Karnataka High Court
Devakka W/O Nagappa Chikkannavar vs Lakkavva W/O Mallappa Chikkannavar on 25 October, 2024
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RSA No. 5701 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5701 OF 2013 (PAR)
BETWEEN:
1. SMT. DEVAKKA W/O. NAGAPPA CHIKKANNAVAR,
AGE: 45 YEARS, OCC. HOUSEHOLD WORK,
R/O. JOLADAVAR ONI,
NEAR HUCHHAPPANAVARA GADDIGE,
MUNDARAGI, TQ. MUNDARAGI,
DIST. GADAG-582101.
2. SARASWATI D/O. NAGAPPA CHIKKANNAVAR,
AGE: 22 YEARS, OCC. HOUSEHOLD WORK,
Digitally signed by
VISHAL NINGAPPA
R/O. JOLADAVAR ONI,
PATTIHAL
Location: HIGH COURT
OF KARNATAKA
NEAR HUCHHAPPANAVARA GADDIGE,
DHARWAD BENCH
MUNDARAGI, TQ. MUNDARAGI,
DIST. GADAG-582101.
3. KUMARI SHILPA D/O. NAGAPPA CHIKKANNAVAR,
AGE: 17 YEARS, OCC: NIL,
SINCE MINOR REPRESENTED BY HER MOTHER
SMT. DEVAKKA W/O. NAGAPPA CHIKKANNAVAR,
R/O. JOLADAVAR ONI,
NEAR HUCHHAPPANAVARA GADDIGE,
MUNDARAGI, TQ. MUNDARAGI,
DIST. GADAG-582101.
4. KUMARI SUVARNA
D/O. NAGAPPA CHIKKANNAVAR,
AGE: 15 YEARS, OCC: NIL,
SINCE MINOR REPRESENTED BY HER MOTHER
SMT. DEVAKKA
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RSA No. 5701 of 2013
W/O. NAGAPPA CHIKKANNAVAR,
R/O. JOLADAVAR ONI,
NEAR HUCHHAPPANAVARA GADDIGE,
MUNDARAGI, TQ. MUNDARAGI,
DIST. GADAG-582101.
...APPELLANTS
(BY SRI. GIRISH YADAWAD, ADVOCATE FOR SRI. V.P.KULKARNI)
AND:
1. SMT. LAKKAVVA W/O. MALLAPPA CHIKKANNAVAR,
AGE: 75 YEARS, OCC. HOUSEHOLD,
R/O. KOTI ONI, MUNDARAGI,
TALUK: MUNDARAGI, DIST. GADAG-582101.
2. SMT. RATNAVVA
W/O. LAXMAPPA @ LAKKAPPA JANTLI,
AGE: 75 YEARS, OCC. HOUSEHOLD,
R/O. MUNDARAGI,
TALUK: MUNDARAGI, DIST. GADAG-582101.
3. NAGAPPA S/O. MALLAPPA CHIKKANNAVAR,
AGE: 51 YEARS, OCC: AGRICULTURIST,
R/O. JOLADAVAR ONI,
NEAR HUCHHAPPANAVARA GADDIGE,
MUNDARAGI, TQ. MUNDARAGI,
DIST. GADAG-582101.
4. NAGARAJ S/O. TIMMANNA @ TIMMAPPA NAVALI,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: MUNDARGI,
TALUK: MUNDARAGI, DIST: GADAG-582101.
5. SATYANARAYAN
S/O. TIMMANNA @ TIMMAPPA NAVALI,
AGE: 39 YEARS, OCC: BUSINESS,
R/O. MUNDARAGI,
TALUK: MUNDARAGI, DIST. GADAG-582101.
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RSA No. 5701 of 2013
6. LAXMAN S/O. TIMMANNA @ TIMMAPPA NAVALI,
AGE: 34 YEARS, OCC. BUSINESS,
R/O. MUNDARAGI,
TALUK: MUNDARAGI, DIST. GADAG.
7. SMT. CHANDRAKALA W/O. NAGESH HUBBALLI,
AGE: 33 YEARS, OCC. MEDICAL SHOP BUSINESS,
R/O. KOTI BAGILA, MUNDARGI,
TALUK: MUNDARAGI, DIST. GADAG-582101.
8. BASAPPA S/O. LAXMAPPA DONNUR,
AGE: 51 YEARS, OCC. AGRICULTURIST,
R/O. KOTI ONI, MUNDARGI,
TALUK: MUNDARAGI, DIST. GADAG-582101.
9. SHARANAPPA S/O. VEERAPPA TAIBAR,
AGE: 36 YEARS, OCC. AGRICULTURIST,
R/O. REVANKI VILLAGE,
TALUK: YELBURGA, DIST. KOPPAL-58323.
...RESPONDENTS
(BY SRI. SANTOSH B MALLIGEWAD, ADVOCATE FOR SRI.
