Karnataka High Court
Sharangouda S/O Apparao Patil By Lrs And ... vs Mahadev S/O Ramashetty Totappa And Ors on 30 May, 2024
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RFA No.200028 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.200028 OF 2017 (PAR/POS)
BETWEEN:
SHARANGOUDA
S/O APPARAO PATIL
BY LRS.,
1. SUMANGALA
W/O SHARANGOUDA PATIL,
AGE: 46 YEARS,
OCC: HOUSEHOLD,
2. APPARAO
Digitally signed by S/O SHARANGOUDA PATIL
BASALINGAPPA
SHIVARAJ AGE: 25 YEARS,
DHUTTARGAON
OCC: AGRICULTURE,
Location: High
Court Of Karnataka
3. SHIVARAJ
S/O SHARANGOUDA PATIL
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O BENNUR-B, TQ: CHITTAPUR,
DIST: KALABURAGI.
(THE SHARANGOUDA
S/O APPARAO PATIL HAS
DIED ON 08-09-2014)
...APPELLANTS
(BY SRI CHAITANYAKUMAR CHANDRIKI, ADVOCATE)
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RFA No.200028 of 2017
AND:
1. MAHADEV
S/O RAMASHETTY TOTAPPA,
AGE: 34 YEARS,
OCC: AGRICULTURE,
2. SURESH
S/O RAMASHETTY TOTAPPA,
AGE: 30 YEARS,
OCC: AGRICULTURE,
3. NEELAMMA
D/O RAMASHETTY TOTAPPA
AGE: 23 YEARS,
OCC: HOUSEHOLD,
ALL ARE R/O BENNUR-B,
TQ: CHITTAPUR,
DIST: KALABURAGI - 585 102.
4. AYYAMMA
W/O LATE MALLINATH TOTAPPA GOUDA,
AGE: 39 YEARS,
OCC: HOUSEHOLD,
5. SHOBA
D/O LATE MALLINATH TOTAPPA GOUDA,
AGE: 20 YEARS,
OCC: HOUSEHOLD,
NOW BOTH ARE RESIDING AT
C/O RAGHAVENDRA KULKARNI,
HOUSE NO.21,
VIBHUTI COLONY, SHAHBAD ROAD,
KALABURAGI-585 102.
...RESPONDENTS
(NOTICE TO R1 TO R3 ARE SERVED;
V/O DATED 12.07.2019 SERVICE OF
NOTICE TO THE R4 AND R5 ARE HELD SUFFICIENT)
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RFA No.200028 of 2017
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 17.12.2014 PASSED BY THE
LEARNED SENIOR CIVIL JUDGE CHITTAPUR AT CHITTAPUR IN
O.S.NO.41/2013 AND CONSEQUENTLY BE PLEASED TO
DISMISS THE SUIT FILED BY THE PLAINTIFFS, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS REGULAR FIRST 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
17.12.2014 in O.S.No.41/2013 passed by the Senior Civil
Judge, Chittapur.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The appellants are the legal representatives of
deceased defendant No.3. Respondents 1 to 3 are the
plaintiffs. Respondents 4 and 5 are defendants 1 and 2.
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4. Brief facts of the plaint averments:
Plaintiffs filed the suit for partition and separation
possession against the defendants. It is the case of the
plaintiffs that one Ramashetty was the absolute owner and
possessor of the suit schedule properties. He inherited the
said properties from his ancestors. Said Ramashetty had
wife by name Shantabai and through her a son Mallinath
was born. Both Shantabai and Mallinath died about 40
years and 19 years back respectively. Defendant No.1 is
the daughter-in-law of Ramashetty and defendant No.2 is
the grand daughter of Ramashetty. After the death of
Shantabai, said Ramashetty got married to one Lalitabai
about 38 years back and through Lalitabai, he has three
children i.e., plaintiffs 1 to 3. Mother of the plaintiffs died
about 20 years back. Plaintiffs and defendants 1 and 2
constitute a joint Hindu family having joint interest over
the suit schedule properties. The suit schedule properties
are the ancestral properties of both plaintiffs and
defendants 1 and 2. There is no partition effected in the
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family of the plaintiffs and defendants 1 and 2. The
plaintiffs demanded for partition and separation
possession, but defendants 1 and 2 refused to effect the
partition. The father of the plaintiffs colluding with
defendant Nos.1 and 2 sold the property in Sy.No.28 to
the extent of 04 Acres in favour of defendant No.3 by
depriving the right of the plaintiffs. Hence, cause of action
arose for the plaintiffs to file a suit for partition and
separate possession.
5. The Trial Court issued summons to the
defendants. Though summons were duly served, they
remained absent and they were placed exparte.
6. The Trial Court on the basis of the pleadings of
the parties, framed the following points:
i. Whether the plaintiffs prove that, one
Ramshetty was the owner and
possessor of the suit properties and
they are his ancestral properties?
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ii. Whether the plaintiffs prove that, the
defendant No.1 and 2 refused to make
partition in the suit properties?
iii. Whether the plaintiffs prove that, sale
of land to the extent of 4-00 Acres by
Ramshetty in favour of defendant
No.3 is false, bogus and without
consideration?
iv. Whether the plaintiffs are entitled for
1/4th share each in the suit
properties?
v. What Order or decree?
