Karnataka High Court
Siddappa @ Siddanna And Ors vs Rukmabai Widow Of Sangappa Desai And Ors on 7 March, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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RFA No. 6037 of 2012
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 7TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.6037 OF 2012 (PAR/POS)
BETWEEN:
1. SIDDAPPA @ SIDDANNA
S/O MALLAPPA DESAI,
AGED ABOUT 55 YEARS
OCC: AGRICULTURE,
R/O JAINAPAUR, TQ. BIJAPUR,
DIST. BIJAPUR-586 101
2. SMT KASHIBAI
W/O PRAKASH SONAWALKAR
AGED ABOUT 47 YEARS
OCC: HOUSEHOLD WORK
AND AGRICULTURE
Digitally R/O MUDALAGI, TQ GOKAK,
signed by
SWETA DIST. BELGAUM-590 002
KULKARNI
Location: 3. RAMESH S/O MALLAPPA DESAI
High Court
of AGE: 39 YEARS, OCC: AGRICULTURE
Karnataka
R/O JAINAPUR, TQ. & DIST. BIJAPUR-586 101
...APPELLANTS
(BY SRI. AMEET KUMAR DESHPANDE, SENIOR COUNSEL
FOR SRI GANES SUBHASHCHANDRA KALBURGI, ADVOCATE)
AND:
1. RUKMABAI WIDOW OF SANGAPPA DESAI
AGE: 75 YEARS, OCC: AGRICULTURE
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RFA No. 6037 of 2012
ASHOK S/O SANGAPPA DESAI
SINCE DECEASED BY HIS LRS
2. SHARADA W/O ASHOK DESAI
AGED ABOUT 47 YEARS,
OCC: HOUSEHOLD WORK
3. SANGANNA S/O ASHOK DESAI
AGE: 16 YEARS, OCC: STUDENT
SINCE MINOR REP. THROUGH HIS
GUARDIAN NATURAL MOTHER
SHARADA W/O ASHOK DESAI
RESPONDENT NO.2
4. SHRIDHAR S/O ASHOK DESAI
AGE: 14 YEARS, OCC: STUDENT
SINCE MINOR REP. THROUGH HIS GUARDIAN
NATURAL MOTHER SHARADA W/O ASHOK DESAI
RESPONDENT NO.2
5. RAVI S/O SANGAPPA DESAI
AGE: 42 YEARS, OCC: AGRICULTURE
6. SARUBAI W/O RAMACHANDRAPPA NAIK
AGE: 49 YEARS, OCC: AGRICULTURE
7. AKKUBAI W/O RAMAPPA BATAKURKI
AGED: MAJOR, OCC: HOUSEHOLD WORK
R/O BIJAPUR-586 101
8. CHANDRAKANT S/O MALLAPPA DESAI SINCE
DECEASED BY LRS
8.1) RAJENDRA S/O CHANDRAKANT DESAI
AGED: 34 YEARS
8.2) ANIL S/O CHANDRAKANT DESAI
AGED: 32 YEARS
8.3) ASHWIN KUMAR S/O CHANDRAKANT DESAI
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RFA No. 6037 of 2012
AGED: 30 YEARS
8.4) KAMALABAI W/O CHANDRAKANTH DESAI
AGED: 60 YEARS,
R1 TO R8 ARE R/O JAINAPUR, TQ.DIST. VIJAYAPURA
9. GANGABAI W/O RANGANAGOUDA PATIL
AGED: 72 YEARS, OCC: AGRICULTURE
R/O GUTTIGOLI (HOSAKOTI)
R/O RAMADURG, DIST BELGAUM
10. RUKMABAI W/O TAMMANNA NAIK
AGED: 71 YEARS, OCC: AGRICULTURE
R/O AMBALAZARI, TQ. BILAGI, DIST. BAGALKOT-587 101
11. SHANTABAI W/O RANGAPPA BENAKATTI
SINCE DECEASED BY HER LRS;
RESPONDENT NO.12 IS ALREADY ON RECORD
11.1) VISHWANATHA S/O RANGAPPA BENAKATTI
AGED: 50 YEARS, OCC: AGRICULTURE
11.2) SHASHIKANTH S/O RANGAPPA BENAKATTI
AGED: 45 YEARS, OCC: TEACHER
ALL R/O ARAKERI, NOW RESIDING AT
OPP. NEW COURT, BAGALKOT ROAD
BIJAPUR
11.3) AKKUBAI W/O VENKANNA VANTAGUDI
AGE: 40 YEARS, OCC: HOUSEHOLD WORK
R/O SAVADATTI, NEAR BUS STAND
DIST. BELGAUM
12. RANGAPPA S/O VENKAPPA BENAKATTI
AGE: 72 YEARS, OCC: AGRICULTURE
R/O VAJRAHANUMANAGAR,
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RFA No. 6037 of 2012
BAGALKOT RAOD, BIJAPUR
13. THE SPECIAL LAND ACQUISITION OFFICER
ALMATTI
