Karnataka High Court
Shivagouda Appanna Belavi vs Neelappa Appanna Belavi on 9 February, 2018
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 09TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
R.S.A.NO.5257/2011
BETWEEN:
1. SHIVAGOUDA APPANNA BELAVI,
AGE: 79 YEARS, OCC: AGRICULTURE,
R/O AVARGOL - 591309,
TQ: HUKKERI, DIST: BELGAUM.
2. CHANABASAPPA SHIVAGOUDA BELAVI
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O YADUR - 591 213,
TQ: CHIKODI, DIST: BELGAUM.
3. CHANDRASHEKHAR SHIVAGOUDA BELAVI
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O AVARGOL - 591309,
TQ: HUKKERI, DIST: BELGAUM
4. RAJENDRA SHIVAGOUDA BELAVI
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O AVARGOL - 591309,
TQ: HUKKERI, DIST: BELGAUM
DHANYAKUMAR S/O SHIVAGOUDA BELAVI
SINCE DECEASED BY HIS LRS:
5. JAYASHREE W/O SHIVAPPA MAGADUM,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O KAMATNUR - 591 340,
TQ: HUKERI, DIST: BELGAUM.
6. MANJULA D/O SHIVAGOUDA BELAVI,
AFTER MARRIAGE KNOWN AS
SMT. MANJULA W/O. RAMESH SARANGI,
AGE: 37 YEARS, OCC: AGRICULTURE,
2
R/O BELAVI - 591 309,
NOW R/AT. AVARGOL - 591 309,
TQ: HUKKERI, DIST: BELGAUM.
7. KIRAN SHIVAGOUDA BELAVI,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O NAGARAL - 591 274,
TQ: HUKERI, DIST: BELGAUM
VINOD SHIVAGOUDA BELAVI
SINCE DECEASED BY HIS LRS:
ALREADY ON RECORD AS
APPELLANTS NO. 1 TO 7,
... APPELLANTS
(BY SRI.M. G. NAGANURI, ADVOCATE)
AND
NEELAPPA APPANNA BELAVI,
SINCE DECEASED BY HIS LRS,
1. SUSHILA W/O NEELAPPA BELAVI,
AGE: 59 YEARS, OCC: HOUSEHOLD,
R/O: AVARGOL - 591 309,
TQ: HUKERI, DIST: BELGAUM.
2. SHILPA DINESH BELAVI,
AGE: 27 YEARS, OCC: HOUSEHOLD,
C/O BHIMAGOUDA KADAPPA MADAGOUDA,
R/O SHIRAGAON - 591 309,
TQ: HUKERI, DIST: BELGAUM.
3. GOPAL NEELAPPA BELAVI,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: AVARGOL - 591 309,
TQ: HUKERI, DIST: BELGAUM
4. SUREKHA W/O SADASHIV TUKKANATTI,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O: NERALI - 591 340,
TQ: HUKERI, DIST: BELGAUM.
5. SUBHASH SHANKAR BELAVI
AGE: 62 YEARS, OCC: AGRICULTURE,
3
R/O: AVARGOL - 591 309,
TQ: HUKERI, DIST: BELGAUM.
6. KADAPPA SHANKAR BELAVI
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: AVARGOL - 591 309,
TQ: HUKERI, DIST: BELGAUM
7. BASALING SHANKAR BELAVI
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: AVARGOL - 591 309,
TQ: HUKERI, DIST: BELGAUM
8. SHIVAPUTRA SHANKAR BELAVI
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: AVARGOL - 591 309,
TQ: HUKERI, DIST: BELGAUM
KEMPANNA BASAVANNI BELAVI,
SINCE DECEASED
HIS LRS NOT BROUGHT ON RECORD
IN THE TRIAL COURT.
BABU BASAVANNI BELAVI
SINCE DECEASED
HIS LRS NOT BROUGHT ON RECORD
IN THE TRIAL COURT.
9. MOHAN APARAI BELAVI
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: AVARGOL - 591 309,
TQ: HUKERI, DIST: BELGAUM
RACHAYYA KADAYYA MATHAPATI
SINCE DECEASED
LRS NOT BROUGHT ON RECORD
IN THE TRIAL COURT
BASALING MALLAPPA GURAV
SINCE DECEASED
HIS LRS NOT BROUGHT ON RECORD
IN THE TRIAL COURT.
