Karnataka High Court
Laxman S/O. Siddappa Paschapur vs Smt. Shantawwa W/O. Fakiragouda Patil on 24 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2025:KHC-D:13049-DB
RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 24TH DAY OF SEPTEMBER 2025 R
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 100561 OF 2019 (PA/DE/IN-)
C/W
REGULAR FIRST APPEAL NO. 100113 OF 2020
REGULAR FIRST APPEAL NO. 100152 OF 2020
IN RFA NO. 100561 OF 2019:
BETWEEN:
1. LAXMAN S/O. SIDDAPPA PASCHAPUR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: RADARATTI, TQ: GOKAK,
DIST: BELAGAVI.
2. SHIVAPPA S/O. SIDDAPPA PASCHAPUR,
YASHAVANT AGE: 45 YEARS, OCC: AGRICULTURE,
NARAYANKAR R/O: RADARATTI,
TQ: GOKAK, DIST: BELAGAVI.
Digitally signed by
YASHAVANT
NARAYANKAR
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
3. SANNAPPA S/O RAJAPPA BHOVI,
DHARWAD
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI,
TQ: GOKAK, DIST: BELAGAVI.
4. LAXMAN S/O. RAJAPPA BHOVI,
SINCE DECEASED BY HIS LR'S.
4A. BHIMMAVVA W/O. LAXMAN BHOVI,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI,
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NC: 2025:KHC-D:13049-DB
RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
TQ: GOKAK, DIST: BELAGAVI.
4B. MANJULA RAJU BHOVI,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI,
TQ: GOKAK, DIST: BELAGAVI.
4C. ANIL S/O LAXMAN BHOVI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI,
TQ: GOKAK, DIST: BELAGAVI.
4D. ANNAPURNA FAKIRAPPA BHOVI,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI,
TQ: GOKAK, DIST: BELAGAVI.
4E. SUNIL S/O. LAXMAN BHOVI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI,
TQ: GOKAK, DIST: BELAGAVI.
4F. PREMA LAXMAN BHOVI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI,
TQ: GOKAK, DIST: BELAGAVI.
4G. CHETANA LAXMAN BHOVI,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI,
TQ: GOKAK, DIST: BELAGAVI.
...APPELLANTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
1. SMT. SHANTAWWA
W/O. FAKIRAGOUDA PATIL,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: CHIKKAMULANGI,
TQ: RAMDURG, DIST: BELAGAVI.
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RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
2. SMT. MANGALA W/O. VASANT PUJARI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: BASAPUR, TQ: BAILHONGAL,
DIST: BELAGAVI.
3. NAGARAJ S/O. VASANT PUJARI,
AGE: 24 YEARS, OCC: STUDENT & AGRICULTURE,
R/O: BASAPUR, TQ: BAILHONGAL,
DIST: BELAGAVI.
4. NAVEEN S/O. VASANT PUJARI,
AGE: 21 YEARS, OCC: STUDENT & AGRICULTURE,
R/O: BASAPUR, TQ: BAILHONGAL,
DIST: BELAGAVI.
5. VENKANGOUDA
S/O. BALAGOUDA @ HALEGOUDA PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BELLATTI, TQ: SHIRAHATTI,
DIST: GADAG.
6. HANAMANTGOUDA
S/O BHIMAGOUDA PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BELLATTI, TQ: SHIRAHATTI,
DIST: GADAG.
7. MAHANANDA
S/O. SHIVANAND YALLIGAR @ LOKANNAVAR,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: KOUJALAGI, TQ: GOKAK,
DIST: BELAGAVI.
8. SMT. LAXMIBAI
W/O. VEERAPPA DEMASHETTI,
AGE: 73 YEARS, OCC: HOUSEHOLD WORK,
R/O: KULAGOD, TQ: GOKAK,
DIST: BELAGAVI.
9. SIDDAPPA S/O. LAXMANAPPA DADDI,
AGE: 41 YEARS, OCC: AGRICULTURE,
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NC: 2025:KHC-D:13049-DB
RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
R/O: NEAR GOVT. PRIMARY SCHOOL,
MERAL TOTA, KOUJALAGI, TQ: GOKAK,
DIST: BELAGAVI.
10. SHANKAR S/O. VITTAL JAWAN @ MUJAWAR,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BILLAGI, TQ: BILAGI,
DIST: BAGALKOT.
11. SMT. SHANTAWWA W/O. LAXMAN ARAMANI,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O: SUNADHOLI, TQ: MUDALAGI,
DIST: BELAGAVI.
12. SMT. SHEELA W/O. BASAPPA SANADI,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: GOKAK, TQ: GOKAK,
DIST: BELAGAVI.
13. SMT. RUKAMAVVA @ BHAGYASHREE
W/O. MURAGESH MUCHCHANDI,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O: BELAGAVI, TQ & DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SHIVARAJ P. MUDHOL, ADVOCATE FOR R1;
SRI. S.B. DODDAGOUDAR, ADVOCATE FOR R2-R4;
SRI. G.B. NAIK & SMT. P.G. NAIK ADVOCATES FOR R7;
NOTICE TO R5, R6, R8, R9 & R11-SERVED;
NOTICE TO R10, R12 & R13 DISPENSED WITH
VIDE ORDER DATED 19.09.2022)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
18.11.2019 IN O.S.NO.90/2014 ON THE FILE OF THE II
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NC: 2025:KHC-D:13049-DB
RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, GOKAK AND CONSEQUENTLY DISMISS THE SUIT.
IN RFA NO. 100113 OF 2020:
BETWEEN:
SMT. MAHANANDA
W/O. SHIVANAND YALIGAR @ LOKANNAVAR,
AGE: 59 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O. KOUJALAGI-591227, TAL: GOKAK,
DIST: BELAGAVI.
...APPELLANT
(BY SRI. G.B. NAIK & SMT. P.G. NAIK, ADVOCATES)
AND:
1. SMT. SHANTAWWA
W/O. FAKIRAGOUDA PATIL,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. CHIKKAMULANGI-591123,
TAL: RAMDURG, DIST: BELAGAVI.
SHRI VASANT ANNAPPA PUJARI,
SINCE DECEASED BY HIS LRS
RESPONDENT NO.2 TO 4
2. SMT. MANGALA
W/O. VASANT PUJARI,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI, TAL: GOKAK,
NOW RESIDING AT
BASAPUR VILLAGE-591109,
TAL: BAILHONGAL, DIST: BELAGAVI.
3. SHRI NAGARAJ
S/O. VASANT PUJARI,
AGE: 22 YEARS,
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NC: 2025:KHC-D:13049-DB
RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
OCC: STUDENT & AGRICULTURE,
R/O: KOUJALAGI, TAL: GOKAK,
NOW RESIDING AT
BASAPUR VILLAGE-591109
TAL: BAILHONGAL, DIST: BELAGAVI.
4. SHRI NAVEEN
S/O. VASANT PUJARI,
AGE: 19 YEARS,
OCC: STUDENT & AGRICULTURE,
R/O: KOUJALAGI, TAL: GOKAK,
NOW RESIDING AT
BASAPUR VILLAGE-591109
TAL: BAILHONGAL, DIST: BELAGAVI.
SMT. LAXMIBAI W/O. ANNAPPA PUJARI,
SINCE DECEASED BY HER LRS
RESPONDENT NOS. 2 TO 4
5. SHRI VENKANGOUDA BOLAGOUDA
@ HALEGOUDA PATIL
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BELLATTI VILLAGE-582120,
TAL: SHIRAHATTI, DIST: GADAG
6. SHRI HANAMANTGOUDA BHIMAGOUDA PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BELLATTI VILLAGE-582120,
TAL: SHIRAHATTI, DIST: GADAG.
7. SHRI LAXMAN SIDDAPPA PASCHAPUR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: RADARATTI-591227,
TAL: GOKAK, DIST: BELAGAVI.
8. SHRI SHIVAPPA SIDDAPPA PASCHAPUR,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: RADARATTI-591227,
TAL: GOKAK, DIST: BELAGAVI.
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RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
9. SMT. LAXMIBAI W/O. VEERAPPA DEMASHETTI,
AGE: 73 YEARS, OCC: HOUSEHOLD WORK,
R/O: KULGOD-591310,
TAL: GOKAK, NOW MUDALAGI.
10. SHRI SANAPPA RAJAPPA BHOVI,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI-591227,
TAL: GOKAK.
11. SHRI LAXMAN RAJAPPA BHOVI,
SINCE DECEASED REPRESENTED BY HIS LR'S
AMENDMENT CARRIED OUT AS
PER ORDER DATED 13.08.2025 ON
I.A.NO.1/2024
11A. SMT. BHIMMAVVA W/O. LAXMAN BHOVI,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI-591227,
TQ: GOKAK, DIST: BELAGAVI.
