Karnataka High Court
Lalitavva vs Hoisala on 21 September, 2022
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 1146 of 2006
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR FIRST APPEAL NO. 1146 OF 2006 (PAR-)
BETWEEN:
1. LALITAVVA
WIFE OF BHARAMAGOUDA BUDER
AGED ABOUT 54 YEARS, OCC:AGRICULTURE
R/O UKKADAGATRI, HARIHAR TALUK
DAVANAGERE DISTRICT
2. SMT MANJAVVA W/OF BASAVARAJAPPA HARIGIHALLI
AGED ABOUT 46 YEARS
OCC:AGRICULTURE,R/O CHURCHGUNDI,
SHIKARIPUR TALUK,SHIMOGA DISTRICT
3. SMT SHIDDAVVA WIFE OF SOMANAGOUDA PATIL
AGED ABOUT 44 YEARS, OCC:AGRICULTURE
R/O TADAKANAHALLI,HIREKERUR TALUK
HAVERI DISTRICT
Digitally signed
by J MAMATHA
4. SMT JAYAMMA WIFE OF SHIVANAGOUDA PATIL
J Location: AGED ABOUT 36 YEARSOCC:AGRICULTURE,
Dharwad
MAMATHA Date: R/O TIMALAPUR, HIREKERUR TALUK,
2022.09.27
12:35:53 +0530 HAVERI DISTRICT
...APPELLANTS
(BY SRI. C.S.SHETTAR, FOR
SRI G.K.HIREGOUDAR, ADVOCATES)
AND:
1. HOISALA
SON OF RAMANAGOUDA YAKKEGUNDI
FALSELY ASSERTING AS ADOPTIVE SON
OFSANNIRAPPA YEKKEGUNDI,
AGED ABOUT 28 YEARS
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RFA No. 1146 of 2006
R/O HIREKERUR, HIREKERUR TALUK
HAVERI DISTRICT
2. RAMANAGOUDA DODDIRAPPA YEKKEGUNDI
SON OF DODDIRAPPA YEKKEGUNDI
AGED ABOUT 64 YEARS
R/O HIREKERUR,HIREKERUR TALUK
HAVERI DISTRICT
3. SHEKHARAPPA DODDIRAPPA YEKKEGUNDI
SON OF DODDIRAPPA YEKKEGUNDI
AGED ABOUT 50 YEARS
R/O HALYAL,HIREKERUR TALUK
HAVERI DISTRICT
4. SMT SUVARNA
WIFE OF RAMANAGOUDA YEKKEGUNDI
AGED ABOUT 59 YEARS
R/O HIREKERUR, HIREKERUR TALUK
HAVERI DISTRICT
5. SMT PARVATEVVA
WIFE OF IRAPPA HALAGEPPANAVAR
AGED ABOUT 67 YEARS
R/O UKKADAGATRI, HARIHAR TALUK
DAVANAGERE DISTRICT
...RESPONDENTS
(BY SRI. N.R.KUPPELUR, ADV. FOR R1 AND R2,
SRI A L DESAI AND S L DESAI, ADVOCATE FOR R4,
R3 AND R5 ARE SERVED)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.28.01.2006 PASSED IN
O.S.NO.61/1997 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
AND PRL.JMFC., RANEBENNUR, PARTLY DECREEING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 1146 of 2006
JUDGMENT
Heard the learned counsel appearing for the appellants and also the learned counsel appearing for respondents 1 and
2. Learned counsel for respondent No.4 is absent and respondents 3 and 5 though served are unrepresented.
2. The factual matrix of the case of the appellants/plaintiffs have filed the suit before the trial Court claiming that they are the legal heirs of Sannairappa who is the second son of original propositus, Doddamallappa. The said propositus was having 3 sons by name Doddirappa, Sannairappa and Rudrappa. After the death of original propositus Doddamallappa, there was a family arrangement among the above mentioned three sons of Doddamallappa and they were enjoying their 1/3rd share of the properties along with their family members.
