Karnataka High Court
Smt. Saraswati W/O Gurunath Savanur ... vs Smt. Shankutala W/O.Mohan Jadekar on 10 March, 2025
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RSA No. 100065 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100065 OF 2023 (PAR/POS-)
BETWEEN:
1. SMT. SARASWATI
W/O. GURUNATH SAVANUR @ MACHIGAR,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O. VIDYA NAGAR, EAST 'C' BLOCK,
HAVERI, TQ AND DIST: HAVERI-581110.
2. SRI. MANJUNATH
S/O. GURUNATH SAVANUR @ MACHIGAR,
AGE: 45 YEARS, OCC: DRIVER,
R/O. D.C.OFFICE, HAVERI,
TQ AND DIST: HAVERI-581110.
3. SRI. GANESH
S/O. GURUNATH SAVANUR @ MACHIGAR,
AGE: 46 YEARS, OCC: DRIVER,
R/O. MUNDARGI, TQ: MUNDARGI,
DIST: GADAG-581110.
4. SRI. BASAVARAJ
MOHANKUMAR
B SHELAR
S/O. GURUNATH SAVANUR @ MACHIGAR
AGE: 58 YEARS, OCC: BUSINESS,
Digitally signed by
MOHANKUMAR B
R/O. VIDYA NAGAR, EAST 'C' BLOCK,
SHELAR
Location: HIGH HAVERI, TQ AND DIST: HAVERI-581110.
COURT OF
KARNATAKA
DHARWAD BENCH ...APPELLANTS
(BY SRI. SHIVRAJ S. BALLOLI, ADVOCATE)
AND:
1. SMT. SHANKUTALA
W/O. MOHAN JADEKAR,
AGE: 70 YEARS, OCC: HOUSEHOLD WORK,
R/O. HEGGERI COLONY, H.NO.48/2,
OLD HUBBALLI, HUBBALLI-580 000.
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RSA No. 100065 of 2023
2. SRI. ASHOK
S/O. NINGAPPA SAVANUR @ MACHIGAR,
AGE: 60 YEARS, OCC: TRAFFIC INSPECTOR,
R/O. BENGALURU DEPOT NO.3,
SHANTI NAGAR, BENGALURU-560025.
3. SMT. SUNANDA W/O. MANJUNATH,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O. H.NO.18, HOSANAGAR,
BHADRAVATI, TQ: BHADRAVATI,
DIST: SHIVAMOGGA.
4. SMT. SAVITRAWWA
W/O. DEVENDRA SAVANUR @ MACHIGAR,
AGE: 58 YEARS, OCC: SERVICE,
R/O. VIDYANAGAR, ABHISHEKHA SADAN,
HAVERI-581110.
5. SMT. PREMAWWA
W/O. KRISHNAPPA HOSAMANI,
AGED ABOUT 58 YEARS,
OCC: HOUSEHOLD WORK,
R/O. C-BLOCK, BEHIND LIONS ENGLISH
MEDIUM SCHOOL, HAVERI-581110.
6. SRI. PARASHURAM
S/O. NINGAPPA SAVANUR @ MACHIGAR,
AGE: 68 YEARS, OCC: RETD.,
R/O. RAVIRAJ EDUCATION & KALYANA TRUST,
NEAR VIDYA CHETAN, MRUTYUNJAYA NAGAR,
RANEBENNUR-5800080, TQ: RANEBENNUR,
DIST: HAVERI.
7. SRI. MALATESH
S/O. NINGAPPA SAVANUR @ MACHIGAR,
AGE: 63 YEARS, OCC: CONDUCTOR,
R/O. H.NO.41, BASAVANAGAR,
ANANDNAGAR ROAD, OLD HUBBALLI,
HUBBALLI-580001, TQ: HUBBALLI,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI. HARSH DESAI, SRI. RONALD J.H.
