Karnataka High Court
Shivappa S/O Shankrappa Jugati vs Kalawati W/O Chandrashekhal Indi on 30 May, 2024
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RFA No.200023 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH 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.200023 OF 2017 (PAR/POS)
BETWEEN:
SHIVAPPA
S/O SHANKRAPPA JUGATI,
AGE: 88 YEARS, OCC: NIL,
R/O MANNUR, TQ: B.BAGEWADI
DIST: VIJAYAPUR.
...APPELLANT
(BY SRI SHIVANAND PATIL, ADVOCATE)
AND:
KALAWATI
Digitally signed by W/O CHANDRASHEKHAR INDI,
BASALINGAPPA
SHIVARAJ AGE: 34 YEARS,
DHUTTARGAON
Location: High
OCC: AGRI., & H.H. WORK,
Court Of Karnataka R/O TONASHYAL,
TQ: VIJAYAPUR - 586 101.
...RESPONDENT
(BY SRI SACHIN M.MAHAJAN, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL
PROCEDURE, 1908, PRAYING TO CALL FOR THE RECORDS,
HEAR THE PARTIES AND ALLOW THE APPEAL AND
CONSEQUENTLY SET ASIDE THE JUDGMENT AND DECREE
DATED 17.12.2016 PASSED IN O.S.NO.80/2013 BY THE
SENIOR CIVIL JUDGE AND J.M.F.C., BASAVANA BAGEWADI IN
THE INTEREST OF JUSTICE.
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RFA No.200023 of 2017
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 appellant
challenging the judgment and decree dated 17.12.2016 in
O.S.No.80/2013 passed by the Senior Civil Judge and
JMFC, Basavana Bagewadi (for short, hereinafter referred
to as 'Trial Court').
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The appellant is the defendant and the
respondent is the plaintiff.
4. Brief facts of the plaint averments:
Plaintiff filed a suit for partition and separation
possession of the suit schedule properties. It is the case
of the plaintiff that the plaintiff is the daughter of the
defendant. Plaintiff's mother one Bourawwa died on
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18.12.2012 at Mannur village in Basavana Bagewadi Taluk
leaving behind the plaintiff and the defendant as her legal
heirs. It is contended that one Shantappa was the son of
Shivappa and Bourawwa. Shantappa married to
Shakuntala and he died issueless on 19.09.1988 at
Mannur village leaving behind his wife Shakuntala. The
father-in-law of Shakuntala by name Shivappa i.e., the
present defendant was the member of the Undivided Hindu
Joint Family consisting of his elder brother Gurlingappa
and younger brothers Basappa and Sagnappa. The family
owned and possessed sufficient landed and house
properties. The plaintiff and the defendants are the
members of Undivided Hindu Joint Family. It is contended
that after demise of Shantappa, Shakuntala filed suit in
O.S.No.277/1999 on the file of Civil Judge (Junior
Division), Basavana Bagewadi, seeking for partition and
separate possession. The said suit was ended in
compromise and the compromise decree was drawn on
28.10.1999 wherein the landed properties and house
properties came to be divided amongst the defendants in
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the said suit and the plaintiff therein took cash in view of
her share from the defendant herein and gave up her
right, title and interest in favour of the defendant and
Bourawwa. In the said partition, landed properties and
house properties described in Schedule 'A' and 'B' were
allotted jointly to the defendant and his wife Bourawwa.
Since then the defendant and his wife Bourawwa were in
exclusive possession and enjoyment of the said properties.
In pursuance of the compromise decree, name of the
defendant was entered in the revenue records. It is
contended that Bourawwa died leaving behind the plaintiff
and the defendant as her legal heirs. Hence, the plaintiff
is entitled for share in the share of the deceased
Bourawwa acquired under compromise decree in
O.S.No.277/1999. The plaintiff demanded for partition and
separate possession. But the defendant refused to effect
partition. Hence, cause of action arose for the plaintiff to
file a suit for partition and separate possession.
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5. In pursuance of service of summons, the
defendant appeared and filed written statement denying
the averments made in the plaint. It is contended that the
defendant after the death of Bourawwa acquired the
property compromised in O.S.No.277/1999. It is also
contended that the defendant-Shivappa had adopted one
Siddappa by way of registered Adoption Deed. Hence, the
plaintiff has no right to claim share in the suit schedule
properties. Accordingly, the defendant prayed for dismissal
of the suit.
6. The Trial Court on the basis of the pleadings of
the parties, framed the following issues:
i. Whether the plaintiff proves that, the
plaintiff and defendant are in joint
possession and suit properties are the
joint family properties?
ii. Whether the plaintiff proves that there
was a compromise in OS No.277/1999
and defendant No.1 got share?
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iii. Whether the plaintiff proves that, the
house properties are in the joint name
of the defendant and his wife?
iv. Whether the defendant proves that,
Bourawwa can become owner for ½
share in the suit properties and she
has orally relinquished the right?
v. Whether the defendant proves that,
defendant adopted Siddappa which is
in the knowledge of the plaintiff?
vi. Whether there is cause of action?
vii. Whether the Court fee paid in proper?
viii. What order or decree?
7. The plaintiff in order to substantiate her case
examined herself as PW.1 and got marked the documents
as Exs.P1 to P9. The defendant neither cross-examined
PW.1 nor led any evidence.
