Karnataka High Court
Madivalappa vs Neelavva Hanumanthappa Pujar on 14 June, 2023
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RFA No. 100225 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100225 OF 2014
BETWEEN:
1. MADIVALAPPA,
S/O. RAMAPPA GANJIGATTI,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: GOKUL, HUBLI.
2. CHANNAVVA,
W/O. KAREPPA GANJIGATTI,
AGE: 62 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOKUL, HUBLI.
3. YALLVVA,
W/O. KAREPPA GANJIGATTI,
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK
Digitally signed
by R/O: GOKUL, HUBLI.
MOHANKUMAR
B SHELAR
Date:
2023.07.14 4. MANJAVVA,
15:28:14 +0530
W/O. GANGAPPA INDUR,
AGE: 30 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BASAVANNA DEVAR GUDI ONI,
GOKUL, HUBLI.
5. RAMVVA,
W/O. SHIVANAND PUJAR,
AGE: 27 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NEAR HANAMANTHA DEVAR TEMPLE,
NAGASHETTIKOPPA, HUBLI.
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RFA No. 100225 of 2014
6. SUMANGALA,
D/O. KAREPPA GANJIGATTI,
AGE: 25 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOKUL, HUBLI.
7. SHIVAPPA,
S/O. KAREPPA GANJIGATTI,
AGE: 25 YEARS,
OCC: AGRICULTURE,
R/O: GOKUL, HUBLI.
8. NAGINI,
D/O. KAREPPA GANJIGATTI,
AGE: 26 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOKUL, HUBLI.
9. SMT. FAKIRAVVA,
W/O. MADIVALAPPA GANJIGATTI,
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BALI TOTA, KUNDAGOL,
DIST: DHARWAD.
10. SMT. RENUKA,
W/O. ANJANEYA KILLEDAR,
AGE: 42 YEARS,
OCC: HOUSEHOLD WORK,
R/O: TALAWAI,
TQ AND DIST: DHARWAD.
11. SHAKUNTALA,
D/O. DEVANANDA SHADAMBI,
AGE: 11 YEARS, OCC: STUDENT,
R/O: JADAR ONI, GOKUL, HUBBALLI,
DIST: DHARWAD.
SINCE MINOR REPRESENTED BY
APPELLANT NO.3 SMT. YALLAVVA,
W/O. KAREPPA GANJIGATTI AS M/G.
...APPELLANTS
(BY SRI. LAXMAN T.MANTAGANI, ADV. FOR SRI. S.C.JAINAR AND
SRI. NAGARAJ J. APPANNAVAR, ADVOCATES)
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RFA No. 100225 of 2014
AND:
1. NEELAVVA,
W/O. HANUMANTHAPPA PUJAR,
AGE: 62 YEARS,
OCC: HOUSEHOLD WORK,
R/O: PUJAR ONI, GOKUL, HUBLI.
2. BHIMAVVA,
W/O. RAMAPPA GULLANAVAR,
AGE: 65 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NANDAGOKUL, HUBLI.
3. SMT. YALLAVVA,
W/O. HANAMANTHAPPA SUNAGAR,
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KATTI ONI,
NEAR SUNNAD BATTI,
DHARWAD.
4. HANAMAVVA
W/O. PARASHAPPA HUCHAPPANAVAR,
BY HER LRs.,
4(A). NAGAPPA,
S/O. PARASHAPPA HUCHAPPANAVAR,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: DEVIKOPPA, TQ: KALAGHATAGI,
DIST: DHARWAD.
4(B). PARASHURAM,
S/O. PARASHAPPA HUCHAPPANAVAR,
AGE:59 YEARS, OCC: AGRICULTURE,
R/O: DEVIKOPPA, TQ: KALAGHATAGI,
DIST: DHARWAD.
4(C). SHIVAPPA,
S/O. PARASHAPPA HUCHAPPANAVAR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: DEVIKOPPA, TQ: KALAGHATAGI,
DIST: DHARWAD.
4(D). HANUMANTHAPPA,
S/O. PARASHAPPA HUCHAPPANAVAR,
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RFA No. 100225 of 2014
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: DEVIKOPPA, TQ: KALAGHATAGI,
DIST: DHARWAD.
