Karnataka High Court
Mahadevi W/O. Annasaheb Borgale vs Basangouda Hanmantgouda Patil on 4 November, 2024
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NC: 2024:KHC-D:16117
RFA No. 4136 of 2013
C/W RFA No. 4067 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF NOVEMBER 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 4136 OF 2013 (DEC/PAR)
C/W
REGULAR FIRST APPEAL NO. 4067 OF 2012
IN RFA NO.4136/2013
BETWEEN:
SMT. MAHADEVI W/O. ANNASAHEB BORGALE,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE,
R/O. TADADEV POLICE STATION QUARTERS BUILDING NO.3,
ROOM NO. 14, TADADEV MUMBAI
THROUGH HER G.P. HOLDER,
SHRI. DUNDAPP S/O. SIDDALINGAPPA MURGOD,
AGE: 33 YEARS, OCC: SERVICE,
R/O. MAMDAPUR, TQ. GOKAK,
DIST. BELAGAVI-591307.
...APPELLANT
(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE)
AND:
GIRIJA A
BYAHATTI 1. SHRI. BASANGOUDA S/O. HANMANTGOUDA PATIL,
AGE: 72 YEARS, OCC: RETIRED TEACHER,
R/O. PLOT NO. 34, TEACHERS COLONY,
KHASBAG, BELGAUM - 590001.
Location:
HIGH 2. SMT. BASAWWA W/O. BASANGOUDA PATIL,
COURT OF AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
KARNATAKA
R/O. C/O. MALLAPPA MURGOD,
MAMDAPUR VILLAGE, TQ:GOKAK,
DIST: BELGAUM-590001.
(SINCE DECEASED REPRESENTED BY HER LRS
APPELLANT AND RESPONDENT NO.1)
3. SHRI. LAXMANGOUDA S/O HANMANTGOUDA PATIL,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM-591135.
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NC: 2024:KHC-D:16117
RFA No. 4136 of 2013
C/W RFA No. 4067 of 2012
4. SMT. MALLAWWA W/O. MALLANAGOUDA PATIL,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM-591135.
5. SHRI. SIDDANAGOUDA S/O. MALLANAGOUDA PATIL,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM-591135.
6. SMT. REKHA W/O. IRANAGOUDA PATIL,
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM-591135.
7. MASTER MALLANAGOUDA S/O. IARANAGOUDA PATIL,
AGE: 8 YEARS, OCC: STUDENT,
MINOR. BY HIS GUARDIAN RESPONDENT NO. 5,
REKHA W/O. IRANAGOUDA PATIL,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM-591135.
8. SHRI. FAKEERAGOUDA S/O. RAYANAGOUDA PATIL,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM-591135.
9. SHRI. SANKARAGOUDA S/O. RAYANAGOUDA PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM-591135.
10. SHRI. NEELANAGOUDA RAYANAGOUDA PATIL,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM-591135.
11. SHRI. GURLINGAPPA S/O. IRAPPA HOSKERI,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM-591135.
12. SHRI. CHANNABASAPPA S/O. BASAVANTAPPA RAKMOJI,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
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NC: 2024:KHC-D:16117
RFA No. 4136 of 2013
C/W RFA No. 4067 of 2012
DIST: BELGAUM-591135.
13. SHRI. BASAPPA S/O. AYYAPPA BALOJI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM-591135.
14. SHRI. MAHESH S/O. RACHAPPA KANNUR,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. NEVIPETH, TQ: RAMDURG,
DIST: BELGAUM-591135.
15. SHRI. SOMASHEKARAPPA VEERAPPA HADLI,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM-591135.
16. SHRI. MUSTAF S/O RASULSAB MAKANDAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. BHAGYANAGAR, TQ: RAMDURG,
DIST: BELGAUM-591135.
17. SMT. NAGAWWA W/O. HANAMANTGOUDA PATIL,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM-591135.
18. SMT. GURUBASAWWA W/O. RUDRAGOUDA PATIL,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM -591135.
19. SMT. BASAWWA W/O.MALLAPPA HALOLLI,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O. SALALLI, TQ: RAMDURG,
DIST: BELGAUM-591135.
20. SHRI. RENAWWA W/O. IRANAGOUDA PATIL,
AGE: 28 YEARS, OCC: HOUSEHOLD WORK,
R/O. KONDIKOP, TQ: RAMDURG,
DIST: BELGAUM-591135.