B.K.MALLIGEWAD, ADVOCATE FOR R1 AND R2;
R3, R4, R5, R6, R7, R8 ARE NOTICE SERVED;
NOTICE R9 IS HELD SUFFICIENT)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.20/2012
PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE,
GADAG AT GADAG DATED 31.07.2013 CONFIRMING THE
JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE (SR.DN.)
GADAG IN O.S.NO.55/2010 DATED 25.01.2012 IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5701 of 2013
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
ORAL JUDGMENT
Assailing the concurrent findings of facts recorded by
the Courts below, defendant Nos. 2 to 6 are before this
Court in this Regular Second Appeal.
2. Parties herein are referred to as per their rank
before the trial Court, for the sake of convenience.
3. The family genealogy tree reads as under:
MALLAPPA CHIKKANNAVAR (DECEASED)
SMT. LAKKAWWA W/O. MALLAPPA CHIKKANNAVAR
(PLAINTIFF NO.1)
NAGAPPA SMT. RATNAWWA
MALLAPPA CHIKKANNAVAR W/O. LAXMAPPA JANTLI
(DEFENDANT NO.1) (PLAINTIFF NO.2)
DEVAKKA
(DEFENDANT NO.2)
SARASWATI SAVITRI SHIPLA SUVARNA
(DEFT. 3) (DEFT. 4) (DEFT. 5) (DEFT. 6)
MINOR MINOR
4. Suit for partition and separate possession
seeking 1/3rd share in the suit properties. Plaintiff No.1 is
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the mother of plaintiff No.2 and defendant No.1, defendant
No.1 is the husband of defendant No.2 and father of
defendant Nos.3 to 6. It is the case of the plaintiffs that the
plaintiffs and defendant No.1 constitute a Hindu Undivided
Joint family and the suit properties are the ancestral
properties of plaintiffs and defendant No.1 and further,
defendant No.1 colluding with defendant Nos.2 to 6 have
sold 1 acre of land to defendant Nos.7 to 9 and the same is
not binding on the plaintiffs. That defendant no.1, in order
to defeat the claim of the plaintiffs, colluding with defendant
Nos. 2 to 6 have got their names entered in the revenue
records. It is the case of the plaintiffs that the plaintiffs and
defendant No.1 are entitled for 1/3rd share in the suit
properties.
5. On notice, though defendant No.1 was served,
he has chosen to remain absent and hence, was placed ex
parte. The contesting defendants are, defendant Nos.2 to 6
and have appeared through their respective counsel.
Defendant No.2 filed his written statement, which was
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adopted by defendant Nos.3 to 6. Defendants inter alia,
contended that the plaintiffs have given varadhi to the
Tahsildar to mutate the name of defendant No.1 alone and
accordingly, the name of defendant No.1 is entered in the
revenue records and defendant No.1 is enjoying the suit
properties as an absolute owner, that the plaintiffs do not
have any manner of right, title and interest over the suit
properties. It is the case of the defendants that defendant
No.1 having become the absolute owner sold five guntas of
land on 04.01.2003 to one Doddabasappa, S/o. Laxmappa
and on 22.01.2004, defendant No.1 sold one acre of land to
defendant Nos.7 to 9, and the plaintiffs never objected to
the sale. That the Crl.Misc. petition seeking maintenance
filed by defendant Nos. 2 to 6 against defendant No.1 was
allowed and in the execution filed by the defendants,
defendant No.1 had entered into a compromise and an
extent of land measuring 2 acre 36 guntas and one house
bearing TMC.No.581/575 has been given to defendant
Nos.2 to 6 in lieu of maintenance. That the present suit is a
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collusive suit by plaintiff and defendant No.1 to defraud the
claim of defendant Nos.2 to 6.
6. The trial Court on the basis of the pleadings
framed the following issues:
(1) Whether the plaintiff prove that they have got
each 1/3rd share in the suit properties?
(2) Whether the plaintiffs prove that they entitle
for 2/3rd share separately by metes and bounds
in the suit properties?
(3) Whether the defendant Nos.2 to 6 prove that
plaintiffs had already relinquished their rights
in the suit properties, thus suit is not
maintainable?
(4) Whether the defendant Nos.2 to 6 prove that
the plaintiffs have conceded the alienation
made by defendant No.1 in favour of defendant
Nos.7 to 9 as alleged?
(5) Whether the plaintiffs entitled for the reliefs?
(6) What order or decree?
7. In order to substantiate their claim, plaintiff No.2
examined herself as PW1 and another witness as PW2 and
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got marked documents at Exs.P1 to P11. On the other
hand, defendant No.2 examined herself as DW1 and got
marked documents at Exs.D1 to D24.
8. The trial Court on the basis of the pleadings, oral
and documentary evidence arrived at a conclusion that the
plaintiffs have proved that they are entitled for 1/3rd share
in the suit properties and that defendant Nos.2 to 6 have
failed to prove that the plaintiffs have relinquished their
rights in the suit properties and the suit is not maintainable.