14. KARNATAKA STATE BY
DEPUTY COMMISSIONER
BIJAPUR
15. THE ASSISTANT COMMISSIONER
BIJAPUR
...RESPONDENTS
(BY SRI D.P. AMBEKAR, ADVOCATE FOR R8(A) TO (D);
SRI VEERANAGOUDA M. BIRADAR, AGA FOR R13 TO R15;
R1 TO R3, R5 TO R7, R9, R12 & R11(1) TO R11(4) ARE
SERVED;
NOTICE TO R10 HELD SUFFICIENT; R4 IS MINOR)
THIS RFA IS FILED U/S 96 OF CPC, PRAYING TO ALLOW
THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 30.08.2012 PASSED IN O.S. NO.81/2005 ON THE FILE
OF THE LEARNED II ADDL. SENIOR CIVIL JUDGE, BIJAPUR
AND TO GRANT ANY OTHER APPROPRIATE RELIEF, IN THE
INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY S. SUNIL DUTT YADAV J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellants are plaintiffs before the trial court and have assailed the judgment and decree in O.S.No.81/2005 whereby the suit filed seeking for decree awarding -5- RFA No. 6037 of 2012 partition and separate possession of plaintiffs' half share in the suit schedule properties by metes and bounds came to be dismissed.
2. Parties are referred to as per their rank before the trial court for the purpose of convenience.
3. The common propositus of the parties was one Mallappa Veerabhadrappa who had two wives namely, Akkubai and Tarabai. The plaintiffs Siddappa @ Siddanna, Kashibai and Ramesh are stated to be the children from the second wife Tarabai, whereas the defendant Nos.1 to 5 are the children of Sangappa, defendant Nos.6 to 9 are the children through Akkubai, the first wife of Mallappa Veerabhadrappa. The defendant No.10 - Rangappa is stated to be the tenant who had obtained occupancy rights in the proceedings before the Tribunal. Defendant Nos.11, 12 and 13 are the Special Land Acquisition Officer, Deputy Commissioner and Assistant Commissioner respectively and are formal parties.
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4. It is the case of the plaintiffs that RS Sy.No.61/1 measuring 13 acres 15 guntas and Sy.No.61/2 measuring 13 acres 04 guntas situated at Lingadalli village are the joint family properties and that though the said properties were the subject matter of tenancy proceedings before the Land Tribunal and occupancy right was granted to the 10th defendant - Rangappa, there was an agreement whereby the said Rangappa would re-convey the properties in which tenancy rights were granted back to the joint family. Accordingly, it is submitted that the plaintiffs have rights in the scheduled properties. It further comes out from the record that the mutation entry with respect to the suit schedule properties came to be effected on 25.05.1996 in the name of Chandrakant by way of vatni by the wife of Rangappa. It is submitted that this was preceded by transfer of rights in the suit schedule properties in Sy.No.61/1 and 61/2 by Rangappa in favour of his wife Smt. Shantabai by way of vatni and accordingly it is submitted that rights in respect of the properties in -7- RFA No. 6037 of 2012 Sy.Nos.61/1 and 61/2 have flowed to Chandrakant, the 6th defendant.
