dismiss the
appeal.
12. Perused the records and considered the
submissions of the learned counsel for the parties.
13. The points that arise for our consideration are:
1. Whether the plaintiff proves that the suit
schedule properties are the joint family
properties of the plaintiff and the defendants?
2. Whether defendant No.1 proves that the
plaintiff had received a sum of Rs.12 lakh
towards her share in the compensation amount
and withdrawn the suit in O.S. No.315/1997?
3. Whether the plaintiff proves that the impugned
judgment and preliminary decree is arbitrary
and erroneous?
4. What order or decree?
14. Point No.1: The plaintiff in order to establish
her case, examined herself as P.W.1 and she has
reiterated the plaint averments in the examination-in-chief
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and further in order to establish that the suit schedule
properties are the joint family properties of plaintiff and
the defendants, has produced the documents. Ex.P.1 is
the ROR of land bearing Sy.No.1/1 which stands in the
name of defendant Nos.1 and 2 and the entries were
effected vide M.R. No.21/2003-04 dated 07.05.2004.
Ex.P.2 is the copy of ROR in respect of land bearing
Sy.No.4/1 stands in the name of defendants. Ex.P.3 is the
copy of ROR in respect of land Sy.No.82/2 which stands in
the name of defendants and entries were effected vide MR
No.21/2003-04 dated 07.05.2004. Ex.P.4 is the copy of
Form No.9 in respect of house property bearing No.155/2
which stands in the name of defendant No.2. Exs.P.5 and
6 are the mutation extracts which disclose that after the
demise of Rachawwa, the said properties were transferred
in the name of defendant Nos.1 and 2. Exs.P.7 to 9 are
the mutation extracts, which disclose that after the demise
of father of Rachawwa, the said properties were
transferred in the name of Rachawwa.
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15. In the course of cross-examination of P.W.1,
except suggesting that the plaintiff had taken Rs.12 lakh
towards her share nothing has been elicited. It is also
suggested that the suit schedule properties were acquired
by the mother of plaintiff and defendants from her father
and that in respect of suit schedule properties no share
was allotted to the plaintiff and the said suggestions were
admitted by P.W.1. Except the above suggestions,
nothing has been elicited from the mouth of this witness.
Plaintiff also examined one Dundayya as P.W.2, who has
deposed that Narsappa was the owner of the suit schedule
properties and Rachawwa was the only daughter born to
Narsappa. After the demise of Narasappa, Rachawwa
succeeded to the suit schedule properties. Rachawwa died
leaving behind the plaintiff and defendants. The plaintiff
and defendants jointly inherited the suit schedule
properties and no partition is effected between the plaintiff
and defendants and nothing has been elicited from the
mouth of this witness so as to disprove the case of the
plaintiff.
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16. In rebuttal, the defendant No.1 was examined
as D.W.1 and he has reiterated the written statement
averments in the examination-in-chief and produced the
documents. Ex.D.1 is the Agreement Deed. Ex.D.2 is the
certified copy of the order sheet passed in O.S.
No.315/1997. Ex.D.3 is the certified copy of the plaint in
O.S. No.315/1997. Ex.D.4 is the certified copy of the
written statement in O.S.No.315/1997. Ex.D.5 is the
certified copy of memo filed by the Advocate for defendant
No.2 in OS.No.315/1997. Ex.D6 is the certified copy of
memo filed by the plaintiff for dismissal of suit as not
pressed in O.S.No.315/1997. Ex.D.7 is the certified copy
of the application filed under Section 151 of CPC. Ex.D.8
are the medical records of Holebasappa Hugar. Ex.D.9 is
the Discharge Summary issued by Sanjivini Clinical
Laboratory, Bijapur.
17. From the perusal of the records produced by
the plaintiff and the defendants and also admission of the
defendants that the suit schedule properties are the joint
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family properties of plaintiff and defendants, it is clear that
the suit schedule properties are the joint family properties
of the plaintiff and the defendants and further the
defendants suggested to P.W.1 that the suit schedule
properties are acquired by their mother from her father.
The said suggestion to P.W.1 itself is sufficient to hold that
the suit schedule properties are the joint family properties
of the plaintiff and defendants as the same were acquired
by the Rachawwa i.e., mother of the plaintiff and
defendants from her father Narasappa and thus the said
properties became Streedhan properties. It is not the
case of the defendants that the mother has transferred the
suit schedule properties in favour of defendants during her
life time. Admittedly, Rachawwa died intestate. The
plaintiff and defendants being Class-I heirs of deceased
Rachawwa are absolutely entitled for equal share in the
properties left by deceased Rachawwa under Section 15 of
the Hindu Succession Act, 1956. In view of the above
discussion, we answer the point No.1 in the Affirmative.