11B. SMT. MANJULA W/O. RAJU BHOVI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI-591227,
TQ: GOKAK, DIST: BELAGAVI.
11C. SHRI ANIL S/O LAXMAN BHOVI,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI-591227,
TQ: GOKAK, DIST: BELAGAVI.
11D. SMT. ANNAPURNA W/O. FAKIRAPPA BHOVI,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI-591227,
TQ: GOKAK, DIST: BELAGAVI.
11E. SUNIL S/O. LAXMAN BHOVI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI-591227,
TQ: GOKAK, DIST: BELAGAVI.
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RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
11F. SMT. PREMA W/O. LAXMAN BHOVI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI-591227,
TQ: GOKAK, DIST: BELAGAVI.
11G. SHRI CHETAN S/O. LAXMAN BHOVI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI-591227,
TQ: GOKAK, DIST: BELAGAVI.
12. SHRI SIDDAPPA LAXMANAPPA DADDI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: NEAR GOVT. PRIMARY SCHOOL,
MERAL TOTA, KOUJALAGI-591227,
TAL: GOKAK.
13. SHRI SHANKAR S/O. VETTAL JAWAN @ MUJAWAR,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BILAGI-587116,
DIST: BAGALKOT.
14. SMT. SHANTAWWA W/O. LAXMANNA ARAMANI,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O: SUNADOLI-591310,
TAL: MUDALAGI, DIST: BELAGAVI.
15. SMT. SHEELA W/O. BASAPPA SANAGI,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: MANJUNATH SANADI,
HILL GARDEN, GOKAK - 591307,
DIST: BELAGAVI.
16. SMT. RUKMAWWA @ BHAGYASHREE
W/O. MURAGESH MUCHCHANDI
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O: IRANNA CHAWL, TANAJI GALLI,
BELAGAVI-590001.
...RESPONDENTS
(BY SRI. SHIVARAJ P. MUDHOL, ADVOCATE FOR R1;
SRI. S.B. DODDAGOUDAR, ADVOCATE FOR R2-R4;
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NC: 2025:KHC-D:13049-DB
RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
SRI. MALLIKARJUNSWAMY B. HIREMATH,
ADVOCATE FOR R10 & R11(A) TO R11(G);
SRI. VINAY S. KOUJALAGI, ADVOCATE FOR R9;
NOTICE TO R5, R6, R7, R8, R12, R14 & R16-SERVED;
NOTICE TO R13, R15 DISPENSED WITH
VIDE ORDER DATED 13.12.2021)
THIS RFA IS F0ILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908
PRAYING TO SETTING ASIDE THE JUDGMENT AND DECREE
PASSED IN O.S.NO.90/2014 DATED 18.11.2019 BY THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, GOKAK AND CONSEQUENTLY THE SUIT FILED BY
THE PLAINTIFF IN O.S.NO.90/2014 MAY KINDLY BE DISMISSED,
IN THE INTEREST OF JUSTICE AND EQUITY.
IN RFA NO. 100152 OF 2020:
BETWEEN:
LAXMIBAI
W/O VEERAPPA DEMASHETTI,
AGE: 73 YEARS, OCC: HOUSEHOLD WORK,
R/O: KULGOD, TQ: GOKAK-591307,
DIST: BELAGAVI.
...APPELLANT
(BY SRI. VINAY S. KOUJALAGI, ADVOCATE)
AND:
1. SMT. SHANTAWWA
W/O. FAKIRAGOUDA PATIL,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. CHIKKAMULANGI,
TQ: RAMDURG-591123, DIST: BELAGAVI.
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RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
VASANT ANNAPPA PUJARI,
SINCE DECEASED BY HIS LR'S.
2. SMT. MANGALA
W/O. VASANT PUJARI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI, TQ: GOKAK,
NOW RESIDING AT BASAPUR
TQ: BAILHONGAL-591102,
DIST: BELAGAVI.
3. NAGARAJ
S/O. VASANT PUJARI,
AGE: 24 YEARS,
OCC: STUDENT & AGRICULTURE,
R/O: KOUJALAGI, TQ: GOKAK,
NOW RESIDING AT BASAPUR
TQ: BAILHONGAL-591102,
DIST: BELAGAVI.
4. NAVEEN
S/O. VASANT PUJARI,
AGE: 21 YEARS,
OCC: STUDENT & AGRICULTURE,
R/O: KOUJALAGI, TQ: GOKAK,
NOW RESIDING AT BASAPUR
TQ: BAILHONGAL-591102,
DIST: BELAGAVI.
LAXMIBAI
W/O. ANNAPPA PUJARI,
SINCE DECEASED BY HER LR'S.
RESPONDENT NO. 2 TO 4
5. VENKANAGOUDA BALAGOUDA
@ HALEGOUDA PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BELLATTI, TQ: SHIRAHATTI,
DIST: GADAG-582112.
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RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
6. HANAMANTGOUDA BHIMAGOUDA PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BELLATTI, TQ: SHIRAHATTI,
DIST: GADAG-582112.
7. MAHANANDA SHIVANAND YALIGAR
@ LOKANNAVAR,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI, TQ: GOKAK-591307,
BELAGAVI DIST.
8. LAXMAN SIDDAPPA PASCHAPUR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: RADARATTI, TQ: GOKAK-591307,
DIST: BELAGAVI.
9. SHIVAPPA SIDDAPPA PASCHAPUR,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: RADARATTI, TQ: GOKAK-591307,
DIST: BELAGAVI.
10. SANNAPPA RAJAPPA BHOVI,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI, TQ: GOKAK-591307,
DIST: BELAGAVI.
11. LAXMAN RAJAPPA BHOVI,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI, TQ: GOKAK-591307,
DIST: BELAGAVI.
12. SIDDAPPA LAXMANAPPA DADDI,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: NEAR GOVT. PRIMARY SCHOOL,
MERAL TOTA, KOUJALAGI-591307,
TQ: GOKAK, DIST: BELAGAVI.
13. SHANKAR
S/O. VITTAL JAWAN @ MUJAWAR,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BILAGI, TQ: BILAGI-587116,
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C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
DIST: BAGALKOT.
14. SHANTAWWA
W/O. LAXMAN ARAMANI,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O: SUNADHOLI, TQ: MUDALAGI-591310,
DIST: BELAGAVI.
15. SHEELA
W/O. BASAPPA SANADI,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: GOKAK -591307, TQ: GOKAK,
DIST: BELAGAVI.
16. RUKMAVVA @ BHAGYASHREE
W/O. MURAGESH MUCHCHANDI,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O: BELAGAVI,
TQ: DIST: BELAGAVI-590001.
...RESPONDENTS
(BY SRI. SHIVARAJ P. MUDHOL, ADVOCATE FOR R1;
SRI. S.B. DODDAGOUDAR, ADVOCATE FOR R2-R4;
SRI. G.B. NAIK & SMT. P.G. NAIK, ADVOCATES FOR R7,
SRI. MALLIKARJUNSWAMY B. HIREMATH,
ADVOCATE FOR R8-R11;
NOTICE TO R5, R6, R12 & R14-SERVED;
NOTICE TO R13, R15 & R16 DISPENSED WITH;
VIDE ORDER DATED 19.09.2022)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 18.11.2019 PASSED BY THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, GOKAK IN O.S.NO.90/2014, IN THE INTEREST OF
JUSTICE AND EQUITY.
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RFA No. 100561 of 2019
C/W RFA No. 100113 of 2020
RFA No. 100152 of 2020
HC-KAR
THESE APPEALS COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)
2. RFA.No.100561/2019 is preferred by defendant Nos.6,
7, 9 and 10, while RFA.No.100152/2020 and RFA.No.100113/
2020 are preferred by defendant Nos.8 and 5 respectively in
O.S.No.90/2014.
3. All these appeals arise out of the judgment and decree
dated 18.11.2019 passed in O.S.No.90/2014 by the II Additional
Senior Civil Judge and JMFC, Gokak1.
4. The said suit filed by the sole plaintiff-Shantawwa, for
partition and separate possession of her alleged share in the suit
schedule properties, for declaration, injunction and other reliefs
was partly decreed by the Trial Court in favour of the plaintiff
against the defendants.
Hereinafter referred to as the 'Trial Court'
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5. For the purpose of convenience, the parties are referred
to as their respective ranks before the Trial Court.
