Karnataka High Court
Shri Bhimagouda Shivappa Hosamani vs Shri Babasaheb Paragouda Patil on 12 November, 2024
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NC: 2024:KHC-D:16504-DB
RFA No. 100538 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100538 OF 2022 (PAR/POS)
BETWEEN:
SHRI. BHIMAGOUDA SHIVAPPA HOSAMANI
AGE: 42 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: NAGANUR-591224,
TAL: GOKAK, DIST: BELAGAVI.
...APPELLANT
(BY SMT.SHRUTHI NEELOPANT, ADVOCATE FOR
SRI SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
Digitally signed by
1. SHRI. BABASAHEB PARAGOUDA PATIL,
CHANDRASHEKAR
LAXMAN
KATTIMANI
AGE: 70 YEARS, OCC: NIL,
Location: HIGH
COURT OF
KARNATAKA
R/O: MUGALKHOD-587113,
Date: 2024.11.14
14:12:26 +0530
TAL: RAIBAG, DIST: BELAGAVI.
2. SHRI. PARAGOUDA BABASAHEB PATIL,
AGE: 50 YEARS, OCC: NIL,
R/O: MUGALKHOD-587113,
TAL: RAIBAG, DIST: BELAGAVI.
3. SHRI. NANAGOUDA BABASAHEB PATIL,
AGE: 48 YEARS, OCC: NIL,
R/O: MUGALKHOD-587113,
TAL: RAIBAG, DIST: BELAGAVI.
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RFA No. 100538 of 2022
4. SHRI. BASAGOUDA BABASAHEB PATIL,
AGE: 46 YEARS, OCC: NIL,
R/O: MUGALKHOD-587113,
TAL: RAIBAG, DIST: BELAGAVI.
5. SMT. ANNAPURNA SHIDAGOUDA NAIK,
AGE: 77 YEARS, OCC: HOUSE WIFE,
R/O: SHEGAV-444203,
TAL: JATT, DIST: SANGALI,
STATE OF MAHARASHTRA.
6. SMT. SUMITRA PARAGOUDA PATIL,
AGE: 75 YEARS, OCC: HOUSEWIFE,
R/O: FARM HOUSE DARUR VILLAGE-591304,
TAL: ATHANI, DIST: BELAGAVI.
7. SMT. KASHAVVA BHIMAGOUDA PATIL,
AGE: 67 YEARS, OCC: HOUSEWIFE,
R/O: FARM HOUSE DARUR VILLAGE-591304,
TAL: ATHANI, DIST: BELAGAVI.
8. SHRI. HANAMANTHGOUDA BHIMAGOUDA PATIL,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI-591218,
TAL: GOKAK, DIST: BELAGAVI.
9. SHRI. APPUGOUDA BHIMAGOUDA PATIL,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI-591218,
TAL: GOKAK, DIST: BELAGAVI.
10. SMT. JAYASHREE BASAVARAJ B. PATIL,
AGE: 43 YEARS, OCC: HOUSEWIFE,
R/O: URABINHATTI-591122,
TAL: GOKAK, DIST: BELAGAVI.
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RFA No. 100538 of 2022
11. SMT. MAHADEVI CHANNABASAPPA DHAVALESHWAR,
AGE: 55 YEARS, OCC: HOUSEWIFE,
R/O: MUDALAGI-591312,
TAL: GOKAK, DIST: BELAGAVI.
12. KUMARI. PREETI RAMAGOUDA PATIL,
AGE: 23 YEARS, OCC: STUDENT,
R/O: MELAVANKI-591218,
TAL: GOKAK, DIST: BELAGAVI.
13. KUMAR. BASAVARAJ RAMAGOUDA PATIL,
AGE: 21 YEARS, OCC: STUDENT,
R/O: MELAVANKI-591218,
TAL: GOKAK, DIST: BELAGAVI.
14. KUMARI. LAXMI RAMAGOUDA PATIL,
AGE: 19 YEARS, OCC: STUDENT,
R/O: MELAVANKI-591218,
TAL: GOKAK, DIST: BELAGAVI.