5. Defendant No.6 had filed written statement contending that there was a partition by the father of plaintiff No.3 and defendant No.6. It is further submitted that the partition was limited only to the agricultural properties of the family and the residential properties at Bijapur were not partitioned and denied further the suggestion regarding family arrangement. The further case put up by the plaintiffs regarding the oral agreement with the defendant No.10 was specifically denied. Defendant No.6 further asserts that in terms of mutation entry in M.E.No.1471 there was transfer of rights from defendant No.10 to defendant No.9 by way of partition. It is further submitted that by virtue of Mutation Entry No.1472, the defendant No.9 had transferred rights in these lands i.e., suit scheduled properties to the defendant No.6. It was further contended that defendant No.10 was granted exclusive occupancy rights in terms of the -8- RFA No. 6037 of 2012 proceedings under the Land Reforms Act and rights have flowed from defendant No.10 eventually to defendant No.6 as reflected in the Mutation Entry Nos.1471 and 1472.
6. It is contended that plaintiffs have no locus standi to challenge the entries. It is further asserted in the written statement that rights have also flowed to the defendant No.6 - Chandrakant by virtue of a compromise entered into in O.S.No.302/2001.
7. The trial court has framed the issues which hereunder:
1. Whether plaintiffs proves that the suit properties are joint family properties?
2. Whether plaintiffs further proves that in order to save the suit properties from the clutches of Land Reforms Act got entered the name of defendant No.10 Rangappa to the suit properties?
3. Whether plaintiffs further proves that Mallappa effects partial partition in respect of CTS No.1392/1 and CTS -9- RFA No. 6037 of 2012 No.1392/2 and thus plaintiff become absolute owner of these CTS properties?
4. Whether plaintiffs further proves that in OS No.188/1997 in compromise decree admitted the transfer of suit properties in favour of defendant No.6 is legal one and enumerates to all legal heirs of Mallappa?
5. Whether plaintiff is entitled to 1/2 share in the suit properties?
6. Whether plaintiff further proves they are in joint possession of suit properties along with defendants?
7. Whether defendant No.6 proves that the Land Tribunal granted occupancy rights exclusively in favour of defendant No.10?
8. Whether defendant No.6 proves that he is entitled to receive the compensation amount in respect of suit properties?
9. What decree or order?
8. The trial court has recorded a finding as regards issue No.1 in the affirmative holding that the suit
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RFA No. 6037 of 2012properties are joint family properties whereas finding on issue No.2 was in the negative, insofar as the assertion of the plaintiffs that properties were entered into the name of defendant No.10 - Rangappa to save the suit properties from the clutches of Land Reforms Act. The finding on issue Nos.4 to 6 are in the negative and issue Nos.7 and 8 are in the affirmative. Finally the trial court proceeds to dismiss the suit.
9. It must be noted that the trial court though has recorded a finding in the affirmative as regards to issue No.1 eventually the trial court has dismissed the suit. It is the contention of counsel for the respondents that he is entitled to assail the finding on the said issue when there was no occasion to challenge such finding as the suit came to be dismissed and relies on the provision of Order XLI Rule 22 of CPC.