6. The brief facts giving rise to the present appeal are that
the plaintiff instituted the aforesaid suit, contending, inter alia,
that she is the daughter of one late Mallawwa, who was, in turn,
the daughter of Ramappa Kenchannavar and Hanamawwa. It
was contended that the original propositus, Ramappa, died in the
year 1941, while his wife, Hanamawwa, died on 10.11.1979. The
said Ramappa and Hanamawwa had four children, namely;
Mallawwa (the plaintiff's mother), Laxmibai (defendant No.2),
Venkawwa and Yallawwa. The plaintiff-Shantawwa had a sister,
Gangawwa, who died unmarried and issueless.
7. The defendant No.1 is the son of defendant No.2-
Laxmibai, while defendant No.3 is the son of late Venkawwa and
defendant No.4 is the son of late Yallawwa. The genealogy of the
parties as contended in the plaint is as under:
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Ramappa
(died in the year 1941)
Hanamawwa
(died on 10.11.1979)
Mallawwa Laxmibai Venkawwa Yallawwa
(dead) (D2) (Dead) (dead)
Vasant Venkanagouda Hanamantgouda
(D-1) (D-3) (D-4)
Shantawwa Gangawwa
(plaintiff) (dead)
8. Mallawwa was married to late Sheshappa, who was the
father of the plaintiff and the deceased Gangawwa.
9. The plaintiff contended that after the demise of
Ramappa in 1941, the suit schedule properties became the
ancestral joint family properties of Hanamawwa and her four
daughters, including Mallawwa, the mother of the plaintiff. It was
further contended that, subsequent to the demise of
Hanamawwa on 10.11.1979, the suit schedule properties
became ancestral joint family properties in the hands of her four
daughters, including Mallawwa, and consequently, the plaintiff
became entitled to a share in the said properties. It was also
contended by the plaintiff that, although her father, Sheshappa,
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HC-KAR
claimed that Hanamawwa had executed a Will in his favour, the
same was negatived in a suit in O.S.No.18/1980. The said suit
O.S.No.18/1980 was filed by the Sheshappa against the
daughter of Hanamawwa, seeking a decree of permanent
injunction, which was dismissed and the dismissal was confirmed
by the Appellate Court in R.A.No.110/1981 and by this Court in
RSA No.800/1986. So also, the suit in O.S.No.305/1989 for
declaration, injunction and possession, was dismissed by the
Trial Court on 05.03.1990. In the plaint, the plaint schedule
properties comprised of the following four immovable properties:
i) R.S.No.470/1 measuring 10 acres 32 guntas.
ii) R.S.No.470/2 measuring 5 acres 16 guntas.
iii) R.S.No.115 measuring 26 acres 16 guntas.
iv) R.S.No.470/3 measuring 5 acres 16 guntas.
10. The plaintiff contended that, taking advantage of his
name appearing in the revenue records, the aforesaid Sheshappa
alienated the suit schedule properties in favour of the defendants
No.5 to 11-alienees, and the said alienations were not binding
upon the plaintiff's legitimate share in the suit schedule
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properties. It was also contended that a suit in O.S.No.15/1991
was filed by the plaintiff's mother, Mallawwa, and her sister,
Laxmibai, seeking declaration and partition, which was decreed
by the Trial Court and confirmed by this Court in RFA
No.616/1996 dated 28.06.1996. Further it was stated that the
defendant No.8 filed a suit in O.S.No.234/2004, which ended in a
compromise, and another suit was filed by the defendants No.6
and 10 in O.S.No.222/2004, which also culminated in a
compromise decree. It was contended that, since the plaintiff
had a share in the suit schedule properties by birth, the
compromise decrees passed in O.S.Nos.222/2004 and 234/2004
are not binding upon her or her legitimate share in the suit
schedule properties. It was further contended that, as the
defendants failed to comply with her request and demand made
by the plaintiff to effect partition and to put her in separate
possession of her share in the suit schedule properties and were
also guilty of creating illegal documents, the plaintiff instituted
the aforesaid suit by seeking the following reliefs:
A) Plaintiff be awarded 1/8th share in the suit properties by
effecting equitable partition by metes and bonds and
separate possession.
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B) The compromise decree passed in O.S.No.234/2004 is
not binding on the plaintiff share.
C) It be declared that all the illegal entries which have got
created by defendants from time to time in respect of
suit properties are illegal null and void and not binding
upon the plaintiff.
D) It be declared that the alleged sale deed got created by
defendant No.8 in favour of 5 acre 18 guntas out of
**Sy.No.470/2 dated 3-12-2012 (amended as per
order on I.A.No.X, dated: 24.06.2015 sd/-
M.L.Mannapur, Adv. For plaintiff) is not binding on the
plaintiff.
E) Injunction may kindly be granted restraining the
defendants 1, 6 to 10 from obstructing the plaintiff's
peaceful possession, use and enjoyment of the suit
properties in any manner.
F) Ad-interim temporary injunction as prayed in the I.A
may kindly be granted.
G) Costs of the suit be awarded.
H) Permission to amend the plaint as and when necessary
be reserved to plaintiff.
11. In the suit, the defendant No.1 and defendants No.5 to
11 entered appearance and filed their written statements. The
defendant Nos.2 to 4 and defendant Nos.12 to 15 remained ex
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parte. The defendant No.1, having expired during the pendency
of the suit, his legal representatives was brought on record and
they filed a written statement admitting the claim of the plaintiff,
and also seeking a share in the suit schedule properties. The
alienees, who were arrayed as defendant Nos.5 to 11, filed their
written statements contesting the claim of the plaintiff and
submitted that the plaintiff did not have any right, title, interest
and possession over the suit schedule properties. The plaintiff's
mother and her sisters Laxmibai, Venkawwa and Yallawwa have
entered into an amicable settlement with the alienees in respect
of the suit schedule properties. Consequently, the compromise
decrees passed in O.S.Nos.222/2004 and 234/2004, being set
aside at the instance of the plaintiff would not arise. It was also
contended that the suit schedule properties were the absolute,
exclusive, separate and self acquired properties of the plaintiff's
mother and sisters, in which, neither the plaintiff nor defendant
No.1 would be entitled to any share in the suit schedule
properties and as such, there was no merit in the various
contentions urged in the plaint and the suit was liable to be
dismissed.
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12. Based on the pleadings of the parties, the Trial Court
has framed the following:
ISSUES
1. Whether the plaintiff proves that the genealogical tree
given by her in the plaint is true and correct?
2. Whether the plaintiff proves that the defendant No.1
created some illegal/false documents?
3. Whether the plaintiff proves that the compromise
decree passed in O.S.No.234 of 2004 is not binding on
her share?
4. Whether the plaintiff is entitled for the reliefs claimed
in the suit? If so, to what extent?
5. What order or decree?
ADDL. ISSUES
1. Whether the defendants No.1(a) to (c) prove that the
suit item No.4 property was fallen to the share of
grandmother of defendants No.1(b) and (c)?
2. Whether the defendants No.1(a) to (c) prove that the
sale deed dated 14.11.2013 is created by the
defendants No.11?
3. Whether the defendants No.1, 6, 7, 9 and 10 prove
that the suit is bad for non joinder of necessary
parties?
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4. Whether the defendants No.1, 6, 7, 9 and 10 prove
that the suit for declaration without seeking
possession is not maintainable?
5. Whether the defendants No.1, 6, 7, 9 and 10 prove
that the suit is undervalued and court fee paid is
insufficient?
6. Whether the defendants No.1, 6, 7, 9 and 10 prove
that the suit is barred by limitation?
13. The power of attorney holder of plaintiff examined
himself as PW1 and documentary evidence at Exs.P1 to P21 were
marked. The defendants adduced the oral evidence of DW1 to
DW6 and documentary evidence at Exs.D.1 to D42 were marked
on their behalf:
14. After hearing the parties, the Trial Court proceeded to
pass the impugned judgment and decree, partly decreeing the
suit as hereunder
ORDER
Suit of the plaintiff is decreed in part.
It is declared that the plaintiff is entitled to
1/8th share in the suit properties. The defendants
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No.1(a) to (c) together are entitled to 2/8th share,
defendants No.3 and 4 are entitled to 2/8th share
each and defendants No.12 to 15 together are
entitled to 1/8th share in the suit properties.
It is declared that the compromise decree in
OS No.234/2004 and the sale deed dated
3.12.2012 are not binding on the plaintiff. It is
further declared that the entry of names of the
deceased defendant No.1 and defendants No.5 to
11 in the RTC of suit properties as illegal, null and
void and not binding on the plaintiff.
The defendants No.6 to 10 are hereby
restrained from causing obstruction to the
possession and enjoyment of plaintiff over the
suit properties by permanent injunction.
The defendants No.1(a) to (c), 3, 4 and 12 to
15 are at liberty to draw decree by paying
required court fee on their share.
The plaintiff is hereby directed to pay deficit
court fee on relief Nos.D and E and draw decree.
