Karnataka High Court
Sri Ramachandra Rao Indurao vs Sri Manasingarao on 1 June, 2023
-1-
RFA No. 1579 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
REGULAR FIRST APPEAL NO.1579 OF 2006 (PAR)
BETWEEN:
1. SRI RAMACHANDRAO INDURAO
@ HINDU RAO GHATAGE,
SINCE DECEASED BY HIS LRS.
1(A) SANJEEVARAO
S/O. RAMCHANDRAO GHATGE,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM,
1(B) MANJUNATH
S/O. RAMCHANDRAO GHATGE,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM.
1(C) PRAMILABAI
Digitally W/O. RAMCHANDRAO GHATGE,
signed by AGE: 65 YEARS, OCC: AGRICULTURE,
VINAYAKA
BV R/O: LINGADALLI, TA; BAILHONGAL,
DIST: BELGAUM.
1(D) MINAXI
D/O. RAMCHANDRAO GHATGE,
AGE: 43 YEARS, OCC: AGRIUCLTURE,
R/O: LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM.
1(E) VANAJAXI
D/O. RAMCHANDRAO GHATGE,
AGE: 43 YEARS, OCC: AGRIUCLTURE,
R/O: LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM.
-2-
RFA No. 1579 of 2006
2. SRI SHANKARRAO @ INDURAO
@ HINDURAO GHATAGEAGE,
AGE ABOUT 60 YEARS,
OCC: AGRIUCLTURE,
R/O: LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM - 591 102.
3. SRI SHIRDHARRAO INDURAO
@ HINDURAO GHATAGEAGE,
AGE ABOUT 57 YEARS,
OCC: AGRIUCLTURE,
R/O: LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM - 591 102.
...APPELLANTS
(BY SRI M.M. PATIL, ADVOCATE)
AND:
1. SRI MANASINGARAO,
S/O. INDURAO @ HINDURAO GHATAGEAGE,
DECEASED BY HIS LRS.
1(A) SMT. KALAWATI
W/O. KALLAPPA GANIGER,
AGE ABOUT 39 YEARS,
OCC: HOUSE HOLD WORK,
R/O. LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM - 591 102.
1(B) SMT. LALITABAI
W/O. UDAYARAO RANANNAVAR,
AGE ABOUT 42 YEARS,
OCC: HOUSE HOLD WORK,
R/O. LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM - 591 102.
2. SMT. SUBHADRABAI,
W/O. INDURAO @ HINDURAO GHAT,
SINCE DECEASED BY LRS.
2(A) SMT. SHUSHILABAI
W/O. CHANDURAO RANANNAVAR,
AGE ABOUT 41 YEARS,
OCC: HOUSE HOLD WORK,
-3-
RFA No. 1579 of 2006
R/O. LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM - 591 102.
2(B) SMT. SHARADHABAI
W/O. BABURAO BHOSALE,
AGE ABOUT 38 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SAPTAPUR, 1ST CROSS, DHARWAD.
3. SRI SUDEVARAO
S/O. MANASINGARAO GHATAGE,
SINCE DECEASED BY HIS LRS
3(i) SHANTABAI
W/O. SUDEVARAO GHATGE,
AGE: 45 YEARS,
OCC: HOUSE HOLD WORK,
R/O. LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM.
3(ii) SMT. ROOPA
W/O. RAJU GANNAVARE,
AGE: 34 YERS, OCC: HOUSE HOLD WORK,
R/O. LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM.
3(iii) PRAVEEN
S/O. SUDEVARAO GHATGE,
AGE: 31 YEARS,
OCC: HOUSE HOLD WORK,
R/O. LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM.
3(iv) PRASHANT
S/O. SUDEVARAO GHATGE,
AGE: 31 YEARS,
OCC: HOUSE HOLD WORK,
R/O. LINGADALLI, TA: BAILHONGAL,
DIST: BELGAUM.
4. SRI BABURAO S/O. BIBIJAN,
SINCE DECEASED BY HIS LRS.
