Karnataka High Court
Smt.Shankramma W/O Pampanna vs Beerappa S/O Hanumappa And Ors on 3 June, 2025
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RSA No. 7347 of 2012
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 03RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
RSA NO. 7347 OF 2012 (DEC/INJ)
BETWEEN:
SMT.SHANKRAMMA
W/O PAMPANNA
AGE: 55 YEARS, OCC:AGRICULTURE,
R/O HOSAHALLI (EJ) VILLAGE,
TQ:SINDHANUR, DIST:RAICHUR-584101.
...APPELLANT
(BY SRI.BASAVARAJ KAREDDY, ADVOCATE)
AND:
1. BEERAPPA S/O HANUMAPPA
DIED BY LRs
1A. SMT. MALLAMMA W/O BEERAPPA
AGE: 50 YEARS, OCC: AGRI,
R/O GODE KATTOR ONI,
WARD NO.9, SINDHANUR,
DIST: RAICHUR - 584128
1B. SMT. MANJULA
W/O MUDIYAPPA TAHASILDAR,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O SALGUNDA, TQ: SINDHANUR,
DIST: RAICHUR - 584101.
1C. SMT. SARASWATI
W/O TIPPANNA KUSHTAGI
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O SUKALPET,
BEHIND THE HOUSE OF SHRI. VEERUPAKSHAPPA
EX.MP, SINDHANUR, DIST: RAICHUR - 584101.
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RSA No. 7347 of 2012
2. SMT.PARWATHAMMA
W/O LINGAPPA
AGE: 55 YEARS, OCC:AGRICULTURE
R/O HOSAHALLI (EJ), NOW MUKKUNDA VILLAGE,
TQ:SINDHANUR, DIST:RAICHUR - 584101.
3. ERAPPA S/O LINGAPPA MAJER
SINCE DECEASED THROUGH HIS LRS
3(A). SMT.RATHNAMMA @ ANJANAMMA
W/O ERAPPA
AGE: 34 YEARS, OCC:HOUSEHOLD,
R/O JAWALGERA VILLAGE, TQ:SINDHANUR
DIST: RAICHUR - 584101.
3(B). KUMARI BHEEMAMMA
D/O ERAPPA
AGE: 15 YEARS,
SINCE MINOR THROUGH HER NEXT FRIEND
AND MOTHER SMT. RATHNAMMA @ ANJANAMMA
W/O ERAPPA KOUDAKI,
AGE:34 YEARS, OCC: HOUSEHOLD,
R/O JAWALGERA VILLAGE, TQ: SINDHANUR
DIST: RAICHUR - 584101.
4. SMT. AMBAMMA
D/O LATE LINGAPPA
W/O BASAVARAJ
AGE: MAJOR, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), NOW R/O CHIKKA KADABUR VILLAGE,
TQ: SINDHANUR, DIST: RAICHUR - 584101.
5. MUDUKAPPA
S/O LATE LINGAPPA
AGE: 22 YEARS, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), NOW R/O MUKKUNDA,
TQ: SINDHANUR, DIST: RAICHUR - 584101.
6. ERAPPA
S/O LATE LINGAPPA
AGE: 24 YEARS, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), NOW R/O MUKKUNDA,
TQ: SINDHANUR, DIST: RAICHUR - 584101.
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RSA No. 7347 of 2012
7. SMT. MALLAMMA
D/O LATE LINGAPPA
W/O RAJAPPA
AGE: 19 YEARS, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), NOW R/O MEDIKINAL VILLAGE
TQ:LINGASUGUR, DIST: RAICHUR - 584101
8. HANUMANTHAPPA
S/O MUDUKAPPA
AGE: MAJOR, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), TQ: SINDHANUR,
DIST: RAICHUR - 584101
9. NAGAPPA
S/O SANNA HANUMANTHAPPA
AGE: 45 YEARS, OCC: AGRICULTURE
R/O HOSAHALLI (EJ), TQ: SINDHANUR,
DIST: RAICHUR - 584101
10. SMT. KAMALAMMA
W/O HANUMANTHAPPA BUPARI
AGE: 52 YEARS, OCC: AGRICULTURE AND HOUSEHOLD,
R/O MASTHAN CAMP NEAR ANJANEYA TEMPLE,
TQ: SINDHANUR, DIST: RAICHUR - 584101.
11. BASAPPA
S/O LINGAPPA KOTNEKAL
AGE: 52 YEARS, OCC:AGRICULTURE,
R/O HANCHINAL CAMP, TQ: SINDHANUR,
DIST: RAICHUR - 584101.
12. NINGAMMA
W/O LATE LINGAPPA
AGE: MAJOR, OCC: AGRI & HOUSEHOLD,
R/O SINDHANUR, DIST: RAICHUR - 584101.
