Karnataka High Court
Sneha And Anr vs Shivakumar And Ors on 29 May, 2024
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RFA No.200132 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH 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.200132 OF 2018 (PAR/POS)
BETWEEN:
1. SNEHA
D/O SHIVAKUMAR,
AGE: 25 YEARS,
OCC: STUDENT,
R/O: BIDAR,
TQ: & DIST: BIDAR.
2. KAVITA
W/O SHIVAKUMAR,
AGE: 45 YEARS,
Digitally signed by OCC: AGRICULTURE,
BASALINGAPPA
SHIVARAJ R/O: BIDAR,
DHUTTARGAON
Location: High Court
TQ: & DIST: BIDAR.
Of Karnataka ...APPELLANTS
(BY SRI RAVI B.PATIL, ADVOCATE)
AND:
1. SHIVAKUMAR
S/O SHIVASHARANAPPA,
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O: AKKAMADEVI COLONY,
OPP: K.P.T.C.L. OFFICE,
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RFA No.200132 of 2018
BIDAR, TQ: & DIST: BIDAR -585 401.
2. SANJEEVKUMAR
S/O SHIVASHARNAPPA,
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O AKKAMADEVI COLONY,
OPP: K.P.T.C.L. OFFICE, BIDAR.
R/O: C.M.C. NO. 9-1-40,
NANDI COLONY, BIDAR - 585 401
TQ. AND DIST: BIDAR.
3. UDAYKUMAR
S/O SHIVASHARNAPPA,
AGE: 43 YEARS,
OCC: AGRICULTURE,
R/O: C.M.C. NO. 9-1-40,
NANDI COLONY, BIDAR,
TQ. AND DIST: BIDAR - 585 401.
4. SANTOSHKUMAR
S/O SHIVASHARNAPPA,
AGE: 41 YEARS,
OCC: AGRICULTURE,
R/O: C.M.C. NO. 9-1-40,
NANDI COLONY, BIDAR,
TQ. AND DIST: BIDAR - 585 401.
5. ASHA W/O VEERMALLESHWAR,
AGE: 51 YEARS,
OCC: HOUSEHOLD,
R/O: C.M.C. NO. 9-1-40,
NANDI COLONY, BIDAR,
TQ. AND DIST: BIDAR - 585 401.
6. JAISHREE W/O SANJEEVKUMAR,
AGE: 47 YEARS,
OCC: HOUSEHOLD,
R/O: C.M.C. NO. 9-1-40,
NANDI COLONY, BIDAR,
TQ: & DIST: BIDAR - 585 401.
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RFA No.200132 of 2018
7. OMPRAKASH
S/O SHIVARAJ BETTAD,
AGE: 37 YEARS,
OCC: AGRICULTURE,
R/O: CHALKAPUR,
TQ: & DIST: BIDAR - 585 401.
8. ARUN S/O SHIVARAJ BETTAD,
AGE: MAJOR, OCC: STUDENT,
R/O: CHALKAPUR,
TQ: & DIST: BIDAR - 585 401.
9. SANKET S/O SHIVAKUMAR,
AGE: 30 YEARS,
OCC: PRIVATE SERVICE,
R/O: NANDI COLONY, BIDAR,
TQ: & DIST: BIDAR - 585 401.
...RESPONDENTS
(BY SRI SHESHADRI JAISHANKAR M., ADV., FOR R1, R5 & R6;
SRI K.M.GHATE, ADVOCATE FOR R2 TO R4, R7 AND R8;
V/O. DATED 30.10.2019 SERVICE OF NOTICE TO R9 IS
HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO
CALL FOR THE RECORDS ON THE FILE OF PRINCIPAL SENIOR
CIVIL JUDGE AND C.J.M., AT BIDAR IN O.S.NO.108/2007
CULMINATING IN THE JUDGMENT AND DECREE IMPUGNED
AND SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., AT
BIDAR, IN O.S.NO.108/2007, DATED 30.06.2018 AND
CONSEQUENTLY TO DECREE THE SUIT OF THE PLAINTIFFS IN
ENTIRETY AND ETC.
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RFA No.200132 of 2018
THIS REGULAR FIRST APPEAL COMING ON FOR 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
30.06.2018 passed in O.S.No.108/2007 by the Principal
Senior Civil Judge and CJM Court, 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 plaintiff Nos.2 and 3,
respondent Nos.1 to 8 are the defendant Nos.2 to 8,
respondent No.9 is plaintiff No.1.