4
BALAPPA BASAPPA KARAGUPPI
SINCE DECEASED
HIS LRS NOT BROUGHT ON RECORD
IN THE TRIAL COURT.
BASAVANNI SHIVARUDRA KARAGUPPI
SINCE DECEASED
HIS LRS NOT BROUGHT ON RECORD
IN THE TRIAL COURT
10. KEMPANNA SANGAPPA ANKALI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: AVARGOL - 591 309,
TQ: HUKERI, DIST: BELGAUM
GHOOLAPPA GANGAPPA ANKALI
SINCE DECEASED
HIS LRS NOT BROUGHT ON RECORD
IN THE TRIAL COURT
SAVALARAM LAXMAN MALE
SINCE DECEASED
HIS LRS NOT BROUGHT ON RECORD
IN THE TRIAL COURT
... RESPONDENTS
(BY SRI.JAGADISH PATIL, ADVOCATE FOR R1-R4;
R5 TO R7, R9 & R10- NOTICE SERVED; R8 - DISMISSED)
THIS RSA IS FILED UNDER SECTION 100 OF CIVIL
PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE
DATED 30.08.2010 PASSED IN R.A.NO.8/2007 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT - I, AT
CHIKODI, ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT DATED 10.01.2007 AND THE DECREE PASED IN
O.S.NO.22/1997 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AT
HUKKERI, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
5
JUDGMENT
The present Regular Second Appeal has been preferred by the defendants/appellants challenging the judgment and decree passed by the Fast Track Court - I, Chikodi in R.A.No.8/2007 dated 30.08.2010 whereunder the judgment and decree dated 10.01.2007 passed in O.S.No.22/1997 on the file of the Civil Judge (Sr.Dn), Hukkeri was allowed in part by awarding half share of the plaintiff in schedule 'A, C & D' properties and insofar as the claim under schedule 'B' property came to be rejected. Being aggrieved by the same, the present appellants are before this Court.
2. Though the matter is listed for orders, with the consent of the learned counsel for the parties, it is taken up for final disposal.
3. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.
4. The brief facts are that the original plaintiff, Sri. Neelappa Appanna Belavi, filed a suit against the appellants/defendants and other respondents seeking 6 partition and separate possession in suit schedule "A to D"
properties. Earlier, the suit was filed in Chikodi court and subsequently, it was transferred to Civil Judge (Sr.Dn) Hukkeri. It is the contention of the plaintiff that R.S.No.3A/1 and 3B/1 were joint family properties held by his father, Sri. Appanna and the defendant No.10 is a tenant, and remaining 'A" schedule properties were held by the father of the plaintiff, Sri. Appanna, as a tenant. It is further contended that the Land Tribunal granted occupancy right in fovour of the father of the plaintiff and schedule 'B' lands are the ancestral properties. Out of the said lands, the plaintiff and defendant No.1 have full share in R.S.No.3A/6 and 1/3rd share in the remaining lands. It is further contended that 'C' schedule properties were purchased by his father under a registered sale deed dated 28.09.1966 and land bearing R.S.No.191/2 was purchased by the father of the plaintiff, Sri. Appanna in the name of Sri. Channabasappa/defendant No.2 under a registered sale deed dated 28.11.1965, and the land bearing R.S.No.191/1B was purchased in the name of defendants No.2 and 3 and 7 deceased Dhanyakumar and Vinod. Suit schedule 'D' properties are the house properties. It is further contended by the plaintiff that there is no partition by metes and bounds and as such in order to have a share in the properties, he filed a suit for partition and separate possession.