Both the parties shall bear their own costs. Draw
preliminary decree accordingly.
15. Aggrieved by the impugned judgment and decree
passed by the Trial Court, the appellants in all the three appeals
are before this Court by way of the present appeals.
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16. Heard learned counsel for the appellants and learned
counsel for the respondents in all the appeals and perused the
material on record.
17. The following points arise for consideration in the
present appeals.
(i) Whether the Trial Court was justified in coming
to the conclusion that the compromise decree
dated 31.08.2006 passed in O.SNo.234/2004
and O.S.No.222/2004 are null and void and not
binding upon the plaintiff?
(ii) Whether the Trial Court was justified in coming
to the conclusion that the plaintiff was entitled
to her alleged share in the suit schedule
properties?
(iii) Whether the impugned judgment and decree
passed by the Trial Court warrants interference
in the present appeal?
18. Since Point Nos.(i) and (ii) are interlinked, they are
taken up together for consideration.
19. A perusal of the material on record will indicate that,
as can be seen from the geological tree of the parties referred to
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above, the original propositus was one Ramappa, who expired in
year 1941, leaving behind his wife Hanumawwaa and
fourdaughters (i) Mallawwa, (ii) Laxmibai, (iii) Venkawwa and
(iv) Yallawwa. It is an undisputed fact that Hanumawwa died on
10.11.1979, leaving behind Mallawwa (mother of the plaintiff),
Lakshmibai (defendant No.2), Venkawwa (mother of defendant
No.3) and Yallawwa (mother of defendant No.4) to succeed to
her estate as her heirs and legal representatives. It is also not in
dispute that Mallawwa's husband was one Sheshappa, who
claimed that the late Hanumawwa had executed a will dated
28.10.1979 in his favour in relation to the suit schedule
properties as a result of which the said Sheshappa claimed that
he had become the absolute owner of the suit schedule
properties to the exclusion of the four daughters of Hanumawwa.
Accordingly, the said Sheshappa, father of the plaintiff and the
husband of Mallawwa, instituted a suit in O.S.18/1980 against
his wife Mallawwa and her sisters for injunction. Ex.D10 is a
judgment and decree dated 28.02.1981 passed in
O.S.No.18/1980 whereby the said suit filed by Sheshappa was
dismissed by the Trial Court holding that he had failed to prove
due execution and validity of the alleged Will rated 28.10.1979
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propounded by him. The appeal in R.A.No.110/1981 filed by
Sheshappa was also dismissed by the Appellate Court and
confirmed by this Court in RSA.No.800/1986. It follows
therefrom that, the claim of Sheshappa that he became the
absolute owner of the suit schedule properties by virtue of an
alleged Will dated 28.10.1979 was rejected by the Trial Court
and confirmed right up to this Court, and the said judgment and
the decree passed against Sheshappa having attained finality
and become conclusive and binding upon him as well as his
daughter, the plaintiff herein, the only inference that can be
drawn from these facts and circumstances is that Hanumawwa
died intestate on 10.11.1979 and pursuant to her demise her
four daughters viz., Mallawwa (mother of plaintiff), Laxmibai
(defendant No.2), Venkawwa (mother of defendant No.3) and
Yallawwa (mother of defendant No.4) succeeded to the suit
schedule properties owned and possessed by Hanumawwa in
terms of Section 15 of the Hindu Succession Act, 19562.
20. In this context, it is relevant to state that in the light
of the undisputed facts that propositus Ramappa died in the year
Hereinafter referred to as the "Act of 1956
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1941, his widow Hanumawwa would be entitled to succeed to the
suit schedule properties as is sole - exclusive heir in terms of the
Hindu Women's Right to Property Act, 19373, which is applicable
to the parties and the suit schedule properties. Section 3 of the
said Act of 1937 reads as under:
3. Devolution of property.-(1) When a Hindu
governed by the Dayabhaga School of Hindu Law dies
intestate leaving any property, and when a Hindu
governed by any other school of Hindu law or by
customary law dies intestate leaving separate
property, his widow, or if there is more than one
widow, all his widows together, shall, subject to the
provisions of sub-section (3), be entitled in respect of
property in respect of which he dies intestate to the
same share as a son:
Provided that the widow of a predeceased son
shall inherit in like manner as a son if there is no son
surviving of such predeceased son, and shall inherit in
like manner as a son's son if there is surviving a son or
son's son of such predeceased son:
Provided further that the same provision shall
apply mutatis mutandis to the widow of a predeceased
son of a predeceased son.
Herein after referred to as "Act of 1937" for short
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(2) When a Hindu governed by any school of
Hindu law other than the Dayabhaga school or by
customary law dies having at the time of his death an
interest in a Hindu joint int family property, his widow
shall, subject to the provisions of sub-section (3), have
in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow
under the provisions of this section shall be the limited
interest known as a Hindu woman's estate, provided
however that she shall have the same right of claiming
partition as a male owner.
(4) The provisions of this section shall not apply
to an estate which by a customary or other rule of
succession or by the terms of the grant applicable
thereto descends to a single heir or to any property to
which the Indian Succession Act, 1925, applies.
21. The provisions contained in Section 3 of the said Act
of 1937 will clearly indicate that, Hanumawwa succeeded to the
suit schedule properties as the sole and exclusive heir of
Ramappa in terms of Sub-Section (2) of Section 3 of the Act of
1937. Section 3 of the Act of 1937 contemplates that the right
succeeded to/inherited by Hanumawwa would be taken by her as
a limited heir, by way of a life estate and upon her lifetime the
same would revert back to the estate upon the others heirs of
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Ramappa. However, since Hanumawwa was alive when the Act of
1956 came into force, by virtue of Section 14(1) of the Act of
1956, the limited estate/right acquired by Hanumawwa in the
suit schedule properties as the sole/exclusive heir of Ramappa
who died in the year 1941, under Section 3 of the Act of 1937,
would blossom/enlarge into an absolute state by virtue of
Section 14(1) of the Act of 1956.
22. The aforesaid statutory provisions contained in
Section 3 of the Act of 1937, read with Section 14(1) of the Act
of 1956, coupled with the undisputed fact that Ramappa expired
in year 1941 and Hanumawwa was expired only subsequently on
10.11.1979 after the Act of 1956, came into force with effect
from 17.06.1956, leads to the sole and unmistakable conclusion
that Hanumawwa had become the absolute, exclusive and sole
owner of the suit schedule properties during her lifetime and
apart from her, no one else, much less her four daughters were
entitled to any right title, interest or possession over the suit
schedule properties during the lifetime of Hanumawwa.
23. As stated supra, Mallawwa's husband Sheshappa
claimed that he was the legatee under an alleged Will dated
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28.10.1979 executed by Hanumawwa, which was rejected by the
Trial Court and confirmed right up to this Court in
RSA.No.800/1986 It follows therefrom that the suit schedule
properties which belonged absolutely to Hanumawwa would
devolve upon her four daughters by succession in terms of
Section 15 of the Act of 1956, which reads as under:
"15. General rules of succession in the case of
female Hindus.―(1) The property of a female Hindu dying
intestate shall devolve according to the rules set out in
section 16,―
(a) firstly, upon the sons and daughters (including the
children of any pre-deceased son or daughter) and the
husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section
(1),―
(a) any property inherited by a female Hindu from her
father or mother shall devolve, in the absence of any son or
daughter of the deceased (including the children of any pre-
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deceased son or daughter) not upon the other heirs referred
in sub-section (1) in the order specified therein, but upon
the heirs of the father; and
(b) any property inherited by a female Hindu from her
husband or from her father-in-law shall devolve, in the
absence of any son or daughter of the deceased (including
the children of any pre-deceased son or daughter) not upon
the other heirs referred to in sub-section (1) in the order
specified therein, but upon the heirs of the husband."
24. Section 16 of the Act of 1956, regulates the order of
succession and the manner of distribution among the heirs of a
female Hindu. The said provision contemplates that the order of
succession among the heirs referred to in Section 15 of the Act
of 1956, shall be and the distribution of the properties of a
female Hindu dying intestate shall be done among the heirs and
take place in accordance with the rules provided in Section 16 of
the Act of 1956, i.e., among the heirs specified in Sub-Section
(1) of Section 15, those in one entry shall be preferred to those
in any succeeding entry and those included in the same entry
shall take simultaneously.
25. As stated supra, Hanumawwa who was the sole and
absolute owner of the suit schedule properties having died
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intestate on 10.11.1979, the suit schedule properties stood
devolved equally upon her four daughters viz., Mallawwa,
Laxmibai, Venkawwa and Yallawwa in terms of Sections 15 and
16 of the Act of 1956, and all of them became entitled to 1/4th
share each in the suit schedule properties.
