Karnataka High Court
Mahadevappa vs Nagaraj And Ors on 9 September, 2024
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NC: 2024:KHC-K:6740
RSA No. 200129 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 200129 OF 2019 (PAR)
BETWEEN:
MAHADEVAPPA S/O LATE HANMANTH NATIKAR,
AGED ABOUT 69 YEARS,
OCC: AGRICULTURE & PVT. SERVICE,
R/O. P & T COURTS THAKUR BUILDING OLD
JEWARGI ROAD, SADASHIVA NAGAR,
KALABURAGI-585102.
...APPELLANT
(BY SRI R. S. SIDHAPURKAR, ADVOCATE)
AND:
Digitally signed 1. NAGARAJ S/O SHIVANNA NATIKAR,
by RENUKA
AGED ABOUT 46 YEARS, OCC: AGRICULTURE,
Location: HIGH R/O. ZAPUR, TQ. & DIST. KALABURAGI.
COURT OF
KARNATAKA
2. PEERAPPA S/O SAIDAPPA,
SINCE DECEASED BY LR'S
a. SMT. PARVATI W/O LATE PEERAPPA,
AGED ABOUT 60 YEARD, OCC: AGRICULTURE,
R/O. OLD SHAHABAD, TQ. SHAHABAD,
DIST. KALABURAGI.
b. CHANDRASHEKHAR S/O LATE PEERAPPA,
AGED ABOUT 40 YEARS, OCC: PRIVATE SERVICE,
R/O. OLD SHAHABAD, TQ. SHAHABAD,
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RSA No. 200129 of 2019
DIST. KALABURAGI.
c. SHARANABASSAPPA S/O LATE PEERAPPA,
AGED ABOUT 37 YEARS, OCC: PRIVATE SERVICE,
R/O. OLD SHAHABAD, TQ. SHAHABAD,
DIST. KALABURAGI.
d. LAXMIKANTH S/O LATE PEERAPPA,
AGED ABOUT 35 YEARS, OCC: PRIVATE SERVICE,
R/O. OLD SHAHABAD, TQ. SHAHABAD,
DIST. KALABURAGI.
3. RAJU S/O SABANNA,
AGED ABOUT 32 YEARS, OCC: PRIVATE SERVICE,
4. KRISHANA S/O SABANNA,
AGED ABOUT: 28 YEARS OCC: PRIVATE SERVICE,
(RESPONDENTS NO. 2 TO 4 ARE
R/O. OLD SHAHABAD, TQ. CHITTAPUR,
DIST. KALABURAGI)
5. SMT. SHANTABAI W/O TUKARAM BHASGI,
AGED ABOUT 55 YEARS, OCC: HOUSEHOLD,
R/O. BADADAL TQ. AFZALPUR,
DIST. KALABURGI.
6. SMT. CHANDRABHAGA @ SARASWATI
W/O NAGAPPA MAGI,
AGED ABOUT 45 YEARS, OCC: HOUSEHOLD,
R/O. SULEPETH, TQ. CHINCHOLI,
DIST. KALABURAGI.
7. SMT. CHANDRABHAGA
W/O LATE DEVENDRA SUNAGAR,
AGED ABOUT 76 YEARS, OCC: HOUSEHOLD,
R/O. SHIVSHARNAPPA VATHAR,
NEAR JODA YELLAMMA TEMPLE,
MANIKESHWAR COLONY, KALABURAGI.
8. AMBANNA S/O LATE DEVENDRA SUNAGAR,
AGED ABOUT 46 YEARS, OCC: COOLIE,
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RSA No. 200129 of 2019
R/O. SHIVSHARNAPPA VATHAR,
NEAR JODA YELLAMMA TEMPLE
MANIKESHWAR COLONY,
KALABURAGI.
9. BHEEMBAI W/O LATE SUBASHCHANDRA SUNAGAR,
AGED ABOUT 39 YEARS, OCC: HOUSEHOLD,
R/O C/O TUKARAM BHASGI, POST BADADAL,
TQ. AFZALPUR, DIST. KALABURAGI.
10. JAGADEVI D/O LATE SUBHASHCHANDRA SUNAGAR,
AGED ABOUT 19 YEARS, OCC: STUDENT,
R/O C/O TUKARAM BHASGI, POST BADADAL,
TQ. AFZLAPUR, DIST. KALBURAGI.
