Manaohar Rao And Anr vs Nagaveni
2025 Latest Caselaw 4000 Kant

Karnataka High Court

Manaohar Rao And Anr vs Nagaveni on 14 February, 2025

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                                                         NC: 2025:KHC-K:1067
                                                     RFA No. 200101 of 2023




                              IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                        DATED THIS THE 14TH DAY OF FEBRUARY, 2025

                                           BEFORE
                              THE HON'BLE MS JUSTICE J.M.KHAZI
                   REGULAR FIRST APPEAL NO.200101 OF 2023 (PAR/POS)
                   BETWEEN:

                        SRI. MANAOHAR RAO S/O DHONDERAO
                        SINCE DEAD BY HIS LR (APPELLANT NO.2)

                   1.   DHONDERAO S/O MANAHOAR RAO,
                        AGE 45 YEARS,
                        OCC: AGRICULTURE,
                        R/O SHIROLLI,
                        TQ: CHINCHOLLI,
                        DIST: KALABURAGI - 585320.
                                                                 ...APPELLANT

                   (BY SRI. ARUNKUMAR AMARGUNDAPPA, ADVOCATE)

Digitally signed   AND:
by SHIVALEELA
DATTATRAYA
UDAGI              1.   SMT. NAGAVENI
Location: HIGH          W/O PRAKASH D/O DHONDERAO,
COURT OF
KARNATAKA               AGE: 63 YEARS,
                        OCC: AGRICULTURE,
                        R/O SHIROLLI,
                        TQ: CHINCHOLI,
                        DIST: KALABURAGI - 585320

                                                                ...RESPONDENT

                   (BY SRI. B SUDARSHAN, ADVOCATE FOR C/R;
                   SRI. G.S.BIRADAR, ADVOCATE)
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                                           NC: 2025:KHC-K:1067
                                     RFA No. 200101 of 2023




     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF C.P.C, PRAYING TO ADMIT THE APPEAL AND CALL FOR
THE RECORDS OF TRIAL COURT IN OS NO.21/2019 AND
FURTHER BE PLEASED TO ALLOW THE APPEAL BY SETTING
ASIDE    THE   JUDGMENT   AND     DECREE   DATED   01.04.2023
PASSED BY SENIOR CIVIL JUDGE AND JMFC CHINCHOLI IN
OS.NO.21/2019 AND CONSEQUENTLY DIMISS THE SUIT OF
PLAINTIFF WITH COST THROUGHOUT IN THE INTEREST OF
JUSTICE AND EQUITY.


     THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:    HON'BLE MS JUSTICE J.M.KHAZI


                      ORAL JUDGMENT

(PER: HON'BLE MS JUSTICE J.M.KHAZI)

This Regular First Appeal is by the defendant No.2

in his individual capacity and also as legal representative

of defendant No.1, challenging the judgment and decree

passed by the trial Court decreeing the suit for partition

and separate possession of half share in suit schedule

property.

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2. For the sake of convenience, the parties are

referred to by their ranks before the Trial Court.

3. It is the case of the plaintiff that she and

defendant No.1 are siblings. Their sister Manik Bai died

issueless. Suit schedule properties were ancestral and

joint family properties of plaintiff and defendant No.1

having inherited by their father from his ancestors.

Defendant No.2 is the son of defendant No.1. Since

some of the properties are mutated in the name of

defendant No.2, he is made a party to the suit.

4. After his death, they are in joint possession

and cultivation of suit schedule properties. Defendant

No.1 used to give half share in the crops raised in the

suit schedule properties. Of late he has not given her

share. On verification of the revenue records, plaintiff

realized that to defraud the share of the plaintiff, the

names of defendants are mutated in the revenue

records i.e. out of 21 acres 25 guntas of Sy.No.149 of

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Shirolli, an extent of 11 acres 12 guntas in the name of

defendant No.2, 2 acres 20 guntas in the name of

plaintiff and 7 acres 33 guntas in the name of defendant

No.1. It was done behind the back of plaintiff. They are

also restraining the plaintiff from visiting the suit lands.

Therefore, plaintiff requested defendant No.1 to give her

share, which he refused and hence the suit.

5. Defendants filed written statements admitting

the relationship between the parties and that suit

schedule properties were inherited by father of plaintiff

and defendant No.1 from his ancestors. However, they

have denied that plaintiff and defendants are members

of undivided joint family and after the death of her

father she is in joint possession and enjoyment and was

given equal share in the crops raised therein. Since

from her marriage which took place about 50 years

back, the plaintiff is residing separately at Gunjarga.

She never enjoyed the suit schedule properties jointly.

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It is denied that plaintiff and defendant No.1 are the

legal heirs of their father.

5.1 After the death of the father of plaintiff and

defendant No.1, it is defendant No.1 and 2 who are in

joint possession and enjoyment of suit schedule

properties. It is also denied that plaintiff demanded

share in suit schedule properties. It is true that 2 acres

20 guntas was given to plaintiff long back as demanded

by her in Sy.No.149 of Shirolli. 7 acres 33 guntas

standing in the name of defendant No.1. There is no

cause of action for the suit and alleged one is false and

pray to dismiss the suit.