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18. Point No.2: It is the defence of the defendants
that, the plaintiff had received a sum of Rs.12 lakh
towards her share in the compensation amount. In order
to substantiate the defence of the defendants, the
defendants except adducing oral evidence have not
produced any documents to establish that Rs.12 lakh was
paid to the plaintiff towards her share in the compensation
amount. The defendants produced Ex.D.6 i.e., Memo filed
by the plaintiff in O.S.No.315/1997, but from the perusal
of the said memo, it does not disclose that, the plaintiff
had received an amount of Rs.12 lakh from the defendants
as alleged by the defendants in the written statement. In
the absence of material evidence on record, this court is of
the opinion that the defendants have failed to establish
that the defendant No.1 has paid a sum of Rs.12 lakh to
the plaintiff as pleaded in the written statement. In view
of the above discussion, we answer point No.2 in the
Negative.
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19. Point No.3: It is the defence of the defendants
that, the plaintiff prior to the filing of the instant suit, filed
a suit in O.S.No.315/1997 and the said suit has been
withdrawn by the plaintiff without reserving liberty to file a
fresh suit on the same cause of action.
20. Admittedly, the relief sought by the plaintiff is
for partition and separate possession claiming that the suit
schedule properties are the joint family properties as held
by the trial court in the impugned judgment, but the trial
court has dismissed the suit only on the ground that the
plaintiff has withdrawn the suit filed by her in
O.S.No.315/1997. Further, we would like to place reliance
on the decision of Co-ordinate Bench of this Court in the
case of S.K.Lakshminarasappa, since deceased by his
LRs vs. Sri B. Rudraiah and others reported in ILR
2012 KAR 4129, wherein this court at para-41 and 45
held as under:
"41. Interpreting the aforesaid provision the Himachal
Pradesh High Court in the case of ASHA SHARMA AND
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OTHERS Vs. AMAR NATH AND OTHERS reported in AIR
2003 Himachal Pradesh 32, held as under:
"So far the question of suit being barred by
principle of res judicate is concerned, such
principles are not attracted in the present
case. There is no scope of dispute that an
order made under Order 9 Rule 8 of the Code
of civil Procedure would not amount to res
judicate, as such, a suit cannot be said to
have been heard and finally decided by the
order of dismissal made for the non-
appearance of the plaintiffs under order 9
Rule 8 of the Code. The only effect of an
order made under order 9 Rule 8 is that a
fresh suit based on the same cause of action
is precluded by the provisions of Order 9 Rule
9 of the Code. The question, in the
circumstances, is whether the second suit for
partition filed by the plaintiffs is not
maintainable in view of the bar created under
Order 9 Rule 9 of the Code.
Rule 9 of Order 9 is based on sound
public policy that no defendant should be
vaxed twice on the same cause of action.
It will also not apply to the cases
where the cause of action is recurring or
continuous. The right to enforce partition is a
legal incident of a joint tenancy, and so long
such tenancy subsists, a party has a
continuous right for partition.
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Cause of action is continuous in
partition cases which subsists so long as the
property is held jointly. In other words, the
joint owner can file a suit for partition until
partition is actually effected irrespective of
the facts whether earlier suits for such
partition were dismissed in default or an
earlier decree for partition was not acted
upon.
xxxxxx
45. Rule 9 of Order 9 is based on sound public
policy that no defendant should be vexed twice on the same
cause of action. The only effect of an order made under
Order 9 Rule 8 is that a fresh suit based on the same cause
of action is precluded by the provisions of Order 9 Rule 9 of
the code. It will not apply to the cases where the cause of
action is recurring or continuous. A suit for partition
dismissed for default under Order 9 Rule 8 of CPC does not
bar a subsequent suit for partition. The reason is that the
incident of a joint tenancy and which enures so long as the
joint tenancy continues. Cause of action is continuous in
partition cases which subsists so long as the property is
held jointly. In other words, the joint owner can file a suit
for partition, until partition is actually effected, irrespective
of the fact whether earlier suits for such partition were
dismissed for default or withdrawn or an earlier decree for
partition was not acted upon.
21. The issue involved in the present case is
squarely covered by the decision of Co-ordinate Bench
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of this Court in the case of S.K. Lakshminarasappa
(supra). In view of the above discussion and in view of
law laid down in the case of S.K. Lakshminarasappa
(supra), we hold that the judgment and decree passed
by the trial Court is arbitrary and erroneous and same
is liable to be set aside. Accordingly, we answer point
No.3 in the Affirmative.
22. Point No.4: In view of the above discussions,
we proceed to pass the following:
ORDER
i. The Regular First Appeal filed by the
plaintiff is hereby allowed.
ii. The judgment and preliminary decree
passed by the trial court is set aside and
the suit of the plaintiff is decreed.
iii. The plaintiff is entitled for 1/3rd share in
the suit schedule properties.
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iv. Office to draw the preliminary decree
accordingly.
v. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
BL
CT:BN
