Karnataka High Court
Jagannath And Anr vs Vidyavati And Ors on 28 May, 2024
-1-
NC: 2024:KHC-K:3349-DB
RFA No. 200097 of 2019
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
RFA NO.200097 OF 2019 (PAR/POS)
BETWEEN:
1. JAGANNATH
S/O LATE CHANNABASAPPA KHUBA,
AGED ABOUT 62 YEARS,
OCC: AGRICULTURE & BUSINESS
R/O H.NO. 14-83, HOSPETGALLI BASAVAKALYAN
DISTRICT: BIDAR - 585401.
2. RAJESHWARI W/O JAGANNATH KHUBA,
AGED ABOUT 48 YEARS,
OCC: HOUSEHOLD WORK,
Digitally signed R/O H.NO. 14-83, HOSPETGALLI BASAVAKALAYAN
by VARSHA N
RASALKAR DISTRICT: BIDAR-585401.
Location: HIGH
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI. GANESH S. KALBURGI, ADVOCATE)
AND:
1. VIDYAVATI
W/O LATE SUBHASH CHANDRA KHUBA,
AGED ABOUT 74 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O NO. 21-14, HOSPETGALLI BASAVAKALYAN,
DISTRICT: BIDAR-585401.
-2-
NC: 2024:KHC-K:3349-DB
RFA No. 200097 of 2019
2. RAJESHEKAR S/O LATE CHANNABASAPPA KHUBA,
AGED ABOUT 70 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O H.NO. 14-83, HOSPETGALLI BASAVAKALYAN
DISTRICT: BIDAR-585101.
3. ASHOK S/O LATE CHANNABASAPPA KHUBA,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O H.NO. 21-14, HOSPETGALLI BASAVAKALYAN
DISTRICT: BIDAR-585401.
4. JAGADEVI
W/O LATE VEERANNA @ VEERBHADRAPPA KHUBA,
AGED: 69 YEARS
OCC: AGRICULTURE & BUSINESS,
R/O H.NO. 21-14, HOSPETGALLI BASAVAKALYAN
DISTRICT: BIDAR-585401.
5. GUNDAPPA
S/O LATE VEERANNA @ VEERBHADRAPPA KHUBA,
AGED:40 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O H.NO. 21-14, HOSPETGALLI BASAVAKALYAN,
DISTRICT: BIDAR - 585401.
6. CHANNAMMA
W/O MALLIKARJUN (BIJAPUR SIR)
AGED ABOUT 46 YEARS,
OCC: HOUSEHOLD,
R/O ASHRAYA COLONY SPATAGIRI AREA,
NEAR AMBEDKAR CIRCLE,
DEVADURGA-584101.
7. MALLIKARJUN S/O SIDRAMAPPA KHUBA,
AGED ABOUT MAJOR,
R/O BASAVAKALYAN,
DISTRICT: 585401.
...RESPONDENTS
(BY SRI. S.K BABSHETTY, ADVOCATE FOR R1;
SRI. H.R MALIPATIL, ADVOCATE FOR R2 TO R6
SRI. SANJEEVKUMAR C PATIL, ADVOCATE FOR R7)
-3-
NC: 2024:KHC-K:3349-DB
RFA No. 200097 of 2019
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 AND 2 OF CPC, PRAYING TO ALLOW THIS APPEAL AND
SET ASIDE THE JUDGMENT AND DECREE DATED 28.02.2019
PASSED IN O.S.NO.15/2015 ON THE FILE OF THE II
ADDL.SENIOR CIVIL JUDGE AND JMFC AT BIDAR, AND TO
PASS ANY OTHER APPROPRIATE ORDERS AS MAY BE DEEMED
FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY
ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This regular first appeal is filed by the appellants
challenging the judgment and preliminary decree dated
28.02.2019 passed in OS No.15/2015 by the II Addl.
Senior Civil Judge and JMFC, Bidar.
2. For the sake of convenience the parties are
referred to as per their ranking before the trial Court.