5. PARAVVA, W/O. SHIVAPPA BYAHATTI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: SULLA, TQ: HUBLI, DIST: DHARWAD.
6. BASAVVA SOMAPPA BARKER,
AGE: 44 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BASAPUR, TQ: SHIRAGUPPI,
TQ: NAVALGUND, DIST: DHARWAD.
7. FAKKIRAVVA BHARAMAPPA BARKER,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: SHIRAGUPPI, TQ: HUBLI.
8. SAROJAVVA DEVAPPA SHADAMBI @ BARI,
SINCE DECEASED BY HER LRs.,
8(A). SHAKUNTALA D/O. DEVANANDA SHADAMBI,
AGE: 11 YEARS, OCC: STUDENT,
R/O: JADAR ONI, GOKUL, HUBBALLI,
DIST: DHARWAD.
SINCE MINOR REPRESENTE BY
APPELLANT NO.3 SMT. YALLAVVA,
W/O. KAREPPA GANJIGATTI,
NOTE: AS PER COURT ORDER DATED: 27.09.2021,
RESPONDENT NO. 8(A) TRANSPOSED
AS APPELLANT NO.11
9. BASAVVA SOMAPPA BADDAPUR,
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O: SASAPUR, NAVALGUND, DIST: DHARWAD.
...RESPONDENTS
(BY SRI.K.L.PATIL, ADV. FOR R1 AND R2;
NOTICE TO R3, R5, R8(A) SERVED AND UNREPRESENTED;
R4(A-D) AND R6 TO R9 HELD SUFFICIENT)
THIS RFA IS FILED U/O.41 RULE 1 R/W SEC.96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED: 23.09.2014, PASSED
IN O.S.NO.281/2007, ON THE FILE OF I ADDITIONAL SENIOR CIVIL
JUDGE, HUBLI, PARTLY DECREEING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.
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RFA No. 100225 of 2014
THIS RFA COMING ON FOR HEARING, THIS DAY, ASHOK S.
KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants challenging the judgment and order dated 23.09.2014 passed in O.S.No.281/2007 by the I Additional Senior Civil Judge, Hubballi.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial court.
3. Appellants are defendant Nos.1 to 15. Respondent Nos.1 and 2 are the plaintiffs, respondent Nos.3 to 9 are the defendants. Plaintiffs filed the suit for partition and separate possession alleging that suit schedule 'A' and 'B' properties are ancestral joint family properties of plaintiffs and defendants. It is the case of the plaintiffs that father of the plaintiff and defendant Nos.9 and 10 have died very long back, after their death defendants have got mutated their names illegally in collusion with the revenue authorities. Defendant Nos.1 to -6- RFA No. 100225 of 2014 8 are trying to alienate the suit schedule properties to defeat the right of the plaintiffs. After coming to know the said fact, plaintiffs have requested defendant Nos.1 to 8 to effect partition. Defendants did not heed to the request made by the plaintiffs. Hence, cause of action arose for the plaintiffs to file the suit for partition and separate possession.
4. Defendant No.1 filed written statement denying the allegations made against him in the plaint and further contended that suit filed by the plaintiffs is not maintainable. It is contended that one Ramappa was the propositus of the family who had two male sons and five daughters by name, Hanumavva, Gangavva, Yallavva, Neelavva and Bhimavva and Gangavva died after the death of Ramappa, who died leaving behind Mahadevappa, Sahadevappa, Paravva, Channavva, Savakka, Basavva and Fakkiravva. The son of Ramappa by name Kariyapa died leaving behind his legal heirs by name Channavva, Yallavva, Manjavva, Ramavva, Sumangala, Shivappa, -7- RFA No. 100225 of 2014 Nagini, Hanamantappa, Sarojavva and Renuka. Hence, the schedule furnished by the plaintiffs is not correct.