26. A perusal of the material on record will also indicate
that, the two daughters of Hanumawwa i.e., Venkawwa (mother
of defendant No.3) and Yallawwa (mother of defendant No.4)
executed a document styled as Manyata Patra (consent deed)
dated 14.08.1987 (registered on 14.03.1988) in favour of
defendant No.10-Laxman son of Rajappa Bhovi in relation to
R.S.No.115 measuring 26 acres 16 guntas of the suit schedule
properties and the said document has been produced as
Ex.P21/Ex.D11 in the suit. Thereafter, Sheshappa executed a
registered sale deed dated 15.02.1988 (Ex.P.19) in favour of
defendant No.10 in relation to R.S.No.115 of the suit schedule
properties. So also, under registered sale deed dated 02.06.1989
(Ex.P.17), Sheshappa sold R.S.No.470/2 measuring 5 acres 16
guntas in favour of defendant No.8-Laxmibai wife of Veerappa
Demashetti; Similarly, vide registered sale deed dated
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23.03.1991 (Ex.D31), Sheshappa sold R.S.No.470/1 measuring
10 acres 32 guntas in favour of defendant No.6-Laxman son of
Siddappa Paschapur.
27. The aforesaid facts and circumstances clearly will
indicate that pursuant to the Manyata Patra dated 14.08.1987,
Mallawwa and Venkawwa had alienated their 1/4th share each
(half share in the suit schedule properties) in favour of the
alienees i.e., Defendant Nos.6, 8 and 10 respectively.
28. Mallawwa and Laxmibai, the daughters of
Hanumawwa instituted a suit in O.S.No.15/1991 against
Sheshappa and the purchasers seeking declaration, permanent
injunction and other reliefs in relation to the suit schedule
properties. In the said suit, Sheshappa, the husband of
Mallawwa, expired during the pendency of the suit and his
daughters i.e., Shantawwa, the plaintiff herein and her sister
Gangawwa were brought on record as his heirs and legal
representatives and were arrayed as defendant No.1(a) and
defendant No.1(b) in the suit. Defendants No.2, 3 and 6 in the
said suit were the purchasers, while the aforesaid Venkawwa and
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Yallawwa, daughters of Hanumawwa were arrayed as defendant
Nos.4 and 5 in the said suit.
29. After contest, the Trial Court decreed the suit in
favour of Mallawwa and Laxmibai by holding that the said two
daughters of Hanumawwa along with their sisters, (plaintiff and
defendant Nos.4 and 5 in O.S.No.15/1991) were the joint owners
of the suit schedule properties and restrained the alienees from
interfering with their possession and enjoyment of the suit
schedule properties.
30. Aggrieved by the said judgment and decree, the
alienees who were arranged as defendant Nos.2, 3 and 6 in the
said suit, approached this Court in RFA.No.616/1996, in which,
the aforesaid Manyata Patra marked as Ex.D.4 in the said
O.S.No.15/1991 was taken into account by this Court and this
court came to the conclusion that the same was not binding upon
Mallawwa or Laxmibai. However, this Court recorded a finding
that the said Manyata Patra dated 14.08.1987 was binding upon
Venkawwa and Yallawwa and disposed of the appeal as
hereunder:
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"IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 8TH DAY OF January 2004
PRESENT
THE HON'BLE MR. JUSTICECHANDRASHEKARAIAH
RFA No: 616 OF 1996
BETWEEN
1. Laxman, s/o Rajappa Bhovi,
Age:major, r/o Koujalgi, Tal:
Gokak, Dist. Belgaum.
2. Smt. Laxmibai, w/o Veerappa,
Demshetti, age: Pmajor,
R/o. Kuligod, Tal: Gokak, dist. Belgaum.
3. Laxman Siddappa Paschapur,
Age:major, r/o Raderatti, Tal:Gokak,
Dist.Belgaum. .....Appellants:
(By Sri. Ravi S.Balikai)
AND:
1. Smt. Mallavva, w/o Seshappa, Kankanwadi,
age:major, R/o: Koujalagi, Tal: Gokak,
Dist. Belgaum.
2.Smt. Laxmibai, w/o Annappa Pujar,
Age:major, r/oKoujalagi, Tal: Gokak,
Dist. Belgaum, now at Katkol, Tal. Ramdurg.
3. Smt.Gangawwa, w/o Vittal Mujawar,
Age:major, r/o Sundholi, Tal: Gokak, Dist.
Belgaum.
4. Smt. Shantawwa, w/o Fakiragouda Patil,
age:major, r/o Chikmulangi,
Tal: Ramdurg, Dist. Belgaum.
5. Smt. Yankawwa, since dead
By L. Rs:
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5A: Venkanagouda, s/o Balagouda,
alias Holalagouda Patil, age: major, r/oBellatti,
Tal: Shirahatti, Dist. Gadag.
6. Smt.Yallawwa, since dead by her LR:
6A) Hanamantgouda, s/o Bhimagouda Patil,
age:major, r/o Bellatti,
Tal: Shirahatti, Dist. Gadag. ....Respondents
(Sri.Jagadish Patil for R1 and R2;
R3 to 4 service held sufficient;
R5A and R6A served.)
RFA is filed under Sec.96 of CPC against the
Judgment and decree dated 28-6-1996 passed in
OS:15/1991, on the file of the Civil Judge, Gokak.
This appeal coming on for hearing this day, the
Court delivered the following:-
JUDGMENT
This appeal is by defendants-2, 3 and 6
challenging the Judgment and decree dated 28-6-1996
in O.S.15/1991 on the file of the Civil Judge, Gokak.
2) The parties in this appeal are referred to as arrayed
in the trial Court.
3) The plaintiffs have filed the suit for declaration that
the plaintiffs and defendants-4 and 5 are the owners of
the suit schedule properties and for a declaration
declaring the "Manyatapatra" dated 14-8-1987 executed
by defendants-4 and 5 in favour of defendants-2 and 3
is not binding on the plaintiffs and defendants-4 and 5
and for other relief.
4) The facts in this case are as follows:-
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One Ramappa Kuchanavar alias Panadi who is the
propositus was owner the suit schedule properties such
as 10 acres 32 guntas in survey No.470/1; 10 acres 32
guntas in survey No.470/2; 26 acres 16 guntas in
survey No.115 of Koujalgi village in Gokak taluk. He
died in the year 1941 leaving behind his wife
Hanumavva, plaintiffs and defendants 4 and 5.
Hanumavva who was the wife of Ramappa died on 10-
11-79. According to the plaintiffs on the death of
Ramappa, Hanamavva, i.e., the mother of the plaintiffs
and defendants 4 and 5 succeeded to the to be estate of
Ramappa and therefore they are declared as the owners
of the above said properties. Defendant-1, is the
husband of plaintiff-1 who is the daughter of Ramappa
and Hanumavva, sold these three bits of land in favour
of defendants-2, 3 and 6 under different sale deeds
which are marked as Exhibits D1, D6 and D9. The case
of the 1st defendant is that he is the absolute owner of
the above said properties having acquired title under a
will said to have been executed by Hanamavva.
Hanamavva died on 10-11-1979. Defendant-5 filed
written statement accepting the sale deed executed by
Seshappa and admitted the execution of Manyatapatra
Ex. D4. Thereafter defendants-4 and 5 did not contest
the suit by entering into the witness box. Defendant-1
died during the pendency of the suit.
5) On the basis of the pleadings the trial Court framed
the following issues:-
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"1) Whether the plaintiffs prove that they along with
defendants 4 and 5 formed joint Hindu family with
their father Ramappa and others and enjoying the
same jointly?
2) Whether the plaintiffs prove that they have
acquired ownership of the suit properties stated in
para (2) of the plaint? as
3) Whether the plaintiffs prove that they were in
possession of the suit property on the date of the
suit?
4) Whether the sale deed dated 15-2-1988 and 2-6-
1989 executed by defendant No.1 in favour of
defendants No.2 and 3 respectively is not binding on
the plaintiffs?
5) Whether the defendant No.1 proves that he has
inherited the suit property on the strength of a will
executed by Hanamavva dated 28-10-1979?
6) Whether the plaintiffs prove that the said will is
sham and bogus document?
7) Whether the defendants-2 and 3 prove that they
are bona fide purchasers of property purchased by
them for valuable consideration and without notice?
8) Whether the defendants-2 and 3 prove that they
were put in possession of the property purchased by
them?
9) Whether the Court Fee paid is proper and
adequate?
10) Whether the suit as brought is not maintainable
without any relief of cancellation of the Sale Deeds
executed by defendant No.1 in favour of defendants
No.2 and 2?
