Karnataka High Court
Poornachandra S/O Dattu Pawar And Ors vs Smt. Ambubai W/O Dhansingh Pawar And Ors on 3 June, 2025
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RSA No. 7451 of 2013
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 03RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
RSA NO. 7451 OF 2013 (PAR)
BETWEEN:
1. POORNACHANDRA
S/O DATTU PAWAR
AGE: 13 YEARS, OCC: NIL
2. BASAVARAJ
S/O DATTU PAWAR
AGE: 11 YEARS, OCC: NIL
3. MANJUNATH
S/O DATTU PAWAR
AGE: 9 YEARS, OCC: NIL
4. SMT. BEBIBAI
W/O DATTU PAWAR
AGE:32 YEARS, OCC: HOUSEHOLD
PRESENT ALL R/O BALURAGI VILLAGE
TQ: AFZALPUR, DIST: GULBARGA
(APPELLANT 1 TO 3 ARE MINORS
UNDER GUARDIAN OF THEIR NATURAL
MOTHER APPELLANT NO.4)
...APPELLANTS
(BY SRI.GANESH NAIK, ADVOCATE)
AND:
1. SMT. AMBUBAI
W/O DHANSING PAWAR
AGE: 66 YEARS, OCC: HOUSEHOLD
2. GURUNATH
S/O DHANSING PAWAR
AGE: 51 YEARS, OCC: AGRICULTURE
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RSA No. 7451 of 2013
3. SMT. KAMALABAI
D/O DHANSING PAWAR
W/O GURUNATH
4. DATTU
S/O DHANSING PAWAR
AGE: 41 YEARS, OCC: TEACHER/AGRICULTURE
ALL R/O GOBBURWADI, TQ: AFZALPUR - 585301
DIST: GULBARGA
5. SMT. SAKKUBAI
D/O DHANSING PAWAR
W/O MOHAN
R/O CHOUDAPUR, TQ: AFZALPUR-585301
DIST: GULBARGA
6. LIMBAJI
S/O DHANSING PAWAR
AGE: 41 YEARS, OCC: AGRICULTURE
R/O GOBBURWADI, TQ: AFZALPUR-585301
DIST: GULBARGA
...RESPONDENTS
(BY SRI.B C JAKA, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF THE CPC, AGAINST THE
JUDGMENT AND DECREE DATED 14.03.2011 IN
O.S.NO.61/2011 PASSED BY THE LEARNED CIVIL JUDGE
(JR.DN) AFZALPUR AND JUDGMENT AND DECREE DATED
17.8.2013 IN R.A.NO.79/2012 PASSED BY THE SENIOR CIVIL
JUDGE AT AFZALPUR AND FURTHER DECREE THE SUIT OF THE
PLAINTIFF.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.02.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
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RSA No. 7451 of 2013
CAV JUDGMENT
(PER: HON'BLE MS JUSTICE J.M.KHAZI)
In this Regular Second Appeal, the plaintiffs have
challenged concurrent findings of the trial Court and First
Appellate Court, which dismissed the suit filed by them
seeking partition and separate possession of 1/4th share in
suit schedule properties.
2. For the sake of convenience, parties are
referred to by their ranks before the trial Court.
3. It is the case of the plaintiffs that they are the
children and wife of defendant No.4 Dattu Pawar. Suit
schedule properties consisting of an agricultural land and a
residential house originally belong to one Rupalu S/o
Bhavani Singh, forefather of plaintiff Nos.1 to 3.
Defendants 1 to 6 are the wife and children of Dhansing,
the paternal grandfather of plaintiff Nos.1 to 3. The
marriage of plaintiff No.4 and defendant No.4 Pawar was
performed about 13 years back and through their wedlock,
plaintiff Nos.1 to 3 are born. However, defendant No.4
married another woman and the plaintiffs were driven out
of their house. Defendants refused to grant legitimate
share of plaintiff Nos.1 to 3 and hence the suit.
4. Though duly served with summons, the
defendants failed to file written statement.
5. In order to prove their case, on behalf of
plaintiffs, plaintiff No.4 is examined as PW-1 and Exs.P1 to
4 are marked.
6. The trial Court dismissed the suit by holding that
plaintiffs have failed to establish that defendant No.4
Dattu Pawar is the successor of Rupala, in whose property
the plaintiffs sought share.