5. It is contended that during the life time Ramappa partition was effected in the year 1988 between the defendant No.1 and deceased Kariyappa by way of afsat vatni and defendant No.1 had got his share in the suit schedule property and he is in possession over the said property on 10.09.1991 Kariyappa died leaving behind defendant Nos.2 to 8 and Hanamantappa, Renuka and Saroja as legal heirs. Hence, the defendants became the absolute owners and in possession of the properties of deceased Kariyappa and by virtue of said afsat vatni the name of the parties were entered in the revenue record and plaintiff No.1 was married about 40 years back and plaintiff No.2 married about 42 years back. Plaintiff Nos.9 and 10 have no right title over the suit schedule property. It is contended that Ramappa had spent a huge amount in the marriage of his daughters and he had developed a relationship with a rich family and prior to that he had -8- RFA No. 100225 of 2014 effected a partition in between his male children. Hence, prays to dismiss the suit.
6. Defendant Nos.2 to 7 filed a memo adopting the written statement filed by defendant No.1. Defendant No.1 also filed a additional written statement contending that, description of item No.5 of A-Schedule property is not correct. It is contended that deceased Kariyappa sued Sy. No.21 in favor of one Anant Shivaji Desai under registered sale deed and the children of deceased Kariyappa are the owners of in respect of Sy. No.55/1 measuring 3 acre 5 guntas and prays to dismiss the suit.
7. Defendant No.10(e) filed a written statement retreating the averments of the written statement filed by defendant No.1 and prays to dismiss the suit.
8. The trial Court on the basis of the pleadings of the parties framed the following issues and additional issues:
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1. Whether plaintiffs prove that suit properties are ancestral joint family properties and they are in joint possession and enjoyment of the properties ?
2. Whether the suit is hit under Order 7 Rule 14 CPC?
3. Whether the suit properties are property valued ?
4. Whether court fee paid is proper one ?
5. Whether suit suffers from non-joinder of necessary parties ?
6. Whether defendants prove that huge expenses were made for the marriages of plaintiffs in lieu of their share ?
7. Whether suit is barred by time ?
8. Whether defendants are entitled for compensatory cost of Rs.10,000 ?
9. Whether defendant No.10 is entitled for share in the property ?
10. What order or decree ?
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RFA No. 100225 of 2014ADDITIONAL ISSUES
1. Whether defendant no.1 proves that the description showed by the plaintiff in respect of survey no.725 part 3 acres 5 gunta is correct ?
2. Whether defendant No.1 proves that defendant No.2 to 8 and Hanmantappa, Saroja and Renuka are exclusively owners and possessors of suit schedule property as such not available for partition ?
3. Whether defendant No.1 proves that plaintiff is liable to pay court fee in respect of survey no,725/1 extent 3-acres 5 guntas on market value of the property U/Sec. 35(10 of court fee and suit valuation ACT as such court fee paid is not proper ?
9. The plaintiffs in order to substantiate their case, plaintiff No.1 was examined as PW.1 and got marked documents at Ex.P.1. to Ex.P.7. The defendants in support of their case, examined defendant No.1 as DW.1 and examined 4 witnesses as DW.2 to 5 and got marked Ex.D.1 to Ex.D.13. The trial Court after recording the evidence and considering the oral and documentary
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RFA No. 100225 of 2014evidence answered issue No.1 in the affirmative, issue No.2 in the negative, issue Nos.6 to 8 in the negative, issue No.9 in the affirmative, additional issue Nos.1 to 3 in the negative, consequently decreed the suit of the plaintiff. It is ordered and decreed that the plaintiff Nos.1 and 2 are having 1/7th share each in the suit schedule properties and defendant No.10(e) is having 1/6th share in 1/7th share of deceased Hanamavva by meets and bounds. The defendant Nos.1 to 8, 10(e) and 15 aggrieved by the judgment and decree preliminary decree passed by the trial Court, filed this appeal.
10. Heard the learned counsel for the defendant/ appellant and also learned counsel for the plaintiffs. Leaned counsel for the defendants submits that the suit schedule properties are the self acquired property of deceased Ramappa during his life he has effected a partition in between his male children and in pursuant to the partition the names of sons of Ramappa is appearing in the revenue record and he submits that he has
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RFA No. 100225 of 2014produced a mutation order, which discloses the prior partition. Hence, the trial Court has committed an error in decreeing the suit of the plaintiffs. Hence, on these grounds he submits that the impugned judgment and preliminary decree is arbitrary and erroneous and hence on these grounds he prays to allow the appeal.