3. The appellants are the defendants and
respondents are the plaintiffs.
4. Brief facts leading to filing of this appeal are as
under;
NC: 2024:KHC-K:3349-DB
The plaintiffs filed a suit for partition and separate
possession. It is the case of the plaintiffs that, the original
propositus was one Sanganbasappa Khuba who had two
children namely Channabasappa and Sidramappa.
Channabasappa Khuba died leaving behind five children
namely Subhashchandra, Veeranna, Rajshekhar i.e.
plaintiff No.2, Ashok-plaintiff No.3 and Jagannath-
defendant No.1. Plaintiff No.1 is the wife of
Subhashchandra, plaintiff No.4 is the wife of Veeranna,
defendant No.2 is the wife of defendant No.1 and
defendant No.3 is the son of Sidramappa. It is contended
that, the suit schedule properties are the joint family
properties and business of the parties are also in joint. It
is the case of the plaintiffs that the plaintiffs and the
defendants are the members of Hindu undivided family
and no partition is effected between the plaintiffs and the
defendants. The plaintiffs demanded for partition and
separate possession. The defendants refused to effect the
partition and separate possession. Hence, cause of action
NC: 2024:KHC-K:3349-DB
arisen for the plaintiffs to file suit for partition and
separate possession.
5. The defendant No.1 filed the written statement
admitting the relationship of the plaintiffs and the
defendants. It is contended that, there was prior partition
between the husband of plaintiff No.1 and defendant Nos.1
to 3 orally in the year 1990 and in the said partition the
properties shown in Annexure-A was fallen to the share of
plaintiffs and defendants. Hence, it is contended that, the
plaintiffs and defendants are not the members of Hindu
undivided family and plaintiffs are not entitled for share in
the suit scheduled properties. Hence, prayed to dismiss
the suit. Defendant Nos.2 and 3 filed written statement
and rest of other averments made in the plaint was
denied. It is contended that the late Subhaschandra was
the husband of plaintiff No.1, was died in the year 2004
and he was having a son by name Ravi who also died in
the year 2008 leaving behind his wife namely Lalita and
his two sons namely Rohit and Shantkumar and they are
NC: 2024:KHC-K:3349-DB
the legal heirs of deceased Ravi. The husband of
defendant No.2 and father of defendant No.3 died in the
year 1982. After the demise of Veeranna the partition was
effected in the family in the year 1990 between late
Subhashchandra, the husband of plaintiff No.1, plaintiff
Nos.2 and 3 and defendant Nos.1 to 3. In the said oral
partition, the properties are fallen to their respective
shares. In the said partition, the following properties have
been allotted to late Subhashchandra:
(a) House bearing CMC No.21-14 to an extent of
half share towards Eastern portion,
(b) 1/5th share in the plot bearing CMC No.31-338
measuring 75 x 75 feet situated near
Basaweshwar Chowk, Basvakalyan which was
already leased out to the Bharat Petroleum
Corporation till 2022.
(c) 51% share in S.C.Khuba Petrol Pump installed
in the plot bearing CMC No.31-338 measuring
NC: 2024:KHC-K:3349-DB
75 x 75 feet under the partnership firm with
defendant No.1.
Similarly, in the said oral partition the following
properties have been allotted to plaintiff No.1-Rajshekhar
are
(a) House bearing CMC No.14-83 measuring to
an extent of northern half share portion i.e.
15 x 22 feet towards Northern portion,
(b) 1/5th share in the plot bearing CMC No.31-
338 measuring 75 x 75 feet situated near
Basaweshwar Chowk, Basvakalyan was let
out to the Bharat Petroleum Corporation till
2022 which was allotted to the share of
plaintiff No.1.