4(i) SHASHIKALA
W/O. BABURAORAO GHATGE,
AGE ABOUT 51 YEARS,
-4-
RFA No. 1579 of 2006
OCC: HOUSE HOLD WORK,
R/O: LINGADALLI - 591 104.
TA: BAILHONGAL, DIST: BELGAUM.
4(ii) VASUDEV
S/O. BABURAO GHATGE,
AGE ABOUT 29 YEARS,
OCC: AGRICULTURE,
R/O: LINGADALLI - 591 104.
TA: BAILHONGAL, DIST: BELGAUM.
4(iii) VEENA
W/O. CHARAN RANNANORE,
AGE ABOUT 24 YEARS,
OCC: AGRICULTURE,
R/O: MARALWADI - 59S 121.
TA: KANAKPUR, DIST: RAMNAGAR.
4(iv) UDAYARAO
S/O. BABURAO GHATGE,
AGE ABOUT 24 YEARS,
OCC: AGRICULTURE,
R/O: LINGADALLI - 591 104.
TA: BAILHONGAL, DIST: BELGAUM.
...RESPONDENTS
(BY SRI RAVI N CHIKKARADDER, ADVOCATE FOR
R1(A), R1(B), C/R4 AND R4( i - iv);
SRI HARISH S. MAIGUR, ADVOCATE FOR R2(A AND B);
SRI CHANDRAGOUDA S. SANGANNAVAR, ADVOCATE FOR
R1(A AND B); NOTICE TO T3 (I, II, III AND IV) ARE SERVED;
APPEAL AGAINST R4 IS DISMISSED AS ABATED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGEMENT AND DECREE DATED 20.04.2006 PASSED IN
O.S.NO.29/1999 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
BAILHONGAL, DISMISSING THE SUIT FOR PARTITION AND
SEPERATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-5-
RFA No. 1579 of 2006
JUDGMENT
The plaintiff in O.S.No.29/1999 on the file of the learned Civil Judge (Sr. Dn.), Bailhongal ("the Trial Court" for short) is impugning the judgment and decree dated 20.04.2006, dismissing the suit for partition and separate possession of the plaint properties.
2. The parties are referred to as per their ranks before Trial Court for the sake of convenience.
3. Brief facts of the case are that the plaintiffs filed the suit for partition and separate possession of the properties described in the plaint. It is contended that one Indurao @ Hindurao was the propositor of the family. He died in the year 1963 leaving behind him his wife Smt.Subhadrabai (defendant No.2), and children Mansinghrao (defendant No.1), his son Sudhevrao (defendant No.3), Ramachandrarao, Shankarrao and Shridharrao (plaintiff Nos.1 to 3). The property described in the plaint R.S.No.59 sub-division 1 to 5 totally measuring 21.07 acres situated at Aravalli village.
4. It is stated that the plaint properties were held by Indurao @ Hindurao and after his death, it had devolved on the -6- RFA No. 1579 of 2006 plaintiffs and defendants. They are in joint possession and enjoyment of the same. There is no partition by metes and bounds. However, during 1980-81, the plaintiffs and defendant Nos.1 and 2 could not pull on together. The dispute amongst them was settled amicably and they started enjoying different partitions of the properties, without there being any intention to partition the same. Defendant No.1 submitted the varadhi to the Village Accountant and his name was mutated in respect of a portion of the properties. Since mutation was certified, the properties was divided amicably, again without any intention of severance by partition. Even though in the mutation there is a reference to Aapsath watni/oral partition, no such partition had taken place, there was jointness in enjoying the properties.
5. It is contended that defendant No.1 taking advantage of his capacity as eldest member in the family got issued a notice during July 1999 denying the title of the plaintiffs. The plaintiffs have issued the reply and also published a public notice in the daily news paper cautioning the public at large, not to deal with the defendants in respect of the plaint properties. However, the defendants started claiming absolute ownership over the plaint properties and asserting the right to -7- RFA No. 1579 of 2006 alienate the same. Even though the record of rights were mutated and renumbered, there was no actual measurement of the properties. There was no partition, no bifurcation or division of the properties in question. When the plaintiffs demanded defendant No.1 to effect partition by metes and bounds, he declined to do so. Therefore the cause of auction to file the suit arose in favour of the plaintiffs.
