Karnataka High Court
Kasturewwa W/O Suresh Beerappanavar vs Somappa Kenchappa Banappavar on 26 March, 2025
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NC: 2025:KHC-D:5603
RSA No. 100216 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100216 OF 2016 (PAR-)
BETWEEN:
SMT. KASTUREWWA W/O. SURESH BEERAPPANAVAR,
AGE: 38 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: JALIKATTI-591170,
TQ: SOUNDATTI, DIST: BELAGAVI.
...APPELLANT
(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
1. SOMAPPA KENCHAPPA BANAPPAVAR,
AGE: 68 YEARS, OCC: AGRICULTURIST & PENSIONER,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
2. BASAVARAJ @ BASAPPA
S/O. SOMAPPA BANAPPAVAR,
AGE: 40 YEARS, OCC: AGRICULTURE,
Location:
R/O: JALIKATTI-591 170,
HIGH
MOHANKUMAR COURT OF
TQ: SOUNDATTI, DIST: BELAGAVI.
B SHELAR KARNATAKA
DHARWAD
BENCH 3. KENCHAPPA S/O. SOMAPPA BANAPPAVAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
4. SMT. NINGAWWA W/O. KENCHAPPA BANAPPAVAR,
AGE: 86 YEARS, OCC: HOUSEHOLD,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
SINCE DECEASED REPRESENTED BY HER LR'S
RESPONDENT NO.1 AND RESPONDENT NO.2
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RSA No. 100216 of 2016
WHO ARE ALREADY ON RECORD
AMENDMENT CARRIED OUT AS PER THE
ORDER DTED 10.02.2022 & 21.08.2024
5. SMT. SIDDAWWA W/O. BEERAPPA NARENDRA,
AGE: 64 YEARS, OCC: HOUSEHOLD,
R/O: YARAGATTI-591 129,
TQ: SOUNDATTI, DIST: BELAGAVI.
6. SMT. DODDAWWA W/O. YALLAPPA MALAKANNAVAR,
AGE: 62 YEARS, OCC: HOUSEHOLD,
R/O: KADABI-591129,
TQ: SOUNDATTI, DIST: BELAGAVI.
7. SMT. DHULAWA W/O. SOMAPPA BANAPPANVAR,
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
8. KENCHAPPA S/O. YALLAPPA BANAPPANAVAR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
9. RAMAPPA S/O. YALLAPPA BANAPPANAVAR,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
10. NIMBAWWA W/O NINGAPPA BANAPPANAVAR,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
11. MUDAKAPPA S/O. NINGAPPA BANAPPANAVAR,
AGE: 27 YEARS, OCC: STUDENT,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
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RSA No. 100216 of 2016
12. MARUTI S/O. NINGAPPA BANAPPANAVAR,
AGE: 25 YEARS, OCC: STUDENT,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
13. ASHOK S/O. NINGAPPA BANAPPANAVAR,
AGE: 23 YEARS, OCC: STUDENT,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
14. SMT. DODBASAWA W/O. DUNDAPPA LAGALI,
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O: YARAGATTI-591 129,
TQ: SOUNDATTI, DIST: BELAGAVI.
15. SMT. DODDAWA W/O. FAKIRAPPA GORAVANKOLLA,
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
16. SMT. SHANKAREWA W/O. ADIVEPPA LADADI,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O: JALIKATTI-591 170,
TQ: SOUNDATTI, DIST: BELAGAVI.
17. SMT. PREMA W/O. BASAPPA KURI,
AGE: 27 YEARS, OCC: HOUSEHOLD,
R/O: JALIKATTI-591 170, POST: TALLUR,
TQ: SOUNDATTI, DIST: BELAGAVI.
18. SMT. SHILPA W/O. SOMAPPA IRANNAVAR,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O: CHUNCHNUR,
TQ: RAMDURG, DIST: BELAGAVI.
19. KUMARI AKKAWA D/O. BASAPPA NARENDRA,
AGE: 24 YEARS, OCC: HOUSEHOLD,
R/O: YARAGATTI-591 129,
TQ: SAUNDATTI, DIST: BELAGAVI.
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RSA No. 100216 of 2016
20. KUMARI NEELAWA D/O. BASAPPA NARENDRA,
AGE: 22 YEARS, OCC: HOUSEHOLD,
R/O: YARAGATTI-591 129,
TQ: SAUNDATTI, DIST: BELAGAVI.
21. MAHADEVI W/O. BEERAPPA SANKANNAVAR,
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O: HARGOPPA, TQ: SAUNDATTI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SHREEVATSA S. HEGDE &
SRI. SOURABH HEGDE, ADVOCATES FOR R1-R3;
SMT. SHASHIKALA PATRI K., ADVOCATE FOR R7;
R4-DECEASED; R5, R6-R19 &
R21 ARE SERVED & UNREPRESENTED;
R20-HELD SUFFICIENT)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE
PASSED IN R.A.NO.195/2012 DATED 19/01/2016 PASSED BY THE II
ADDITIONAL DISTRICT JUDGE BELAGAVI AND MODIFY THE
JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE
SAUNDATTI IN O.S.NO.30/2010 DATED 28/07/2012 BY ALLOTTING
THE 1/4TH SHARE IN ALL THE SUIT PROPERTIES IN FAVOUR OF THE
PLAINTIFF IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the plaintiff challenging the
judgment and decree dated 19.01.2016 in R.A.No.195/2012 on
the file of the II-Additional District Judge, Belagavi, (for short
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"the First Appellate Court") dismissing the appeal and
confirming the judgment and decree dated 28.07.2012 in
O.S.No.30/2010 on the file of Senior Civil Judge, Saundatti (for
short "the Trial Court") decreeing the suit in part.
