Karnataka High Court
Smt.Shankramma W/O Pampanna vs Beerappa S/O Hanumappa And Ors on 3 June, 2025
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RSA No. 7347 of 2012
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. 7347 OF 2012 (DEC/INJ)
BETWEEN:
SMT.SHANKRAMMA
W/O PAMPANNA
AGE: 55 YEARS, OCC:AGRICULTURE,
R/O HOSAHALLI (EJ) VILLAGE,
TQ:SINDHANUR, DIST:RAICHUR-584101.
...APPELLANT
(BY SRI.BASAVARAJ KAREDDY, ADVOCATE)
AND:
1. BEERAPPA S/O HANUMAPPA
DIED BY LRs
1A. SMT. MALLAMMA W/O BEERAPPA
AGE: 50 YEARS, OCC: AGRI,
R/O GODE KATTOR ONI,
WARD NO.9, SINDHANUR,
DIST: RAICHUR - 584128
1B. SMT. MANJULA
W/O MUDIYAPPA TAHASILDAR,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O SALGUNDA, TQ: SINDHANUR,
DIST: RAICHUR - 584101.
1C. SMT. SARASWATI
W/O TIPPANNA KUSHTAGI
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O SUKALPET,
BEHIND THE HOUSE OF SHRI. VEERUPAKSHAPPA
EX.MP, SINDHANUR, DIST: RAICHUR - 584101.
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RSA No. 7347 of 2012
2. SMT.PARWATHAMMA
W/O LINGAPPA
AGE: 55 YEARS, OCC:AGRICULTURE
R/O HOSAHALLI (EJ), NOW MUKKUNDA VILLAGE,
TQ:SINDHANUR, DIST:RAICHUR - 584101.
3. ERAPPA S/O LINGAPPA MAJER
SINCE DECEASED THROUGH HIS LRS
3(A). SMT.RATHNAMMA @ ANJANAMMA
W/O ERAPPA
AGE: 34 YEARS, OCC:HOUSEHOLD,
R/O JAWALGERA VILLAGE, TQ:SINDHANUR
DIST: RAICHUR - 584101.
3(B). KUMARI BHEEMAMMA
D/O ERAPPA
AGE: 15 YEARS,
SINCE MINOR THROUGH HER NEXT FRIEND
AND MOTHER SMT. RATHNAMMA @ ANJANAMMA
W/O ERAPPA KOUDAKI,
AGE:34 YEARS, OCC: HOUSEHOLD,
R/O JAWALGERA VILLAGE, TQ: SINDHANUR
DIST: RAICHUR - 584101.
4. SMT. AMBAMMA
D/O LATE LINGAPPA
W/O BASAVARAJ
AGE: MAJOR, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), NOW R/O CHIKKA KADABUR VILLAGE,
TQ: SINDHANUR, DIST: RAICHUR - 584101.
5. MUDUKAPPA
S/O LATE LINGAPPA
AGE: 22 YEARS, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), NOW R/O MUKKUNDA,
TQ: SINDHANUR, DIST: RAICHUR - 584101.
6. ERAPPA
S/O LATE LINGAPPA
AGE: 24 YEARS, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), NOW R/O MUKKUNDA,
TQ: SINDHANUR, DIST: RAICHUR - 584101.
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RSA No. 7347 of 2012
7. SMT. MALLAMMA
D/O LATE LINGAPPA
W/O RAJAPPA
AGE: 19 YEARS, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), NOW R/O MEDIKINAL VILLAGE
TQ:LINGASUGUR, DIST: RAICHUR - 584101
8. HANUMANTHAPPA
S/O MUDUKAPPA
AGE: MAJOR, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), TQ: SINDHANUR,
DIST: RAICHUR - 584101
9. NAGAPPA
S/O SANNA HANUMANTHAPPA
AGE: 45 YEARS, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), TQ: SINDHANUR,
DIST: RAICHUR - 584101
10. SMT. KAMALAMMA
W/O HANUMANTHAPPA BUPARI
AGE: 52 YEARS, OCC: AGRICULTURE AND HOUSEHOLD,
R/O MASTHAN CAMP NEAR ANJANEYA TEMPLE,
TQ: SINDHANUR, DIST: RAICHUR - 584101.
11. BASAPPA
S/O LINGAPPA KOTNEKAL
AGE: 52 YEARS, OCC:AGRICULTURE,
R/O HANCHINAL CAMP, TQ: SINDHANUR,
DIST: RAICHUR - 584101.
12. NINGAMMA
W/O LATE LINGAPPA
AGE: MAJOR, OCC: AGRI & HOUSEHOLD,
R/O SINDHANUR, DIST: RAICHUR - 584101.
...RESPONDENTS
(BY SRI.MAHANTESH PATIL, ADVOCATE FOR R1(A) TO (C);
SRI.ARUN KUMAR AMARGUNDAPPA, ADVOCATE FOR R10;
V/O DATED: 18/01/2013 NOTICE TO R2 TO R12 D/W)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DTD: 04.10.12 PASSED BY THE PRL.