15. KUMARI. KEERTI RAMAGOUDA PATIL,
AGE: 17 YEARS, OCC: STUDENT,
R/O: MELAVANKI-591218,
TAL: GOKAK, DIST: BELAGAVI.
16. SMT. MAHADEVI RAMAGOUDA PATIL,
AGE: 45 YEARS, OCC: HOUSEWIFE,
R/O: MELAVANKI-591218,
TAL: GOKAK, DIST: BELAGAVI.
[RESPONDENT NO.15 BEING MINOR REPRESENTED
BY HER NATURAL MOTHER RESPONDENT NO.16)
17. SHRI. SHANKARGOUDA SHIVAPPA HOSAMANI,
AGE: 40 YEARS, OCC: AGRICULTURE & BUSINESS,
R/O: NAGANUR-591224,
TAL: GOKAK, DIST: BELAGAVI.
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RFA No. 100538 of 2022
18. SHRI. SACHIN SHIVAPPA HOSAMANI,
AGE: 38 YEARS,
OCC: PRIVATE SERVICE,
R/O: # 33 YADHAV MAHAL, 2ND FLOOR,
MALLASANDRA MANTAP ROAD,
NEAR SHANI MAHATMA TEMPLE,
T. DASARHALLI, BENGALURU-560057.
19. SHRI. SHIVAPPA BHIMAPPA HOSAMANI,
AGE: 73 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O: NAGANUR-591224,
TAL: GOKAK, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SANGAMESH S. GHULAPPANAVAR, ADV.FOR R1 TO R4;
R5 TO R14, R16, R17, R19 SERVED;
R15 MINOR REPRESENTED BY R16;
R18 NOTICE DISPENSED WITH V/O. DATED 12.08.2024)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC., PRAYING TO SET ASIDE IMPUGNED ORDER DATED 04.03.2021
PASSED IN O.S.NO.82/2017 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, AND
DECREE THE SUIT BEARING O.S.NO.82/2017 IN ITS ENTIRETY IN
THE ENDS OF JUSTICE AND EQUITY AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
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NC: 2024:KHC-D:16504-DB
RFA No. 100538 of 2022
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR)
This appeal is preferred against the judgment and
decree dated 04.03.2021 in O.S.No.82/2017 on the file of
Senior Civil Judge and J.M.F.C., Raibag (for short, 'Trial
Court').
2. The appellant is plaintiff No.1(a). The suit was
dismissed by the Trial Court on the ground of non-joinder of
all the properties available for partition. Learned counsel for
the appellant Smt.Shruti Neelopant appearing on behalf of
Sri Shriharsh A.Neelopant submits that the appellant wants
to file a separate suit by including all the properties available
for partition and therefore she seeks permission to file fresh
suit, and consequently this appeal may be disposed of.
Learned counsel for the respondents Sri Sangamesh
S.Ghulappanavar submits that in case a fresh suit is filed, all
the contentions available to respondents on facts and law
must be kept open. This submission is probably made
because of one finding of the Trial Court that the defendant
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did not lead any evidence in support of his specific defence
about earlier partition.
3. We don't find any infirmity in the judgment of the
Trial Court in dismissing the suit if all the properties available
for partition had not been made subject matter of the suit.
However it is to be stated that dismissal of the suit does not
prevent the plaintiff from bringing a fresh suit as cause of
action for suit for partition is recurring. If the appellant
wants to include all the properties, definitely he can be
permitted to file a fresh suit. And at the same time it is made
clear that the observations of the Trial Court that the
defendant had not led evidence in support of his specific
defence and any such other observation made by the Trial
Court as regards contention of defendants shall not be
treated as an impediment for taking all the defences
available to the defendants in case of fresh suit is filed. With
these observations, following order is passed.
ORDER
Appeal is disposed of. Liberty is granted to
the plaintiffs to bring a fresh suit for partition in
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respect of all the properties that are available for
partition. All contentions are kept open.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(T. G. SHIVASHANKARE GOWDA)
JUDGE
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