Karnataka High Court
Smt Deviramma vs Sri Fakeerappa on 21 October, 2024
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RFA No. 48 of 2008
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF OCTOBER 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.48 OF 2008 (PAR-)
BETWEEN:
1. SMT. DEVIRAMMA
W/O. BASAVANNEPPA MACHENAHALLI,
AGED 60 YEARS,
OCC: HOUSEHOLD WORK &
AGRICULTURIST
2. SRI. GANGADHAR
S/O. BASAVANNEPPA MACHENAHALLI,
AGED 40 YEARS, OCC: ADVOCATE &
AGRICULTURIST
3. SRI. MALLIKARJUNA
S/O.BASAVANNEPPA MACHENAHALLI,
AGED 32 YEARS, OCC:AGRICULTURE
ASHPAK 4. SRI. IRAPPA
KASHIMSA
MALAGALADINNI S/O. BASAVANNEPPA MACHENAHALLI,
AGE: 30 YEARS, OCC: AGRICULTURIST
5. SRI. PALAXI
Location: S/O. BASAVANNEPPA MACHENAHALLI,
HIGH
COURT OF AGED 26 YEARS, OCC: AGRICULTURIST,
KARNATAKA
6. SRI. KOTRESH
S/O.BASAVANNEPPA MACHENAHALLI,
AGED 18 YEARS, OCC: AGRICULTURIST
7. KUM. RUDRAVVA
D/O. BASAVANNEPPA MACHENAHALLI,
AGED 20 YEARS, OCC: HOUSEHOLD WORK,
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RFA No. 48 of 2008
8. KUMARI. KALAVVA D/O.
BASAVANNEPPA MACHENAHALLI,
AGE: 18 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/AT. KOMBLI VILLAGE,
TQ: HADAGALI, DIST: BELLARY.
...APPELLANTS
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND:
1. SRI. FAKEERAPPA
S/O. MUDUKAPPA MACHENAHALLI,
AGE: 60 YEARS, OCC: RETD., KSRTC EMPLOYEE,
R/O: BAGEWADI, TQ: MUNDARGI,
DIST: GADAG.
2. SRI. MALLAPA
S/O.MUDUKAPPA MACHENAHALLI,
SINCE DECEASED BY HIS LRS.
2A. SMT. HALAVVA
W/O. MALLAPPA MACHENAHALLI,
AGE: 52 YEARS, OCC: HOME MAKER,
R/O: BAGIWADI, TQ: MUNDARAGI,
DIST: GADAG.
2B. SMT ANITHA
D/O. MALLAPPA
W/O. UMESHGOUDA POLICE PATIL,
AGE: 38 YEARS, OCC: HOME MAKER,
R/O: HALAGERI, TQ: DIST: KOPPAL.
2C. SRI. PRAKASH MALLAPPA MACHENAHALLI,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: BAGEWADI, TQ: MUNDARAGI,
DIST: GADAG.
2D. SMT. SUNITHA
D/O. MALLAPPA
W/O. CHANDAKUMAR BAGLI,
AGE: 32 YEARS, OCC: HOME MAKER,
R/O: MAGALA, TQ: HADAGALI,
DIST: BALLARI.
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RFA No. 48 of 2008
3. SRI. BASAVARAJ
S/O. MUDUKAPPA MACHENAHALLI,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: BAGEWADI,TQ: MUNDARGI,
DIST: GADAG.
4. SMT. NEELAMMA
W/O. SHEKHARA GOUDA,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: KORLAHALLI, TQ: MUNDARGI,
DIST: GADAG.
5. SMT. SHAVAKKA
W/O. VEERABHADRAPPA MACHENAHALLI,
AGE: 55 YEARS, OCC: HOUSEHOLD,
6. SRI. MUDAKAPPA
S/O. VEERABHADRAPPA MACHENAHALLI,
AGE: 23 YEARS, OCC: AGRICULTURE,
SINCE DECEASED BY HIS LRS.
6A. SMT. YALLAVVA
W/O. LATE MUDAKAPPA MACHANENAHALLI,
AGE: 52 YEARS, OCC: HOME MAKER,
R/O: PANCHAKSHARI NAGAR,
VAKARA SALU, 2ND STAGE,
NEAR VISHWARA LIBRARY,
GADAG. DIST: GADAG.
6B. SMT. ANNAPURNA
W/O. VEERESH PATIL,
AGE: 20 YEARS, OCC: HOME MAKER,
R/O: KODLIWADA, TQ: HUBBALLI,
DIST: DHARWAD.