AND V.P. VADAVI, ADVOCATES FOR R1-R3;
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RSA No. 100065 of 2023
R4-HELD SUFFICIENT;
R5 & R6 SERVED, UNPRESENTED;
R7-HELD SUFFICIENT)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE DATED 29.10.2022 PASSED BY THE LEARNED PRINCIPAL
DISTRICT AND SESSIONS JUDGE, HAVERI IN R.A.NO.87/2015 AND
CONSEQUENTLY AFFIRM THE JUDGMENT AND DECREE DATED
17.10.2015 PASSED BY THE LEARNED ADDITIONAL SENIOR CIVIL
JUDGE, HAVERI IN O.S. NO.35/2013 AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This Regular Second Appeal is filed by the defendant
Nos.1 to 4, challenging the judgment and decree dated
29.10.2022 passed in RA No.87/2015 on the file of
Principal District and Sessions Judge, Haveri (for short,
hereinafter referred to as 'First Appellate Court'), allowed
the appeal in part, consequently, set aside the judgment
and decree dated 17.10.2015 passed in OS No.35/2013 on
the file of Additional Senior Civil Judge, Haveri (for short,
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hereinafter referred to as 'Trial Court'), dismissing the suit
of the plaintiffs.
2. For the sake of convenience, the parties in
these appeals shall be referred to in terms of their status
and ranking before the trial Court.
3. It is the case of the plaintiffs that, the father of
the plaintiffs - Ningappa died on 27.05.1989. Mother of
the plaintiffs died on 08.08.1989. It is also stated in the
plaint that, the original propositus - Malleshappa Savanur
died on 22.09.1960 leaving behind six children namely,
Parasappa, Fakkirappa, Venkappa (grandfather of
defendant No.2 to 4), Ningappa (father of the plaintiffs),
Yallappa and Laxmavva. It is stated that, land bearing Sy.
No.13/3 measuring 05 acres 10 guntas of Ijarilakmapur,
Haveri Taluk had fallen to the share of joint share of the
father of the plaintiffs - Ningappa and accordingly, the
plaintiffs have filed OS No.35/2013 seeking relief of
partition and separate possession in respect of the suit
schedule property so also seeking declaration that, Apsat
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Watni and mutation entry in respect of the land bearing
Sy.No.13/3 is not binding on the plaintiffs.
4. After service of summons, the defendants
entered appearance and filed detailed written statement.
It is the specific case of the defendant No.2 that, the suit
is not maintainable as the plaintiffs have not included all
the joint family properties in the present suit. It is also
contended by the defendants that, there was no partition
as on the death of the original propositus-Malleshappa
Hibbanna Savanur and therefore, sought for dismissal of
the suit by contending that, there is no partition in the
joint family of plaintiffs and defendants.
5. On the basis of the rival pleadings, the Trial
Court has formulated issues and additional issue for its
consideration.
6. In order to establish their case, plaintiffs have
examined five witnesses as PW1 to PW5 and got marked
25 documents as Exs.P1 to P.25. On the other hand,
defendants have examined two witnesses as DW1 and
DW2 and produced 01 document as Exs.D1.
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7. The Trial Court, after considering the material
on record, by its judgment and decree dated 17.10.2015
dismissed the suit of the plaintiffs and being aggrieved by
the same, the plaintiffs have preferred Regular Appeal in
RA No.87/2015 on the file of First Appellate Court and the
said appeal was resisted by the defendants. The First
Appellate Court after re-appreciating the facts on record,
by its judgment and decree dated 29.10.2022 allowed the
appeal and set aside the judgment and decree passed by
the Trial Court in OS No.35/2013. Being aggrieved by the
same, the appellants/defendants have preferred this
Regular Second Appeal.
8. I have heard Sri. Shivraj S. Balloli, learned
counsel appearing for the appellants and Sri. Harsh Desai,
learned counsel appearing for the respondent Nos.1 to 3.
9. Sri. Shivraj S. Balloli, learned counsel for the
appellants contended that, the suit filed by the plaintiff
itself is not maintainable for non joinder of parties as all
the legal heirs of deceased Malleshappa Hibbanna Savanur
were not the parties to the suit. He further contended
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that, since the subject matter of the property is joint
family properties and therefore, sought for interference of
this Court.
