Karnataka High Court
Shri. Mallikarjun Chanabasappa ... vs Shri. Basavanneppa Shivlingappa ... on 16 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC-D:637
RFA No. 100441 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.100441 OF 2018 (FDP)
BETWEEN:
1. SHRI. MALLIKARJUN
CHANABASAPPA SANGAINAVAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. M.K. HUBLI, TQ: BAILHONGAL,
DIST: BELAGAVI-591118.
2. SMT. SHAKUNTALA
W/O. CHANABASAPPA SANGAINAVAR,
AGE: 72 YEARS, OCC: HOUSEHOLD,
R/O. KUBER KHANAVALI, MAJAGAON,
DIST: BELAGAVI-590008.
3. SMT. SUMANGALA
W/O. GANGADHARSWAMY,
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O. JANTA COLONY, GAJANURU,
TQ:DIST: SHIMOGA-577201.
4. SMT. KASTURI
W/O. CHANABASAPPA SANGAINAVAR,
AGE: 52 YEARS, OCC: HOUSEHOLD,
Digitally signed by
MALLIKARJUN R/O. M.K. HUBLI, TQ: BAILHONGAL,
RUDRAYYA KALMATH DIST: BELAGAVI-591118.
Location: HIGH
COURT OF
KARNATAKA 5. SMT. SUMITRA
W/O. SHIVAPPA GUNDAGAVI,
AGE: 27 YEARS, OCC: HOUSEHOLD,
R/O. DEVARSHIGIHALLI, TQ: BAILHONGAL,
DIST: BELAGAVI-560076.
6. SHRI RAJU
S/O. CHANABASAPPA SANGAINAVAR,
AGE: 40 YEARS, OCC: BUSINESS,
R/O. KUBER KHANAVALI, MAJAGAON,
DIST: BELAGAVI-590008.
...APPELLANTS
(BY SRI SANGRAM S.KULKARNI, ADVOCATE)
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NC: 2025:KHC-D:637
RFA No. 100441 of 2018
AND:
1. SHRI. BASAVANNEPPA
SHIVLINGAPPA SANGAINAVAR,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O. M.K. HUBLI, TQ: BAILHONGAL,
DIST: BELAGAVI-591118.
2. SHRI DEMAPPA
GURUSIDDAPPA SANGAINAVAR,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O. M.K. HUBLI, TQ: BAILHONGAL,
DIST: BELAGAVI-591118.
3. SHRI GANGAPPA DUNDAPPA SANGAINAVAR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. M.K. HUBLI, TQ: BAILHONGAL,
DIST: BELAGAVI-591118.
4. SHRI SHIVALINGAPPA
DUNDAPPA SANGAINAVAR,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. M.K. HUBLI, TQ: BAILHONGAL,
DIST: BELAGAVI-591118.
5. SHRI ANNAPURNA
W/O. CHINNAPPA HUNASHYAL,
AGE: 47 YEARS, OCC: HOUSEHOLD,
R./O. KALABHAVI, TQ: BAILHONGAL,
DIST: BELAGAVI-591115.
6. SMT. BASAWWA
W/O. DUNDAPPA SANGAINAVAR,
AGE: 62 YEARS, OCC: HOUSEHOLD,
C/O. SHIVARAYAPPA DANADAMANI @ LANGOTI,
R/O. HALAGIMARDI, TQ: DIST: BELAGAVI-591109.
...RESPONDENTS
(BY SRI BALAGOUDA A.PATIL, ADVOCATE FOR R1,
NOTICE TO R2, R3, R5 AND R6 ARE SERVED;
R4-HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
R/W ORDER XLI RULE 1 AND 2 OF C.P.C., SET ASIDE THE ORDER
PASSED BY THE SENIOR CIVIL JUDGE, BAILHONGAL AND ADDL.
MACT, IN FDP NO.2/2016, DATED 20.06.2018 AND ETC.,
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NC: 2025:KHC-D:637
RFA No. 100441 of 2018
THIS REGULAR FIRST APPEAL, COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. This Regular First Appeal is filed by respondent No.4
challenging the order dated 20.06.2018 passed in FDP
No.02/2016 on the file of Senior Civil Judge and Additional
MACT, Bailhongal (hereinafter referred to as 'the FDP Court').
3. For the sake of convenience and easy reference, the
parties are referred to as per their rankings before the Trial
Court.
4. Heard arguments from both learned counsels
appearing for the parties and perused the materials placed on
record.
5. The Court of Senior Civil Judge, Bailhongal, by
order dated 15.07.2015 in O.S No.69/2012 has passed
NC: 2025:KHC-D:637
preliminary decree in the suit for partition which reads as
under:
"The suit of the plaintiff is hereby decreed
without costs in the following terms:
I. It is declared that the plaintiff is entitle for 1/4th
share in all the suit schedule properties.
II. Likewise, the defendant No.1 and 5 are jointly entitle
for 1/4th share, defendant No.2, 3 & 8 jointly entitle
for 1/4th share, and defendant No.4, 7 to 11 are
jointly entitle for 1/4th share.
III. In the FDP proceedings, the defendant No.4 and his
branch can seek equity, under such circumstances
the ADLR shall allot Sy.No.494/3B, where he has
constructed house.
IV. Draw preliminary decree accordingly."
6. As per the order of preliminary decree as above
stated, clause No.III held that the defendant No.4 and his
branch can seek equity, under such circumstances the ADLR
shall allot Sy.No.494/3B, where he has constructed house.
7. Contrary to this preliminary decree, the FDP Court
has passed the order which reads as under:
"Petition filed U/Or. 20 Rule 18 R/w Sec. 54 of C.P.C is
hereby allowed as under:
NC: 2025:KHC-D:637
An extent of 31 gunthas 4 anna in Sy.No.494/2 shown
with block-II in the watap takhta and an extent of 18
guntas in Sy.No.15/3 shown with block - I in the watap
takhta are allotted to the share of plaintiff. An extent of
17 gunthas 12 anna in Sy.No.494/2 shown with block-I in
watap takhta and an extent of 18 guntha in Sy. No.15/3
shown with block-II in the watap takhta are allotted to the
defendant No.4 and his branch.
The P.T. sheet, watap takhta and survey map
prepared by the court commissioner are the part and
parcel of this decree."
8. As per the order passed in FDP proceedings above
stated, the clause No.III in preliminary decree is not followed
and also the FDP Court while passing order has not correctly
mentioned the survey numbers. Therefore, the order passed by
the FDP Court is liable to be set aside and remand the matter
to the FDP Court to draw final decree as per preliminary decree.
9. Hence, I proceed to pass the following:
ORDER
a) RFA No.100441/2018 is allowed.
b) The order dated 20.06.2018 passed in FDP
No.02/2016 on the file of Senior Civil Judge
NC: 2025:KHC-D:637
and Additional MACT, Bailhongal is set aside
and the matter is remanded to the FDP Court.
c) It is directed to draw final decree as per the
preliminary decree passed in O.S No.69/2012
dated 15.07.2015 by the Court of Senior Civil
Judge, Bailhongal.
d) No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
PMP