...RESPONDENTS
(BY SRI. R. K. KULKARNI, ADVOCATE FOR R1)
THIS RFA FILED UNDER SEC. 96 READ WITH ORDER 41 RULE
1 READ WITH SECTION 96 OF CPC., PRAYING TO SET ASIDE THE
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NC: 2024:KHC-D:16117
RFA No. 4136 of 2013
C/W RFA No. 4067 of 2012
JUDGMENT AND DECREE DATED 28.02.2012 PASSED IN O.S.
11/2010 ON THE FILE OF SENIOR CIVIL JUDGE RAMDURG BY
ALLOWING THE TOP NOTED APPEAL TO MEET THE ENDS OF JUSTICE
AND EQUITY.
IN RFA NO.4067/2012
BETWEEN:
SHRI. BASANAGOUDA HANAMANTAGOUDA PATIL,
AGE: 72 YEARS, OCC: RETIRED TEACHER,
R/O: PLOT NO.34 TEACHERS COLONY,
KHASBAG, BELGAUM.
...APPELLANT
(BY SRI. R. K. KULKARNI, ADVOCATE)
AND:
1. SMT. MAHADEVI W/O. ANNASAHEB BORAGALE,
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O: TADADEV POLICE STATION QUARTERS,
BUILDING NO.3, ROOM NO.14, TADADEV,
MUMBAI. MAHARASHTRA STATE BY
HER GPA HOLDER SHRI. DUNDAPPA SIDDALINGAPPA
MURGOD,
AGE: 39 YEARS, OCC: SERVICE,
R/O. MAMADAPUR,
TQ: GOKAK, DIST: BELGAUM.
PIN CODE-591233.
2. SMT. BASAVVA W/O. BASANAGOUDA PATIL,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O. MALLAPPA MURAGOD MAMADAPUR,
TAL: GOKAK, DIST: BELGAUM.
(DELETED AS PER MEMO DATED 25.11.2022)
3. LAXMANGOUDA HANAMANTGOUDA PATIL,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM.
4. SMT. MALLAWWA W/O. MALLANAGOUDA PATIL,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM.
5. SIDDNAGOUDA S/O. MALLANAGOUDA PATIL,
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RFA No. 4136 of 2013
C/W RFA No. 4067 of 2012
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM.
6. SMT. REKHA W/O. IRANAGOUDA PATIL,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM.
7. MALLANAGOUDA S/O. IRANAGOUDA PATIL,
AGE: 5 YEARS, OCC: STUDENT,
SINCE MINOR R/BY NATURAL GUARDIAN
DEFT NO. 5,
R/O. SUNNAL, TQ: RAMDURG,
DIST: BELGAUM.
8. FAKEERGOUDA S/O. RAYANGOUDA PATIL,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM.
9. SHRI. SANKANAGOUDA S/O. RAYANAGOUDA PATIL,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM.
10. SHRI. NEELANAGOUDA S/O. RAYANAGOUDA PATIL,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM.
11. SHRI. GURULINGAPPA IRAPPA HOSKERI,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM.
12. SHRI. CHANBASAPPA BASAVANTAPPA RAKMOJI,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM.
13. SHRI. BASAPPA AYYAPPA BALOJI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM.
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RFA No. 4136 of 2013
C/W RFA No. 4067 of 2012
14. SHRI. MAHESH RACHAPPA KANNUR,
AGE:39 YEARS, OCC: AGRICULTURE,
R/O. NAVIPETH, TQ: RAMDURG,
DIST: BELGAUM.
15. SHRI. SOMASHEKARAPPA VEERAPPA HADALI,
AGE:57 YEARS, OCC: AGRICULTURE,
R/O. HALALLI, TQ: RAMDURG,
DIST: BELGAUM.
16. SHRI. MUSTAF RASULSAB MAKANDAR,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. BHAGYANAGAR RAMDURG,
TQ: RAMDURG, DIST: BELGAUM.
17. SMT. NAGAVVA W/O. HANMANTAGOUDA PATIL,
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O. SUNNAL,TQ: RAMDURG,
DIST: BELGAUM.
18. SMT. GURUBASAVVA W/O. RUDRAGOUDA PATIL,
AGE:49 YEARS, OCC: HOUSEHOLD WORK,
R/O. SUNNAL,TQ: RAMDURG,
DIST: BELGAUM.
19. SMT. BASAVVA W/O. MALLAPPA HALOLLI,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O. SALAHALLI, TQ: RAMDURG,
DIST: BELGAUM.
20. SMT. RENAVVA W/O. IRANAGOUDA PATIL,
AGE: 25 YEARS, OCC: HOUSEHOLD WORK,
R/O. KADLIKOPPA, TQ: RAMDURG,
DIST: BELGAUM.
