Karnataka High Court
Shri.Marilingappa Basavanneppa ... vs Shri.Andappa S/O Basavanneppa ... on 23 July, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 100010 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 100010 OF 2016 (PAR)
BETWEEN:
1. MARILINGAPPA BASAVANNEPPA ADARAKATTI,
SINCE DECEASED BY HIS LR'S.,
1A. BASAVANEVVA
W/O MARILINGAPPA ADARAKATTI,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: YADIYUR SIDDALINGESHWAR NAGAR,
BETGERI-582 102, TQ: AND DIST: GADAG.
1B. RUDRANNA S/O MARILINGAPPA ADARAKATTI,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: YADIYUR SIDDALINGESHWAR NAGAR,
BETGERI-582 102, TQ: AND DIST: GADAG.
1C. RATNAVVA W/O SHANKRAPPA GUJAMAGADI,
AGE: 36 YEARS, OCC: HOMEMAKER,
R/O: SIDDARUDA NAGAR, ABBIGERI-582 111,
Digitally signed by TQ: RON, DIST: GADAG.
MALLIKARJUN
RUDRAYYA KALMATH ... APPELLANTS
Location: HIGH COURT (BY SRI. C.S. SHETTAR, ADVOCATE)
OF KARNATAKA
DHARWAD BENCH
AND:
1. ANADAPPA
S/O BASAVANNEPPA ADARAKATTI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BEHIND GOVT. COLLEGE,
RON-582 209, DIST: GADAG.
2. LAXMAVVA
W/O SHEKHAPPA KUNDAGOL,
SINCE DECEASED BY HER LR'S.,
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2A. SHEKAPPA S/O IRAPPA KUNDGOL,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: HOSPET CHOUK, GOURI GUDI ONI,
BETAGERI-582 102, TQ:/DIST: GADAG.
2B. ASHOK S/O SHEKAPPA KUNDGOL,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: HOSPET CHOUK, GOURI GUDI ONI,
BETAGERI-582 102, TQ:/DIST: GADAG.
2C. PRAKASH S/O SHEKAPPA KUNDGOL,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: HOSPET CHOUK, GOURI GUDI ONI,
BETAGERI-582 102, TQ:/DIST: GADAG.
2D. RENUKA W/O BASAVARAJ HOSABHAVI,
AGE: 38 YEARS, OCC: HOME MAKER,
R/O: HOSPET CHOUK, GOURI GUDI ONI,
BETAGERI-582 102, TQ:/DIST: GADAG.
3. SHANKARAPPA
S/O BASAVANNEPPA ADARAKATTI,
AGE: 47 YEARS, OCC: SERVICE,
R/O: P AND T QUARTERS,
RAICHUR-584 101.
4. RUDRAVVA
W/O SHANTVEERAPPA DESAI,
AGE: 40 YEARS, OCC: HOME MAKER,
R/O: HEBBALLI-580 117,
TQ: AND DIST: DHARWAD.
5. LAXMAPPA
A/F ANDAPPA ADARAKATTI,
SINCE DECEASED BY HIS LR'S.,
5A. SUSHILA W/O LAXMAPPA ADARKATTI,
AGE: 66 YEARS, OCC: HOUSEHOLD,
R/O: C/O. VEERABHRADRESHWAR KIRANI STORE,
NEAR HATALAGERI NAKA, GADAG-582 102.
5B. SHAKUNTALA W/O KARISIDDAPPA GUDAGERI,
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O: VIVEKANAND BADAVANE,
NEAR SAI TEMPLE, GADAG-582 102.
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5C. BASAVARAJ S/O LAXMAPPA ADARKATTI,
AGE: 44 YEARS, OCC: SERVICE,
R/O: YELAVEGI-581 118, TQ: SAVANUR,
DIST: HAVERI.
5C(I). NIRMALA W/O BASAVARAJ ADARKATTI,
AGE: 50 YEARS, OCC: SERVICE,
R/O: RACHOTESHWAR NAGAR,
NEAR KORI'S HOME, GADAG-582 101.
5C(II). NAVEEN S/O BASAVARAJ ADARKATTI,
AGE: 16 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY HIS NEXT
FRIEND/NATURAL GUARDIAN/MOTHER
NIRMALA W/O BASAVARAJ ADARKATTI,
AGE: 50 YEARS, OCC: SERVICE,
R/O: RACHOTESHWAR NAGAR,
NEAR KORI'S HOME, GADAG-582 101.
5D. VEERESH S/O LAXMAPPA ADARKATTI,
AGE: 42 YEARS, OCC: BUSINESS,
R/O: C/O. VEERABHRADRESHWAR KIRANI STORE,
NEAR HATALAGERI NAKA, GADAG-582 102.