...RESPONDENTS
(BY SRI.MAHANTESH PATIL, ADVOCATE FOR R1(A) TO (C);
SRI.ARUN KUMAR AMARGUNDAPPA, ADVOCATE FOR R10;
V/O DATED: 18/01/2013 NOTICE TO R2 TO R12 D/W)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DTD: 04.10.12 PASSED BY THE PRL.
DISTRICT JUDGE AT RAICHUR IN R.A. NO. 61/11 AND ALSO
SET ASIDE THE JUDGMENT AND DECREE DATED 31.08.2010
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RSA No. 7347 of 2012
PASSED BY THE SENIOR CIVIL JUDGE & MACT AT
LINGASUGUR, IN O.S. NO.68/2009.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.02.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: HON'BLE MS JUSTICE J.M.KHAZI) In this Regular Second Appeal, defendant No.1 has challenged the judgment and decree passed by the trial Court which partly decreed the suit, as well as the judgment and decree of the First Appellate Court granting 1/3rd share to the plaintiff in all the suit schedule properties, including suit Item No.1, which is sold in favour of defendant and she has obtained a decree for specific performance in O.S.No.22/1985 and sought for execution in EP.No.113/1996.
2. For the sake of convenience, parties are referred to by their ranks before the trial Court.
3. Plaintiff filed suit, seeking partition and separate possession of 1/3rd share contending that suit schedule -5- RSA No. 7347 of 2012 properties originally belong to Mudukappa. He had three sons, Hirehanumanthappa, Lingappa and Sannahanumanthappa. He is the son of Hirehanumanthappa. Defendant Nos.2 to 8 represent the branch of Lingappa and defendant Nos.9 and 10 represent the branch of Sannahanumanthappa.
4. Initially, plaintiff filed suit in O.S.No.86/1998 before the Addl.Senior Civil Judge, Raichur, seeking partition and separate position of 1/3rd share in suit Item No.1 i.e, Sy.No.178, measuring 4 acres 26 guntas. It came to be decreed by judgment and decree dated 29.10.2005, granting the plaintiff No.1 1/3rd share in 2 acres and declaring that the judgment and decree in O.S.No.22/1985 is not binding on the share of the plaintiff.
5. Defendant No.1 challenged the same before this Court in RFA.No.215/2006. Vide judgment and order dated 27.10.2009, it was allowed and the judgment and decree of the trial Court was set aside on the ground that all the properties belonging to the joint family are not included in the suit and a direction was given to the plaintiff to include -6- RSA No. 7347 of 2012 all the properties belonging to the joint family and thereafter the trial Court shall proceeded after providing opportunity to the defendant No.1 to file additional written statement.
6. After remand, the plaintiff has included two landed properties i.e, Sy.No.190 measuring 4 acres 10 guntas and Sy.No.151, measuring 11 acres 33 guntas. She has also included 'B' schedule properties consisting of a residential house and open site described as a Rick yard.
7. It is the case of the plaintiff that suit schedule properties originally belong to Mudukappa and she is entitled for 1/3rd share. The alienation made in favour of defendant No.1 is not binding on her.
8. Defendant No.1, who is the contesting defendant has filed written statement, disputing the relationship between plaintiff and other defendants. Before the remand, she contended that the joint family is having a land in Sy.No.178 measuring 4 acre 26 guntas, 190/A measuring 1 acre 16 guntas, Sy.No.151/B measuring 3 acres 37 guntas, Sy.No.190/AA measuring 1 acre 16 -7- RSA No. 7347 of 2012 guntas. All the properties are not included in the suit and therefore suit for partial partition is not maintainable. Late Lingappa and Sanna Hanumanthappa have sold Sy.No.178 measuring 4 acres 26 guntas to her and she is in possession and enjoyment of the same. She is a bonafide purchaser of suit Item No.1 and the plaintiff was aware of it.
9. After the remand, the suit was registered as a new case in O.S.No.68/2009.
10. After the remand, in her additional written statement, defendant No.1 has specifically contended that after the remand also, all the joint family properties are not included and suit for partial partition is not maintainable and sought for dismissal of the same.
11. Defendant No.11 has filed written statement disputing the entire plaint averments. The family is having other properties which are not included and as such suit for partial partition is not maintainable. In the event of granting decree, the property purchased by her may be -8- RSA No. 7347 of 2012 allotted to the share of defendant Nos.9 and 10 as he is a bona fide purchaser.
12. Based on the pleadings, the trial Court framed issues.
13. Evidence is led wherein including plaintiff No.1, 3 witnesses are examined for the plaintiff and Exs.P1 to 15 are marked.
14. Defendant No.1 has examined herself as DW-1 and the attesting witness to the sale agreement is examined as DW-2 are examined. No documents are marked on behalf of defendants.
15. The trial Court allowed the suit granting 1/3rd share to the plaintiff in all the suit properties except ItemNo.1.
16. Plaintiff challenged the same in RA.No.61/2011. Vide the impugned judgment and decree, the First Appellate Court decreed the suit in entirety, granting 1/3rd share to the plaintiff in all the suit schedule properties.
