Karnataka High Court
Shri.Narayan Rayappa Kadam vs Shri.Sanju Rudrappa Kadam on 12 September, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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NC: 2024:KHC-D:13042-DB
RFA No. 100546 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 100546 OF 2019 (PAR/POS)
BETWEEN:
SHRI. NARAYAN RAYAPPA KADAM
AGE: 64 YEARS, OCC: RETIRE PERSON,
R/O: POLICE QUARTERS, BELAGAVI,
NOW AT MUGALKHOD,
TQ: RAIBAG, DIST: BELAGAVI.
...APPELLANT
(BY SRI. SANTOSH B. RAWOOT, ADVOCATE)
AND:
1. SHRI. SANJU RUDRAPPA KADAM
Digitally signed
AGE: 33 YEARS, OCC: AGRICULTURE,
by YASHAVANT
NARAYANKAR
R/O: MUGALKHOD,
Location: HIGH
COURT OF
TQ: RAIBAG, DIST: BELAGAVI.
KARNATAKA
2. SHRI. UMESH RUDRAPPA KADAM
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI.
3. KUMAR RUDRAPPA KADAM
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI-587113.
4. SMT.RADHABAI W/O. RUDRAPPA KADAM
AGE: 70 YEARS, OCC: HOUSEHOLD,
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NC: 2024:KHC-D:13042-DB
RFA No. 100546 of 2019
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI-587113.
5. SMT. MAHADEVI W/O. MAHADEV MAVARKAR
AGE: 37 YEARS, OCC: HOUSEHOLD,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI-587113.
6. SMT. SUSHILA W/O. GUNDU KATADOND
AGE: 37 YEARS, OCC: HOUSEHOLD,
R/O: LACHAN, TQ: INDI,
DIST: VIJAYAPURA.
7. SMT. KALAWATI W/O. PANDIT DHADAKE
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O: KOKATANUR, TQ: ATHANI,
DIST: BELAGAVI.
8. SMT. SUNANDA
W/O. SHIVAJI NARAYANKAR
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: ALMEL, TQ: SINDAGI,
DIST: VIJAYAPURA.
9. KUMARI SHOBHA D/O. RUDRAPPA KADAM
AGE: 22 YEARS, OCC: AGRICULTURE,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI.
10. SHRI. VASANT RUDRAPPA KADAM
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI.
11. SHRI. BABU W/O. RAYAPPA KADAM
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI.
12. SHRI. MARUTI RUDRAPPA KADA,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI.
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NC: 2024:KHC-D:13042-DB
RFA No. 100546 of 2019
13. SMT.GOURAWWA
W/O. PUNDALIK SOLONE
SINCE DECEASED BY LR'S.,
13A) SMT. CHANDRAVVA
W/O. MARUTI KADAM,
AGE:50 YEARS, OCC: AGRICULTURE,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI.
14. SMT. DUNDAWW W/O. BHIMAPPA POL
AGE: 37 YEARS, OCC: HOUSEHOLD,
R/O: NIPANAL, TQ: RAIBAG,
DIST: BELAGAVI.
15. SMT. TAYAWWA
W/O. BHIMSEN POL
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: NIPANAL, TQ: RAIBAG,
DIST: BELAGAVI.
16. SMT. YASHODA
W/O. DAYANAND JOGADANDE
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI.
17. SHRI. YAMANAPPA NINGAPPA KADAM
AGE: 86 YEARS, OCC: HOUSEHOLD,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI.
18. SMT.BASAWWA
W/O. KADAPPA MAVARKAR
AGE: 82 YEARS, OCC: HOUSEHOLD,
R/O: BASAVANA BAGEWADI,
DIST: VIJAYAPURA.
19. SMT.SHIVAKKA
W/O. LIMBAJI KADAM
AGE: 77 YEARS, OCC: HOUSEHOLD,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI-587113.
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NC: 2024:KHC-D:13042-DB
RFA No. 100546 of 2019
20. SHRI. APPAJI S/O. RUDRAPPA KADAM
AGE: 62 YEARS, OCC: HOUSEHOLD,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI.
21. SMT. KAMALAVVA
W/O. RAMU MAVARKAR
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: HULLUR, TQ: MUDALAGI,
DIST: BELAGAVI.
22. SHRI.NINGAPPA LIMBAJI KADAM
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI.
23. SHRI. PARASAPPA NINGAPPA KADAM
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O: MUGALKHOD, TQ: RAIBAG,
DIST: BELAGAVI-587113.
...RESPONDENTS
(BY SRI. RAJASHEKHAR R. BURJI, ADVOCATE FOR R1 TO 9;
R10 TO R12, R15 TO R17, R19, R22, R23, R13(A) SERVED AND
UNREPRESENTED;
R13-ABATED;
R14, R18, R20 AND R21-NOTICE HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND
DECREE DATED 11.09.2019 PASSED IN O.S.NO.1/2017 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, RAIBAG, DECEEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
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NC: 2024:KHC-D:13042-DB
RFA No. 100546 of 2019
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI) We have heard the learned counsel appearing for the appellant Sri.Santosh B. Rawoot and the learned counsel Sri.Rajashekar R. Burgi appearing for respondent Nos.1 to 9.
2. Though the matter is listed for admission, with the consent of both the parties, matter is taken up for final disposal.