5E. PUSHPA @ VIJAYALAXMI
W/O BASAVARAJ AMARAPPANAVAR,
AGE: 36 YEARS, OCC: BUSINESS,
R/O: KURTHKOTI-580 205,
TQ: AND DIST: GADAG.
6. BASAVARAJ NINGAPPA GODI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: NEAR ANNADENESHWAR MATH,
MUNDARGI-582 118, DIST: GADAG.
7. MANJUNATH NINGAPPA GODI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: NEAR ANNADENESHWAR MATH,
MUNDARGI-582 118, DIST: GADAG.
8. SHEKAPPA S/O IRAPPA KUNDGOL,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: HOSPET CHOUK, GOURI GUDI ONI,
BETAGERI-582 102, TQ:/DIST: GADAG.
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9. ASHOK S/O SHEKAPPA KUNDGOL,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: HOSPET CHOUK, GOURI GUDI ONI,
BETAGERI-582 102, TQ:/DIST: GADAG.
10. PRAKASH S/O SHEKAPPA KUNDGOL,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: HOSPET CHOUK, GOURI GUDI ONI,
BETAGERI-582 102, TQ:/DIST: GADAG.
11. RENUKA W/O BASAVARAJ HOSABHAVI,
AGE: 38 YEARS, OCC: HOMEMAKER,
R/O: HOSPET CHOUK, GOURI GUDI ONI,
BETAGERI-582 102, TQ:/DIST: GADAG.
... RESPONDENTS
(BY SRI. ANAND KUMAR A. MAGADUM, ADVOCATE FOR R1, R3, R4,
R5A, R5B, R5D AND R5E;
SRI. S.S. KOLIWAD, ADVOCATE FOR R6 AND R7;
R2A AND R2B ARE SERVED;
R2C AND R2D-HELD SUFFICIENT;
SRI. S.B. DODDAGOUDAR, ADVOCATE FOR R8 TO R11 [VAKALAT
NOT FILED];
R5C(I) AND R5C(II)-DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER
XLI RULE 1 OF CPC, 1908, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED: 14.08.2012 PASSED IN O.S. NO.29/2011 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, GADAG
AND ALLOW THE APPEAL WITH COSTS THROUGHOUT BY DECREEING
THE SUIT IN OS NO.29/2011.
THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT IS DELIVERED THEREIN AS UNDER:
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RFA No. 100010 of 2016
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ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
This Regular First Appeal is filed by the plaintiff
challenging the judgment and decree dated 14.08.2012
passed in O.S.No.29/2011 on the file of Principal Senior Civil
Judge and CJM, Gadag (for short, 'Trial Court'), thereby, the
suit fled for partition and separate possession is dismissed
with costs.
2. For the sake of convenience and easy reference,
the parties are referred to as per their rankings before the
Trial Court.
3. The genealogy of the plaintiff's family is as under:
Basavenneppa (died in the year 1981)
Iravva (died 12 years back)
Laxmappa Marilingappa Andappa Laxmavva Shankarappa Raudrava
(D-5) (Plff) (D-1) (D-2) (D-3) (D-4)
4. It is contended that the suit schedule properties
are ancestral and joint family properties. Therefore, claiming
1/5th share in all the properties, the plaintiff has filed the suit
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for partition. The defendants have filed their written
statement denying the case of plaintiff. It is contended that
all the suit properties were not included in the suit and also
necessary parties have not been made as parties in the suit.
5. Based on the pleadings of the parties, the Trial
Court has framed the following:
ISSUES
1) Whether genealogy is proved?
2) Whether the plaintiff proves that she has
got 1/5 share of property?
3) Whether the plaintiff proves that defendant
No.5 has no right, interest or concern to the suit
properties, since he went in adoption?
4) Whether the defendants No.1, 3 to 5 prove
that defendant No.5 went in adoption to
Andappa who is the brother of Basavanneppa,
thus, defendant No.5 has got share?
5) Whether defendant No.1, 3 to 5 prove the
previous partition of the year 1981 and 2010 as
pleaded in their written statement?
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6) Whether the defendant Nos.1, 3 to 5 prove
that the suit is not maintainable?
7) Whether the defendant No.6 and 7 prove
that they are bonafide purchasers?
8) Whether the plaintiffs entitled for the relief?
9) What order or decree?
6. The plaintiff was examined as PW.1 and got
marked 7 documents as Ex.P1 to Ex.P7. Defendant Nos.6
and 5 were examined as DW.1 and DW.2 and got marked 28
documents as Ex.D1 to Ex.D28.
