Karnataka High Court
Anil S/O. Appanna Randewadi vs Kumari Sheetal D/O Anil Randewadi on 3 September, 2024
Author: B.M. Shyam Prasad
Bench: B.M.Shyam Prasad
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NC: 2024:KHC-D:12642-DB
RFA No. 100214 of 2021
C/W RFA.CROB No. 100029 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO.100214 OF 2021 (PAR/POS)
C/W
RFA CROSS OBJ NO. 100029 OF 2022
IN RFA NO.100214 OF 2021:
BETWEEN:
1. ANIL S/O. APPANNA RANDEWADI
AGE: 48 YEARS, OCC: BUSINESS/AGRICULTURE.
2. SMT. TEJASWINI D/O. APPANNA RANDEWADI,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK.
3. SHRI. SUNIL S/O. APPANNA RANDEWADI,
Digitally signed by
VINAYAKA B V AGE: 41 YEARS, OCC: BUSINESS/AGRICULTURE,
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH ALL ARE RESIDENT OF
DHARWAD
Date: 2024.09.10 R/O. 1419, NEHRU NAGAR,
10:43:58 +0530
ALNAVAR, DIST: DHARWAD-581103.
...APPELLANTS
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND:
1. KUMARI. SHEETAL D/O. ANIL RANDEWADI
AGE: 14 YEARS, OCC: STUDENT,
SINCE MINOR R/PD BY
NEXT FRIEND I.E.
MOTHER RESPONDENT NO.2.
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RFA No. 100214 of 2021
C/W RFA.CROB No. 100029 of 2022
2. SMT. VAISHALI W/O. ANIL RANDEWADI
AGE: 40 YEARS,
OCC: HOUSEHOLD,
BOTH ARE R/O: 1419, NEHRU NAGAR,
ALNAVAR, DIST: DHARWAD-581103.
...RESPONDENTS
(BY SRI. SUJEETH S. HIREMATH, ADVOCATE FOR
SRI. R.M. HIREMATH, ADVOCATE)
THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER
41 RULE 1 OF C.P.C., 1908, AGAINST THE JUDGMENT AND
DECREE DATED 05.10.2021 PASSED IN O.S.NO.283/2019 ON
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND
CHIEF JUDICIAL MAGISTRATE, DHARWAD, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION AND DECLARATION.
IN RFA CROB. NO.100029 OF 2022:
BETWEEN:
1. KUMARI. SHEETAL D/O. ANIL RANDEWADI
AGE: 14 YEARS, SINCE MINOR
REPRESENTED BY MOTHER
AND NEXT FRIEND,
SMT. VAISHALI W/O. ANIL RANDEWADI,
AGE: 40 YEARS, OCCN: HOUSEHOLD WORK,
R/O. 1419, NEHRU NAGAR,
ALNAVAR, DIST: DHARWAD-581103.
2. SMT. VAISHALI W/O. ANIL RANDEWADI
AGE: 40 YEARS, OCCN: HOUSEHOLD WORK,
R/O: 1419, NEHRU NAGAR,
ALNAVAR, DIST: DHARWAD-581103.
...CROSS-OBJECTORS
(BY SRI. SUJEET S. HIREMATH, ADVOCATE FOR
SRI. R.M.HIREMATH, ADVOCATE)
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NC: 2024:KHC-D:12642-DB
RFA No. 100214 of 2021
C/W RFA.CROB No. 100029 of 2022
AND:
1. SHRI. ANIL
S/O. APPANNA RANDEWADI,
AGE: 48 YEARS, OCCN: BUSINESS,
R/O: 1419, NEHRU NAGAR,
ALNAVAR, DIST: DHARWAD-581103.
2. SMT. TEJASWINI
D/O. APPANNA RANDEWADI,
AGE: 46 YEARS,
OCCN: HOUSEHOLD WORK,
R/O: 1419, NEHRU NAGAR,
ALNAVAR, DIST. DHARWAD-581103.
3. SHRI. SUNIL S/O. APPANNA RANDEWADI
AGE: 39 YEARS, OCCN: BUSINESS,
R/O: 1419, NEHRU NAGAR,
ALNAVAR, DIST: DHARWAD-581103.
...RESPONDENTS
(BY SRI. VITTHAL S. TELI, ADVOCATE)
RFA CROSS OBJECTION IN RFA NO.100214/2021 IS
FILED UNDER ORDER 41 RULE 22 OF C.P.C., AGAINST THE
JUDGMENT AND DECREE DATED 05.10.2021 PASSED IN
O.S.NO.283/2019 ON THE FILE OF THE I-ADDITIONAL SENIOR
CIVIL JUDGE, AND CHIEF JUDICIAL MAGISTRATE DHARWAD,
PARTLY DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION AND DECLARATION.