7. SRI. SIDDAPPA
S/O. VEERABHADRAPPA MACHENAHALLI,
AGE: 23 YEARS, OCC: AGRICULTURE.
8. SMT. CHANNAVVA
W/O. IRAPPA MACHENAHALLI,
AGE: 70 YEARS, OCC:HOUSEHOLD WORK.
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RFA No. 48 of 2008
9. SRI. DEVAPPA
S/O. IRAPPA MACHENAHALLI,
AGE: 35 YEARS, OCC: AGRICULTURE.
10. SRI. PARAMESHWARAPPA
S/O. IRAPPA MACHENAHALLI,
AGE 33 YEARS, OCC: AGRICULTURE.
11. SRI. GANGADHAR
S/O. IRAPPA MACHENAHALLI,
AGE: 28 YEARS, OCC: AGRICULTURE.
12. SMT. FAKEERAVVA
D/O. IRAPPA MACHENAHALLI,
AGE: 32 YEARS, OCC: HOUSEHOLD WORK.
RESPONDENTS NO.5 TO 12 ARE
R/O. BAGEWADI TQ: MUNDARGI, DIST: GADAG.
13. SRI. MUDUKAPPA
S/O. BASAVANNAPPA MACHENAHALLI,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: KOMBLI,TQ: HADAGALI,
DIST: BELLARY.
14. SMT. LALITHA
W/O. SHAMBAPPA, AGE: 33 YEARS,
OCC: HOUSEHOLD, R/O: MOORAGERI,
TQ: H.B.HALLI, DIST: BELLARY.
15. SMT. REKHA
W/O. HUCHAPPA MAGALA,
AGE: 32 YEARS, OCC:HOUSEHOLD,
R/O: NAGATI-BASAPUR,
TQ: HUVINAHADAGALI, DIST: BELLARY.
16. SMT. PARAVVA
W/O. TOTAPPA TAMBRALLI,
AGE: 32 YEARS, OCC:HOUSEHOLD,
R/O: SONNA, TQ: H.B.HALLI,
DIST: BELLARY.
17. SRI. MANJUNATH
S/O. VEERABHADRAPPA MACHENAHALLI,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O.BAGEWADI,TQ: MUNDARGI,
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RFA No. 48 of 2008
DIST: GADAG.
18. SMT. GIRIJAVVA
W/O. HONNAPPA ANGADI,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: MURADI, TQ: MUNDARGI,
DIST: GADAG.
19. SMT. SHANTHAVVA
W/O. VIJAYA ANGADI,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O: MURADI, TQ: MUNDARGI,
DIST: GADAG.
20. SMT. NINGAMMA
W/O. UMESH ANGADI,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O: MURADI, TQ: MUNDARGI, DIST: GADAG.
...RESPONDENTS
(BY SRI. RAMACHANDRA MALI, ADVOCATE FOR R1 TO R4, R8 & R12)
THIS RFA FILED U/SEC.96 R/W ORDER 41 RULE 1 OF CPC
PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE DT.04.08.07
PASSED IN O.S.NO.159/04 ON THE FILE OF THE ADDL. CIVIL JUDGE
(SR.DN), HOSPET AND DISMISS THE SUIT WITH COST BY
ALLOWING APPEAL AS PRAYED, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL IS COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
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RFA No. 48 of 2008
ORAL JUDGMENT
The defendants are before this Court challenging the
judgment and decree granting 2/3rd share and mesne profits to
the plaintiffs and defendants No.13 to 16 in the suit schedule
properties.
2. The relationship between the parties is not in
dispute. One Veerappa was the propositus. He had three sons
namely Mudakappa, Rudrappa and Basavanneppa and a
daughter by name Basamma. Basamma is no more and it
appears that she died issueless.
3. The suit is filed by children of the Mudakappa and
legal representatives of one son of Mudakappa, who is given in
adoption to Rudrappa. The suit is filed against the legal
representatives of the branch of Basavanneppa.
4. The suit is filed on the premise that all the
properties originally belonged to Veerappa, the propositus. The
defendants did not dispute the relationship as well as adoption
pleaded by the plaintiffs. The defendants did not dispute the
nature of the properties.
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5. On the other hand, the defendants who represent
the branch of Basavanneppa pleaded oral partition in the year
1954. According to the defendants, in the oral partition of
1954, some of the properties in Muradi village and Bagewadi
village were allotted to the share of plaintiffs and defendants,
and all the suit schedule properties were allotted to the share
of branch of Basavanneppa. Hence, they prayed for dismissal of
the suit on the plea of previous partition of 1954.
6. The Trial Court framed an issue relating to the
previous partition and the said issue is answered against the
defendants. One more plea relating to limitation is held against
the defendants and consequently decreed the suit as aforesaid.