10. The trial court has recorded a finding in the affirmative as regards issue No.1 holding that the properties are ancestral properties while disbelieving the
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RFA No. 6037 of 2012assertion of the plaintiffs that there was an agreement whereby Rangappa would re-convey the properties back to the family on the ground that there is no evidence to prove the said agreement. The trial court refers to the mutation entries at M.E.Nos.1471 and 1472 whereby rights have flowed to Chandrakant. The trial court has specifically held that there is no proof regarding the agreement of re-conveyance as put up by the plaintiffs. The trial court has also taken note of the compromise entered into in O.S.No.302/2001 whereby rights have been confirmed on Chandrakant. The trial court further holds that even if it is to be held that there was an agreement of re-transfer, the said agreement could not be relied upon as the same is against the provisions of the Karnataka Lands Reforms Act. The trial court then refers to the evidence of P.W.1 and specifically in the cross- examination wherein P.W.1 has admitted that in Form No.11, there is a reference that the two properties have fallen to the share of Chandrakant and such suggestion made during cross-examination has been accepted and
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RFA No. 6037 of 2012acceded to by the plaintiffs. There is further admission of P.W.1 i.e., noticed by the trial court to the effect that P.W.1 has admitted in the cross-examination that Shantabai has given up rights with respect to two properties as recorded in the Mutation Entry No.1472. Accordingly, the trial court while relying on such admission records a finding that before filing Form No.7 by defendant No.10, these properties were allotted to the share of defendant No.6. The said judgment and decree has been assailed before this court and it is the contention of the plaintiffs that there was collusive transactions between defendant No.6 and Rangappa and that the compromise that was entered into was only between family members of Rangappa to which the plaintiffs were not a party and accordingly the compromise was not binding upon them.
11. Heard both sides and perused the entire records.
12. To decide the appeal, the following points that would arise for our consideration:
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1. Whether the finding on issue No.1 requires to be set aside while upholding the decree of dismissal?
2. Whether the judgment of the trial court requires to be affirmed?
13. POINT NOS.1 & 2: Both the points are taken up together as the same are inter connected.
14. It must be noted that in terms of Ex.P.5 Mutation Entry No.1471 was accepted on 25.05.1996 whereby by virtue of vatni the rights in respect of properties in Sy.Nos.61/1 measuring 13 acres 15 guntas and Sy.No.61/2 measuring 13 acres 04 guntas were given in favour of Shantabai W/o Rangappa. On 29.05.1996 subsequently there is another mutation entry i.e., part of Ex.P.5 whereby in terms of the mutation entry of 1472 rights were given upon by Shantabai in favour of Chandrakant. Insofar as such mutation entry effected in the year 1996, it must be noticed that there was no
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RFA No. 6037 of 2012challenge to the same. As the mutation entries are public records it is deemed that the same is deemed to have come to the notice of the plaintiffs who have kept quite and but have filed a suit only in the year 2005 without having challenged the said entries before the appropriate Forum. It is to be noted that subsequently there was compromise decree entered into in O.S.No.302/2001. The said compromise was entered into between family members of defendant Nos.10 and 6 and in terms of the said compromise, rights in the scheduled properties came to be conferred on defendant No.6. This compromise decree entered into in O.S.No.302/2001 remains unchallenged and the plaintiffs even though were not parties to the said compromise decree have not challenged it. It is to be noticed that the revenue entries in terms of Exs.P.1 and 2 which are the record of rights for the year 2010-2011 have been entered into on the basis of the compromise.
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RFA No. 6037 of 2012
15. It must be noticed that the specific assertion of the plaintiffs regarding agreement of re-conveyance by Rangappa to the benefit of family by virtue of which it is contended that rights conferred on Rangappa were to be eventually transferred to the joint family is not supported by any legally acceptable evidence and accordingly the finding of the trial court regarding on issue No.2 requires to be accepted. Insofar as the finding on issue No.1 is concerned, the contention of counsel for the respondents is that in terms of Order XLI Rule 22 of CPC finding could be assailed in the present proceedings which also requires to be accepted as settled position of law. It is to be noticed that in light of the suit having been dismissed, the question of defendant No.6 challenging the finding on issue No.1 never arose. However, insofar as such finding is concerned, learned counsel for the defendant No.6 has advanced arguments. Insofar as the finding on issue No.1, it must be noted that the trial court erred in coming to the conclusion that the properties are joint family properties, in fact the trial court takes note of the entries
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RFA No. 6037 of 2012at Ex.P.5 relating to the Mutation Entry Nos.1471 and 1472 which are in the year 1996. Once that were to be so, the question of treating the properties as ancestral properties would not arise as the revenue entries were admittedly in the name of Chandrakant much before filing of the suit. The trial court though in the judgment has referred to the effect of the compromise decree and once the same is taken note of while deciding issue No.1, trial court could not have arrived at a conclusion that the properties were ancestral since even in terms of the compromise, the rights had flowed in favour of Chandrakant and such compromise decree had not been challenged seeking declaration that the same was not binding on the shares of the plaintiffs. No doubt, the plaintiffs are not parties to O.S.No.302/2001. However, once a compromise decree has been passed and has been acted and revenue records have also entered based on compromise decree, it was necessary for the plaintiffs to challenge the validity of the compromise decree. It must also be noticed that it is not as if compromise has been
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RFA No. 6037 of 2012entered into and rights were conferred on Chandrakant for the first time. In fact, as per the entries in Ex.P.5 in terms of the Mutation Entry No.1472 rights have been conferred in the year 1996 itself on Chandrakant and such revenue entry also remains unchallenged.