6. It is contended that defendant No.4 is not the son of defendant No.1. There was no marriage between defendant No.1 and mother of defendant No.4, who is governed by Muslim Law. However, defendant No.1 got entered the name of defendant No.4 in respect of one of the plaint properties, the same will not confer any right in favour of defendant No.4 in respect of R.S.No.59/1. Similarly defendant No.3 is also not the owner of R.S.No.59/5. Defendant No.1 is in the habit of filing false varadhi and managed to enter the names of defendant Nos.3 & 4 in the revenue records and the same are not binding on the plaintiffs. Therefore the plaintiffs prayed for partition and separate possession of the plaint properties by metes and bounds.
-8-RFA No. 1579 of 2006
7. Defendant Nos.1, 3 & 4 filed the written statement denying the contentions taken by the plaintiffs. The description of the property in the plaint is not admitted to be true and correct. It is contended that the plaintiffs suppressing the material facts filed the suit, misleading the Court by pleading falsehood.
8. It is contended that the propositor Indurao @ Hindurao is the son of Ramachandrarao Ghatage. After birth of defendant No.1 and Vijayashreerao from his wife Subhadrabai i.e., defendant No.2 went in adoption to Sri Appasaheb Ghatage, as Smt.Krishnabai @ Jijabai, the widow of Appasaheb Ghatage, adopted him on 10.05.1938. Therefore, Indurao @ Hindurao ceases to be the member of family of Ramachandrarao Ghatage from the date of his adoption. The properties that were inherited by Ramachandrarao were inherited by his two sons i.e., Mansingrao and Vijayashreerao. Accordingly their names were entered in the record of rights as per ME.No.168 dated 30.09.1938. These two sons who were born prior to the adoption cannot claim any right in the properties of Indurao @ Hindurao in his adopted family. -9- RFA No. 1579 of 2006
9. It is contended that plaintiff Nos.1 to 3 were born to Indurao @ Hindurao after his adoption and therefore they cannot claim any right to the properties which was inherited by sons of Indurao @ Hindurao born to him prior to his adoption. The plaintiffs with ulterior motive suppressed these facts to claim share in the property. After adoption Indurao @ Hindurao had nothing to do with his genitive family or the properties of the said family. The plaint property belong to defendant No.1 as he being the heir in the genitive family of Indurao @ Hindurao. The plaintiffs are not having any right over the same as Indurao @ Hindurao was not having any right over the property in question at the time of his death.
10. It is further contended that the land bearing R.S.No.59 measuring 21.07 acres situated at Aravalli village exclusively belongs to defendant No.1 and he is cultivating the same. The contention of the plaintiff that during 1980-81, the plaintiffs and defendant Nos.1 & 2 without intention to separate, started enjoying portions of Sy.59 and on the basis of the same, defendant No.1 gave varadi to mutate his name was also denied. It is stated that defendant No.1 never gave a varadi to the Village Accountant referring to the oral partition
- 10 -
RFA No. 1579 of 2006and there is no reason for respondent No.1 to give a share in Sy.No.59 of Aravalli village to the plaintiffs, which he inherited as evidenced by ME.No.223 dated 11.01.1946. Since then defendant No.1 is enjoying the said land absolutely and even mortgaged a partition of the property in favour of PLD Bank, Bailhongal. The portion which was mortgaged is shown as R.S.No.59/2 and the remaining partition as R.S.No.95/1 under ME.No.589 dated 29.05.1979 dated 04.07.1979. As per ME No.632 dated 01.09.1981 the entire loan amount was repaid and charge was cleared.