3. It is contended that the first son of late Doddamallappa, namely Doddirappa and his wife died living behind two sons, who are respondents 2 and 3 herein, to succeed to their estate. Further, the second son of late Doddamallappa also died leaving behind his wife, who is plaintiff No.1 in the original suit before the Court below and appellants 1 to 4 and respondent -4- RFA No. 1146 of 2006 No.5 to succeed to his estate. In the said suit also, the plaintiffs have contended that there was no adoption in their family and that the defendant No.1 is not the adopted son of the 1st plaintiff and her husband. Hence, prayed the Court to declare that the said adoption is null and void and no adoption ceremonies had taken place and apart from that plaintiffs have also contended that the 5th defendant and plaintiffs became the owner in possession of the suit schedule properties after the death of Sannairappa by inheritance. The plaintiffs also contended that the alleged adoption deed dated 07.11.1992 is not binding on them.
4. The defendants in pursuance of the suit summons appeared and defendant No.2 filed the written statement denying the allegations made in the plaint. A memo was filed by the learned counsel for the defendants that the written statement filed by defendant No.2 is adopted by the other defendants. It is also contended that the genealogy furnished by the plaintiffs is not correct and the court fee is also not paid properly.
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5. Based on these pleadings, the trial Court has framed the following issues :
1) Whether plaintiff proves that 1st defendant is not the adopted son of the 1st plaintiff and her deceased husband Sri.Sannairappa?
2) Whether further plaintiffs proves that, there is no adoption ceremonies taken place with regard to adoption of the 1st defendant?
3) Whether plaintiffs proves that themselves and 5th defendants became the owner and possessor of the suit schedule 'K' and 'ya' property after death of Sannaerappa by inheritance?
4) Whether Defendant proves that, Genealogical tree produced along with plaint is not correct?
5) Whether defendants proves that the court fee paid by the plaintiff is not proper?
6) Whether defendants proves that the suit filed by the plaintiffs is not maintainable either in law or on facts as the plaintiffs for seeking the remedies on various reliefs?
7) Whether 1st plaintiff proves that the adoption deed executed by the 1st plaintiff and her husband deceased SannaErappa in favour of the 1st defendant Dated: 07-
11-1992 is not binding on her?
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8) Whether plaintiffs are entitled for the reiief as prayed for?
9) What order or decree?
6. In order to prove their case, 4th plaintiff Smt.Siddavva and one witness were examined as PWs-1 and 2 and got marked document Ex.P.1 to Ex.P.32 and closed their side evidence. Thereafter, the 1st defendant and his 3 witnesses were examined as DWs 1 to 4 and got marked documents Ex.D.1 to Ex.D.6. The trial Court after assessing both oral and documentary evidence has come to the conclusion that the plaintiffs have failed to prove that the 1st defendant is not the adopted son of the 1st plaintiff and her deceased husband Shri Sannairappa and also plaintiffs have failed to prove that no adoption ceremonies were taken place with regard to adoption of 1st defendant and accordingly answered issue Nos.1 and 2 as negative. However, answered issue No.3 in coming to the conclusion that the plaintiffs themselves have proved that after the death of Sannairappa themselves and 5th defendant became the owner and possession of the suit schedule K and Y property by inheritance.
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7. The plaintiffs have approached this Court by filing this appeal wherein it is contended that the trial Court failed to frame proper issues on the question of adoption and the trial Court should have appreciated the fact that Sannairappa was the absolute owner of the suit schedule K and Ya properties along with schedule A (4) property. Hence, the finding given by the trial Court with respect to schedule K and Ya properties without allotting the shares in schedule A(4) property is illegal and contrary to the facts and evidence on record. It is also contended that name of respondent No.1 has not been changed from the family of his original father to that of the family alleged adoptive father. If the adoption has really taken place the name of respondent No.1 ought to have changed and the name of the father ought to have changed from his original father to that of his adoptive father. But, in the instant case the name of father of the appellant has not been changed till today which ought to have been changed if the adoption has really taken place.
8. Learned counsel for the respondents would vehemently contend that the trial Court has committed an error in granting the relief of declaration in respect of 'K' property of item No.1. -8- RFA No. 1146 of 2006 Learned counsel for respondents 1 and 2 would submit that that they are the self acquired property of their father Doddirappa and counsel placed reliance upon the mutation entry with regard to the said fact.