16. The argument that the rights have been conferred without any basis on Chandrakant cannot be accepted nor can be interfered with in the absence of any proof of the agreement of re-conveyance as put up by the plaintiffs. Accordingly, the finding on issue No.1 is set aside and is answered in the negative.
17. Accordingly, we affirm the findings of the trial court and no ground is made out for interference with such finding and accordingly we affirm the judgment of the trial court.
18. Respondent No.8(i) & (iii) have filed application seeking to bring on record the certified copies of plaint in O.S.No.185/2001, the judgment dated 12.06.2007 in O.S.No.185/2001 and judgment in R.A.No.118/2007 dated
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RFA No. 6037 of 201228.06.2016. Learned counsel for the respondents would submit that in O.S.No.185/2001, the present defendant Nos.7 and 8 were plaintiffs and the plaintiffs in the present suits were defendant Nos.5 to 7 in the said suit. It is further submitted that defendant No.6 was defendant No.4 in O.S.No.185/2002 and in the said suit which came to be disposed of on 12.06.2007 which was decided earlier to the present suit. There is finding on issue No.1 as regards nature of properties and the court has held in the Affirmative.
19. It is submitted that the issue that was framed in O.S.No.185/2001 was "Whether the suit properties are joint Hindu undivided family properties and plaintiff and defendant Nos.1 to 8?". It is submitted as regards such issue, the court has referred to all facts and arrived at a conclusion that it was not joint family properties after noticing the compromise decree in O.S.No.302/2001. It is further submitted that the suit schedule properties are the same as is evident from the records and is not in dispute
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RFA No. 6037 of 2012and this judgment and decree came to be affirmed in R.A.No.118/2007 disposed of on 28.06.2016 during the pendency of the present appeal and accordingly the finding on issue relating to the entry of the properties having attained finality the same would have to be accepted and cannot be differed with as the judgment in O.S.No.185/2001 has attained finality and if that were to be so and the properties are held not to be joint family properties but properties belonging to the Chandrakant, the present partition suit would also be liable to be dismissed.
20. However, learned counsel for the appellants submit that the documents sought to be produced by the defendant No.6 need not to be looked into as no case is made out for not having produced such of the documents including the copies of the judgment before the trial court despite exercise of due diligence.
21. After having heard both sides insofar I.A.No.1/2019 filed under Order XLI Rule 27 of CPC, this
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RFA No. 6037 of 2012court is of the opinion that the matter could be disposed of without adverting to the documents sought to be produced by way of I.A.No.1/2019. If that were to be so and the appeal could be disposed of on the findings made in the judgment of the trial court and material on record, question of entertaining application under Order XLI Rule 27 of CPC and looking into the additional documents would be a futile exercise and accordingly I.A.No.1/2019 is rejected.
In the light of the dismissal of the appeal, the interim order passed stand discharged.
Sd/-
JUDGE Sd/-
JUDGE BL List No.: 1 Sl No.: 45