9. By the judgment and decree, the trial Court
decreed the suit as under:
"Suit is decreed.
Plaitniffs are entitled for partition and separate
possession of 2/3rd share in the suit schedule
properties. The property sold in favour of 3rd & 4th
defendant are allotted to the share of 1st defendant.
No order as to costs."
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10. Aggrieved, defendant Nos.2 to 6 preferred
appeal before the First Appellate Court. The First Appellate
Court, while reappreciating and reconsidering the entire oral
and documentary evidence, concurred with the judgment
and decree of the trial Court. Aggrieved, defendant Nos.2 to
6 are before this Court in this Regular Second Appeal.
11. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the
respondents and perused the materials available on record.
12. It is undisputed that the suit properties are the
ancestral properties of plaintiffs and defendant No.1,
defendant No.1 the husband of defendant No.2 and father
of defendant Nos.2 to 6 was placed ex parte. Defendant
Nos.2 to 6 raised a contention that plaintiffs have given
varadhi to the Tahsildar to mutate the name of defendant
No.1, and defendant No.1 is enjoying the suit properties
exclusively as an absolute owner and further, that in the crl.
misc. petition filed by defendant Nos.2 to 6 seeking
maintenance against defendant No.1, compromise has been
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arrived at and defendant No.1 has given 2 acres 36 guntas
of land in suit item No.1(A) in lieu of the maintenance.
Defendant Nos.2 to 6 have taken a defence that in lieu of
the relinquishment of the share of the plaintiffs in favour of
defendant No.1, the name of defendant No.1 is entered in
the revenue records and defendant No.1 is the exclusive
owner of the suit properties. No materials are forthcoming
to indicate any relinquishment deed made by the plaintiff in
respect of the immovable property, in the absence of any
registered document to indicate any relinquishment made
by the plaintiffs mere entry in the record of rights would not
confer or create any exclusive right in favour of defendant
No.1. The trial Court, while considering issue No.3, rightly
arrived at a conclusion that defendant Nos.2 to 6 have
failed to establish that the plaintiffs have relinquished their
share in the suit properties.
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13. The trial Court, while answering issue No.5,
quantified the share of plaintiffs and defendant Nos.2 to 6,
held at paragraph No.13 as under:
"13. Issue No.5: For the foregoing reasons on
issue No.1 to 4 it is clearly established by the
plaintiffs that suit properties are ancestral properties
of plaintiffs and defendant No.1 and they have got
equal share. But the plaintiffs have also conceded the
alienation made by defendant No.1 to the extent of
1.05 acres of land. Those sale transactions are
binding both plaintiffs and defendant No.1, therefore
equally they have to suffer the same. Totally 1.05
acres of land has been sold in the year 2002 and
2004 that means totally 45 guntas of land has been
sold. Thus the plaintiffs have to loose each 15 guntas
of land which was already sold with their consent.
Therefore, each plaintiff will get 37 guntas of land in
the suit landed property. Therefore, it is clear that
together the plaintiffs would get 1.34 acres of land
out of suit survey number agriculture land, the
defendant No.2 to 6 shall have 1.02-acres of land.
Because the defendant No.1 entered into
compromise with defendant No.2 to 6 by giving up
his share of properties to them in Crl.Misc. Petitions
as per compromise under Ex.P.23. Thus, the
defendant No.1 would not get any property,
whatever the property allotted to his share shall be
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the property of defendant No.2 to 6. Accordingly, it
should be allotted in the final decree proceedings. In
this manner Properties have to be partitioned
between the parties. Thus, I answer Issue No.5 in
affirmative."
14. The trial Court observed that defendant No.1
entered into a compromise with defendant Nos.2 to 6 giving
up his share over the suit properties in Crl.Misc.Petition
under Ex.P-23 and defendant Nos.2 to 6 to be allotted
share that would be allotted to defendant No.1.
15. The First Appellate Curt being the last fact
finding Court, re-appreciated and reconsidered the material
on record independently and affirmed with the findings
recorded by the trial Court. In the absence of any title deed
to indicate any relinquishment in favour of defendant No.1,
and in light of the undisputed facts the suit properties are
joint family properties, the Courts below were justified in
decreeing the suit of the plaintiffs. The manner in which the
Courts below have assessed the entire oral and
documentary evidence, this Court is of the considered view
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that the same does not warrant any interference under
Section 100 CPC and there arises no substantial question of
law for consideration and accordingly, this Court pass the
following:
ORDER
(i) The appeal is hereby dismissed.
(ii) The judgment and decree of the Courts below
stand confirmed.
(iii) It is needless to observe that defendant
Nos.2 to 6 are always at liberty to seek
equity before the final decree Court seeking
to allot the share that would be allotted to
defendant No.1.
In light of the dismissal of the appeal, pending
applications, if any, do not survive for consideration and are
accordingly disposed off.
Sd/-
____________________
(JUSTICE K.S.HEMALEKHA)
VNP / CT: PA