Defendant No.1 to 4 have filed their written statement by refuting the contents of the plaint and description of the suit properties. They have further contended that the plaintiff has not included all the properties in the suit, and the landed properties at Nagaral village. The said properties are not purchased by deceased Sri. Appanna and they were purchased by the defendant No.1 out of his salaried income. He further contended that the plaintiff has no right whatsoever over the other properties. He further contended that the defendant No.5 and 6 died long back and suit filed against dead persons is not maintainable and it has been abated and suit suffers from mis-joinder of necessary parties. On these grounds they prayed for dismissal of the suit.8
The original plaintiff got examined himself on 18.09.1999 but subsequently he did not offer himself for cross-examination and thereafter the 1st defendant was examined as D.W.1 and got marked documents as per Ex.D1 to D9, but he was not cross examined by the plaintiff and after hearing the parties, the Civil Judge (Sr.Dn) Hukkeri decreed the suit on 10.01.2007. Being aggrieved by the said judgment and decree, the appellants No.1 to 5 preferred an appeal in R.A.No.8/2007 and in the said appeal, the impugned judgment and decree came to be passed. Challenging the same, the appellants are before this Court.
5. The main grounds urged by the learned Counsel Sri. M.G.Naganuri, are that though the original plaintiff came to be examined in chief on 18.09.1999, he did not offer himself for cross-examination, then under such circumstances, the Trial Court by exercising the power under Order IX Rule 8 of CPC could have dismissed the suit instead of proceeding to decree the same. He further contended that there was no question of giving an opportunity to examine the defendants in the said suit. The 9 order of the Trial Court is erroneous and there is a procedural irregularity and in that light, the judgment and decree passed by the Courts below is not sustainable in law and the same is liable to be set aside. He further contended that the description of the property which has been given in schedule 'D' is also not correct. He further contended that no such Nagaral village is in existence in Hukkeri Taluka, but in spite of wrong description of the property, the Trial Court without noticing the same has decreed the suit. He further contended that even in schedule 'A' properties, at Sl.No.1 and 2 of Avaragol village, half share has been given to the plaintiff and defendant No.1 to 6. While giving half share to the plaintiff and defendants as prayed, no description of the property has been mentioned as to what is the extent of half share which has been given to them. He has further contended that when the suit itself ought to have been dismissed, then under such circumstances, the decree in the said suit and allowing the appeal by the First Appellate Court is erroneous and there is a procedural irregularity in this behalf. He further contended that the judgment and 10 decree passed by the First Appellate Court is an unreasoned decision it did not record the cogent reasons to grant the relief of partition in favour of respondent No.1 to 4 in respect of suit schedule 'A, C & D' properties. He further contended that the judgment and decree passed by the First Appellate Court is cryptic and without any reasons and on these grounds he prayed for allowing the appeal by setting aside the impugned judgment and decree passed by the First Appellate Court as well as the judgment and decree passed by the Trial Court.
6. Per contra, the learned counsel Sri. Jagadish Patil, who is appearing on behalf of the respondents vehemently argued by contending that the plaintiff has filed a suit for partition of the ancestral properties. Though the plaintiff did not offer himself for cross-examination, but the defendant got examined and he can step into the shoes of the plaintiff, as in a suit for partition all the plaintiffs and defendants will become plaintiffs and under such circumstances, the Court can decree the suit and allot the shares. He further contended that the First Appellate Court 11 as well as the Trial Court, after considering and appreciating all the facts and circumstances, have rightly came to the conclusion that there was no partition and the suit properties are liable to be partitioned and accordingly, the properties have been proportionately partitioned by virtue of the judgment and decree. The appellants have not made out any good grounds to interfere with the order of the Trial Court. On these grounds he prayed for dismissal of the appeal.
7. On the above submissions made by the learned counsel appearing for the parties, the substantial question of law which arises for consideration of this Court is as under:-
"Whether the Courts below have erred in law in not observing the provisions of Order IX Rule 8 of the CPC and have erroneously decreed the suit?"
8. The first and foremost contention raised by the learned counsel appearing for the appellants is that the original plaintiff came to be examined in chief on 18.09.1999, however he did not offer himself for cross- examination. Under such circumstances, the suit ought to 12 have been dismissed instead of decreeing the same. For the purpose of clarity, I quote Order IX Rule 8 of the CPC, which reads as under;
"8. Procedure where defendant only appears.- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."
