Karnataka High Court
Dodda Virupanna S/O Naganna And Anr vs Smt Adivemma W/O Late Siddramappa And ... on 24 March, 2025
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NC: 2025:KHC-K:1896
RSA No. 200226 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 200226 OF 2016 (PAR)
BETWEEN:
1. DODDA VIRUPANNA
S/O NAGANNA
AGE: 50 YEARS,
OCC: AGRI
R/O: DINNI VILLAGE
TQ: & DIST: RAICHUR.
2. EASHAPPA
S/O NAGANNA
AGE:50 YEARS,
OCC: AGRI,
R/O: DINNI VILLAGE,
TQ: & DIST: RAICHUR.
Digitally signed by
BASALINGAPPA ...APPELLANTS
SHIVARAJ
DHUTTARGAON
Location: HIGH
(BY SRI SHIVANAND PATIL, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. SMT ADIVEMMA
W/O LATE SIDDRAMAPPA
AGE:76 YEAS,
OCC: HOUSEHOLD & AGRI Amended as per order
R/O: C/O: CHANDA dated 09.11.2020
MARIAPPA SHETTY
S/O AYYANNA HOUSE
NEAR TOWN MUNICIPALITY,
MANVI POST: MANVI
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RSA No. 200226 of 2016
DIST: RAICHUR - 584 101.
SINCE DEAD BY HER
LRS WHO ARE R2 TO R4
2. SMT. SHARANAMMA
W/O MARIAPPA SHETTY CHANDA
AGE: 48 YEARS, ,
OCC: HOUSEHOLD,
R/O: C/O: CHANDA
MARIAPPA SHETTY
S/O AYYANNA HOUSE
NEAR TOWN MUNICIPALITY,
MANVI POST: MANVI
DIST: RAICHUR - 584 101.
3. SMT. PARAVATAMMA
W/O LATE SANNA VIRUPANNA
AGE: 46 YEARS,
OCC: HOUSEHOLD & AGRI
R/O: DINNI VILLAGE
TQ & DIST: RAICHUR - 584 101.
4. SIDDARAM
S/O LATE SANNA VIRUPANNA
AGE: 26 YEARS,
OCC: AGRI
R/O: DINNI VILLAGE,
TQ & DIST: RAICHUR - 584 101.
...RESPONDENTS
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE FOR R2;
R1 DEAD, R2 TO R4 ARE TREATED AS LRS OF DECEASED;
R1, R3 & R4 SERVED)
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RSA No. 200226 of 2016
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, PRAYING TO, TO CALL FOR AND
EXAMINE THE RECORDS IN O.S.NO.06/2008 OF THE
PRINCIPAL CIVIL JUDGE (SR.DN) AT RAICHUR AND
R.A.NO.37/2015 OF THE II ADDITIONAL DISTRICT AND
SESSION JUDGE RAICHUR, AND ALLOW THE APPEAL BY
SETTING ASIDE THE IMPUGNED JUDGMENT AND DECREE
DATED 05.01.2016 IN R.A.NO.37/2015 OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE RAICHUR AND THE
JUDGMENT AND DECREE DATED 12.02.2009 IN
O.S.NO.06/2008 OF THE PRINCIPAL CIVIL JUDGE (SR.DN) AT
RAICHUR AND DISMISS THE SUIT OF THE PLAINTIFFS OR
ALTERNATIVELY MODIFY THE DECREE IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
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RSA No. 200226 of 2016
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
Heard the learned counsel appearing for the appellants
and the learned counsel appearing for the respondents.
2. This appeal is arising from the judgment and decree
in O.S.No.06/2008 on the file of the Principal Senior Civil Judge
at Raichur and also judgment and decree in R.A.No.37/2015 on
the file of II Additional District Judge at Raichur.
3. The appellants claim that a suit in O.S.No.06/2008
is filed on the file of Senior Civil Judge at Raichur, was one for
partition filed by two persons namely Adivemma wife of
Siddramappa and Sharanamma wife of Mariyappa Shetty
Chanda.
4. The suit is filed against two persons namely
Parvatamma wife of late Sanna Virupanna and Siddramma son
of late Sanna Virupanna.
5. In the said suit, the plaintiffs sought partition and
separate possession of two properties bearing Survey No.125/1
measuring 6 acres 23 guntas and Survey No.115/A measuring
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4 acres 4 guntas in Dinni Village, Taluk: Manvi, District:
Raichur. Admittedly, the present appellants are not parties to
the said appeal.
6. Learned counsel appearing for the appellants would
submit that the appellants own 2 acres 25 guntas in Survey
No.125/1. Though the names of the appellants find place in the
property records of the suit in Sl.No.1 of the property, the
appellants are not made parties to the proceeding as such, the
impugned judgment and decree affect the rights of the
appellants. Appellants came to know about the said decree for
partition in O.S.No.06/2008 and on receipt of notice in FDP
No.7/2012. After coming to know that there is a decree in
respect of the appellants' property, the appellants filed an
appeal in R.A.No.37/2015. The appeal is dismissed on the
premise that the appellants before the Final Decree Court have
given-up their claim in respect of the suit properties based on
alleged memo issued by the appellants' counsel in the
aforementioned Final Decree Proceedings.
7. Learned counsel for the appellants submits that the
appellants have not given any such instructions to file the
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memo. Under these circumstances, he would submit that the
impugned judgment and decree have to be set-aside.
Admittedly, the appellants' names appear in respect of Survey
No.125/1 measuring 2 acres 25 guntas. Hence, the matter has
to be remitted to the trial Court for fresh consideration is the
submission.
8. Learned counsel for the respondents referring to
paragraph No.5 of the plaint would submit that the suit is filed
not in respect of entire 6 acres 23 guntas in Survey No.125/1
of the Dinni Village, Taluk Manvi, District Raichur, the suit is
filed only in respect of 3 acres 38 guntas in the said Survey
No.125/1. The extent of the property is erroneously shown as
6 acres 23 guntas in the schedule to the suit and the
respondents have no claim over 2 acres 25 guntas standing in
the name of the appellants.
9. The said submission of the learned counsel for the
respondents is placed on record.
10. Learned counsel for the appellants would submit
that in case respondents do not have claim over 2 acres 25
guntas in Survey No.125/1 of Dinni Village, and suit is only
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confined to 3 acres 38 guntas as mentioned in paragraph No.5
of the plaint as well as the claim shown below the cause-title of
the plaint, appellants are not aggrieved and they will not
prosecute the appeal.
11. Submission of the learned counsel is also placed on
record.
12. Since, the plaintiffs/respondents make a claim that
the decree be confined to 3 acres 38 guntas in Survey
No.125/1, this Court is of the view that the impugned judgment
and decree passed by the Trial Court and confirmed the
judgment passed by the First Appellate Court have to be
modified.
13. Hence, the following:
ORDER
(a) Appeal is allowed in part.
(b) The impugned judgment and decree passed by
Trial Court in O.S.No.06/2008 on the file of
Principal Senior Civil Judge at Raichur are
modified holding that the plaintiffs are entitled
to 1/3rd share each in item No.1 property in
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Survey No.125/1 measuring 3 acres 38 guntas
at Dinni Village, Taluk Manvi, District Raichur
guntas in Dinni Village, Taluk Manvi, District
Raichur.
(c) It is further made clear that 2 acres 25 guntas
in Survey No.125/1 in Dinni Village, Taluk
Manvi, District Raichur belongs to the
appellants.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
GVP