9. But it is also observed by this Court that no specific defence is taken in the written statement that the same are self acquired property of Doddirappa and also on perusal of the judgment of the trial court in respect of item No.4 of the schedule property, it is claimed by the plaintiffs that the same is self acquired property of the plaintiff's father i.e., Sannairappa and the same has not been decided. Both the learned counsel does not dispute the fact that in respect of item No.4 of A schedule property and in respect of B schedule property which is situated at Tadakanahalli, no finding was given. On perusal of the judgment, decree is made in respect of A schedule property particularly item Nos.1 to 3 and counsel appearing for the respondents would submit that in respect of B schedule properties documents are standing in the name of the Doddairappa but learned counsel appearing for the plaintiffs submits that it is standing in the name of Erappa. Whether it is Sannairappa or Doddairappa, no such material is placed and -9- RFA No. 1146 of 2006 the trial Court has not given any finding in respect of the B schedule properties and only dispute now before the Court is that schedule K property which is to the extent of 4 acres 33 guntas and the claim is made by the respondents 1 and 2 that the said property is the self acquired property of Doddairappa but decree has been granted in favour of the plaintiffs in respect of both items of 'K' property but it is observed in the order that item Nos.1 to 3 of 'A' schedule property are fallen to the share of the father in the partition taken place in the year 1964 but while passing an order comes to the conclusion that item Nos.1 and 2 of 'K' properties belonging to the plaintiffs and no definite finding is given. When such being the case and when there is no prayer in respect of the B schedule property by the plaintiffs, the matter requires to be remanded to the trial Court to consider the matter in respect of item No.4 of the property which has been claimed by the plaintiffs i.e., it is their self acquired property and also in respect of the item No.1 of the property, respondents 1 and 2 claims that they are the self acquired property of Doddairappa i.e., K1 property and the same is also undecided by the trial Court.
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RFA No. 1146 of 2006
10. It is made clear that though it is contended by the appellants' counsel that the finding given by the trial Court in answering issue Nos.1 and 2 i.e., the adoption has not been proved, cannot be accepted for the reason that the very first plaintiff is the signatory to the document of adoption deed and hence no grounds to set aside the finding of the trial Court in respect of issue Nos.1, 2 and 7 but the matter is only remanded to consider the specific contention of K1 property and also in respect of the property of A4 i.e., regarding Sy.No.26 1+2 and also in respect of the 'B' schedule properties since there is no finding with regard to the B schedule properties and if any amendment is required to be made, an opportunity has to be given to both the plaintiffs as well as respondents 1 and 2 before the trial Court and record further evidence and give finding which have not been given in respect of item No.4 of A schedule property and also no finding is given in respect of the 'K' item No.1 of the property and B schedule and for this limited purpose, matter is remanded to the trial Court.
11. It is also observed that no finding is given by the trial Court in respect of the other items of properties i.e., Da, E, Ra,
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RFA No. 1146 of 2006 Ka, La and hence the trial Court has to give definite finding with regard to the other remaining properties after affording opportunities to the respective parties.
12. In view of the above discussion, I pass the following:
ORDER
i) The appeal is allowed,
ii) The matter is remanded to the trial Court and the trial Court has to give definite finding with regard to the other remaining properties after affording opportunities to the respective parties as observed in the order for limited purpose,
iii) Since, the suit is of the year 1997, it is appropriate to direct the trial Court to dispose of the matter within a period of six months.
iv) The parties are directed to appear before the trial Court on 02.11.2022 without expecting any separate notice.
v) The trial Court is also directed to dispose of the matter within a period of six months from 02.11.2022 and no further time will be extended.
vi) The respective counsels and the parties shall also assist the trial Court in disposal of the
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RFA No. 1146 of 2006 matter within the stipulated time and extend cooperation to the trial Court.
vii) Registry is directed to send the TCR forthwith.
(Sd/-) JUDGE JM List No.: 1 Sl No.: 5