In the said partition, plaintiff No.3 was allotted to
House bearing CMC No.21-14 measuring East West 15 feet
North South 15 consisting two rooms situated at Hospet
Galli, Basavakalyan and 1/5th share in the open plot
NC: 2024:KHC-K:3349-DB
bearing CMC No.31-338 measuring 75 x 75 feet was
already let out to Bharat Petroleum till 2022. Similarly, in
the said partition, defendant No.1 got House bearing CMC
No.14-83 measuring to an extent of southern half portion
i.e. 15 x22 feet consisting of two and half rooms and hall
situated at Hospet Galli, Basavakalyan. 1/5th share in the
open plot bearing CMC No.31-338 measuring 75 x 75 feet
was already leased out to Bharath Petroleum till 2022 and
49% share in S.C. Khuba Petrol Pump installed in open
plot bearing CMC No.31-338 measuring 75 x 75 feet under
the partnership firm with plaintiff No.1. Likewise,
defendant Nos.2 and 3 have got the land bearing
Sy.No.127 measuring 9 acres 32 guntas situated at Sindol
Village, Tq: Bidar, in the name of defendant No.2 and 1/5th
share in open plot bearing CMC No.31-338 measuring 75 x
75 feet was already leased out to Bharat Petroleum till
2022 and plot No.27-67/1 measuring East West 16 feet
North South 32 feet situated at Basava Gunj, Holsoor
Road, Basavakalyan. It is contended that defendant Nos.2
and 3 have sold the plot to others under the registered
NC: 2024:KHC-K:3349-DB
sale deed through plaintiff No.3. It is contended that
Bharat Petroleum Corporation was granted license for
running the petrol pump in the name of late
Subhaschandra Khuba. Plaintiff No.1 and defendant No.1
have formed a partnership firm and running the said petrol
pump in the open plot bearing No.31-338 measuring 75 x
75 feet. In the said partnership firm, the plaintiff No.1 has
got 51% share and defendant No.1 has got 41% share
and the said firm cannot be partitioned. It is also
contended that the husband of plaintiff No.1 namely
Subhashchandra died in the year 2004 leaving behind his
son late Ravi was also died in the yaer 2008 leaving
behind his wife Lalita and his two sons Rohit and
Shantkumar and one daughter Roopa and hence the suit is
bad for non-joinder of necessary parties i.e. legal heirs of
Ravi are not made as parties to the suit. It is contended
that the plaintiffs and defendants have divided the
property in the year 1990 and all of them are residing
separately and doing their own business. Hence, the
- 10 -
NC: 2024:KHC-K:3349-DB
present suit filed by the plaintiffs is not maintainable and
accordingly prayed to dismiss the suit.
6. The defendant No.1 has also filed written
statement. However, defendant Nos.2 to 4 filed an
application for transposition as plaintiff Nos.4 to 6. The
said application came to be allowed and they were
transposed as plaintiff Nos.4 to 6. After transposition, of
defendant Nos.2 to 4 as plaintiff Nos.4 to 6, defendant
No.1 prayed to dismiss the suit. The defendant No.2 and
3 also filed separate written statement re-iterating the
averments of defendant No.1 and prayed to dismiss the
suit.
7. The trial Court on the basis of pleading of the
parties framed the following issues:
(1) Whether the plaintiffs prove that the suit
schedule properties are joint family property
of themselves and defendants?
(2) Whether the defendants prove that, there was
partition taken place between plaintiffs and
defendant in the year 1990 in respect of suit
property?
- 11 -
NC: 2024:KHC-K:3349-DB
(3) Whether the plaintiff is entitled relief as
sought for in the plaint?
(4) What order or decree?
8. In order to prove their case, plaintiff No.3 was
examined as PW.1 and examined two witnesses as PWs.2
and 3 and got marked 13 documents as Exs.P1 to P13. In
rebuttal defendant No.1 was examined as DW.1 and
examined one witness as DW.2 and got marked 4
documents as Exs.D1 to D4. The trial Court after hearing
on both sides and on the assessment of oral and
documentary evidence answered issue Nos.1 and 3 in the
affirmative, issue No.2 in the negative and issue No.4 as
per the final order. The suit of the plaintiffs was partly
decreed with costs and it is ordered and decreed that the
plaintiff Nos.1 to 3 and defendant No.1 are entitled 1/5th
share each and plaintiff Nos.4 to 6 are entitled 1/5th share
in the suit schedule properties except plot No.19 which is
standing in the name of Smt.Rajeshwari W/o: Jaganath
Khuba as per Ex.P3. Being aggrieved by the said judgment
- 12 -
NC: 2024:KHC-K:3349-DB
and preliminary decree, the defendant Nos.1 and 2 have
filed this regular first appeal.