10A) Whether the suit is barred by limitation?
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11) To what relief the plaintiffs are entitled?
The trial Court on appreciation of evidence recorded the
following findings which are as follows:-
"1) The plaintiffs and defendants-4 and 5 do not
form Joint Hindu Family but they succeed to the
suit properties as legal heirs of Hanamavva.
2) The plaintiffs and defendants 4 and 5 jointly
become the owners of the suit properties.
3) The plaintiffs have proved that they have been
in possession of the suit properties as on the date
of the suit.
4) The sale deeds dated 15-2-1988 and 2-6-1989
executed by the first defendant in favour of
defendants 2 and 3 respectively are not binding
on the plaintiffs and defendants 4 and 5.
5) The first defendant has failed to prove the due
execution of will dated 28-10-1979, executed by
Hanamavva.
6) It is proved by the plaintiffs that the will is
sham document.
7) Does not arise for consideration.
8) The defendants 2 and 3 have failed to prove
that they were put in possession of the properties
purchased by them.
9) Court fee paid is proper.
10) The suit is maintainable.
10A) The suit is not barred by limitation.
11) The suit is decreed."
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6) Now the question that arises for consideration is:
"Whether the trial Court is justified in decreeing
the suit?"
7) Defendants-2, 3 and 6 are the purchasers of the suit
schedule property under Exhibits D1, 6 and 9 claiming
title through Seshappa who is said to have acquired title
under a will executed by Hanamavva. The said will has
not been produced in this case. From the evidence, it is
seen that defendant-1 had filed the suit OS.16/80 for
injunction as against the plaintiffs. The said suit was
dismissed. The Judgment and decree dismissing the suit
also was confirmed by this Court in RSA.800/1986. From
this it is seen that the 1st defendant who is a vendor of
the above said properties in favour of defendants 2, 3
and 6 has not established that he was in possession of
the properties as on the date of filing the said suit.
Further, the 1st defendant had filed the suit for
declaration on the basis of the will said to have been
executed by Hanamavva in OS.95/87 which is
renumbered as OS: 305/89. The said suit was dismissed
for non prosecution. The said Judgment and decree
dismissing the suit became final, as it has not been
reversed by the appellate authority. In view of this
Judgment and decree dismissing the suit of the plaintiff,
defendant-1 cannot be held to be owner of the suit
schedule property. the 1st defendant If that is so, had
no saleable interest so as to transfer the same in favour
of defendants 2, 3 and 6. Further in the absence of
production of the will said to have been executed by
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Hanamavva is concerned it is not possible for this Court
to hold that defendant-1 has acquired right, title or
interest in respect of the suit Under these schedule
properties under the said will. circumstances, the
plaintiffs and defednants-4 and 5 who are the children of
Ramappa and Hanamavva are to be held as owners of
the suit schedule properties. In the said view of the
matter, I hold that the finding recorded regarding title to
the property is concerned is justified.
8) Defendants-2, 3 and 6 have produced a
Manyatapatra produced as Ex. D4 before the trial Court.
Under this Manyatapatra defendants 4 and 5 have
virtually accepted the sale of the lands by defendant-
1. Since the plaintiffs are not parties to the said
Manyatapatra, the said Manyatapatra is not binding on
the plaintiffs. But at the same time, in the absence of
denial of the execution of the Manyatapatra the same
cannot be said that it is not binding defendants 4 and 5.
on Therefore, in view of this Manyatapatra, it is open for
the purchasers i.e., defendants 2, 3 and 6 to file a
separate suit for partition and possession to the extent
of the share of defendants 4 and 5, if they are so
advised.
Appeal is dismissed.
The impugned Judgment and decree passed by
the trial Court is confirmed.
Parties to bear their own costs."
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31. In addition to confirming the judgment and decree
passed by the trial Court, this Court granted liberty in favour of
the purchasers to institute a separate suit for partition in
separate possession to the extent of the share of Venkawwa and
Yallawwa if they were so advised.
32. Subsequent to the judgment and decree passed by
this Court in RFA.No.616/1996, vide Ex.D13, defendant No.6 and
10 herein instituted a suit in O.S.No.222/2004 against Mallawwa
and Laxmibai in relation to R.S.No.470/1 and R.S.No.115
purchased by them seeking partition and separate possession of
their share in the suit schedule properties. So also, defendant
No.8 herein instituted one more suit in O.S.No.234/2004 against
Mallawwa and Laxmibai in relation to R.S.No.470/2, measuring
10 acres 32 guntas purchased by her. While O.S.No.222/2004
culminated in a compromise decree dated 16.02.2005, in terms
of Ex.D25, O.S.No.234/2004 also culminated in a compromise in
terms of Ex.D17, dated 31.08.2006. As per the aforesaid
compromise decree passed in O.SNo.222/2004, Mallawwa and
Laxmibai agreed to give up their claim/share in R.S.No.470/1
and in R.S.No.115 in favour of defendant Nos.6 and 10
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absolutely. Similarly, as per the compromise decree passed in
O.S.No.234/24, Mallawwa and Laxmibai agreed to retain 5 acres
16 guntas and give up their claim over the remaining extent of 5
acres 16 guntas in R.S.No.470/2 in favour of defendant No.8.
33. The said compromise dated 16.02.2005 passed in
O.S.No.222/2004 was assailed before this Court by Laxmibai in
W.P.No.64816/2010, which was dismissed by a learned single
judge, vide order dated 21.02.2012 which is as hereunder.
"IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 21ST DAY OF FEBRUARY 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.68416/2010 (GM-CPC)
BETWEEN:
SMT. LAXMIBAI W/O ANNAPPA PUJAR,
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O KOUJALGI, TQ. GOKAK, DIST. BELGAUM.
..PETITIONER
(By Sri A G MULAWADMATH, ADV.)
AND
1. SHRI LAXMAN RAJAPPA BHOOVI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O KOUJALAGI, TQ. GOKAK, DIST. BELGAUM.
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2. SHRI LAXMAN SIDDAPPA PASCHAPURE,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O RADDERATTI, TQ. GOKAK, DIST. BELGAUM.
3. SHRI. VASANT ANNAPPA PUJAR,
AGE: 42 YEARS, OCC: NIL,
R/O PUJAR GALLI, TQ. BAILHONGAL,
DIST. BELGAUM.
4. MALLAWWA W/O:SHESHAPPA KANKANWADI,
AGE:83 YEARS, OCC:AGRICULTURE AND HOUSE
R/O KOUSALGI, TQ. GOKAK
DIST. BELGAUM.
....RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO QUASH THE COMPROMISE DECREE
PASSED IN O.S.NO.222/2004 DATED: 16/02/2005
PASSED BY THE CIVIL JUDGE, SR.DN. GOKAK, AS PER
ANNEXURE-J, AND ETC.
THE PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
In this writ petition, petitioner is challenging the
compromise decree passed in O.S.222/2004 on
16.2.2005, which is produced at Annexure-J.
The suit O.S.222/2004 was filed by respondents 1
121 and 2 seeking a declaration that they are the
absolute owners of the suit properties and for
consequential relief of injunction restraining the
defendants from disturbing their peaceful possession.
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2. Petitioner herein was arrayed as Defendant
No.2 in the said suit. Defendants 1 and 3 were the
sister and son, respectively, of the petitioner herein.
Based on a power of attorney said to have been
executed by defendants-1 and 2, defendant No.3
represented all the defendants in the suit and entered
Into a compromise with the plaintiffs and got the suit
decreed. The present writ petition is filed in the year
2010 challenging the said compromise decree.
3. The contention urged in the writ petition is that
the petitioner herein had not executed any power of
attorney in favour of her son the 3rd defendant
authorising him to represent her in the suit, let alone,
enter into any compromise with the plaintiffs in the
suit. In paragraph 5 of the writ petition, the petitioner
has sought to explain the delay in approaching this
Court. She has stated that she learnt about the
compromise decree passed in O.S.222/2004 only in
the month of July 2008 when she consulted her
advocate in connection with the RTS Appeal Nos.83
and 84/2008. The RTS appeals were filed by the
petitioner challenging the entry of the name of the
plaintiffs respondents 1 and 2 herein, in the revenue
records in respect of the land in question pursuant to
the compromise decree passed. Though the petitioner
claim to have learnt about the impugned order way
back in the year 2008, there is no explanation as to
why she had taken two years more time thereafter to
approach this Court. The explanation offered stating
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that she came to know about the decree passed in the
suit only after the disposal of RTS Appeal Nos.83 &
84/2008 itself, cannot be accepted. When the
petitioner herself has challenged the revenue entries
made in the name of plaintiffs 1 and 2, she cannot be
heard to say that she learnt about the compromise
decree only after disposal of RTS appeals. Moreover,
even after 2008 when she learnt about the
compromise decree, there is no acceptable explanation
offered for further delay in approaching this Court.