...RESPONDENTS
(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE FOR R1)
THIS RFA FILED UNDER SEC. 96 READ WITH ORDER 41 RULE
1 READ WITH SECTION 96 OF CPC., PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 28.02.2012 PASSED BY THE SENIOR
CIVIL JUDGE AT RAMDURG IN O.S. NO.11/2010 AND TO ALLOW
THIS APPEAL WITH COSTS IN THE INTEREST OF JUSTICE AND
EQUITY.
THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 4136 of 2013
C/W RFA No. 4067 of 2012
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
RFA No.4136/2013 is by the sole plaintiff in
O.S.No.11/2010 on the file of Senior Civil Judge,
Ramdurga.
2. RFA No.4067/2012 is by defendant No.1 in the
aforementioned suit.
3. The suit was one for partition and separate
possession in respect of the properties prescribed in
schedule "A" and schedule "B".
4. In schedule "A" there are nine properties. In
schedule "B" there are three properties. The suit is decreed
granting ½ share to the plaintiff in item No.8 and 9 of
schedule "A" and item No.1 of schedule "B". The suit in
respect of item Nos.1 to 7 of schedule is dismissed on the
premise that those properties are allotted to the share of
plaintiff's father's brothers and suit in respect of item No.2
of schedule "B" is dismissed on the premise that the
NC: 2024:KHC-D:16117
properties allotted to the share of plaintiff's father's
brothers and suit is dismissed in respect of item No.2(1) of
schedule "B" on the premise that the said property is self
acquired property of defendant No.1.
5. The genealogy of the parties is as under:
Hanamantagouda (Died long back)
W. Balawwa (Died)
Basanagouda Laxmanagouda Mallanagouda
(D1) (D3) (Died)
W. Basavva (D2) W.Mallawwa (D4)
Mahadevi
(plaintiff) Siddanagouda Iranagouda
(D5) (Died)
W.Rekha
(D6)
Mallanagouda
(D7)
6. One Hanamantagouda was the propositus and
he died long back. His wife was Balawwa and after the
death of Hanamantagouda and Balawwa, there was a
partition among three children of Hanamantagouda and
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Balawwa namely, Basanagouda, Laxmanagouda and
Mallanagouda. These three brothers have three sisters and
they were later arrayed as defendants No.17 to 19 in the
suit. Despite service of notice, they did not contest the
suit and said defendants No.17 to 19 remained ex-parte.
7. The suit is filed by daughter of Basanagouda
claiming share in all the properties inherited by her father
Basanagouda and uncles Laxmanagouda and
Mallanagouda. The daughters of Hanamantagouda and
Balawwa contested the suit, claimed share. However, no
share is granted to them and they have accepted the
decree and no appeal is filed.
8. The suit is filed against Basanagouda,
Laxmanagouda and the heirs of Mallanagouda. Wife of
Basanagouda is arrayed as defendant No.2. The plaintiff
contented that all the properties are ancestral properties
and thus, claimed share in the suit schedule properties.
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9. The defendant No.1 contested the suit and took
a defence that there was a partition in the family in the
year 1995 and in the said partition, three brothers namely,
Basanagouda, Laxmanagouda and Mallanagouda effected
the partition and properties were allotted to the respective
sharers and it is also contended by defendant No.1 that
item No.2(1) is the self acquired property and in the said
property, the plaintiff cannot claim any share. It is also
urged that defendant No.1-the father of the plaintiff being
alive, the suit is not maintainable during lifetime of the
father.
10. It is also urged that in O.S.No.85/2005 filed by
defendant No.1 against his wife. It is declared that the
defendant No.1 is the owner of the property in terms of
the judgment and decree in R.A.No.23/2007 arising from
O.S.No.85/2005 as such the suit is not maintainable
during the lifetime of the defendant No.1.
11. The trial Court on appreciation of evidence, has
concluded that there was a partition in the year 1995 and
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in the said partition, only item No.8 and 9 of "A" schedule
and item No.1(1) of "B" schedule are allotted to the share
of defendant No.1 and item No.1 to 6 of "A" schedule and
item No.1 and 2 of "B" schedule is allotted to the share of
brother of the defendant No.1 and item No.2(1) of "B"
schedule is the self acquired property of the defendant
No.1. Thus, the suit is decreed in respect of item No.8 and
9 of "A" schedule and item No.1(1) of "B" schedule.
12. Aggrieved by the aforementioned judgment and
decree, the plaintiff is in appeal to the extent of disallowed
claim and defendant No.1 is in appeal in respect of the
decree passed in favour of the plaintiff.
namely, the sisters of defendant No.1, defendant No.3 and
late Mallanagouda have not filed any appeal and they have
accepted the decree. It is also relevant to note that
defendant No.2-Basawwa died during the pendency of this
appeal. Thus, Basawwa's share if any, would devolve upon
Basangouda and the plaintiff.