10. Per Contra, Sri. Harsh Desai, learned counsel
appearing for the respondent Nos.1 to 3 sought to justify
the judgment and decree passed by the First Appellate
Court and contended that, the Trial Court has not
considered the material on record particularly Ex.P.24 and
P.7 wherein, the remaining members of the joint family
have taken the shares during 1964 and therefore, the Trial
Court has committed an error in dismissing the suit
however, the same was rectified by the First Appellate
Court in the right perspective and accordingly, sought for
dismissal of the appeal.
11. In the light of the submission made by the
learned counsel appearing for the parties, I have carefully
examined the finding recorded by both the Courts below
and perused the record. In order to ascertain the
relationship between the parties as averred in the plaint,
the genealogy of the parties reads as under:
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PROPOSITUS
Malleshappa Hibbanna Savanur @ Machager (Deceased)
Yallavva Malleshappa Savanur @ Machager (Deceased)
Parasappa Fakkirappa Venkappa @ Yankappa Ningappa Yallappa Laxmavva
(Deceased)
Chinnavva Kom.Ningappa Savanur @ Machager (Deceased)
Shakunathala Malatesh Ashok Parashuram Suanda
(Ist Plff.) (2nd Plff.) (3rd Plff.) (4th Plff.) (5th Plff.)
Gurunath (Deceased) Devendra (Deceased) Premavva (6th Deft.)
Saraswati (Ist Deft.) Wife Savaitravva (Wife) (5th Deft.)
Manjunath Ganesh Basavaraj
(2nd Deft.) (3rd Deft.) (4th Deft.)
12. On perusal of the genealogy would indicate
that, the original propositus - Malleshappa Hibbanna
Savanur died on 22.09.1960, leaving behind his children
namely Parasappa, Fakkirappa, Venkappa (grandfather of
defendant No.2 to 4), Ningappa (father of the plaintiffs),
Yallappa and Laxmavva. I have carefully consider the
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finding recorded by the Trial Court, wherein the Trial Court
taking into consideration with regard to the presumption of
jointness of the plaintiffs and defendants and also arrived
at a conclusion that the plaintiffs have failed to establish
the division of properties as styled as 'Kabuli Watni Patra'
and therefore, arrived at a conclusion to dismissed the
suit. The said aspect of the matter was reappreciated by
the First Appellate Court and set aside the judgment and
decree passed by the Trial Court on the sole ground that,
three children of Malleshappa Hibbanna Savanur namely
Parsappa, Fakkirappa and Yallappa have divided the joint
family properties during 1964 as per Ex.P.24 and the
remaining properties stands in the name of remaining
children namely Venkappa (grandfather of the defendant
Nos.2 to 4), Ningappa (father of the plaintiffs). In this
regard, I have carefully examined the recitals in Ex.P.24
co-relative with the Ex.P.7 wherein, all the children of the
original propositus - Malleshappa Hibbanna Savanur have
consented for division of properties between remaining
two children namely Venkappa (grandfather of the
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defendant Nos.2 to 4) and Ningappa (father of the
plaintiffs and defendant No.5) and the said mutation is as
per Ex.P.7 is of the year 1965. If at all, the defendants
were aggrieved by the same, to prove that the said
property is the part of the joint family properties, there
was no impediment for the defendants to question the
mutation as per Ex.P.7 and P.24 before the Competent
Revenue Court and further the suit is filed during 2013.
13. In that view of the matter, as the division
property of original propositus - Malleshappa is
forthcoming from long standing revenue records as per
Ex.P.24 and P.7, the Trial Court committed an error in
dismissing the suit. However, the First Appellate Court
after considering the document on record and by
exercising the jurisdiction confirmed under Order 41 Rule
31 of CPC, rightly interfered with the judgment and decree
passed by the Trial Court, which requires to be confirmed
in this appeal.
14. Accordingly, appeal fails as the appellants
herein have not made out grounds for formulation of
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substantial question of law as required under Section 100
of Code of Civil Procedure.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM
CT-MCK