9. Heard the learned counsel for the
appellants/defendant Nos.1 and 2 and also learned counsel
for the respondent Nos.1 to 6/plaintiff Nos.1 to 6, so also
learned counsel appearing for respondent No.7/defendant
No.3.
10. Learned counsel for appellants/defendant Nos.1
and 2 submits that there was an oral partition in the year
1990 and accordingly the parties have acted upon. Hence,
the suit filed by the plaintiffs for partition and separate
possession is not maintainable without seeking for
reopening of the partition. Therefore, the judgment passed
by the trial Court is perverse, arbitrary. Hence, on these
grounds he prays to allow the appeal.
11. Per contra, learned counsel appearing for
respondents/plaintiffs Nos.1 to 6 submits that the plaintiffs
and defendants were the members of the Hindu undivided
- 13 -
NC: 2024:KHC-K:3349-DB
family and the suit schedule properties are the joint family
properties of the plaintiffs and defendants. He also submits
that no partition is effected between the plaintiffs and the
defendants. He submits that the defendants have not
produced any records related to the oral partition, effected
in the year 1990. Considering the defence of the
defendants, the trial Court has rightly observed that, the
defendants have failed to establish prior partition as
alleged in the written statement. Hence, the judgment and
decree passed by the trial Court is just and proper and
does not call for any interference. Hence, on these
grounds, prays to dismiss the appeal.
12. Learned counsel appearing for respondent
No.7/defendant No.3 prays to dispose of the appeal.
13. Perused the records and considered the
submissions of the learned counsel for the parties. The
points that arises for our consideration are;
- 14 -
NC: 2024:KHC-K:3349-DB
(1) Whether the plaintiffs proves that the suit
schedule properties are the joint family
properties of the plaintiffs and defendants?
(2) Whether the defendants proves that there
was oral partition took place between the
plaintiffs and defendants in the year 1990 in
respect of the suit scheduled properties?
(3) Whether the defendant Nos.1 and 2 proves
that the judgment and preliminary decree
passed by the trial Court is perverse and
arbitrary?
(4) What order or decree?
14. Point No.1: It is the case of the plaintiffs that,
the plaintiffs and defendants are the members of the
Hindu undivided joint family. It is contended that, the suit
scheduled properties are the joint family properties of the
plaintiffs and the defendants and further contended that
no partition was effected between the plaintiffs and
defendants as alleged by the defendants. The plaintiffs
demanded for partition and separate possession of the suit
schedule properties, but the defendants refused to effect
- 15 -
NC: 2024:KHC-K:3349-DB
the partition. Hence, the defendants have taken the
defence contending that there was prior oral partition in
the year 1990 hence the suit scheduled properties are not
joint family properties of the plaintiffs and defendants and
they are not the members of Hindu undivided family. The
plaintiffs, in order to prove their case, plaintiff No.3 was
examined as PW.1, who has reiterated the plaint
averments in the examination in chief and further in order
to establish that the suit scheduled properties are the joint
family properties of the plaintiffs and the defendants, they
have produced the documents wherein Ex.P.1 is the khata
extract of property bearing No.31-338 which stood in the
name of Chanabasappa i.e. father-in-law of plaintiff No.1,
father of plaintiff No.2, 3 and defendant No.1 and grand-
father of plaintiff Nos.5 and 6 and father-in-law of plaintiff
No.4. Ex.P2 is the ROR in respect of land bearing
Sy.No.127 which stood in the name of Jagadevi i.e.,
plaintiff No.4, Ex.P3 is the certified copy of the registered
sale deed executed in favour of Rajeshwari W/o:
Jagannath Khuba-defendant No.2, Ex.P4 is the copy of
- 16 -
NC: 2024:KHC-K:3349-DB
reply notice given by Territorial Manager P.G.Bhate,
Exs.P5 to P7 are the postal receipts, Ex.P8 is the khata
extract, Ex.P9 is the khata extract property bearing No.21-
14 which stood in the name of PW.1, Ex.P10 is the khata
extract in respect of property bearing No.14-83 which
stood in the name of Subhashchandra, Ex.P11 is the
original agreement executed by Subhashchandra Khuba
which discloses that there was an understanding between
the parties and copy of Ex.P14 is the translation copy.