11. Per contra, learned counsel for the plaintiffs submits that the suit schedule properties are the ancestral joint family properties of plaintiff and defendants, no partition have been effected in between the plaintiffs and defendant. He submits that the defendant has produced the alleged partition deed as per Ex.D.3, he submits that the said document is surrounded by suspicious circumstances as the said document does not bear the date and month on which date the said document was executed. He also further submit that though, Ex.D.7 to Ex.D.13 are the mutation orders. Further in the said mutation orders there is a reference about the partition deed dated 11.08.1998. The defendant has not produced
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RFA No. 100225 of 2014the said documents before the trial Court in order to establish the prior partition. He submits that the partition deed produced by the defendant, Ex.D.3 does not bear the signature. Hence, the documents alleged to have been produced at the at the time of mutation proceedings is not Ex.D.3 but some other document. Hence, he submits that the trial Court was justified in holding and in recording the finding that the plaintiff and defendants are the members of Hindu joint family members and suit schedule properties are the ancestral properties of plaintiff and defendant. Hence, the judgment and decree passed by the trial Court is just and proper and does not call for any interference. Hence, prayed to dismiss the appeal.
12. Heard and perused the records and considered the submissions of the learned counsels for the parties.
13. The points that would arise for our consideration are as under;
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RFA No. 100225 of 2014
1. Whether the plaintiff proves that the suit schedule properties are the ancestral joint family properties of plaintiff and defendant No.1?
2. Whether defendant No.1 proves that during the lifetime of Ramappa he has effected a partition in between his male children ?
3. Whether the plaintiffs are entitled for share in the suit schedule properties ?
4. Whether the defendant proves that the judgment and decree passed by the trial Court is perverse and arbitrary and calls for any interference ?
5. What order or decree ?
Point Nos.1 and 2:
The point Nos.1 and 2 have taken together for common discussion since they are interlinked to avoid repetition of facts.
14. It is the case of the plaintiff that suit schedule A and B are the ancestral properties of plaintiff and defendants. The plaintiffs being the daughters of deceased Ramappa and other coparceners are entitled for share in
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the suit schedule properties. The plaintiffs demanded for partition and separate possession but the defendants refused to effect partition. The plaintiff in support of their case, plaintiff No.1 was examined as PW.1 she has reiterated the plaint averments in examination-in-chief. In support of their evidence plaintiff has produced documents i.e., RTC extracts in respect of property Sy. No.27, 257/1, 257/4, 63 and extract property list of site No.100/1 and site No.100/11/e.
15. We have perused the documents produced by the plaintiffs. Ex.P.1 is the RTC extract in respect of Sy. No.725 which stands in the name of DW.1. Ex.P.2 is the RTC extract in respect of Sy. No.257/1 stands in the name of defendant Nos.2, 4, 5, 6, 7 and 8 and defendant No.3 stands in the name of defendant No.3 Hanamanthappa and defendant Nos.14 and 15. Ex.P.3 is the RTC extract in respect of land bearing Sy. No. 257/4 which stands in the name of defendant Nos.2, 4, 5, 6, 7, 8 and 3 - Hanmanthappa, 9, 14 and, 15. Ex.P.4 is the RTC extract in