DISTRICT JUDGE AT RAICHUR IN R.A. NO. 61/11 AND ALSO
SET ASIDE THE JUDGMENT AND DECREE DATED 31.08.2010
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RSA No. 7347 of 2012
PASSED BY THE SENIOR CIVIL JUDGE & MACT AT
LINGASUGUR, IN O.S. NO.68/2009.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.02.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: HON'BLE MS JUSTICE J.M.KHAZI)
In this Regular Second Appeal, defendant No.1 has
challenged the judgment and decree passed by the trial
Court which partly decreed the suit, as well as the
judgment and decree of the First Appellate Court granting
1/3rd share to the plaintiff in all the suit schedule
properties, including suit Item No.1, which is sold in favour
of defendant and she has obtained a decree for specific
performance in O.S.No.22/1985 and sought for execution
in EP.No.113/1996.
2. For the sake of convenience, parties are referred
to by their ranks before the trial Court.
3. Plaintiff filed suit, seeking partition and separate
possession of 1/3rd share contending that suit schedule
properties originally belong to Mudukappa. He had three
sons, Hirehanumanthappa, Lingappa and
Sannahanumanthappa. He is the son of
Hirehanumanthappa. Defendant Nos.2 to 8 represent the
branch of Lingappa and defendant Nos.9 and 10 represent
the branch of Sannahanumanthappa.
4. Initially, plaintiff filed suit in O.S.No.86/1998
before the Addl.Senior Civil Judge, Raichur, seeking
partition and separate position of 1/3rd share in suit Item
No.1 i.e, Sy.No.178, measuring 4 acres 26 guntas. It came
to be decreed by judgment and decree dated 29.10.2005,
granting the plaintiff No.1 1/3rd share in 2 acres and
declaring that the judgment and decree in O.S.No.22/1985
is not binding on the share of the plaintiff.
5. Defendant No.1 challenged the same before this
Court in RFA.No.215/2006. Vide judgment and order dated
27.10.2009, it was allowed and the judgment and decree of
the trial Court was set aside on the ground that all the
properties belonging to the joint family are not included in
the suit and a direction was given to the plaintiff to include
all the properties belonging to the joint family and
thereafter the trial Court shall proceeded after providing
opportunity to the defendant No.1 to file additional written
statement.
6. After remand, the plaintiff has included two
landed properties i.e, Sy.No.190 measuring 4 acres 10
guntas and Sy.No.151, measuring 11 acres 33 guntas. She
has also included 'B' schedule properties consisting of a
residential house and open site described as a Rick yard.
7. It is the case of the plaintiff that suit schedule
properties originally belong to Mudukappa and she is
entitled for 1/3rd share. The alienation made in favour of
defendant No.1 is not binding on her.
8. Defendant No.1, who is the contesting
defendant has filed written statement, disputing the
relationship between plaintiff and other defendants. Before
the remand, she contended that the joint family is having a
land in Sy.No.178 measuring 4 acre 26 guntas, 190/A
measuring 1 acre 16 guntas, Sy.No.151/B measuring 3
acres 37 guntas, Sy.No.190/AA measuring 1 acre 16
guntas. All the properties are not included in the suit and
therefore suit for partial partition is not maintainable. Late
Lingappa and Sanna Hanumanthappa have sold Sy.No.178
measuring 4 acres 26 guntas to her and she is in
possession and enjoyment of the same. She is a bonafide
purchaser of suit Item No.1 and the plaintiff was aware of
it.
9. After the remand, the suit was registered as a
new case in O.S.No.68/2009.
10. After the remand, in her additional written
statement, defendant No.1 has specifically contended that
after the remand also, all the joint family properties are not
included and suit for partial partition is not maintainable
and sought for dismissal of the same.
11. Defendant No.11 has filed written statement
disputing the entire plaint averments. The family is having
other properties which are not included and as such suit for
partial partition is not maintainable. In the event of
granting decree, the property purchased by her may be
allotted to the share of defendant Nos.9 and 10 as he is a
bona fide purchaser.
12. Based on the pleadings, the trial Court framed
issues.
13. Evidence is led wherein including plaintiff No.1,
3 witnesses are examined for the plaintiff and Exs.P1 to 15
are marked.
14. Defendant No.1 has examined herself as DW-1
and the attesting witness to the sale agreement is
examined as DW-2 are examined. No documents are
marked on behalf of defendants.
15. The trial Court allowed the suit granting 1/3rd
share to the plaintiff in all the suit properties except
ItemNo.1.
16. Plaintiff challenged the same in
RA.No.61/2011. Vide the impugned judgment and decree,
the First Appellate Court decreed the suit in entirety,
granting 1/3rd share to the plaintiff in all the suit schedule
properties.