7. Aggrieved by the same, plaintiffs approached the
First Appellate Court in RA.No.79/2012.
8. However, the First Appeal also came to be
dismissed, upholding the judgment and decree of the trial
Court.
9. Thus, in this Regular Second Appeal plaintiffs
have challenged the concurrent findings of trial Court and
the First Appellate Court, contending that the judgment and
decree of trial Court as well as the First Appellate Court is
arbitrary, contrary to the law, facts and evidence placed on
record. The reasons assigned by the Courts below for
dismissing the suit is not cogent and convincing. Their
findings that Rupalu has already partitioned family properties
and therefore plaintiffs have failed to prove that suit
properties are joint family properties is not correct. As per
Ex.P1, the share of the grandfather of plaintiff Nos.1 to3 was
directly transferred to the name of defendant No.2. In the
absence of defendants filing written statement, the entire
case of the plaintiffs has remained unchanged. Such being
the case, both Courts below have committed grave error in
dismissing the suit and hence, this appeal.
10. On 28.08.2024, the appeal is admitted on the
following substantial question of law:
"(i) Whether the Trial Court and the First Appellate
Court were justified in holding that the suit for
partition is not maintainable on the premise
that partition has already taken place in the
family of the plaintiffs and the defendants?"
11. Heard arguments and perused the record.
12. According to the plaint averments plaintiff
Nos.1 to 3 are the children and plaintiff No.4 is the wife of
defendant No.4 Dattu S/o Dhansing Pawar. Suit schedule
properties originally belong to their ancestor Rupalu, S/o
Bhavani Sing. His son Dhansing was the grandfather of
plaintiff Nos.1 to 3. In that view of the matter, plaintiff Nos.1
to 3 are entitled for partition and separate possession of
1/4th share in the suit schedule properties by not filing
written statement, defendants very cleverly have remained
silent regarding there relationship with the plaintiffs.
Therefore, it is necessary for the plaintiffs to prove that they
are the children and wife of defendant No.4 Dattu S/o
Dhansing Pawar and who in turn is the son of Rupalu S/o
Bhavani Sing. Unless and until plaintiffs establish their
relationship with Rupalu s/o Bhavani Sing, they cannot claim
that Suit Schedule Properties are their ancestral and joint
family properties. Except the self-serving statement of
plaintiff No.4, there is no evidence led by the plaintiffs to
prove their relationship with Rupalu S/o Bhavani Sing
through whom they are claiming share in the suit schedule
properties.
13. Plaintiffs have relied upon Ex.P1, which is a
Mutation register extract. As per this document one Rupalu,
S/o Bhavani Sing has given an application to transfer the
Khata in the name of his children Gurunath, Jainabai,
Santhosh, Laxman, Mansing and Chandu. The name of
grandfather of plaintiff Nos.1 to 3 does not find place as one
of the children of Rupalu, whom plaintiffs' claim to be their
ancestor. Except this document, plaintiffs have not produced
any documents to prove their relationship with Rupalu. They
have also not chosen to examine any of the relatives of
defendants to prove that they are the children of defendant
No.4, who in turn is the grandson of Rupalu.
14. Such being the case, despite the fact that
defendants have not filed written statement disputing the
claim of the plaintiffs, they have failed to prove that they are
the descendants of Rupalu and entitled for share in the suit
schedule properties. The trial Court as well as the First
Appellate Court have rightly refused to grant partition. In the
light of the same, the substantial question of law framed
does not survive for consideration, and the second appeal is
also liable to be dismissed and accordingly the following:
ORDER
1. Appeal filed by the plaintiffs under Section
100 of C.P.C is hereby dismissed.
2. The impugned judgment and decree dated
14.03.2011 in O.S.No.61/2011 on the file
of Civil Judge (Jr.Dn.) at Afzalpur and
judgment and order dated 17.08.2013 in
RA.No.79/2012 on the file of Senior Civil
Judge at Afzalpur are confirmed.
3. The Registry is directed to send the trial
Court as well as First Appellate Court
records along with copy of this judgment
forthwith.
In view of disposal of the appeal, pending
application/s, if any, stands disposed off, as no separate
order is required.
Sd/-
(J.M.KHAZI)
JUDGE
RR