2. For the sake of convenience, the parties are
referred to as per their rank before the Trial Court.
3. Plaint averments in brief are that the plaintiff and
defendant No.2 and 3 are the children of defendant No.1.
Defendant No.4 is the mother of defendant No.1. Defendant
No.5 and 6 are the sisters of defendant No.1. It is the case of
the plaintiff that the suit schedule property is belonged to the
grandfather of the plaintiff-Mudukappa, who had two wives. It
is further stated in the plaint that the plaintiff has got equal
share along with defendant No.1 to 3 and as such, the plaintiff
has filed O.S.No.30/2010 seeking relief of partition and
separate possession in respect of the suit schedule property.
3.1. After service of notice, the defendant No.1 to 3
entered appearance and denied the averments made in the
plaint, however, supported the contention of the plaintiff. The
defendant No.4 to 6 were impleaded in the suit. Defendant
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No.5 and 6 sought for equitable share in the suit schedule
property. Based on pleadings on record, the Trial Court framed
issues for its consideration.
3.2. In order to establish their case, plaintiff has
examined two witnesses as PW1 and PW2 and produced 6
documents, which were marked as Ex.P1 to Ex.P6. The
defendants have examined two witnesses as DW1 and DW2
and no documents were produced by the defendants. The Trial
Court, after considering the material on record, decreed the
suit in part. Feeling aggrieved by the same, the plaintiff has
preferred R.A.No.195/2012 before the First Appellate Court and
same was resisted by the defendants. The First Appellate Court,
after appreciating the material on record, by its judgment and
decree dated 19.01.2016, dismissed the appeal and confirmed
the judgment and decree in O.S.No.30/2010. Feeling aggrieved
by the same, the plaintiff has preferred this appeal.
4. This Court vide order dated 18.03.2025 formulated
the following substantial question of law:
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Whether both the Courts below were
justified in allotting shares to the
plaintiff and defendants?
5. I have heard Sri. Shriharsh A Neelopant, learned
counsel appearing for the appellant and Sri.Shreevatsa S
Hegde, learned counsel appearing for the respondents.
6. It is contended by Sri. Shriharsh A Neelopant, the
learned counsel appearing for the appellant that the plaintiff is
entitled for 1/4th share in the suit schedule properties along
with the defendant No.1 to 3 and therefore, sought for
interference of this Court.
7. Per contra, Sri. Shreevatsa S Hegde, learned
counsel appearing for the respondents sought to justify the
impugned order.
8. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully examined
the findings recorded by both the Courts below. The plaintiff
has filed a suit seeking relief of partition and separate
possession in respect of suit schedule property. In order to
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understand the relationship between the parties, the genealogy
is produced as under.
Kenchappa
Ningawwa (D4)
Somappa (D1) Siddawwa(D5) Doddawwa (D6)
Basavaraj Kenchappa Kasturavva
(D2) (D3) (Plaintiff)
9. Perusal of the genealogy would indicate that the
plaintiff and defendant No.2 and 3 are the children of defendant
No.1. Defendant No.4 is the grandmother of plaintiff and
defendant No.2 and 3. Defendant No.5 and 6 are the sisters of
defendant No.1. It is not in dispute that the suit schedule
property is belonged to Mudukappa and same was devolved to
the share of the father of the defendant No.1-Kenchappa.
Therefore, defendant No.1, defendant No.5 and 6 are entitled
for 1/3rd share each in the joint family property of Kenchappa.
The plaintiff, defendant No.2 and 3 are the children of
defendant No.1 (Somappa) and therefore, plaintiff and
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defendant No.1 to 3 are entitled for 1/12th share each in the
suit schedule property.
10. In that view of the matter, both the Courts below
have committed error in allotting actual share in favour of the
plaintiff and same is rectified in the present appeal. In the
result, the substantial question of law framed above favours the
plaintiff and accordingly, plaintiff and defendant No.1 to 3 are
entitled for 1/12th share each in the suit property. In the result,
I pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 19.01.2016
in R.A.No.195/2012 passed by the II-
Additional District Judge, Belagavi is hereby
set aside.
iii) The judgment and decree dated 28.07.2012
in O.S.No.30/2010 on the file of the Senior
Civil Judge, Saundatti is hereby set aside
and share of the parties are modified
accordingly as plaintiff and defendant No.1
to 3 are entitled for 1/12th share each in the
suit schedule property.
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iv) In view of disposal of the appeal, pending
interlocutory applications, if any, do not
survive for consideration and are disposed of
accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
CT-MCK