11. It is contended that the plaintiffs have manipulated the document styled as varadhi and managed to get ME.No.634 and 635 after death of defendant No.1. There was no reason for defendant No.1 to give such a varadi to the Village Accountant and the same are not genuine documents.
12. It is further contended that defendant No.1 being the sole heir in the genitive family of Indurao @ Hindurao has become absolute owner of the plaint property and plaintiffs cannot claim any right over the same.
- 11 -
RFA No. 1579 of 2006
13. The contention of the plaintiffs that defendant No.4 is not the son of defendant No.1 as he had not married the mother of defendant No.4 are all denied. It is contended that defendant No.1 after death of his first wife married defendant No.4 and living with her for a long period of time as husband and wife. Defendant No.3 is the son of defendant No.1 through his first wife and defendant No.4 is his son through second wife. Their names were entered in the record of rights on the basis of varadi given by defendant No.1. Therefore, it is contended that the plaintiffs are not having any manner of right, title or interest over the plaint properties. Accordingly prayed for dismissal of the suit with costs.
14. Defendant Nos.1(a) and 2(b) have filed the memo adopting the written statement filed by defendant Nos.1, 3 & 4.
15. On the basis of these pleadings, the following issues came to be framed.
1. Whether the plfts prove that they are in joint possession and enjoyment of the suit properties along with the defts 1 to 3?
2. Whether the description of the suit properties is correct?
- 12 -
RFA No. 1579 of 2006
3. Whether the suit is bad for non joinder of mother of the defendant No.4?
4. Whether the defts 1, 3, 4 prove that suit properties are the separate properties of defendant No.1?
5. Whether the plffs are entitled to partition and separate possession of the suit properties? if so, what is the extent of their share?
6. Whether the plffs are entitled to preliminary decree as prayed for?
7. What order or decree?
16. The plaintiffs examined PW.1 and got marked Ex.P.1 to 15 in support of their contention. Defendants examined DWs.1 to 3 and got marked Exs.D.1 to D.58 in support of their defence.
17. The Trial Court after taking into consideration of all these materials on record, answered issue No.1, 5 & 6 in the negative, Issue Nos.2 to 4 in the affirmative and accordingly the suit of the plaintiffs was dismissed.
18. Being aggrieved by the same, the plaintiffs are before this Court.
19. Heard Sri M.M.Patil, learned counsel for the appellants and Sri Ravi N.Chikkaradder learned counsel for
- 13 -
RFA No. 1579 of 2006respondent No.1(a) and 1(b) and caveat respondent No.4(i-iv) and Sri Harish S.Maigur, learned counsel for respondent No.2(a & b) and Sri Chandragouda S.Sangannavar, learned counsel for respondent No.1(a) & (b).
20. Learned counsel for the appellants contended that the relationship between the parties right from Indurao @ Hindurao is not in dispute. Indurao @ Hindurao going in adoption during 1938 as per registered adoption deed-Ex.D.16 is also not in dispute. The existence of plaint properties which were owned by Indurao @ Hindurao is also not disputed. Under such circumstances, the plaintiffs are entitled for partition and separate possession of their shares in the schedule properties by metes and bounds. The Trial Court committed an error in ignoring the contentions taken by the plaintiff and rejecting the claim on flimsy grounds. Therefore, he prayed for allowing the appeal and to decree the suit of the plaintiffs in the interest of justice.
21. Per contra, learned counsel for the respondents opposing the appeal submitted that the plaintiffs who approached the Court seeking partition and separate
- 14 -
RFA No. 1579 of 2006possession are required to prove their contention as pleaded in the plaint. The oral and documentary evidence placed before the Court are quite contrary to the pleadings and therefore, the Trial court rightly dismissed the suit by assigning reasons. There are no reason to interfere with the impugned judgment and decree passed by the Trial Court. Hence, prayed for dismissal of the appeal with costs.
22. Perused the materials including the Trial Court records. The point that would arise for my consideration is as under:
"Whether the impugned judgment and decree passed by the Trial Court calls for any interference by this Court?