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RFA No. 100225 of 2014respect of land bearing No.63 which stands in the name of defendant Nos.2, 4, 5, 6, 7, 8, 3, Ex.P.5 is the RTC extract in respect of land bearing Sy. No.63, the said land stands in the name of aforesaid defendants and produced the property tax register marked at Ex.P.6, which discloses the name of defendant No.1 in respect of property bearing site No.100/11 and Ex.P.7 is the property tax register it pertains to site No.100/11/a stands in the name of defendant Nos.2 and 3. It is the case of the plaintiff that the suit schedule properties are earlier in the name of Ramappa, after his demise, the same lands were transferred in the name of defendants, though there was no partition. Nothing has been elicited from the mouth of this witnesses in regard to this. The defendant in order to prove the defence defendant No.1 was examined as DW.1, he has reiterated the averments made in the written statement in his examination-in-chief. But, in the course of cross-examination he admits as under;
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RFA No. 100225 of 2014
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QಾPೕ ಸ ಾಲು: L ೕ ಎಂಎ^ಐ ವ`ೕಲ6ಂದ ಾ ಯರ ಪರ ಾ%
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RFA No. 100225 of 2014
Aಾ6ೕಖು . . 1998 ೇ ಇEd' ಎಂದು ಬ2ೆದ ನಂತರ Vೆಳ;ೆ ನನ9 ತಂ ೆಯವರ Bೆಬ[P8ನ ಗುತು ಇರುವK ಲ. ಅಂದ2ೆ ಸ6. . .3 ವರ ಯನು9 :ಾರು (ದತು>) ಬ2ೆ ರುAಾ>2ೆ ಅನು9ವ ಬ;ೆ< ಅವರ Bೆಸರು ಇಲ ಅಂದ2ೆ ನನ;ೆ ;ೊ=>ಲ. . .3 ಾಖ ೆಯನು9 ಾ ೇ ತ:ಾ6EVೊಂಡು Bಾಜರುಪ Eದು, ಅಂದ2ೆ ಸ6 ಅಲ. . .3 ಾಖ ೆಯ ನನ9 ಸBೋದ6ಯ6;ೆ ಆE>ಯ ಏನು Qಾಲು VೊP8;ೆ ಮತು> ಅವ6;ೆ Qಾ ನ ಏ ೇನು ಆE>ಗಳನು9 VೊP8 ೆ ಅನು9ವKದನು9 BೇCಲ ಅಂದ2ೆ ನನ;ೆ ;ೊ=>ಲ, . .3 ವರ ಯ ನಮ? ತಂ ೆ ಆತನ Qಾ ;ೆ :ಾವK ೇ ಆE>ಯನು9 ಉCEVೊಂ ರುAಾ> ೆ. ಅನು9ವKದನು9 ಬ2ೆ ಲ."
16. In order to establish that there was a partition in the year 1990 the defendant has produced Ex.D.3 the said document is a un-registered document and further from the perusal of the said Ex.D.3 it does not discloses the date on which it was executed and further the defendants has produced the mutation register extract. From the perusal mutation register extract there is a reference about the document dated 04.05.1988 but there is no reference about Ex.D3. The documents produced by the defendants does not prove the factum of prior partition. Further in the course of cross-examination a suggestions were put to DW.1 in regard to Ex.D.3 but, the defendant went on answering that he does not know about
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RFA No. 100225 of 2014not mentioning of date in Ex.D.3 and also stated that, which are the properties allotted to the share of father and his brother. Hence, from perusal of the cross-examination it discloses that, defendant No.1 is not aware about the execution of Ex.D.3. Further, in order to prove the possession of defendant, the defendant examined four witnesses as DW.2 to DW.4 who have disposed regarding the possession of plaintiff over suit schedule properties. Though, the mutation entries has been effected in the name of defendant the said mutation entries are effected based on an untrue piece of evidence. The said mutation entries has no evidentiary value in the civil cases, in view of the law laid down in Hon'ble Apex Court in the case of Dhulabhai And Others vs The State Of Madhya Pradesh And Another reported in AIR 1971 SC 681.
17. As discussed above, we held that the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants.
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RFA No. 100225 of 2014
18. As observed above, the defendants have failed to prove the prior partition as per Ex.D.3 and we have already observed that mutation register extract have no evidentiary value in the eyes of law. In view of the above discussion we answer pointNo.1 in the affirmative and point No.2 in the negative.
19. Point No.3:
The trial Court considering the pleadings of plaintiff, evidence of PW.1 and documents produced by the plaintiff and also evidence of defendant No.1 has rightly held that the defendant failed to prove the prior partition and rightly recorded the finding that the suit schedule properties are the ancestral joint family properties of plaintiff and defendant and admittedly no partition was took place in between the plaintiff and defendant. Hence, the plaintiff being the co-parcenars by birth as per Section 6 of Hindu Succession Amended Act, 2005, the plaintiffs are entitled for share in the suit schedule properties. Hence, we do
- 21 -RFA No. 100225 of 2014
not find any grounds to interfere with the impugned judgment. Hence, we proceed to pass the following;
ORDER
i) Appeal is dismissed.
ii) The judgment and decree passed the
trial Court is hereby confirmed.
iii) No order as to the cost.
Sd/-
JUDGE
Sd/-
JUDGE
MBS para 1 to 4
PJ para 5 to end