3. Being aggrieved by the judgment and decree for partition in OS No.1/2017, defendant No.1 is before this Court in an appeal.
4. The factual matrix that is relevant for the purpose of this appeal is that the grand father of the appellant- Ningappa was the propositus of the family. He died on 24.08.1972 leaving behind him five sons and two daughters. The suit schedule properties were held by the propositus Ningappa. After his death all the suit schedule properties devolved upon the members of the joint family. The plaintiffs contend that the suit schedule properties, which consists of -6- NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019 seven pieces of agricultural lands and three house properties has devolved upon the five sons and two draughts of Ningappa and therefore, the plaintiffs who are representing the branch of one of the son of Ningappa viz., Rudrappa are entitled for equal share. The defendant Nos.1 to 8 represent the branch of Rayappa, the first son of Ningappa. Defendant Nos.9, 10, 11, 12 and 13 are the other sons and daughters of Ningappa.
5. On appearance, the defendant No.1 through his written statement contended that though Ningappa is the propositus who died in the year 1972 leaving behind him five sons and two daughters, the suit schedule properties were partitioned in the year 1992 between the five sons of Ningappa. Each of them got 1/5th share. Therefore, there was a partition between the sons for which the daughters of propositus Ningappa had consented. After partition, defendant Nos.1 to 4 have constructed a building in one of the suit schedule properties and they are in separate possession and enjoyment of the property and as such the suit is liable to be dismissed.
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NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019
6. On the basis of the above pleadings, the Trial Court framed the following issues:
ISSUES:
1. Whether the plaintiffs prove that, the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants and there was no partition between them as on the date of suit?
2. Whether the defendants prove that, the defendants perfect title by way of adverse possession?
3. Whether the plaintiffs are entitled for partition and separate possession by metes and bounds, if so, what is their share?
4. What judgment or decree?
7. The plaintiffs in order to prove their case examined first plaintiff as PW.1 and a witness as PW.2 and Exhibits P1 to P9 were marked. The first defendant was examined as DW1 and a witness was examined as DW2 and Exhibits D1 to D27 were marked. After hearing both the sides the Trial Court decreed the suit.
8. Being aggrieved by the judgment and decree passed by the Trial Court, defendant No.1 is in appeal before this -8- NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019 Court contending that though he had contended in his written statement that there was a partition between the five sons of propositus Ningappa, no issue is framed by the Trial Court in this regard. It is submitted that though a specific contention was taken up by the defendant No.1 in his written statement, the issue regarding the previous partition has not been framed which had led the Trial Court to rely only on the alleged admissions of the DW.1 and there was no such opportunity for the defendants to establish their case. Therefore, it is contended that the Trial Court could not have decided an issue which was negatively burdened upon the plaintiffs who are called upon to show that there was no partition between them as on the date of the suit. Further, it was also contended that the non-framing of an issue under which the defendants were to prove that there was a previous partition has resulted in a skewed approach by the Trial Court and by a short judgment, the Trial Court has decreed the suit.
9. Per contra, the leaned counsel appearing for the respondent Nos.1 to 9 Sri.Rajashekar Burji concede that it -9- NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019 was necessary that an issue regarding previous partition should have been framed but such negative burden could not have been fastened upon the plaintiffs that there was no partition. Therefore, the manner in which the issue No.1 is framed is not proper and correct.
10. Having bestowed our attention on the points urged by both the sides, it is evident that the issue No.1 framed by the Trial Court is not proper. There is a specific contention of all the defendants that there was a previous partition and as such they should have been called upon to prove that there was a partition. However, instead of fastening the burden of proving the previous partition on the defendants, the negative burden was fastened upon the plaintiffs that there was no such partition, which obviously has resulted in the defendants not placing adequate evidence on record. Therefore, evidently, the approach adopted by the Trial Court to hold that there was no partition in the family is erroneous.
11. The learned counsel appearing for the respondents also submits that there are few other properties which were
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NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019 also left out. Be that as it may, when an issue is wrongly framed fastening the negative burden on the plaintiffs has resulted in a decree; obviously the Trial Court was misdirected to hold that the plaintiffs have not proved it. Under the facts and circumstances, this Court is of the view that an incorrect issue framed goes to the root of the case and defendants should have been burdened with proving that there was a previous partition. Under the circumstances, we hold that the matter needs to be remitted back to the Trial Court with a direction that an appropriate issue fastening the burden on the defendants to prove that there was a previous partition is to be framed and after affording an opportunity to the parties, the matter be decided in accordance with law. Hence, the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment of the trial Court in OS No.1/2017 on the file of Senior Civil Judge and JMFC., Raibag is hereby set aside. The matter is remitted back to the Trial Court with
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NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019 a direction to frame an issue fastening the burden of proving that there was a previous partition in the suit schedule properties in the year 1992 and then permit the parties to adduce any additional evidence in the matter and then decide the matter afresh.
iii) Both the parties are directed to appear before the Trial Court on 22.10.2024 without awaiting for any notice by the Trial Court.
iv) We request the Trial Court to dispose of the matter expeditiously, preferably within six months from the date of appearance of the parties before it.
Sd/-
(B.M.SHYAM PRASAD) JUDGE Sd/-
(C M JOSHI) JUDGE HMB LIST NO.: 1 SL NO.: 6