11. BHAGYASHRI
D/O LATE SUBHASHCHANDRA SUNAGAR
AGED: 17 YRS OCC: STUDENT,
R/O C/O TUKARAM BHASGI POST: BADADAL
TQ:AFZALPUR, DIST: KALBURAGI
...RESPONDENTS
(BY SRI B.D. HANGARKI, ADVOCATE FOR R1, R3 TO R9 AND
R2(A) TO R2(D)
V/O DTD. 31.07.2024 NOTICE TO R10 AND R11 IS HELD
SUFFICIENT. )
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AN DECREE DATED:14.01.2019 PASSED IN
RA.NO.52/2017 BY THE LEARNED I ADDITIONAL SENIOR CIVIL
JUDGE, AT KALABURGI CONFIRMING THE JUDGMENT AND
DECREE DATED:23.02.2017 PASSED IN O.S.NO.387/2011 BY
THE LEARNED IV ADDITIONAL CIVIL JUDGE AND JMFC AT
KALABURGI AND DECREED THE SUIT WITH COSTS
THROUGHOUT AS PRAYED FOR.
THIS APPEAL, COMING ON FOR REPORTING SETTLEMET,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 200129 of 2019
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
This appeal is challenging the concusrrent finding in a
suit for partition. The Plaintiff claimed 1/3rd share in the
suit schedule properties. The Trial Court granted 1/5th
share. Aggrieved by the lesser extent awarded by the Trial
Court, the plaintiff filed an appeal before the First
Appellate Court and the First Appellate Court dismissed
the appeal. Aggrieved by the finding of the Trial Court, the
plaintiff is in second appeal.
2. Heard the learned Counsel appearing for the
appellant as well as the learned counsel appearing for the
respondent.
3. The admitted factual position would reveal that
one Rayappa was the propositus of the family. He had two
daughters, namely Laxmibai and Peerawwa and three sons
namely Hanumanth, Saidappa and Shivanna. The suit is
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filed by son of Hanumanth claiming 1/3rd share in the suit
schedule properties, on the premise that after the death of
Rayappa, the property belonging to Rayappa devolved on
his three sons Hanumanth, Saidappa and Shivanna.
Children of Laxmibai were made parties to the suit. The
defendants took a stand that they too have share in the
property. During the course of the trial, the Trial Court
noticed that there is one more daughter by name,
Peerawwa.
4. The Trial Court did not accept the plea that
Rayappa is survived by three sons, Hanumanth, Saidappa
and Shivanna. On the other hand, the Trial Court
concluded Rayappa's Property was succeeded by two
daughters as well as three sons of Rayappa, namely
Laxmibai, Peerawwa, Hanumanth, Saidappa and Shivanna.
The First Appellate Court also concurred with the finding of
the Trial Court.
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5. Learned counsel appearing for the appellant
would contend that Rayappa died around 100 years ago
and since he died before 1956, his property would devolve
upon his three sons only namely Hanumanth, Saidappa
and Shivanna by way of survivorship. Thus, he would
contend that the suit ought to have been decreed granting
1/3rd share to Mahadevappa, son of Hanmanth and shares
could not have been awarded in favor of children of
Laxmibhai. It is also his contention that Peerawwa could
not have been awarded any share as Peerawwa does not
succeed to the property of Rayappa.
6. Learned counsel appearing for the respondents
would contend that the contention Peerappa died before
1956 is not established. It is further urged that in case,
the plaintiff's contention is to be accepted that Rayappa
died 100 years ago before the institution of the suit, then
the plaintiff would not have been born as plaintiff is aged
64 years.
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7. Since the first defendant took a stand that
Rayappa died before 1956, it was incumbent upon the first
defendant to establish the said contention by producing
materials. No such materials are produced. This being the
position, this court does not find any error in the finding of
the Trial Court as well as the First Appellate Court, which
gave a finding that Rayappa died after 1956.
8. It is an admitted position that Rayappa's
daughter Peerawwa died issueless. This being the position,
her property would devolve upon the remaining children of
Rayappa. Accordingly, the plaintiff would be entitled to
1/4th share in the suit properties. The branch of Laxmibai
would be entitled to 1/4th share, branch of Saidappa would
be entitled to 1/4th share and branch of Shivanna would be
entitled to 1/4th share. Hence the following:
ORDER
i. The appeal is allowed in part.
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ii. The impugned judgment and decree dated
23.02.2017 in OS No.387/2011 on the file of IV
Additional Civil Judge, Kalaburagi and impugned
judgment and decree dated 14.01.2019 in RA
No.52/2017 on the file of First Additional Senior
Civil Judge, Kalaburagi are modified.
iii. The branch of Laxmibai is entitled to 1/4th share
in the suit schedule properties, branch of
Hanumanth is entitled to 1/4th share in the suit
schedule property, the branch of Saidapa is
entitled to 1/4th share and branch of Shivanna is
entitled to 1/4th share in the suit schedule
properties.
iv. No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
KBM
CT:PK