17. Aggrieved by the same, defendant No.1 is
before this Court contending that the judgment and decree
of the First Appellate Court is illegal, arbitrary, contrary to
law and records, besides being opposed to principles of
natural justice. The First Appellate Court has not given any
justifiable reasons for upsetting the judgment and decree
passed by the trial Court. It has failed to appreciate that
defendant No.1 is a bonafide purchaser for valuable
consideration and that Civil Court has granted decree in her
favour. Therefore, the property purchased by defendant
No.1is not available for partition.
18. Vide order dated 04.12.2012,, the appeal is
admitted on the following substantial questions of law:
i) Whether the Courts below are justified in
decreeing the suit ignoring the direction of this
Court in RFA.No.215/2006 that all the joint
family properties should be included in
hotchpot?
ii) Whether the Courts below are justified in not
observing anything with regard to equitable
partition relating to suit property inasmuch as
the decree is in favour of the appellant in
O.S.No.22/1985?
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19. Heard elaborate arguments of both sides and
perused the record.
20. Even though the contesting defendants have
disputed the relationship between plaintiff and other
defendants, the evidence lead by the party, establish the
fact that plaintiff represent the branch of
Hirehanumanthappa, one of the sons of Mudukappa. It is
also proved that suit properties are the ancestral and joint
family properties of plaintiff and defendant Nos.2 to 10.
21. As noted earlier, initially suit was filed only in
respect of Sy.No.178 measuring 4 acre 26 guntas. In her
written statement, defendant No.1 specifically pleaded that
the joint family of plaintiffs and defendant Nos.2 to 10
having properties Sy.No.190/A measuring 1 acre 16
guntas, Sy.No.178 measuring 4 acres 26 guntas,
Sy.No.151/B measuring 3 acres 37 guntas, Sy.No.190/A
measuring 1 acre 16 guntas, Sy.No.190/AA measuring 1
acre 16 guntas of Hosalli village.
22. After the remand, the plaintiff has included
land Sy.No.190 measuring 4 acres 10 guntas and
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Sy.No.151 measuring 1 acre 16 guntas of Hosalli as Item
Nos.2 and 3 to A schedule. Plaintiff has added 'B' schedule
consisting of a house property and a open site described as
Rick yard.
23. However, plaintiff has not included the other
properties referred to in the written statement. In fact, in
the additional written statement, the defendant No.11 has
reiterated that Sy.No.97 measuring 5 acre 28 guntas of
Mukunda village, Sy.No.11 measuring 1 acre 10 guntas of
Aralahalli (D) village, Sy.No.101/C measuring 3 acres 1
gunta of Sasalamari village, including 1 acre, 21 guntas
sold by defendant No.9 and Lingappa in favour of one
Venkata Narayana and remaining extent measuring 1 acre
21 guntas sold by plaintiff No.2 through registered sale
dated 21.08.1995, in favour of one Pilli Srinivasa are not
included in the suit. Defendant No.1 has alleged that
intentionally the plaintiff colluding with other defendants
have not included the other properties to the suit.
24. It is pertinent to note that plaintiff have not
disputed the averments of written statement and additional
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written statement that the joint family processing other
properties as detailed in the written statement. After the
remand, though some of the properties are included, the
remaining properties are not included. Despite specific
direction given by this Court, while remanding the case to
the trial Court to include all the properties belonging to the
joint family and seek partition in them also, so that in the
event of the Courts come to the conclusion that plaintiffs
are entitled for 1/3rd share in the joint family properties,
then it would be convenient to work out equity by allotting
the alienated property to the share of sellers and the
remaining properties could be allotted to the share of
plaintiff and others. Not only the plaintiff have failed to
comply with the directions given by this Court while
remanding the case, but also the trial Court as well as the
First Appellate Court have ignored the said direction and
there is no justification for them to do so. Similarly, very
conveniently the trial Court as well as the First Appellate
Court have failed to make any observation with regard to
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equitable partition of suit schedule property and also
reference to the judgment and decree in O.S.No.22/1985.
25. When the plaintiffs are not ready to avail the
opportunity given to them to cure the defect and proceed
with the matter, this Court is not left with any other
alternative, but to dismiss the suit by setting aside
judgment and decree of the trial Court as well as the First
Appellate Court and the substantial questions of law are
answered in the Negative and accordingly, the following:
ORDER
(i) Appeal filed by the appellant/defendant
No.1 under Section 100 of CPC is hereby
allowed.
(ii) The impugned judgment and decree dated
04.10.2012 in R.A.No.61/2011 on the file
of Prl.District Judge, Raichur and judgment
and decree dated 31.08.2010 in
O.S.No.68/2009 on the file of Senior Civil
Judge & MACT, Lingasugur are set aside.
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(iii) Consequently, suit filed by the plaintiff is
dismissed with cost throughout.
(iv) The Registry is directed to send back the
trial Court as well as the First Appellate
Court records along with copy of this
judgment forthwith.
Sd/-
(J.M.KHAZI)
JUDGE
RR