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14. Learned counsel appearing for the
plaintiff/appellant would contend that the previous
partition of 1995 as alleged by the defendants is not
established and without any material to accept the
previous partition, the suit could not have been dismissed
in respect of remaining properties. It is also his contention
that item No.B(2) is the joint family property as income
from the remaining properties is utilized to acquire item
No.B(2) and suit ought to have been decreed in respect of
item No.B(2).
15. Learned counsel appearing for the defendant
No.1 would contend that the previous partition of 1995 is
very much established and in the said partition, only item
No.8 and 9 are of "A" schedule are allotted to the share of
defendant No.1 and same was declared in R.A.No.23/2007
and the defendant No.1 being alive, the plaintiff cannot
maintain a suit for partition. It is also his contention that
item No.B(1) is the self acquired property of the 1st
defendant as he was working in a society and had a
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independent source of income and in the absence of any
material produced by the plaintiff to show that his property
was acquired from the joint family income. Thus, suit is
rightly dismissed in respect of the said property. Thus, he
would pray that the suit is to be dismissed.
16. This Court has considered the contentions
raised at the Bar and perused the records. The following
points arise for consideration:
i. Whether the plaintiff has established
that all the suit properties are the joint
family properties and she is entitled to
share in all the suit schedule
properties?
ii. Whether the item No.1(1) of "B"
schedule is the joint family property,
acquired from the joint family income
as urged by the plaintiff/appellant?
iii. Whether the 1st defendant has
established that there was a previous
partition in the year 1995 and only
item No.8 and 9 of "A" schedule and
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item No.1(1) of "B" schedule are
allotted to his share?
17. It is well settled principle of Hindu Law that the
oral partition is permissible among Hindus. The partition
need not be necessarily through registered document or a
Court decree. However, the oral partition has to be
evidenced in some public records as held in the case of
Vineeta Sharma V/s Rakesh Sharma and Others1.
18. The question before this Court is whether the
said oral partition pleaded by the defendants is established
or not. The trial Court has referred to revenue records to
accept the plea of oral partition of 1995. This Court has
perused the revenue records. Ex.P-1 is RTC pertaining to
Sy.No.33. The total extent of the said land is 4 acres 13
guntas and said property is item No.1. As can be noticed
from the RTC, the name of Basanagouda is reflected in
respect of 1 acre 25 guntas. The name of Laxmanagouda
is reflected in respect of 1 acre 15 guntas and names of
(2020) 9 SCC 1
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the members of the branch of Mallanagouda are reflected
in respect of 1 acre 10 guntas.
19. As far as Ex.P-2 i.e., Sy.No.58 is concerned, the
entire property measuring 3 acres 5 guntas stands in the
names of the members of all the three branches. However,
Sy.No.113/1 is concerned, the total extent of 3 acres
stands in the names of defendants No.8 to 10-the
purchasers from defendant No.3 who sold the property on
09.05.2005.
20. As far as Sy.No.113/2 is concerned, the total
extent is 7 acres 2 guntas and names of defendants No.8
to 10 is reflected in respect of 12 guntas as per sale deed
dated 09.05.2005 executed by defendant No.3 and names
of defendant No.1 is reflected in respect of 4 acres 2
guntas and name of defendant No.8 is reflected in respect
of 1 acre 28 guntas and names of members of branch of
Mallanagouda is reflected in respect of 1 acre.
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21. As far as Sy.No.113/3 is concerned, the total
extent is 1 acre and the properties stands in the name of
defendant No.11 under registered sale deed dated
09.05.2005 executed by defendants No.4 to 7 who
represent the branch of Mallanagouda.
22. As far as Sy.No.114 is concerned, the said
property measuring 29 guntas stands in the name of
defendant No.13 pursuant to registered sale deed dated
28.07.2009 executed by defendants No.4 to 7 and
Sy.No.119 measuring 32 guntas in the name of defendant
No.15 stands in his name pursuant to registered sale deed
dated 08.10.2002 executed by defendant No.14 who in
turn purchase the property from defendant No.3.
23. Sy.No.120 measuring 2 acres 31 guntas in the
name of defendant No.16 pursuant to registered sale deed
dated 05.04.2007, it was sold by defendant No.2 and
Sy.No.121 measuring 2 acres 30 guntas is again standing
in the name of defendant No.16 pursuant to sale deed
dated 05.04.2007 executed by defendant No.2. Hence, as
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noticed, except Sy.No.58, all the properties stand in the
names of different persons for certain portion of land and
the names of all are not recorded against the entire
portion reflected in the RTC.