4. The 3rd respondent is none other than the son
of the petitioner. He has represented the petitioner in
the suit based on a power of attorney executed by the
petitioner. This Court cannot enter into such a
disputed question of fact in exercise of the writ
jurisdiction, that too, after a long lapse of more than
five years in approaching this Court.
Hence, the writ petition being devoid of merits is
dismissed. If the petitioner has got any other remedy,
it is open to her to avail it in accordance with law."
34. Subsequently on 03.12.2012, defendant No.8 sold 5
acres 16 guntas in R.S.No.470/2 in favour of defendant No.5
vide registered sale deed dated 03.12.2012 produced as
Ex.P13/ExD4. As stated earlier, defendant No.1 - Vasant is none
other than the son of defendant No.2-Laxmibai, who was the
daughter of Hanumawwa as well as Laxmibai and Mallawwa
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were jointly allotted R.S.No.470/2 measuring 5 acres 16 guntas
in the compromise decree dated 31.08.2006 passed in
O.S.No.234/2004. In this regard, it is pertinent to note that
though 5 acres 16 guntas in R.S.No.470/2 was allotted jointly to
Mallawwa and Laxmibai, defendant No.1-Vasant, son of Laxmibai
got the khata to the entire extent changed to his name and sold
the entire extent of 5 acres 16 guntas in R.S.No.470/2 by re-
designating the same as R.S.No.470/3 in favour of defendant
No.11 vide registered sale deed dated 14.11.2013 produced as
Ex.P24.
35. The aforesaid facts, circumstances and the sequence
of events will clearly indicate that during her life time itself,
Mallawwa, mother of the plaintiff had relinquished her claim,
right, title, interest and possession over the suit schedule
properties in favour of the alienees in terms of the compromise
decree dated 31.08.2006 passed in O.S.No.234/2004 and the
compromise decree dated 16.02.2005 passed in
O.S.No.222/2004; as a consequence thereof, during her lifetime
itself, Mallawwa ceased to have any manner of right, title,
interest or possession over the suit schedule properties and
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consequently, the question of the plaintiff who is none other than
the daughter of Mallawwa challenging the compromise decree by
way of a separate suit after the demise of Mallawwa would not
arise in the facts and circumstances of the instant case.
36. The trial Court came to the conclusion that the
compromise decree dated 16.02.2005 passed in
O.S.No.222/2004 and compromise decree dated 31.08.2006
passed in O.S.No.234/2004 were not binding upon plaintiff on
the ground that the plaintiff was entitled to a share in the suit
schedule properties since the same were ancestral properties in
the hands of Mallawwa. In our considered opinion, the said
finding is completely erroneous both on facts and law inasmuch
as upon the demise of Hanumawwa intestate on 10.11.1979, the
suit schedule properties devolved equally upon her four
daughters including Mallawwa as class-I heirs in terms of
Sections 15 and 16 of the Act of 1956, as a result of which,
Mallawwa became entitled absolutely to 1/4th share in the suit
schedule properties. There is no gain saying the fact that the
properties possessed by a female Hindu acquired by her whether
before or after commencement of the Act of 1956, would be held
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by her an absolute owner and not as a limited owner in terms of
Section 14(1) of the Act of 1956, and the same would be her
stridhan property over which neither her husband nor her
children would be entitled to lay a claim during her lifetime nor
challenge any transaction, alienation, compromise, etc., entered
into by her during her lifetime. While dealing with the concept of
stridhan and the right of absolute ownership vested in a female
Hindu during her lifetime, the Apex Court in the case of Pratibha
Rani Vs. Suraj Kumar and another4 at paragraph No.28 held as
under:
"28. To sum up, the position seems to be that a pure
and simple entrustment of stridhan without creating any
rights in the husband excepting putting the articles in his
possession does not entitle him to use the same to the
detriment of his wife without her consent. The husband has
no justification for not returning the said articles as and
when demanded by the wife nor can he burden her with
losses of business by using the said property which was
never intended by her while entrusting possession of
stridhan. On the allegations in the complaint, the husband
is no more and no less than a pure and simple custodian
acting on behalf of his wife and if he diverts the entrusted
property elsewhere or for different purposes he takes a
(1985) 2 Supreme Court Cases 370
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clear risk of prosecution under Section 406 of the IPC. On a
parity of reasoning, it is manifest that the husband, being
only a custodian of the stridhan of his wife, cannot be said
to be in joint possession thereof and thus acquire a joint
interest in the property."
37. So also while interpreting Section 14(1) of the Act of
1956, the Apex Court in the case of Gangamma Vs.
G.Nagarathnamma and others5 held as under:
14. Section 14(1) of the Hindu Succession Act
(hereinafter referred to as the Act) has a bearing
are recorded in the name of the appellant, in the
absence of any evidence to the contrary in this
case, the appellant by operation of Section 14(1)
of the said Act is the full owner of those
properties. In the facts of this case discussed
above it has to be accepted that those properties
are not joint properties but the appellant is the
sole owner of those properties.
15. The principle laid down in Section 14(1) of
the said Act has been read by courts in a very
comprehensive manner since the said Act
overrides the old law on Stri Dhana in respect of
properties possessed by female Hindu. In
Eramma Vs. Veerupana and others - AIR 1966
SC 1879, Justice Ramaswami speaking for the
Court held that Section 14(1) of the Act
contemplates that a female Hindu, who in the
AIR 2009 Supreme Court 2561
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absence of the said provision would have been a
limited owner of the property, will now become
full owner by virtue of the said section. Such
female Hindu will have all powers of disposition to
make the estate heritable by their own heirs and
not revertible to the heirs of the last male holder.
16. Again in the case of Punithavalli Ammal Vs.
Minor Ramalingam and another - AIR 1970 SC
1730, a three- Judge Bench of this Court
reiterated the position that the said Act has
overriding effect and confers full ownership on
Hindu female and made it very clear that rights
conferred under Section 14(1) to a Hindu female
are not restricted or limited by any rule of Hindu
law. In the opinion of the Court in Punithavalli
(supra) the said section makes a clear departure
from all texts of Hindu laws and rules and those
texts and rules cannot be used for circumventing
the plain meaning of Section 14(1) of the said
Act.
17. In Badri Pershad Vs. Smt. Kanso Devi - AIR
1970 SC 1963, the learned Judges held that the
word 'acquired' in sub-Section (1) of Section 14 of
the said Act has to be given the widest possible
meaning (See paras 6 & 7).
18. In Vaddeboyina Tulasamma and others
Vs. Vaddeboyina Sesha Reddi (dead) by L.Rs. -
AIR 1977 SC 1944, Justice Bhagwati speaking for
the Court held that sub-Section (1) of Section 14
is very large in its amplitude and covers every
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kind of acquisition of property by a female Hindu.
Regardless of whether such property was
possessed by a female Hindu on the date of
commencement of the Act or was subsequently
acquired or possessed, she would be the full
owner of the property.
19. In view of such consistent views taken by
this Court on the interpretation of Section 14, we
hold that Section 14(1) of the said Act would
apply in respect of the properties which stand in
the name of the appellant and the appellant
would be the full owner of those properties."
38. As stated suprahaving regard to the undisputed fact
that Hanumawwa died intestate and the property devolved upon
Mallawwa, who was one of her class-I heirs in terms of Sections
15 and 16 of the Act of 1956, the suit schedule property to the
extent of 1/4th share of Mallawwa would be her separate,
absolute, exclusive and self-acquired property and the same
would not partake the nature of ancestral or joint family
properties in the hands of Mallawwa so as to enable the plaintiff,
the daughter of Mallawwa to put forth the claim in the same nor
challenge any alienation, compromise, transaction, document
,etc., entered into by Mallawwa during her lifetime.
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39. Under these circumstances, we are of the considered
opinion that the Trial Court completely misdirected itself in
coming to the erroneous conclusion that the suit schedule
properties were the ancestral joint family properties in the hands
of Mallawwa and without appreciating the same were her self
acquired, absolute and exclusive properties and that since
Mallawwa was entitled to enter into compromise in relation to
her one fourth share with the appellants, the plaintiff did not
have locus-standi nor would not be entitled to challenge the
compromise after the demise of Mallawwa and consequently the
impugned judgment and decree passed by the Trial Court
deserves to be set aside.