23. My answer to the above point is in the negative for the following:
REASONS
24. It is the case of the plaintiffs that Sy.No.59 measuring 21.07 acres was inherited by their father Indurao @ Hindurao from the family to which he was adopted in the year 1938 under the registered adoption deed marked as Ex.D.16. Defendant No.4 is the contesting defendant after death of defendant No.1.
- 15 -
RFA No. 1579 of 2006
25. Ex.D.18 is the mutation entry ME.No.168 dated 30.09.1938 on the basis of the Vardhi given by Indurao @ Hindurao entering the names of defendant No.1 and Vijayashreerao-the minor daughter of Indurao @ Hindurao who died subsequently.
26. Defendant No.4 who is examined as DW.1 who got marked Ex.D.23, where there is reference to the oral partition dated 01.09.1981 between defendant No.1 and plaintiff Nos.1 to 3 dividing Sy.No.59 amongst themselves. Sudevarao- defendant No.3 is the son of defendant No.1. According to the plaintiffs there was no partition in the family either during the 1938 or during 1981 but there is no cross-examination to DW.1 on Ex.D.23.
27. As per the averments made in the Plaint, in the year 1981, the plaintiffs and defendant Nos.1 & 2 could not live together to be in joint possession and enjoyment of the properties and they settled the dispute amicably to enjoy the properties separately. This averment made in the Plaint assumes importance in the light of Ex.D.23., according to which there was Aapsaat watni/oral partition during 1981 and the
- 16 -
RFA No. 1579 of 2006sharers are enjoying the properties separately. This document which remained unchallenged supports the contention of the defendants. It is pertinent to note that the plaintiffs have not sought for reopening of the said oral partition on any grounds. On the other hand a simple suit for partition to allot their shares was filed without reference to Ex.D.23. There is absolutely no explanation by the plaintiffs as to why even after the oral partition effected amicably between the sharers, which resulted in giving the varadhi to the revenue officials and getting the mutation entry registered in their respective names, the plaintiffs are seeking partition once again, without seeking reopening of the earlier partition. If at all it is the contention of the plaintiffs as stated in the Plaint that even though there was only a oral arrangement between the parties and there was no oral partition as contended by the defendants and therefore they are seeking partition, there is absolutely no cross- examination on that line when defendant No.4 was examined as DW.1 and when he relied on Ex.D.23 to prove the earlier partition and separate possession of the suit schedule property.
28. It is also pertinent to note that it is the specific pleadings in the plaint that to avoid frequent confrontation and
- 17 -
RFA No. 1579 of 2006differences amongst the plaintiffs and defendant Nos.1 & 2 in enjoying the suit schedule properties, it was settled amicably to be in possession of different extent of lands in the suit schedule properties during 1981. This contention of the plaintiff fully supports Ex.D.23 relied on by defendant Nos.1 to 4. After that defendant No.1 submitted varadhi to the Village Accountant and mutation was certified. It is also stated that by the said mutation the property was divided amicably. Under such circumstances, when the plaintiff contends that there was only a family arrangement without intention of severance or partition, the burden is on the plaintiffs to prove the same. It is not the contention of the plaintiff that the partition effected under Ex.D.23 was inequitable and therefore they are seeking partition. Under such circumstances, it has to be concluded that there was already a partition between the family members as per Ex.D.23 and the plaintiffs are not entitled for any reliefs in the suit.
29. I have gone through the impugned order passed by the Trial Court. I do not find any grounds to interfere with the same. Hence, I answer the above point in the negative and proceed to pass the following:
- 18 -RFA No. 1579 of 2006
ORDER
1. The appeal is dismissed with costs.
2. The impugned judgment and decree dated 20.04.2006 passed in O.S.No.29/1999 on the file of the learned Civil Judge (Sr.Dn.), Bailhongal is hereby confirmed.
Registry is directed to send back the Trial Court records along with a copy of this judgment.
SD/-
JUDGE EM List No.: 1 Sl No.: 32