Karnataka High Court
Panchayya S/O. Basavnneyya Hiremath vs Sri. Chandrashekharyya S/O Ajjayya ... on 4 September, 2024
Author: B.M. Shyam Prasad
Bench: B.M.Shyam Prasad
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RFA No. 100158 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH 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.100158 OF 2021 (PAR/POS)
BETWEEN:
1. SRI. PANCHAYYA
S/O. BASAVNNEYYA HIREMATH,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURE,
R/O: BHUDIHAL VILLAGE,
TQ: SHIRAHATTI,
DIST: GADAG-582119.
2. SRI. MANJAYYA
S/O. BASAVANNEYYA HIREMATH,
AGED ABOUT 49 YEARS,
OCC: AGRICULTURE,
Digitally signed
by VINAYAKA B V R/O: BHUDIHAL VILLAGE,
Location: HIGH
COURT OF TQ: SHIRAHATTI,
KARNATAKA
DHARWAD DIST: GADAG-582119.
BENCH
DHARWAD
Date: 2024.09.24
...APPELLANTS
11:57:38 +0530 (BY SRI. SUNIL S. DESAI, ADVOCATE)
AND:
SMT. DEVIRAVVA @ KASTUREVVA
W/O. AJJAYYA AKKURMATH,
(SINCE DIED BY HER LR's.,
1. SRI. CHANDRASHEKHARYYA
S/O. AJJAYYA AKKURMATH,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE,
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RFA No. 100158 of 2021
R/O: BHUDIHAL VILLAGE,
TQ: SHIRAHATTI,
DIST: GADAG-582119.
2. SRI. MALLAYYA
S/O. AJJAYYA AKKURMATH,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE,
R/O: BHUDIHAL VILLAGE,
TQ: SHIRAHATTI,
DIST: GADAG-582119.
3. SRI. SHANKRAYYA
S/O. VEERAYYA RITTIMATH,
AGED ABOUT 57 YEARS,
OCC: AGRICULTURE,
R/O: BHUDIHAL VILLAGE,
TQ: SHIRAHATTI,
DIST: GADAG-582119.
...RESPONDENTS
(NOTICE TO R1 TO R3 IS SERVED AND UNREPRESENTED)
THIS RFA IS FILED UNDER SEC. 96 OF C.P.C., AGAINST
THE JUDGMENT AND DECREE DATED 09.12.2020 PASSED IN
O.S. NO.33/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, LAXMESHWAR,
DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL, 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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RFA No. 100158 of 2021
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)
This appeal is by the unsuccessful plaintiffs in O.S.
No.33/2019 on the file of the Senior Civil Judge and JMFC
Laxmeshwar [for short, 'the civil Court'] inasmuch their suit
for partition is dismissed by the civil Court by judgment and
decree dated 09.12.2020. The appellants have filed the suit
against the respondents asserting that if they are the
children of Smt. Chandravva D/o Sri Shekarayya
Shivamurthayya Akkurmath, the first and the second
respondents are the sons of Sri. Ajjayya Akkurmath, who is
the son of Sri. Shekarayya Shivamurthayya Akkurmath.
Smt. Deviravva W/o Ajjayya Akkurmath has died and
because of her sons are on record, the suit is continued
without bringing the legal representatives on record. The
third respondent is arrayed as a purchaser of one of the suit
schedule properties from the first respondent.
2. The respondents - defendants have not contested
the suit, and in fact, they have remained absent even in the
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present proceedings. The civil Court has framed different
points for consideration which is essentially examined the
evidence on record to know whether they establish that they
are the members a joint family comprising of the first and
the second respondents. The civil Court, on perusal of
evidence which is essentially the second appellant's ocular
evidence and the revenue records apart from sale deed
executed by the first respondent in favour of the third
respondent, has opined that the suit schedule properties
originally belonged to Sri Shekarayya Shivamurthayya
Akkurmath and later to Sri Ajjayya Akkurmath and that the
appellants are not in any way related to the aforesaid
respondents.
3. The appellants have filed an application under
Order XLI Rule 27 of CPC seeking leave to produce
additional evidence viz., a Legal Heirs' Certificate and a
certified copy of the revenue entries in M.E. No.596. The
appellants propose to rely upon these documents to
demonstrate that the suit schedule properties [except suit
item No.3 - the land measuring 4 acres 6 guntas in Survey
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No.17/3 of Budihal village, Sirahatti Hobli, Sirahatti Taluk]
were in the name of Sri Shekarayya Shivamurthayya
Akkurmath and he died on 20.03.1976 leaving behind his
son, Sri Ajjayya Akkurmath and five daughters including
their mother, Smt. Chandravva.
4. This Court must observe that even if this
document could have some relevance and probative value
and it is admissible upon the certified copy thereof being
produced, it will be undeniable that the propositus - Sri
Shekarayya Shivamurthayya Akkurmath has died leaving
behind not just the appellant's mother and Sri Ajjayya C.
Akkurmath, but four other daughters. The appellants have
not stated anything about these daughters, much less why
they would be excluded with only the appellants and the
legal representatives of Sri Ajjayya C. Akkurmath taking the
properties in equal shares. This Court must opine that this
will be a crucial lacuna and unless this is clarified, the
appellants cannot succeed even in this appeal.
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5. However, in the interest of justice this Court
must also observe that if indeed the appellants can
demonstrate that the properties were indeed owned by the
propositus - Sri Shekarayya Shivamurthayya Akkurmath
and that there has been no partition in the family, they must
be, because the right to seek partition will be a recurring
right, at liberty to file a fresh suit notwithstanding the
present proceedings provided all the details are set-forth.
Hence, the appeal and the applications stand disposed off
subject to all just liberties.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(C.M.JOSHI)
JUDGE
RSH, YAN / Ct:vh