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17. Aggrieved by the same, defendant No.1 is before this Court contending that the judgment and decree of the First Appellate Court is illegal, arbitrary, contrary to law and records, besides being opposed to principles of natural justice. The First Appellate Court has not given any justifiable reasons for upsetting the judgment and decree passed by the trial Court. It has failed to appreciate that defendant No.1 is a bonafide purchaser for valuable consideration and that Civil Court has granted decree in her favour. Therefore, the property purchased by defendant No.1is not available for partition.
18. Vide order dated 04.12.2012,, the appeal is admitted on the following substantial questions of law:
i) Whether the Courts below are justified in decreeing the suit ignoring the direction of this Court in RFA.No.215/2006 that all the joint family properties should be included in hotchpot?
ii) Whether the Courts below are justified in not observing anything with regard to equitable partition relating to suit property inasmuch as the decree is in favour of the appellant in O.S.No.22/1985?
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RSA No. 7347 of 2012
19. Heard elaborate arguments of both sides and perused the record.
20. Even though the contesting defendants have disputed the relationship between plaintiff and other defendants, the evidence lead by the party, establish the fact that plaintiff represent the branch of Hirehanumanthappa, one of the sons of Mudukappa. It is also proved that suit properties are the ancestral and joint family properties of plaintiff and defendant Nos.2 to 10.
21. As noted earlier, initially suit was filed only in respect of Sy.No.178 measuring 4 acre 26 guntas. In her written statement, defendant No.1 specifically pleaded that the joint family of plaintiffs and defendant Nos.2 to 10 having properties Sy.No.190/A measuring 1 acre 16 guntas, Sy.No.178 measuring 4 acres 26 guntas, Sy.No.151/B measuring 3 acres 37 guntas, Sy.No.190/A measuring 1 acre 16 guntas, Sy.No.190/AA measuring 1 acre 16 guntas of Hosalli village.
22. After the remand, the plaintiff has included land Sy.No.190 measuring 4 acres 10 guntas and
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RSA No. 7347 of 2012Sy.No.151 measuring 1 acre 16 guntas of Hosalli as Item Nos.2 and 3 to A schedule. Plaintiff has added 'B' schedule consisting of a house property and a open site described as Rick yard.
23. However, plaintiff has not included the other properties referred to in the written statement. In fact, in the additional written statement, the defendant No.11 has reiterated that Sy.No.97 measuring 5 acre 28 guntas of Mukunda village, Sy.No.11 measuring 1 acre 10 guntas of Aralahalli (D) village, Sy.No.101/C measuring 3 acres 1 gunta of Sasalamari village, including 1 acre, 21 guntas sold by defendant No.9 and Lingappa in favour of one Venkata Narayana and remaining extent measuring 1 acre 21 guntas sold by plaintiff No.2 through registered sale dated 21.08.1995, in favour of one Pilli Srinivasa are not included in the suit. Defendant No.1 has alleged that intentionally the plaintiff colluding with other defendants have not included the other properties to the suit.
24. It is pertinent to note that plaintiff have not disputed the averments of written statement and additional
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RSA No. 7347 of 2012written statement that the joint family processing other properties as detailed in the written statement. After the remand, though some of the properties are included, the remaining properties are not included. Despite specific direction given by this Court, while remanding the case to the trial Court to include all the properties belonging to the joint family and seek partition in them also, so that in the event of the Courts come to the conclusion that plaintiffs are entitled for 1/3rd share in the joint family properties, then it would be convenient to work out equity by allotting the alienated property to the share of sellers and the remaining properties could be allotted to the share of plaintiff and others. Not only the plaintiff have failed to comply with the directions given by this Court while remanding the case, but also the trial Court as well as the First Appellate Court have ignored the said direction and there is no justification for them to do so. Similarly, very conveniently the trial Court as well as the First Appellate Court have failed to make any observation with regard to
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RSA No. 7347 of 2012equitable partition of suit schedule property and also reference to the judgment and decree in O.S.No.22/1985.
25. When the plaintiffs are not ready to avail the opportunity given to them to cure the defect and proceed with the matter, this Court is not left with any other alternative, but to dismiss the suit by setting aside judgment and decree of the trial Court as well as the First Appellate Court and the substantial questions of law are answered in the Negative and accordingly, the following:
ORDER
(i) Appeal filed by the appellant/defendant No.1 under Section 100 of CPC is hereby allowed.
(ii) The impugned judgment and decree dated 04.10.2012 in R.A.No.61/2011 on the file of Prl.District Judge, Raichur and judgment and decree dated 31.08.2010 in O.S.No.68/2009 on the file of Senior Civil Judge & MACT, Lingasugur are set aside.
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RSA No. 7347 of 2012
(iii) Consequently, suit filed by the plaintiff is dismissed with cost throughout.
(iv) The Registry is directed to send back the trial Court as well as the First Appellate Court records along with copy of this judgment forthwith.
Sd/-
(J.M.KHAZI) JUDGE RR