7. The Trial Court dismissed the suit on the reason
that the plaintiff has not included all the ancestral and joint
family properties and also, did not include necessary parties
in the suit. Thus, the suit is not maintainable for partial
partition and without their being necessary parties. Against
the decision of the suit the plaintiff has filed the appeal by
raising various grounds.
8. The learned counsel for the plaintiff/appellant
submitted that though the suit filed for partition is not
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maintainable, the Trial Court ought to have given an
opportunity to the plaintiff to include all the ancestral and
joint family properties and also, to arraign necessary parties
in the suit. But without being so, dismissed the suit by
curtailing right of the plaintiff to claim share. Therefore,
prays to remand the case to the Trial Court by placing
reliance on the judgment of the Hon'ble Division Bench of
this Court in RFA No.3012/2011 dated 24.02.2014
between Basavanneppa and Others and Shri. Ningappa
and Others.
9. On the other hand, the learned counsel for the
respondents/defendants justified the judgment and decree
and prays to dismiss the appeal.
10. Upon hearing the arguments and on perusal of
evidence on record, the points that arise for consideration
are as follows:
i) Whether, under the facts and circumstances
involved in the case, the suit is maintainable for
partial partition and non impleading necessary
parties?
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ii) Whether, under the facts and circumstances
involved in the case, the suit is liable to be
remanded to the Trial Court by directing parties
to include all the ancestral and joint family
properties and impleading all the necessary
parties?
iii) Whether the judgment and decree passed by
the Trial Court requires any interference of this
Court?
11. The plaintiff has filed the suit for partition only in
respect of three suit lands. It is the contention of defendants
that their family still has some more properties, which are
not included in the suit. Thus, it is the case of defendants
that, suit for partial partition is not maintainable. Also, there
are other necessary parties, who are Jayalaxmi, being
purchaser of one of the property and branch of Anandappa,
who is the adopted father of Laxmava. Therefore, the Trial
Court dismissed the suit on the reason that the suit for
partial partition is not maintainable by not including all the
properties and arraigning other necessary parties.
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12. Though the suit for partial partition is not
maintainable and the judgment and decree passed by the
Trial Court is justifiable, but dismissing the suit virtually
amounts to curtailing the right of plaintiff to claim share in
all the properties. In the similar facts and circumstances, the
judgment of the Hon'ble Division Bench of this Court in RFA
No.3012/2011 dated 24.02.2014 (supra), has observed
at paragraph No.14 as follows:
14. Point No.3: Similarly, the defendant has
set out in the written statement that the properties
which are acquired by the various members of the
family, which is admitted by the PW5 in his
evidence, the properties which are standing in the
name of the plaintiffs also are not made subject
matter of the suit. Unless all the properties of the
family are made subject matter of the suit, no
effective decree for partition can be passed by the
Court. If any property is not included, the plaintiff
has to set-out the reasons for non-inclusion of the
family properties. If there are any circumstances
to justify such exclusion, it has to setout.
Therefore, the trial Court is justified in holding the
suit is bad for non-inclusion of the family
properties in the suit. However, it is well settled
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that if suit is dismissed for non-joinder of
necessary parties and non-inclusion of the
properties in the suit, the plaintiff can file one
more suit by including all the properties and
including all the properties in the suit such a suit is
not barred. Under these circumstances, we are of
the view that in spite of upholding the dismissal of
the suit, it would be appropriate to set-aside the
judgment and decree on all issues and remand the
matter to the trial Court giving an opportunity to
the plaintiffs to include all the parties and include
all the properties in the suit. If it is done,
prosecute the same in the presence of the family
members and effective decree can be passed."
13. Therefore, I am of the opinion that though the
suit may have been rightly dismissed, but liberty ought to be
given to the plaintiff to include all the properties and
arraying all the necessary parties in the suit by making
suitable amendments of plaint and filing necessary
applications as per law and then directing the Trial Court to
consider the same in accordance with law and pass an
appropriate orders. Therefore, the case is remanded to the
Trial Court for fresh consideration with liberty to the plaintiff
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to include all the ancestral and joint family properties
including the properties sold to Jayalaxmi and other
necessary parties. Hence, I answer point No.(i) in the
'negative' and point Nos.(ii) and (iii) in the 'affirmative'.
14. Accordingly, I proceed to pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 14.08.2012
passed in O.S.No.29/2011 on the file of
Principal Senior Civil Judge and CJM, Gadag, is
set aside.
iii) The matter is remanded to the Trial Court
for fresh consideration.
iv) Both the parties are at liberty to adduce
further evidence, if so they desire.
v) The Trial Court shall dispose of the case as
early as possible within a period of one year
from the date of appearance of the parties.
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vi) Both the parties shall appear before the
Trial Court on 18.08.2025 without awaiting for
any notice from the Court.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
PMP
CT:BCK
