Karnataka High Court
Doddagouda S/O. Banappagouda ... vs Shekhargouda S/O. Basangouda ... on 5 November, 2024
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NC: 2024:KHC-D:16125
RSA No. 5741 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5741 OF 2013 (PAR)
BETWEEN:
DODDAGOUDA
S/O. BANAPPAGOUDA GADIYAPPAGOUDAR,
AGE: 65 YEARS, R/O. KULENUR,
TQ AND DIST. HAVERI-581110.
... APPELLANT
(BY SRI. N. P. VIVEKMEHTA, ADVOCATE)
AND:
1. SHEKHARGOUDA
Digitally
signed by
VISHAL
S/O. BASANGOUDA GIDIYAPPAGOUDAR,
VISHAL
NINGAPPA
PATTIHAL
NINGAPPA
PATTIHAL
Date:
MINOR, R/BY HIS NATURAL GUARDIAN MOTHER
2024.11.13
11:32:49
+0530 DRAKSHYANAVVA
W/O. BASANGOUDA GADIYAPPAGOUDAR,
R/O. KULENUR, TQ and DIST. HAVERI-581110.
2. SMT. DRAKSHYANAVVA
W/O. BASANGOUDA GADIYAPPAGOUDAR ,
AGE: 37 YEARS, R/O. KULENUR,
TQ and DIST. HAVERI-581110.
3. SMT. NEELAVVA
W/O. BASAVARAJAPPA HATTIMATTUR
AGE: 59 YEARS, OCC. HOUSEHOLD WORK,
R/O. HAVERI-581110.
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NC: 2024:KHC-D:16125
RSA No. 5741 of 2013
4. SMT. SUSHEELAVVA
W/O. BASAVANNEPPA HAVANTI,
AGE: 57 YEARS, JAKKANAYAKANAKOPPA,
TQ. HANGAL, DIST. HAVERI-581104.
5. SMT. IRABASAVVA
W/O. NINGAPPA KONCHIGERI,
AGE: 49 YEARS, OCC. HOUSEHOLD WORK,
R/O. BENCHIHALLI, TQ. HANGAL,
DIST. HAVERI-581104.
6. SMT. SHANTAVVA
W/O. GUDDAPPA MAVURA,
AGE: 52 YEARS, OCC. HOUSEHOLD WORK,
R/O. KALVEKALLAPUR, TQ. HANGAL,
DIST. HAVERI-581104.
7. SMT. CHINNAVVA
W/O. TIRAKAPPA HOSALLI,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O. HOMBARADI, TQ and DIST. HAVERI-581110.
... RESPONDENTS
(BY SRI. A. S. PATIL, ADVOCATE FOR R1 and R2;
R1 IS MINOR REPRESENTED BY R2;
R3 TO R7 ARE NOTICE SERVED)
THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 11.09.2009 PASSED IN
R.A.NO.40/2006 ON THE FILE OF THE DISTRICT AND
SESSIONS JUDGE (FAST TRACK COURT) AT HAVERI,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED 10.09.2003 AND THE DECREE PASSED IN
O.S.NO.87/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DIV) AT
HAVERI, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-D:16125
RSA No. 5741 of 2013
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
Suit is one for partition and separate possession
seeking 8/21st share in the suit property. The family
genealogy is as under:
Basanagouda (dead)
Banappagouda Basanagouda Gadiyappagoudra (dead)
Wife (dead)
Dodda Basanagouda Neelavva Susheelavva Irabasavva Shanthavva Chinnavva
gouda (dead) D.2 D.3 D.4 D.5 D.6
D.1
Drakshayanavva (P.2)
Shekharagouda (P.1)
2. The defendant has set up a plea of prior
partition having taken place between the two brothers
namely Doddagouda and Basanagouda. The trial Court
framed necessary issues and issue No.3 was ''Whether the
defendant No.1 proves that there was partition taken place
in the year 1985 between both the parties?''. The trial
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Court considering the oral and documentary evidence
arrived at a conclusion that the defendant No.1 failed to
prove that in the partition effected in the year 1985, the
Schedule - A(1) property and ½ share in Schedule - A(2)
property fell to his share.
3. The trial Court however by taking notional
partition held that the plaintiffs are entitled for 8/21st
share in the suit property. The appeal preferred by the
defendants came to be affirmed by the First Appellate
Court. Both the Courts on facts held that the defendants
have failed to prove about the prior partition effected and
held that the plaintiffs are entitled for share. It is relevant
to note that the trial Court and the First Appellate Court
held that the notional partition has to be effected. The law
is well settled in light of the judgment of the Hon'ble Apex
Court in the case of Vineeta Sharma Vs. Rakesh
Sharma and others1 that the daughters are entitled for
equal share in the ancestral properties. The defendant
ILR 2020 KAR 4370
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Nos.2 to 6 are the daughters of the original propositus
Banappagouda Basanagouda Gadiyappagoudar. Defendant
No.1 is the son and plaintiff Nos.1 and 2 are the wife and
son of Basanagouda S/o. Banappagouda, thus the
plaintiffs together would be entitled to 1/7th share and
defendants 1 to 6 each would be entitled for 1/7th share.
Learned counsel on both sides submit that both the parties
have settled the matter amicably, but for want of
instructions they are unable to report to the Court. This
Court makes it clear that shares quantified by this Court
would not come in the way, if the parties have amicably
resolved the dispute. The concurrent findings of facts
regarding prior partition, failed to be established by the
defendants, no substantial question of law arises for
consideration in the present appeal to be dealt with under
Section 100 CPC warranting any interference.
4. With the above observation, this Court pass the
following:
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ORDER
The Regular Second Appeal is hereby
dismissed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
RH - till para 2;
PJ-from para 3 to end;Ct-PA