4. Brief facts leading rise to filing of this appeal
are as under:
The plaintiffs filed a suit for partition and separate
possession against the defendants. It is the case of the
plaintiffs that, plaintiff No.3 and defendant No.2 are the
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husband and wife. Plaintiff Nos.1 and 2 are the son and
daughter of plaintiff No.3 and defendant No.2. Defendant
No.1 is the mother of defendant No.2. Defendant Nos.2 to
7 are the brothers and sisters of Defendant No.2 and
defendant Nos.8 and 9 are the purchasers of lands bearing
Sy.Nos.101 and 103 of Sikindrapur village, Bidar. It is
contended that the suit schedule properties 'A' and 'B' are
the landed properties and 'C' schedule property is the
house property. The suit schedule properties are the joint
family properties of plaintiffs and defendant Nos.1 to 7.
The grandfather of plaintiff Nos.1 and 2 namely, late
Shivasharanappa, being the husband of defendant No.1
and father of defendant Nos.2 to 7 was the common
propositus. He died in the year 1983 leaving behind
defendant Nos.1 to 7 as his legal heirs. It is contended
that partition was effected between Shivasharanappa and
his brothers and in the said partition 'A' schedule
properties were fallen to the share of Shivasharanappa
and out of the income derived from 'A' schedule
properties, the said Shivasharanappa acquired 'B' schedule
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properties in the name of defendant No.1 and constructed
a house in the 'C' schedule property. It is contended that
defendant Nos.2 to 5 being the sons of deceased
Shivasharanappa have never contributed for the
development of the family or the properties during the life
time of said Shivasharanappa. It is contended that
defendant No.2 was addicted to the bad habits being the
elder son in the family had sold the land in Sy.Nos.101
and 103 with the consent of defendant Nos.1 and 3 to 5. It
is contended that defendant No.2 started neglecting the
plaintiffs and in collusion with defendant Nos.1 and 3 to 5
started alienating the suit schedule properties without
looking after the affairs of the family. Plaintiff Nos.1 and 2
demanded for partition and separate possession through
plaintiff No.3, but the defendants refused to effect the
partition. Hence, the cause of action arose for the plaintiffs
to file a suit for partition and separate possession.
5. Defendant Nos.1, 3 to 5 have filed their
common written statement and defendant No.2 filed a
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separate written statement. Defendant Nos.8 and 9 being
the purchasers filed written statement separately.
Defendant Nos.1 to 7 admitted the relationship with the
plaintiffs and also admitted the facts that they were the
joint family members and one Shivasharnappa was their
common ancestor. It is contended that a partition was
effected in between defendant Nos.1 to 7 and the same
was registered on 10.10.1996 and 05.11.2000 and in the
said partition, defendant No.2 got a share in the lands
bearing Sy.Nos.101 and 103, who in turn sold the said
properties in favour of defendant Nos.8 and 9 and to which
the plaintiff No.3 has attested her signatures and
contended that the defendants are the divided members of
the family having allotted their respective shares.
Defendant No.1 is the absolute owner of lands bearing
Sy.Nos.329 and 330 situated at Kolar-B. Defendant Nos.2
to 5 have no right, title or interest in the said survey
numbers and prayed to dismiss the suit.
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6. Defendant Nos.8 and 9 being the purchasers of
the suit lands contended that the said land bearing
Sy.Nos.101 and 103 were standing in the name of
Shivasharnappa. After his demise, all the suit properties
were partitioned through a registered partition deed and
defendant No.2 had sold the properties for discharging his
family debts and they are the bonafide purchasers and
they are in physical possession of the properties sold to
them under the registered sale deeds. Hence, prayed to
dismiss the suit.
7. The trial court on the basis of the pleadings of
the parties framed the following issues:
i. Whether the plaintiffs prove all the suit
properties are the joint family properties of
themselves and defendant Nos.1 to 7?
ii. Whether the plaintiffs prove that the sale
deeds bearing No.1514/04-05 and 15/04/05
executed by defendant No.2 in favour of
defendants No.8 and 9 dated 20.07.2004, are
not binding upon their shares?
iii. Whether the plaintiffs prove that the
defendants No.1 to 7 are avoiding effect the
partition with separate possession in the suit
properties?
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prove that there was family partition in
respect of joint family properties of plaintiffs
and defendants No.1 to 7 under registered
deeds dated 10.10.1996 and dated
06.11.2000?
v. Whether the defendant No.2 proves that he is
absolute owner of the suit properties bearing
sy.no.101 and 103 as alleged in his written
statement?
vi. Whether the defendant No.8 and 9 prove that
they are bonafide purchasers of properties
under sale deeds dated 20.07.2004?
vii. Whether the plaintiffs are entitled for the
reliefs as prayed for?
viii. What order or decree?