9. On close reading of Order IX Rule 8 of CPC it makes very clear that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order of dismissal of the suit, provided that if the defendant has admitted part of the claim. In the instant case on hand, admittedly the original plaintiff examined in chief on 18.09.1999 and thereafter he did not offer himself for cross-examination. When he himself has not offered for cross-examination, then his evidence has no value in the eye of law and only remedy left open to the Court is to dismiss the suit as contemplated under Order IX 13 Rule 8 of the CPC but instead of doing so, the Trial Court has further posted the case for defendant's evidence and the defendant was examined and the plaintiff has not cross- examined him and by considering that particular evidence, the Trial Court has decreed the suit, which appears to be a procedural error on the part of both the Courts below. When the said fact was in existence, the First Appellate Court ought to have observed the said fact and at least it could have either dismissed the suit or it could have remit back the matter for fresh consideration. Instead of doing so, the First Appellate Court has also erred by allowing the appeal and modified the decree passed by the Trial Court as stated above. Even it is the contention of the learned counsel for the appellants that the description of the property is not correctly mentioned by the plaintiff. In a suit for partition, when the particulars as to properties are not properly mentioned in the plaint, then under such circumstances, the suit of the plaintiff is liable to be dismissed under Order VII Rule 8 of CPC. The said aspect has also not been noticed by the Trial Court as well as the First Appellate Court. In this 14 behalf there is violation of the application of proper law by both the Courts below.
10. Be that as it may, there is dispute with regard to the property whether they are tenanted properties or the self-acquired properties of the defendant No.1. So in this behalf, no specific issues have been framed by the Courts below so as to address to the issues specifically. In this behalf there is no reasoning and consideration of the pleadings by the Trial Court and by ignoring all these things the Trial Court has decreed the suit as well as the First Appellate Court has partly allowed the appeal by modifying the judgment and decree passed by the Trial Court. In this behalf the Trial Court and the First appellate Court have not applied their mind to the facts and circumstances of the case and the law, which is in force as on the date of the suit. The appellants have made out a case that the judgment and decree passed by the Trial Court and the First Appellate Court are erroneous and procedure has not been followed in accordance with law. At this juncture, the learned counsel appearing on behalf of the respondent/plaintiff submits that 15 if the appeal is allowed and the suit is dismissed, then under such circumstances, greater hardship is going to be caused to the plaintiffs/respondents and anyhow admittedly there is no partition in the family and again they have to file a suit for partition to get the properties partitioned among the heirs of the deceased Appanna. Instead of that, the matter may be remitted back to the Trial Court with a direction that the plaint schedule properties and other pleadings to be set right in accordance with law and by giving full opportunity to both the parties to the suit may be adjudicated and decided on merits. Even the learned counsel appearing on behalf of the defendants/appellants endorse the same in the best interest of both the parties. By going through the records and the judgment and award passed by the Trial Court as well as the First Appellate Court, it appears that so many aspects have not been looked into by both the Courts below. It is well settled principle that if a suit for partition is dismissed on technical reasons, then under such circumstances, the plaintiff can file one more suit by rectifying the defects in the suit and the second suit is not barred. Under these 16 circumstances, I am of the view that instead of allowing the plaintiffs to go for a fresh suit, I feel it just and necessary to set aside the judgment and decree in respect of all the issues and remand the matter to the Trial Court by giving opportunity to the plaintiffs to include all the properties properly with appropriate description and also include all the parties who are necessary in this behalf and then thereafter proceed in accordance with law. If it is done, then under such circumstances, the plaintiff as well as the defendants will get an effective decree from the competent court. Keeping in view the above said facts, the substantial question of law which has been framed is answered in the Affirmative and I proceed to pass the following;
ORDER The appeal is allowed and the judgment and decree dated 30.08.2010, passed by the Fast Track Court - I, Chikodi in R.A.No.8/2007 and the judgment and decree dated 10.01.2007 passed by the Civil Judge (Sr.Dn), Hukkeri in O.S.No.22/1997 are hereby set aside in its entirety and the entire matter is remitted back to the Court of the Civil 17 Judge (Sr.Dn), Hukkeri with a direction to enable the plaintiff to include all the properties, parties and description of the properties in the plaint, in accordance with law, and then thereafter dispose the suit for partition as contemplated in law.
No order as to costs.
Sd/-
JUDGE yan