Ex.P11a is the translation version of Ex.P11 from Marathi
to English, Ex.P12 is the copy of affidavit, Ex.P13 is the
partition letter dated 20.05.1990, which discloses that if
there is any partition there has to be given five shares, if
any expenditures, all the five brothers shall given the
same, gold and silver were distributed among the parties
and the mother had given one Gundasara (ornament) and
one ornament had to be given to the sister.
15. From the perusal of records produced by both
the parties, it is clear that the suit scheduled properties
- 17 -
NC: 2024:KHC-K:3349-DB
were owned and possessed by the propositus namely
Sanganabasappa Khuba. Further though the defendants
have not denied the relationship and also not denied the
nature of the suit scheduled properties, the defendants
have taken a defence that, there was oral partition
between the plaintiffs and defendants in the year 1990.
The admission of the defendants in the written statement
as well as in the evidence regarding nature of the suit
scheduled properties are the ancestral properties, it is
clear that, the plaintiffs have proved the nature of suit
scheduled properties are the joint family properties of the
plaintiffs and the defendants. As per Section 58 of the
Indian Evidence Act, the fact admitted need not be
proved. In view of the same, the plaintiffs have proved
that the suit scheduled properties are the joint family
properties of the plaintiffs and defendants. In view of the
above discussions, we answer point No.1 in the affirmative
holding that the plaintiffs have proved that the suit
scheduled properties are the joint family properties of the
plaintiffs and the defendants.
- 18 -
NC: 2024:KHC-K:3349-DB
16. Point No.2: Though the defendant Nos.1 and 2
have taken a defence that there was prior oral partition
between the plaintiffs and defendants in the year 1990. In
order to substantiate the defence of the defendant Nos.1
and 2, defendants except pleading in the written
statement and oral evidence, no documents have been
produced to show that there was oral partition effected
between the plaintiffs and defendants and also not
produced any records to establish that on the basis of
alleged oral partition name of the parties are entered in
the revenue records. Further the defendants have also not
examined any independent witnesses who were alleged to
have been present at the time of alleged partition. The
defendants have failed to establish that there was prior
oral partition in the year 1990. The trial Court was justified
in recording the finding that the defendants have failed to
establish the defence of the defendants in regard to prior
partition. In view of the above discussions, we answer
point No.2 in the negative holding that the defendant
Nos.1 and 2 have failed to establish that there was an oral
- 19 -
NC: 2024:KHC-K:3349-DB
partition between the plaintiffs and defendants in the year
1990 in respect of the suit scheduled properties.
17. Point No.3: As we have already recorded point
No.1 and 2 in favour of the plaintiffs holding that the suit
properties are the joint family properties and defendants
have failed to establish prior oral partition. The plaintiffs
have proved the relationship and nature of suit scheduled
properties as joint family properties. The trial Court was
justified in decreeing the suit of the plaintiffs. Hence, we
do not find any error in the impugned judgment and we
decline to interfere with the impugned judgment and
preliminary decree passed by the trial Court. Accordingly,
we answer point No.3 in the negative.
18. Point No.4: In view of the above discussions,
we proceed to pass the following;
ORDER
a. The appeal is dismissed.
- 20 -
NC: 2024:KHC-K:3349-DB
b. The judgment and preliminary decree passed
by the trial Court is hereby confirmed.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
MSR
CT;BN