7. Aggrieved by the aforementioned judgment and
decree, defendants No.1 to 7 are in appeal.
8. Learned counsel for the appellants
Sri Hanumanthareddy Sahukar, raised the following
contentions.
(a) Ex.D.94 is the relinquishment deed executed by the
Mudakappa in favour of Basavenneppa. Thus, suit
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could not have been decreed in respect of 1/3rd
share of Rudrappa.
(b) The properties are already partitioned in the year
1954 and the suit properties were exclusively
allotted to the share of defendants, as such, the
suit is not maintainable.
(c) Alternatively, the suit without including all the
properties is not maintainable.
9. Learned counsel appearing for the
respondents/plaintiffs would contend that
(a) Previous partition pleaded by the defendants is not
established and ;
(b) Admittedly, one Veerappa was the propositus of the
plaintiffs and defendants and the alleged
relinquishment deed at Ex.D94 is not registered as
such, the defendants cannot claim exclusive right
over the property of Mudukappa.
(c) The particulars of the properties said to be the joint
family properties and not included in the plaint is
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not furnished as such the contention relating to
non-inclusion of all the joint family properties is not
tenable.
10. This Court has considered the contentions raised at
the bar and perused the records.
11. The following points arises for considerations:
i. Whether the appellants have proved previous
partition of 1954 ?
ii. Whether the appellants have proved
relinquishment of 1/3rd share of Rudrappa in
favour of Basavanneppa ?
12. As seen from the written statement filed by the
defendants, it is pleaded that there was a partition among the
plaintiffs and defendants in the year 1954, and in the said
partition, the suit properties are allotted to the share of the
Basavanneppa's branch, and the properties in Muradi and
Bagewadi villages are allotted to the share of plaintiffs and
defendants. However, it is noticed by the trial Court that no
evidence is led relating to the previous partition of 1954 as
pleaded. There is no mutation evidencing the said oral
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partition. In the absence of any documents to uphold
contentions relating to the previous partition, the trial Court
has held that previous partition is not established.
13. Though Sri Hanumanthareddy Sahukar, learned
counsel for the appellants would contend that previous partition
of 1954 is to be accepted based on the oral evidence led by the
parties, on appreciation of oral evidence led before this Court, it
is noticed that the plaintiffs have not admitted the said
contention relating to oral partition. This Court is of the view
that previous partition is not established in oral evidence.
14. It is further relevant to note that defendants have
raised a plea that 1/3rd share of Mudukappa Machenahalli is
relinquished in favour of Basavanneppa in the year 1964 and to
substantiate this contention, they have produced Ex.D-94. This
Court has perused the Ex.D-94. The said document is
unregistered. On perusal of the said document again it is
noticed that Mudakappa claims to have transferred his ½ share
in four survey numbers referred to in the said document. Even
the said document, if referred to, for a limited purpose, does
not disclose any previous partition as alleged by the
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defendants. Moreover, as already noticed, the document being
unregistered document, Mudakappa's right is not transferred in
favour of Basavanneppa.
15. It is also relevant to note that the plaintiffs have
produced certain records wherein the Mudakappa himself has
filed an application seeking electricity connection to the
properties, which according to the defendants, are transferred
by the Mudakappa in favour of the Basavanneppa under the
unregistered relinquishment deed of 1965. If at all the
properties were transferred by Mudakappa in the year 1965,
after the alleged transfer, Mudakappa could not have moved an
application for electricity connection in respect of those
properties standing in his name. It is also relevant to note that
based on the alleged relinquishment deed of 1965, the
mutation has not taken place in favour of Basavanneppa. For
the aforementioned reasons, this Court is of the view that plea
of relinquishment of properties by Mudukappa in 1965, in
favour of Basavaneppa cannot be accepted as a valid
relinquishment in favour of Basavanneppa.
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16. As far as 3rd contention relating to non joinder of
necessary parties is concerned, particulars of such properties
are not provided and no evidence is led. Hence, the said
contentions cannot be accepted.
17. For the aforementioned reasons, this Court does not
find any error in the judgment and decree passed by the Trial
Court.
18. It is stated that Final Decree Proceeding is filed. The
suit is of the year 2004. In case, the appellants do not co-
operate for the division of the properties, as an interim
measure, the Trial court shall pass an interim order directing
the appellants to deposit a tentative amount towards mesne
profits as there is a decree for mense profits as well. Once the
division of the properties is completed and possession is
handed over to the plaintiffs, there shall be final enquiry
relating to mesne profits payable.
The appeal is dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
AM
CT:ANB