24. These factors would reveal that the partition has
taken place among the three branches and two properties
are allotted to the share of defendant No.1. The extent of
the property said to have been allotted to the share of
defendant No.1 is 5 acres 29 guntas and if total extent of
the land is considered, it comes to 24 acres 35 guntas and
it is also noticed that 33 guntas are sold by all the brothers
together in Sy.No.119. So, the plea of previous partition
raised by the defendants appears to be probable. Else,
there would not have been separate entries in the record
of rights in the names of three different branches. Else,
there would not have been sale deeds in respect of the
properties said to have been partitioned.
25. Under these circumstances, this Court is of the
view that the finding of the trial Court that the partition
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has taken place in the year 1995 is very much tenable and
same is noticed from revenue records which are public
records, except in respect of property bearing Sy. No.58
26. As far as the plea relating to the joint family
properties in respect of item No.B(1)(1) is concerned, it is
to be noticed that the property stands in the name of
defendant No.1 and it is the contention of the defendant
No.1 that he was employed and was having salary. His
status as an employee having independent income is not
disputed by the plaintiff who is his daughter and it is also
noticed that he has produced the sale deed which is
marked at Ex.D-1 and sale consideration amount is shown
at Rs.6,000/- on 11.04.1989. It is also noticed that the
property sold by the Belgaum Secondary School
Employees Co-operative Society. Thus, it is evident that
the defendant No.1 applied for the site from the society of
the Employees of the Secondary School in which he was
the member. Since, he was said to be the Teacher in a
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Government School, it can be safely concluded that he had
independent source of income to purchase the property.
27. It is also well settled possession of Hindu Law
that the property standing in the name of an individual is
presumed to be the self acquired property of an individual
unless proved otherwise. After going through the evidence
raised before the Court, this Court is of the view that there
are no materials to hold that the property at item
No.B(1)(1) is purchased from the joint family. Thus, the
claim of the plaintiff that item No.B(1)(1) is the jointly
family property is not established.
28. As far as Sy.No.58/3 is concerned, the revenue
records do not disclose any division of the properties. The
Ex.P-3 discloses that the property still stands in the name
of Basangouda Patil, Laxmangouda Patil and heirs of
Mallangouda Patil jointly.
29. As far as Survey No.58 is concerned, it
measures 3 acres 5 guntas in all, as can be seen from
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Ex.P3. However, it is now brought to the notice of the
Court that the division is reflected in the property records
of Survey No.58 and the property is sub-divided and re-
numbered as 58/1, 58/2 and 58/3. Survey No.58/3
measuring 01 acre 01 gunta stands in the name of
Basanagouda Patil, the defendant No.1. This again
indicates the partition in respect of the aforementioned
property among 3 brothers. The plaintiff being the
daughter of the elder brother Basanagouda Patil, is entitled
to ½ share in Survey No.58/3 measuring 01 acre 01
gunta. The trial Court has dismissed the suit in respect of
the said property without awarding any share to the
plaintiff, which is erroneous.
30. For the aforementioned reasons, the plaintiff is
entitled to a share in Survey No.58/3 measuring 01 acre
01 gunta in K.Junipeth Village, Taluk Ramdurg.
31. The defendant No.1 has filed RFA
No.4067/2012. The said appeal is filed challenging the
grant of share in favour of the plaintiff in respect of item
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No.8 and 9 of 'A' schedule properties and item No.(1)(1) of
'B' schedule properties. For the aforementioned reasons
already discussed the appeal is not maintainable. The
appeal in RFA No.4136/2013 has to be allowed in part, the
RFA 4067/12 has to be dismissed.
32. It is also noticed that, in paragraph No.62 of the
judgment, the trial Court has made some observations
with regard to conduct of the defendant No.2, which was
unwarranted in the suit for partition. Hence the adverse
remarks against the defendant No.1 are expunged.
33. Hence the following:
ORDER
i. RFA No.4136/2013 is allowed in part.
ii. RFA No.4067/2012 is dismissed.
iii. The judgment and decree dated 28.02.2012
passed by the Senior Civil Judge, Ramdurg, in
O.S.No.11/2010, are modified.
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NC: 2024:KHC-D:16117
iv. The suit of the plaintiff is decreed in part. The
plaintiff is entitled to ½ share in item No.2
which is now re-numbered as Survey No.58/3
measuring 01 acre 01 gunta and item No.8
and 9 of 'A' schedule properties and item
No.(1)(1) of 'B' schedule properties.
v. The suit is dismissed in respect of remaining
properties.
vi. No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
RKM - upto para 20
gab - para 21 to end
CT:ANB