40. The controversy can be viewed from yet another
angle; it is an undisputed fact that Mallawwa was a party to the
compromise entered into between herself herself, her sister
Laxmibai and the alienees in O.S.No.222/2004 and
O.S.No.234/2004. It is well settled that a party to a compromise
and all persons claiming through such party are not entitled to
file a separate suit because of the specific bar/embargo
contained in Order XXIII Rule 3A of the Code of Civil Procedure,
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19086 as held by the Apex Court in the case of Pushpa Devi
Bhagat Vs. Rajinder Singh and others7, which reads as
under:
"17. The position that emerges from the
amended provisions of Order 23 can be summed up
thus:
(i) No appeal is maintainable against a
consent decree having regard to the specific bar
contained in Section 96(3) CPC.
(ii) No appeal is maintainable against the
order of the court recording the compromise (or
refusing to record a compromise) in view of the
deletion of clause (m) of Rule 1 Order 43.
(iii) No independent suit can be filed for
setting aside a compromise decree on the ground
that the compromise was not lawful in view of the
bar contained in Rule 3-A.
(iv) A consent decree operates as an
estoppel and is valid and binding unless it is set
aside by the court which passed the consent
decree, by an order on an application under the
proviso to Rule 3 Order 23.
Therefore, the only remedy available to a party to a
consent decree to avoid such consent decree, is to
approach the court which recorded the compromise and
made a decree in terms of it, and establish that there was
no compromise. In that event, the court which recorded
Hereinafter referred to as "the CPC" for short
(2006) 5 Supreme Court Cases 566
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the compromise will itself consider and decide the
question as to whether there was a valid compromise or
not. This is so because a consent decree is nothing but
contract between parties superimposed with the seal of
approval of the court. The validity of a consent decree
depends wholly on the validity of the agreement or
compromise on which it is made. The second defendant,
who challenged the consent compromise decree was fully
aware of this position as she filed an application for
setting aside the consent decree on 21-8-2001 by alleging
that there was no valid compromise in accordance with
law. Significantly, none of the other defendants
challenged the consent decree. For reasons best known to
herself, the second defendant within a few days thereafter
(that is on 27-8-2001) filed an appeal and chose not to
pursue the application filed before the court which passed
the consent decree. Such an appeal by the second
defendant was not maintainable, having regard to the
express bar contained in Section 96(3) of the Code."
41. Similarly the Apex Court in the case of Triloki Nath
Singh Vs. Anirudh Singh (D) Thr. Lrs.8, which reads as
under:
21. Indeed, the appellant was not a party to the
stated compromise decree. He was, however, claiming
right, title and interest over the land referred to in the
stated sale deed dated 6th January, 1984, which was
purchased by him from Sampatiya judgment debtor
and party to the suit. It is well- settled that the
compromise decree passed by the High Court in the
second appeal would relate back to the date of
AIR 2020 SC 2111
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institution of the suit between the parties thereto. In
the suit now instituted by the appellant, at best, he
could seek relief against Sampatiya, but cannot be
allowed to question the compromise decree passed by
the High Court in the partition suit. In other words, the
appellant could file a suit for protection of his right,
title or interest devolved on the basis of the stated
sale deed dated 6th January 1984, allegedly executed
by one of the party (Sampatiya) to the proceedings in
the partition suit, which could be examined
independently by the Court on its own merits in
accordance with law. The trial Court in any case would
not be competent to adjudicate the grievance of the
appellant herein in respect of the validity of
th
compromise decree dated 15 September, 1994
passed by the High Court in the partition suit.
22. In other words, the appellant can only claim
through his predecessor Sampatiya, to the extent of
rights and remedies available to Sampatiya in
reference to the compromise decree. Merely because
the appellant was not party to the compromise decree
in the facts of the present case, will be of no avail to
the appellant, much less give him a cause of action to
question the validity of the compromise decree passed
by the High Court by way of a substantive suit before
the civil court to declare it as fraudulent, illegal and
not binding on him. Assuming, he could agitate about
the validity of the compromise entered into by the
parties to the partition suit, it is only the High Court,
who had accepted the compromise and passed decree
on that basis, could examine the same and no other
Court under the proviso to Rule 3 of Order 23 CPC. It
must, therefore, follow that the suit instituted before
the civil court by the appellant was not maintainable in
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view of specific bar under Rule 3A of Order 23 CPC as
held in the impugned judgment.
42. In the instant case, since Shantawwa filed the instant
suit seeking to challenge the compromise entered into between
her mother and the alienees in O.S.No.234/2004 and
O.S.No.222/2004, the present suit is clearly barred by the
provisions contained in Order XXIII Rule 3A of the CPC and the
failure on the part of the Trial Court to appreciate this, as
resulted in an erroneous conclusion and consequently the
impugned judgment and decree passed by the Trial Court
deserves to be set aside and the suit of the plaintiff is liable to be
dismissed on this ground also.
43. Insofar as the land bearing Survey No.470/3
purchased by defendant No.11 from defendant No.1-Vasant is
concerned, as per the compromise decree passed in
O.S.No.234/2004, Survey No.470/2 totally measuring 10 acres
32 guntas was divided equally by allotting 5 acres 16 guntas in
favour of purchaser/defendant No.8 and by allotting the
remaining extent of 5 acres 16 guntas in favour of Laxmibai and
Mallawwa jointly. Defendant No.1-Vasant, who is none other
than the son of Laxmibai-defendant No.2, got the katha changed
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to his name and sold the entire extent 5 acres 16 guntas in
favour of defendant No.11, vide registered sale deed dated
14.11.2013 produced as per Ex.P.24 including the share of
Mallawwa also thereby indicating that the said sale by defendant
No.1 in favour of defendant No.11 would be binding only to the
extent of the share of defendant No.2-Laxmibai and the same
would not be binding upon the share of the plaintiff's mother
Mallawwa which is succeeded to by the plaintiff.
44. It is also an undisputed fact that the said property
which was part and parcel of R.S.No.470/2 measuring 5 acres 16
guntas and was sold in favour of defendant No.11 by defendant
No.1 was subsequently reassigned R.S.No.470/3, which is also
one of the properties to the suit. Accordingly, the plaintiff would
have to be declared to be entitled to 2 acres 28 guntas in
R.S.No.470/3, while defendant No.11 who purchased this
property in R.S.No.470/3 would have to be declared to be
entitled to the remaining 2 acres 28 guntas in R.S.No.470/3.
45. The upshot of above discussion leads to the following
conclusions:
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1) The compromise decree dated 16.02.2005 passed
in O.S.No.222/2004 and compromise decree
dated 31.08.2006 passed in O.S.No.234/2004 is
binding upon the plaintiff and her claim that the
decree is not binding upon her is liable to be
rejected by setting aside the impugned judgment
and decree passed by the Trial Court.
2) Defendant Nos.6, 7, 9 and 10 are held to be the
absolute owners in lawful and peaceful possession
acres 16 guntas.
3) So also, defendant No.5 who in turn purchased
R.S.No.470/2 measuring 5 acres 16 guntas from
defendant No.8 is declared to be the absolute
owner in lawful and peaceful possession of the
said property bearing R.S.No.470/2 measuring 5
acres 16 guntas.
4) The plaintiff would be entitled to partition and
separate possession of half share in R.S.No.470/3
i.e., 2 acres 28 guntas.
5) Defendant No.11, who is the purchaser from
defendant No.1 in relation to R.S.No.470/3 would
be entitled to partition and separate possession of
half share in 5 acres 16 guntas in R.S.No.470/3
i.e., to an extent of 2 acres 28 guntas in
R.S.No.470/3.
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6) The impugned judgment and decree passed by
the Trial Court deserves to be set aside and
substituted by a modified decree in the aforesaid
terms.
Point Nos.(i) to (iii) are answered accordingly.
46. In the result, we pass the following :
ORDER
1. All the appeals are hereby allowed.
2. The impugned judgment and decree dated
18.11.2019 passed in O.S.No.90/2014 passed by
the II Additional Senior Civil Judge is hereby
modified.
3. The suit of the plaintiff is partly decreed by
holding that the plaintiff would be entitled to
partition and separate possession of her half share
i.e., only to an extent 2 acres 28 guntas only in
R.S.No.470/3 of Koujalagi village and the sale
deed dated 14.11.2013 executed by defendant
No.1 in favour of defendant No.11 would not be
binding on the share of the plaintiff.
4. The remaining half share i.e., 2 acres 28 guntas in
R.S.No.470/3 would belong to defendant No.11
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who has purchased R.S.No.470/3 from defendant
No.1.
5. The suit of the plaintiff in relation to all other suit
schedule properties including R.S.No.470/1
measuring 10 acres 32 guntas, R.S.No.470/2
measuring 5 acres 16 guntas and R.S.No.115
measuring 26 acres 16 guntas is hereby
dismissed.
6. Registry to draw decree accordingly.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
EM para Nos.11 to end