6. Based on these pleadings, the trial Court

framed the following issues:

1) Whether plaintiff proves that plaintiff and defendants constitutes joint Hindu family and the Suit Schedule Properties are the ancestral and joint family properties of plaintiff and defendants?

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2) Whether plaintiff is entitled for relief's sought for?

3) What Order or Decree?

7. At the trial, plaintiff examined herself as PW1

and two witnesses as PW2 and PW3. She relied upon

Ex.P1 to 47.

8. On the other hand, on behalf of defendants

including defendant No.2, four witnesses are examined

as RW1 to RW4. No documents are marked on their

behalf.

9. Vide the impugned judgment and decree, the

trial Court decreed the suit.

10. Aggrieved by the same, defendant No.2 is

before this Court contending that the impugned

judgment and decree is illegal, arbitrary and contrary to

the law and facts. Out of survey No.149 measuring 21

acres 25 guntas, to an extent of 16 acres dispute is

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pending before land reforms tribunal. Therefore, suit is

not maintainable. Out of suit schedule properties, 2

acres 20 guntas is allotted to the share of plaintiff and

therefore burden is on her to prove that suit schedule

properties are still joint. Once again suit for partition is

not maintainable and it is barred by doctrine of

estoppels. Suit is also barred by limitation.

in OS No.153/2014 for permanent injunction was

dismissed. RA No.19/2018 filed against it is pending

and therefore the impugned judgment will result in

conflict of orders. Defendants have incurred huge

expenses for defending the properties before the land

tribunal. Viewed from any angle the impugned

judgment and decree are not sustainable and sought for

setting aside the same and dismiss the suit.

11. Heard arguments of both the sides and

perused the records.

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12. The relationship between the parties is not

in dispute. While defendants are father and son,

plaintiff is the younger sister of defendant No.1. Their

another sister by name Manik Bai died issueless. It is

also not in dispute that suit schedule properties were

inherited by the father of plaintiff and defendant No.1

from his ancestors. In fact during his cross examination

defendant No.2 who is examined as DW1 has admitted

that suit schedule properties were inherited from his

grandfather Donderao and apart from the said

properties his father has not acquired any other

properties.

13. Defendants have not pleaded that the

partition has been taken place with regard to the suit

schedule properties. Consequently, as per section 6A of

the Hindu Succession Amendment Act, 2005 which came

into force with effect from 09.09.2005, a daughter of

coparcener by birth become a coparcener in her own

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right in the same manner as the son. Having regard to

the fact that defendants have not pleaded partition

before coming into force of Hindu Succession

Amendment Act, 2005, plaintiff is also a coparcener by

birth and she is entitled for equal share along with

defendant No.1.

14. It is alleged by the plaintiff that behind her

back defendants have got mutated her name to an

extent of 2 acres 20 guntas in Sy.No.149/2. In this

regard in the written statement, the defendants have

stated that 2 acres 20 guntas was given to plaintiff long

back as demanded by her in Sy.No.149 of Shirolli. The

defendants have tried to project as though 2 acres 20

guntas was given as the share of plaintiff. In fact during

the course of his evidence DW1 has deposed that share

has been given to the plaintiff. Though defendant No.1

is examined as DW2, he has not subjected himself for

cross examination and therefore the same cannot be

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taken into consideration. In the light of the fact that

defendants have not pleaded that a partition has taken

place between plaintiff and defendants, the fact of

entering the name of plaintiff to an extent of 2 acres 20

guntas cannot be taken advantage of by the defendants

as though partition has taken place.

15. For the first time during the evidence of

DW1 and 3 it is deposed that at the time marriage of

plaintiff substantial cash and gold was given by way of

gift and as such she is not entitled for share. Except

their self serving statement there is no evidence to that

effect. In the light of the amendment of 2005,

defendants cannot take such a defence.

16. Plaintiff has pleaded that despite her

marriage she and her husband stayed in Shirolli and

continue to enjoy suit schedule properties jointly with

defendants. On the other hands defendants have

claimed that since her marriage which took place about

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50 years prior to the filing of the suit, plaintiff is not in

possession of suit schedule properties and therefore,

indirectly they are claiming ouster. However, the

documents produced by the plaintiff establish the fact

that she, her husband and children are residing at

Shirolli. In fact, DW3 and 4 have admitted that

plaintiff's aadhar card and ration card are of Shirolli

village. Even otherwise in a Hindu joint family the

possession by the coparcener is for and on behalf of

other members and it is joint and several. Unless and

until ouster is proved, defendants cannot claim that

plaintiff is not in joint possession and enjoyment of suit

schedule properties.

17. Having regard to the fact that plaintiff and

defendants are members of coparcenary and suit

schedule properties are their ancestral and joint family

properties and no partition has taken place between

them, appreciating the oral and documentary evidence

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placed on record, the trial Court has rightly decreed the

suit. The findings of the trial Court are consistent with

the evidence on record. This Court finds no perversity

in the conclusions arrived at by the trial Court.

Consequently, the appeal is liable to be dismissed and

accordingly the following:

ORDER

i. Appeal filed by defendants is dismissed.

ii. The impugned judgment and decree dated 01.04.2023 in O.S.No.21/2019 on the file of Senior Civil Judge & JMFC Chincholi is confirmed. iii. Send back the trial Court records along with copy of this judgment forthwith.

Sd/-

(J.M.KHAZI) JUDGE

SMP