THIS APPEAL AND RFA CROSS OBJECTION, COMING ON
FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
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NC: 2024:KHC-D:12642-DB
RFA No. 100214 of 2021
C/W RFA.CROB No. 100029 of 2022
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)
The appellants are the defendants in the suit for
partition commenced by the respondents [the cross -
objectors] in O.S. No.283/2019 on the file of the I Additional
Senior Civil Judge and C.J.M., Dharwad [for short, 'the civil
Court']. The civil Court, by the impugned judgment and
decree dated 05.10.2021, has partially decreed the suit in
the following terms:
• Declaring that the first respondent [the first
cross-objector] is entitled for 1/6th share in
suit item Nos.1 to 4 properties while
dismissing the suit as against the next two
properties [the suit item Nos.5 and 6].
• Declaring that the second respondent [the
second cross-objector] would be entitled for
maintenance and the right of residence as
against the first appellant's remaining 1/6th
share in the properties for which decree for
partition is granted.
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C/W RFA.CROB No. 100029 of 2022
• Restraining the appellants from alienating
the suit properties until partition is affected
and the first respondent [the first cross-
objector] is allotted her share.
This Court, for reasons of convenience, must refer to the
parties as they are arrayed before the civil Court.
2. The second plaintiff is married to the first
defendant and the first plaintiff is their daughter. The
second and third defendants are the first defendant's
siblings. The second plaintiff has initiated matrimonial
proceedings and proceedings under Section 125 of Cr.P.C.
for maintenance. It is also stated that the second plaintiff
has initiated proceedings under the provisions of Protection
of Women from Domestic Violence Act, 2005. The
relationship inter-se parties and the fact that the second
plaintiff and the first defendant are estranged are not
contested.
3. According to the plaintiffs, the suit item Nos.1 to
4 properties are ancestral properties and from the nucleus
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C/W RFA.CROB No. 100029 of 2022
that is put together from these properties, the next two
properties are purchased. The defendants have not
contested the suit though they are served. The civil Court
has framed points for its consideration in the light of the
plaintiffs' case that the suit schedule properties are
ancestral properties and a Relinquishment Deed dated
30.07.2011 is got up by the defendants to deny the
plaintiffs' their share in the suit schedule properties.
4. The civil Court has answered these points
opining that the plaintiffs are able to prove that the suit item
Nos.1 to 4 properties are ancestral properties but there is
nothing on record to establish that the other two properties
are purchased from the nucleus. The civil Court, as regards
the Relinquishment Deed executed by the first defendant,
has opined that because the first plaintiff will have an
undeniable share in the father's [the first defendant's] share,
the Relinquishment Deed cannot bind such share and that
this deed also cannot adversely affect the second plaintiff's
right to maintenance.
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C/W RFA.CROB No. 100029 of 2022
5. If Sri. Vittal S. Teli, the learned counsel for the
appellants, submits that this Court may have to intervene
with the impugned judgment and decree to enable an
opportunity to the appellants to contest the suit on merits,
Sri. Sujeet S. Hiremath, the learned counsel for the
plaintiffs, submits that the second plaintiff has examined
herself and she is categorical in her oral evidence that the
suit item Nos.1 to 4 properties yield income and that this
income constitutes sufficient joint family nucleus which is
applied to purchase the other two properties. Sri. Sujeet S.
Hiremath submits that the civil Court should have
considered the probative value of this ocular evidence in the
light of the fact that the defendants have not contested the
suit.
6. This Court must opine that the circumstances
canvassed, the undisputed fact of estrangement between the
second plaintiff and the first defendant and the plaintiffs'
specific case that the ancestral properties yield income
which constitute sufficient nucleus, establish peculiarities
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C/W RFA.CROB No. 100029 of 2022
from which this Court can reasonably infer that the
impugned judgment and decree has not resulted in complete
adjudication of the dispute. Crucially, the learned counsels
state in unison that the appeal and the cross-objection could
be allowed setting aside the impugned judgment and decree
to enable a complete adjudication with Sri. Sujeet S.
Hiremath submitting that this Court must also provide for
expeditious disposal of the suit. It is only in these
peculiarities of the case that the impugned judgment and
decree are interfered with restoring the suit for decision on
merits with due opportunity to the parties.
ORDER
[A] The appeal and the cross-objection are
allowed in part setting aside the impugned
judgment and decree dated 05.10.2021 and
remanding the suit under Order XXIII Rule 3A
of CPC. The parties shall appear before the
civil Court without further notice on
30.09.2024.
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C/W RFA.CROB No. 100029 of 2022
[B] The appellants will be at liberty to file their
written statement on such date or any other
further date that the civil Court may allow but
the civil Court may not grant more than a
month from the date of first appearance.
[C] The civil Court shall consider the suit
consequent to this remand as a suit that is
pending for over five years and dispose of the
suit as expeditiously as possible in terms of
the guidelines issued for disposal of such
pending matters.
The office shall draw decree accordingly.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(C.M.JOSHI)
JUDGE
RSH / Ct:vh