8. After recording the evidence of PW.1 and after
hearing the learned counsel for the parties and on
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assessment of the oral and documentary evidence, the
Trial Court answered issue Nos.1 to 3, 6 and 7 in the
Affirmative and issue Nos.4 and 5 are answered in the
Negative and issue No.8 is answered as per the final order
and decreed the suit. The Trial Court declared that the
plaintiff is entitled for half share in the suit schedule 'A'
and 'B' properties.
9. The defendant aggrieved by the judgment and
preliminary decree passed in O.S.No.80/2013 preferred
the present appeal.
10. Heard the learned counsel for the defendant
and learned counsel for the plaintiff.
11. Sri Shivanand Patil., learned counsel for the
defendant submits that the Trial Court has not provided
sufficient opportunity to the defendant to adduce
evidence. He also submits that the defendant was aged
about 84 years and as such, he could not keep himself
present for adducing evidence. He submits that since the suit
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involves rights of immovable properties, if an opportunity
is provided to the defendant, no injustice would be caused
to the plaintiff. On these grounds, he prays to allow the
appeal.
12. Per contra, Sri Sachin M.Mahajan, learned
counsel for the plaintiff supports the impugned judgment
passed by the Trial Court and submits that though
sufficient opportunity was granted to the defendant, the
defendant did not avail the opportunity. Hence, he prays
for dismissal of the appeal.
13. We have perused the entire records and
considered the submissions of the leaned counsel for the
parties.
14. The points that arise for our consideration are:
1) Whether the defendant proves
that the Trial Court has not
granted sufficient opportunity to
the defendant to adduce
evidence?
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2) What Order or decree?
15. Point No.1: It is the case of the plaintiff that
the suit schedule properties are the joint family properties
of the plaintiff and the defendant. The plaintiff and
defendant are coparceners and they are members of the
Undivided Hindu Joint Family and there was no partition
effected between the plaintiff and the defendant in regard
to the half share of the deceased Bourawwa acquired
under compromise decree in O.S.No.277/1999. The
defendant has denied the said fact. In order to
substantiate the case of the plaintiff, the plaintiff examined
herself as PW.1 and she has reiterated the averments
made in the plaint in examination-in-chief and produced
the documents marked as Ex.P1 and P2 which are the ROR
of land bearing Sy.No.116/1 of Manur village. Ex.P3 is the
ROR of land bearing Sy.No.456 of Bagewadi. Ex.P4 is the
ROR of land bearing Sy.No.249/2 of B.Bagewadi. Ex.P5 is
the Tax Assessment extract of VPC No.88 of Mannur
village. Ex.P6 is the certified copy of the plaint in
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O.S.No.277/1999 which discloses that Smt.Shakuntala
filed suit in O.S.No.277/1999 for relief of partition and
separate possession against Shivappa, Bourawwa and
brothers of Shivappa. Ex.P7 is the certified copy of
compromise petition in O.S.No.277/1999 which discloses
that the parties to the suit have entered into compromise
petition. As per the compromise petition, the properties
were divided in between Shivappa, Bourawwa and
brothers of Shivappa. Ex.P8 is the certified copy of
compromise decree passed in O.S.No.277/1999 and Ex.P9
is the Death Certificate of Bourawwa Jugati. Though
opportunity was provided to the defendant to cross-
examine PW.1, the defendant did not cross-examine PW.1.
16. We have perused the order sheet of the Trial
Court which discloses that the Trial Court has framed
issues on 17.02.2016. The plaintiff was examined as PW.1
and filed examination-in-chief. The matter was posted for
cross-examination of PW.1. Learned counsel for the
defendant did not cross-examine PW.1. The Trial Court has
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taken the cross-examination of PW.1 as Nil and posted the
matter for defendant's evidence on 18.11.2016 and on the
said date, the Trial Court has taken the evidence of the
defendant as Nil and posted the matter for arguments on
02.12.2016. On perusal of the order sheet, it discloses
that the Trial Court has not given sufficient opportunity to
the defendants to participate in the proceedings. Thus, the
impugned judgment passed by the Trial Court is in
violation of the principles of natural justice. On this
ground alone, the impugned judgment is liable to be set
aside. As the suit involves right of immovable properties,
we are of the considered opinion that if an opportunity is
provided to the defendant to cross-examine PW.1 and to
lead his evidence, no injustice would be caused to the
plaintiff, as the plaintiff could be compensated in terms of
monetary benefits.
17. In view of the above discussion, we answer
point No.1 in the Affirmative.
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18. Point No.2: In view of our answer to point
No.1, we proceed to pass the following:
ORDER
i. The Regular First Appeal is allowed
subject to payment of cost of
Rs.25,000/- (Rupees Twenty Five
Thousand Only) payable by the
defendant to the plaintiff on the date
of appearance.
ii. The impugned judgment and
preliminary decree dated 17.12.2016
passed in O.S.No.80/2013 by the
Senior Civil Judge and JMFC,
Basavana Bagewadi, is set aside.
iii. The suit is restored on the file of
Senior Civil Judge and JMFC,
Basavana Bagewadi.
iv. Parties are directed to appear before
the Trial Court on 15.07.2024.
v. The Trial Court is directed to provide
an opportunity to the defendant to
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cross-examine PW.1 and also permit
the defendant to lead evidence.
vi. All the contentions of the parties are
kept open.
vii. This Court has not made any
adjudication on merits in issue.
viii. As the suit is of the year 2013, the
Trial Court is requested to dispose of
the suit as expeditiously as possible.
Sd/-
JUDGE
Sd/-
JUDGE
NB
Ct: VK