8. The plaintiffs, in support of their case, plaintiff
No.3 was examined as PW.1 and got marked 45
documents as Exs.P1 to 45. Defendants in support of their
defence, examined defendant No.4 as DW.1, Defendant
No.2 was examined as DW.2, Defendant No.8 was
examined as DW.3 and got examined 4 witnesses as
DWs.4 to 7 and got marked documents Exs.D1 to 38. The
trial Court after recording the evidence, hearing on both
side and on the assessment of oral and documentary
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evidence answered issue Nos.1 to 3 and 7 in the negative,
issue Nos.4 to 6 in the affirmative, issue No.8 as per the
final order. The suit of the plaintiffs was dismissed.
9. Plaintiffs 2 and 3, aggrieved by the judgment
and decree passed by the trial Court, have filed this
regular first appeal.
10. Heard the learned counsel for the parties.
11. Sri.Ravi B.Patil., learned counsel for the
plaintiffs submits that admittedly, suit schedule properties
are the ancestral properties of the plaintiffs and defendant
No.2. Partition was effected between the defendants under
Ex.D33. In the said partition, plot Nos.27, 28, 30, 45, 46,
74, 75, 97 to 99, 112 to 115, 138 to 142, 147 to 150 and
175 to 179 located in the approved layout of non-
agricultural land bearing Sy.No.328 situated at Kolar(K)
village, Bidar Taluk and plot Nos.83, 84, 97, 98 and 64 to
73 located in the approved layout of non-agricultural lands
bearing Sy.Nos.345 and 346 of Kolar (K) village, Bidar
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Taluk and plot Nos.1 to 11 in the approved layout of non-
agricultural land bearing Sy.No.350 situated at Kolar(K)
village, Bidar Taluk, were allotted to the share of
defendant No.2. Plaintiffs and defendant No.2 are
members of Hindu Undivided Family and there is no
partition effected between the plaintiffs and defendant
No.2. On these grounds, he prays to allow the appeal.
12. He further submits that, the plaintiffs will not
press for prayer 'D' in the plaint and as such, the suit in
respect of prayer 'D' may be dismissed. Said submission is
placed on record.
13. Sri Sheshadri Jaishankar, learned counsel for
respondents 1, 5 and 6 and Sri K.M.Ghate, learned counsel
for respondents 2 to 4, 7 and 8 support the impugned
judgment passed by the Trial Court. Sri.K.M.Ghate,
learned counsel submits that partition has already been
effected between the defendants under the partition deed
which is registered as per Ex.D33. The plaintiffs have no
right to claim share in the properties allotted to the share
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of defendants except defendant No.2 who is the father of
the plaintiffs 1 and 2. Hence, he submits that the Trial
Court was justified in dismissing the suit against
defendants Nos.2 to 8. On these grounds, they prays to
dismiss the appeal as against other defendants except
defendant No.2.
14. We have perused the entire records and
considered the submissions of the learned counsel for the
parties.
15. The points that arise for our consideration are:
1) Whether the plaintiffs 2 and 3
prove that the suit schedule
properties i.e., plot Nos.27, 28,
30, 45, 46, 74, 75, 97 to 99,
112 to 115, 138 to 142, 147 to
150 and 175 to 179 located in
the approved layout of non-
agricultural land bearing
Sy.No.328 situated at Kolar(K)
village, Bidar Taluk and plot
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located in the approved layout
of non-agricultural lands bearing
Sy.Nos.345 and 346 of Kolar (K)
village, Bidar Taluk and plot
Nos.1 to 11 in the approved
layout of non-agricultural land
bearing Sy.No.350 situated at
Kolar(K) village, Bidar Taluk, are
ancestral properties of plaintiffs
and defendant No.2?
2) Whether the plaintiffs 2 and 3
prove that the judgment and
decree passed by the Trial Court
is arbitrary and erroneous?
3) What Order or decree?
16. Point No.1: The plaintiffs in order to
substantiate their case, examined plaintiff No.3 as PW.1
and she has reiterated the plaint averments in the
examination-in-chief. Further, in order to prove that the
properties mentioned in point No.1 are ancestral
properties of plaintiffs and defendants, the plaintiffs have
produced documents to disclose that earlier the said
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properties were standing in the name of original
propositus Shivasharanappa. The defendants' case is that
there was a partition, effected in between the defendants.