7. The plaintiffs in order to substantiate their case
examined plaintiff No.1 as PW.1 and examined two
witnesses as PWs.2 and 3 and got marked the documents
as Exs.P1 to P19.
8. After recording the evidence, after hearing the
learned counsel for the plaintiffs and on assessment of the
oral and documentary evidence, the Trial Court answered
issue Nos.1 to 4 in the Affirmative and issue No.5 as per
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the final order and decreed the suit of the plaintiffs. The
Trial Court ordered that the plaintiffs are entitled for 1/4th
share each in the suit schedule properties by metes and
bounds and defendant No.1 is also entitled for his 1/4th
share in the suit properties by metes and bounds.
9. The legal representatives of defendant No.3
aggrieved by the judgment and preliminary decree dated
17.12.2014 passed in O.S.No.41/2013 preferred the
present appeal.
10. Heard the learned counsel for the legal
representatives of defendant No.3.
11. Learned counsel for the legal representatives of
defendant No.3 submits that defendant No.3 died on
08.09.2014 i.e., during the pendency of the suit. He
submits that the impugned judgment passed by the Trial
Court is against a dead person. Further, in order to
buttress his arguments, he placed reliance on the
judgment of the Hon'ble Apex Court in the case of Govt.
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of Orissa vs. Ashok Transport Agency and others
reported in (2005)1 SCC 536 and submitted that the
judgment and decree passed by the Trial Court is nullity in
the eye of law. On these rounds, he prays to allow the
appeal.
12. Inspite of service of notice to the respondents,
they have remained absent.
13. We have perused the entire records and
considered the submission of the learned counsel for the
legal representatives of defendant No.3.
14. The points that arise for our consideration are:
1) Whether the impugned judgment
and preliminary decree passed
by the Trial Court against a
dead person is nullity in the eye
of law?
2) What Order or decree?
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15. Point No.1: The plaintiffs filed suit against the
defendants for partition and separate possession of the
suit schedule properties. It is contended that suit schedule
properties are the ancestral properties of the plaintiffs and
defendants 1 and 2. It is contended that the father of the
plaintiffs i.e., Ramashetty during his life time sold the
schedule 'A' property to the extent of 04 Acres to
defendant No.3 under the registered sale deed. It is
contended that defendants 1 and 2 have no right to
execute the registered sale deed in favour of defendant
No.3. In order to substantiate their case, plaintiff No.1
was examined as PW.1 and he has reiterated the plaint
averments in the examination-in-chief and examined two
witnesses as PWs.2 and 3. In order to substantiate that
the suit schedule properties are ancestral properties of the
plaintiffs and defendants 1 and 2, the plaintiffs have
produced record of rights marked as Exs.P1 to P17 in
respect of land bearing Sy.No.28. Ex.P18 is the certified
copy of the sale deed dated 24.04.2005 which discloses
that father of the plaintiffs i.e., Ramashetty had executed
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registered sale deed in favour of defendant No.3 in respect
of land bearing Sy.No.28 to an extent of 04 Acres and
Ex.P19 is the House Property Extract which discloses that
the said property was standing in the name of Ramashetty
i.e., father of the plaintiffs. Inspite of service of suit
summons, the defendants remained absent. Therefore,
the Trial Court has placed them exparte. However, the
present appellants i.e., legal representatives of defendant
No.3 have filed the present appeal contending that the
judgment and decree passed against defendant No.3 is
against a dead person, as defendant No.3 died on
08.09.2014 during the pendency of the suit. The
appellants have produced the death certificate of
defendant No.3 which shows that he died on 08.09.2014.
From the perusal of the records, it discloses that the death
of defendant No.3 was not reported to the Trial Court. The
Trial Court has proceeded as if defendant No.3 was alive
and decreed the suit. In view of the law laid down by the
Hon'ble Apex Court in the case of Govt. of Orissa vs.
Ashok Transport Agency and others reported in
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(2005)1 SCC 536, the impugned judgment and decree
passed by the Trial Court against the dead person is nullity
in the eye of law. Hence, on this ground alone, the
impugned judgment and preliminary decree passed by the
Trial Court is liable to be set aside. In view of the above
discussion, we answer point No.1 in the Affirmative.
16. 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.
ii. The impugned judgment and
preliminary decree dated 17.12.2014
passed in O.S.No.41/2013 by the
Senior Civil Judge, Chittapur, is set
aside.
iii. The suit is restored on to the file of
Senior Civil Judge, Chittapur.
iv. The appellants are directed to file
necessary application to come on
record as legal representatives of
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defendant No.3. If such an application
is filed, the Trial Court is directed to
consider and pass appropriate orders
and thereafter, provide an opportunity
to the parties and dispose of the suit
in accordance with law.
v. The Trial Court is directed to issue
notice to the parties fixing the date of
appearance.
vi. Registry is directed to transmit the
records to the Trial Court.
vii. This Court has not made adjudication
on merits in issue.
viii. All the contentions of the parties are
kept open.
Sd/-
JUDGE
Sd/-
JUDGE
NB
Ct: VK