In order to substantiate the same, the defendants have
produced the registered partition deed effected on
05.11.2000. In the said partition, some properties were
allotted to the father of plaintiffs 1 and 2 i.e., defendant
No.2 i.e., plot Nos.27, 28, 30, 45, 46, 74, 75, 97 to 99,
112 to 115, 138 to 142, 147 to 150 and 175 to 179
located in the approved layout of non-agricultural land
bearing Sy.No.328 situated at Kolar(K) village, Bidar Taluk
and plot Nos.83, 84, 97, 98 and 64 to 73 located in the
approved layout of non-agricultural lands bearing
Sy.Nos.345 and 346 of Kolar (K) village, Bidar Taluk and
plot Nos.1 to 11 in the approved layout of non-agricultural
land bearing Sy.No.350 situated at Kolar(K) village, Bidar
Taluk. From perusal of Ex.D33, it is clear that the suit
schedule properties are the ancestral properties of the
plaintiffs and defendant No.2. It is not the case of the
defendants, that partition is effected between the plaintiffs
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and defendant No.2. Plaintiffs being the coparceners are
entitled for partition in the aforementioned properties.
Further, the plaintiffs have also produced the documents
marked as Exs.P1 to P45 which discloses that the said
properties were ancestral properties of plaintiffs and
defendant No.2. Admittedly, plaintiffs and defendant No.2
are the members of Hindu Undivided Joint Family and
there is no partition effected between the plaintiffs and
defendant No.2. The plaintiffs being coparceners are
entitled for share in the suit schedule properties.
17. In view of the above discussion, we answer
point No.1 in the affirmative holding that the properties
mentioned in point No.1 are ancestral properties and the
plaintiffs 1 and 2 are entitled for share in the said
properties.
18. Point No.2: Though the plaintiffs have filed
suit for partition and separate possession in regard to the
properties owned and possessed by Shivasharanappa,
defendant No.4 was examined as DW.1. He has reiterated
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the written statement averments in the examination-in-
chief and contended that the suit schedule properties were
ancestral properties and partition was effected in between
the defendants as per the partition deed dated 05.11.2000
and produced the original partition deed marked as
Ex.D33 which discloses that the partition was effected
between the defendants and the properties mentioned in
point No.1 had fallen to the share of defendant No.2. The
defendants have proved that there was partition in
between the defendants with regard to the entire suit
schedule properties. The Trial Court has not taken note
that the properties mentioned in point No.1 are ancestral
properties. The Trial Court could have granted share in the
properties allotted to the share of defendant No.2. The
Trial Court dismissed the suit on the ground that the
plaintiffs are seeking for relief of partition and separate
possession in the entire properties left by propositus
Shivasharanappa, on the ground that the partition is
effected. As observed above, the partition was effected in
between the defendants and the plaintiffs are not party to
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the said partition deed. However, the plaintiffs are
entitled to claim partition in the share of defendant No.2.
The said aspect was not considered by the Court below
and erroneously proceeded to dismiss the suit. As
observed above, admittedly, the suit schedule properties
are the ancestral properties of plaintiffs and defendant
No.2 and there is no partition effected between the
plaintiffs and defendant No.2. Plaintiffs 1 and 2 are
entitled for share in the properties mentioned in point
No.1.
19. In view of the above discussion, we answer
point No.2 partly in the affirmative and partly in the
negative holding that the Trial Court could have decreed
the suit in respect of properties mentioned in point No.1
against defendant No.2.
20. Point No.3: In view of our answer to point
Nos.1 and 2, we proceed to pass the following:
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ORDER
i. The Regular First Appeal is allowed
in part.
ii. In view of the submission of learned
counsel for the plaintiffs, suit in
respect of prayer 'D' is dismissed as
not pressed.
iii. The judgment and decree passed by
the Trial Court is partly set aside. The
suit is partly decreed against
defendant No.2 in respect of the
properties mentioned in point No.1.
iv. Plaintiff Nos.1 and 2 and defendant
No.2 are entitled for 1/3rd share each
in plot Nos.27, 28, 30, 45, 46, 74, 75,
97 to 99, 112 to 115, 138 to 142, 147
to 150 and 175 to 179 located in the
approved layout of non-agricultural
land bearing Sy.No.328 situated at
Kolar(K) village, Bidar Taluk and plot
located in the approved layout of non-
agricultural lands bearing Sy.Nos.345
and 346 of Kolar (K) village, Bidar
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Taluk and plot Nos.1 to 11 in the
approved layout of non-agricultural
land bearing Sy.No.350 situated at
Kolar(K) village, Bidar Taluk.
v. The rest of the judgment is
maintained.
vi. Draw decree accordingly.
vii. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SKS/NB
Ct: VK
